Litigating the Constitution in a Divided Society

The UK’s decision to exit the European Union has triggered much constitutional uncertainty in the UK; the victory of the Conservative Party in the 2019 general election may have settled some uncertainties but fundamental tensions exist. Not least this relates to the fact that two constituent parts of the UK – Scotland and Northern Ireland – voted against Brexit. Even more tensions emerge in relation to Northern Ireland, because Brexit risks unpicking elements of the Good Friday Agreement and peace process. Certainly the UK’s exit from the EU exposes problems in some ways of implementing the Agreement in the UK. Individuals, civil society and political figures have used litigation to ensure that the exit takes place compatibly with the rule of law and with the Good Friday Agreement, as well as initiating litigation around the frequently unexamined ‘birthright’ provision of the Agreement that recognises the right of the people of Northern Ireland to be British or Irish or both.

Constitutionalism and Masses. View on/from Poland

Contemporary constitutional theory treats masses with great suspicion. They are only necessary to legitimize the “constitutional moment”. The dominant liberal theory sees masses as too unstable and irrational to participate in constitutional practice. Constitutionalism needs mass support but marginalizes masses as political actor. However, the mass protests taking place in Poland since 2016 show a new emerging dynamic. Here, masses try to influence the constitutional order not only negatively, blocking planned political actions, but also positively, trying to change understandings of fundamental rights and rule of law. However, to enable positive influence, institutionalizing the masses is necessary. Crucial in this is the reaction of government, courts and other political actors, who may support, restrain, ignore or take over the protests. Such institutionalization is disregarded by constitutionalism, but it is indispensable to ensure democratic pluralism.

O Lungo Drom / taking the long route: Explaining the potential of legal mobilization as counterpower

O Lungo Drom means “the long route”, inspired by the traditions and persecution experienced by the community of Sinti, Roma and Travelers (RST) in Europe. The community’s persistent use of legal advocacy to claim recognition and protection has produced promising results in the Netherlands. Legal advocacy poses a challenge for civic groups to address rule of law deficits. Legal mobilisation in both liberal and authoritarian regimes reveal limitations of using formal rule of law mechanisms to deliver impartial justice, forcing one to think creatively. The broad conceptualisation of legal mobilisation we use encompasses different forms of legitimate, law-based, civic-led advocacy. In this paper, we introduce an analytical lens of legal mobilization that places particular emphasis on using law as counterpower. With a focus on legal mobilisation by the RST community, we critically analyse the viability of civic-led advocacy and its relation to the separation or balance of powers doctrine.