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.

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

The dominant, liberal constitutionalism believes that masses are too emotional and irrational to participate in constitutional practice. However, when observing the populist mobilisation (Law and Justice government) and counter, mass protests that have been taking place in Poland ('Black Protest' and protests in defence of the judiciary 2016-2020), one can see a new dynamic emerging between the masses and constitutionalism.
Masses try to influence the constitutional order not only negatively, by blocking planned political actions, but also positively, by trying to change the understanding of fundamental rights and the rule of law. However, in order to have a positive influence, the institutionalization of the masses is necessary (the emergence of leaders, organized movements, political parties). The need for such institutionalization is disregarded by constitutionalism and indispensable for ensuring democratic pluralism.

Legal education in Poland and politics of conflict

Many researchers stress that the political transformation in Central and Eastern Europe is closely linked with the demise of post-communism, i.e. with the change of political divisions typical of the so-called Eastern Block into cultural and ideological divisions and conflicts which we associate with western democracies. The emergence of new conflicts resulting from cultural divisions is bound to leave its mark on legal education reform. However, legal education in Poland tends to be dominated by analytical positivism, which the conflict of values perceives as threats to the stability of legal reality. As a result, legal education implicitly supports a legal formalism that sees the law's indeterminacy as an inherent character of law rather than a natural condition of the broader social context.