Symposium on Protest and Legal Mobilization: Protest as Rule of Law Engagement – Reflections on Protest as Legal Mobilization

[Sanne Taekema is Professor of legal theory at Erasmus School of Law]

In April 2025, there was a two-day workshop in Oñati on Legal Mobilization and Infrastructures of Protest Culture. Spending two days discussing protest and legal mobilization left my head spinning. Coming into this workshop as a co-organizer and discussant, I felt my ideas about the meaning and significance of mobilizing the law were confirmed and challenged at the same time. The discussions confirmed my idea that legal mobilization needs to be understood in a political context, both as a multifaceted engagement with law to push for change and as an analytical tool to understand law as part of social and political practices.

The discussions challenged my ideas on how the rule of law is implicated in legal mobilization, especially when it comes to protest as a legal mobilization tactic. Rule of law considerations come to the fore in policing protest, in freedom of speech guarantees, and in issues of civil and uncivil disobedience. Rule of law as an ideal to fight for, to take to the streets, is much less prominent. A possible way to understand why is by comparing how three foundational, and interrelated, values of constitutional states relate to protest: democracy, human rights, and the rule of law. These three values have a different relationship to two central components of protest, bodily experience and symbolic action, which I explore in this blog post.

Protest, as a principal form of political mobilization, is intertwined with democracy. Mass protests in the street are a necessary counterpart to the representative democracy of elections and parliaments. In the constitutional discourse on protest, and the jurisprudence of international courts (European Court of Human Rights 2003 Djavit An v Turkey) on the right to assembly, the democratic function of protest is paramount. Coming together in groups to show, physically, that a substantial segment of the population has demands from government that are not addressed in the representative system is the democratic right par excellence. Protests quite literally are mass events, assembling a mass of bodies to show the extent of support and the weight behind an issue. In this, they amplify the bodily presence that is central to protest: being there, being together, being a massive group. Such a collective experience engages the emotional state of protesters, giving rise to self-transcendence and feelings of solidarity.

Yet, protests are not only meant to bring a group together: they have an audience outside that is addressed. Who that audience is, may differ: politicians or policy makers are the primary audience when a direct change is called for, but the broader public may also be addressed, as fellow citizens invited to share the point of view of the protesters. To understand how protests are part of democratic debate, it is helpful to pay attention to the rhetoric of protest. Here, the question is how protest may convince an audience, and for this too emotional engagement is a key component. For this, the classical rhetorical tool of pathos is used in the form of explicit symbols that invite an audience to feel a more direct emotional connection, not just to the issue itself but also to the movement as a group with which you might identify. To communicate the essence and urgency of a protest, distinct images that signify the essence of a protest can convey its importance and urgency: the fist of Black Lives Matter, the ‘We are the constitution’ signs of the Polish movement, the Baltic way – the human chain holding hands in the Baltic states, the red line demonstrations for Gaza. All of these have a symbolic pars pro toto to make their claims stick. While we can look at democratic protests as political claims and analyse which actions and demands are effective in achieving political change, such a narrow view does not quite capture the phenomenon of protest. In addition to  working towards political change, protests are important to broaden and strengthen social movements. Moreover, understanding the symbolic dimension and the emotional engagement helps to see the challenges in legal protest. How can a legal issue be captured in a symbol and how can people relate to it emotionally?

Linking protest to democracy leads me to consider what this means in terms of legal mobilization, which in turn brings me to the second foundational value of constitutional legal orders: human rights. Legal mobilization is very often rights-oriented, and success stories of mobilizing the law are stories of the expansion and proper application of human and civil rights. Human rights form the backbone of constitutional orders, but they are also powerful in shaping protest. Human rights violations are often direct infringements of the integrity of persons, and are at their most abhorrent when the body is harmed. The image of the student at Tienanmen square facing a row of tanks captures human frailty – and courage – in the face of oppression. One key difference, it seems, between the democratic and the human rights importance of bodily experience is the collective versus the individual focus: the human rights symbol is the individual’s experience of injustice and the emotional response it evokes is the indignation about the harm of a person. Rhetorically, this may make the emotional appeal of a human rights campaign stronger: it engages the human impulse to connect to a particular person. People might not have felt as strongly about the war crime of using napalm in Vietnam without the image of Phan Thi Kim Phúc. The human rights focus of protest seems a necessary one in the context of widespread oppression by authoritarian regimes that make mass protests impossible. A human rights angle may also tap into the universal promise of human rights and activism across borders. Protesting elsewhere does not put equal pressure on a state’s rules, but it may activate others and create indirect pressure. Solidarity with dissidents can often not be shown in a directly physical manner but needs to be captured in a way that can be shared without physically coming together.

The distinctiveness of human rights and democracy should not be overstated, however. In many campaigns, we see broad political claims and protection of human rights converge: Black Lives Matter has its political symbol, but it was fueled by the injustice of the death of George Floyd. The image of Floyd became a focal point of a much broader movement. The fusion of democratic and human rights symbolism is perhaps best exemplified by the Civil Rights Movement: the collectivity of the march on Montgomery and the individual action of Rosa Parks together symbolize its claims, both also having the directness of the bodily experience of injustice. Such campaigns show the interconnectedness of human rights and democratic change, and the way in which human rights issues have a political dimension in requiring legislative and policy change.

Turning to the rule of law, the story changes. We have seen specific rule of law protests, in Poland and Israel, where the attacks on the judiciary became the centre of demonstrations. Here, however, the direct emotional appeal and bodily impact are much less visible. One reason may be the core of rule of law as a value: tempering power by making it rationally justified and restrained by rules and organized in institutions. The bodily aspect of democratic solidarity and the bodily impact of human rights are absent here. It is difficult to attach to the rule of law an image that can be a direct symbol of institutional undermining and deterioration of rule-based conduct. Threats to the rule of law tend to be systemic and it is mostly damaged incrementally by removing limits on power one by one. That said, the current rise in authoritarianism worldwide makes it necessary to protest and to find such symbols. Here, I see promise in the Serbian and Romanian protests against government abuse of power; these responded to disasters caused by government neglect and inaction, the collapse of a railway station canopy in Novi Sad and a fire in a nightclub in Bucharest. Here, human tragedy could be clearly linked to systemic failures, the kind of rule of law failures we need to rally against across the world.

What such protests show, and this is equally the case in the protests discussed in other contributions of this blog symposium, is how the three values of democracy, human rights and rule of law may work together. Although the rule of law does not easily become the focal point of protest, if things are serious enough – and they currently are – people will take to the streets to defend it. Such rule of law protests are then not only supported by democratic and human rights forms and symbols, but they also offer the rule of law as a building block of a democratic and rights-based society. Protest for the rule of law needs the alliance with the solidarity of democracy and the dignity of human rights to make the emotional appeal and bodily connection. When such connections are forged, rule of law protest is just as meaningful, and hopefully a force for change.