Symposium on Protest and Legal Mobilization: Reimagining the Rule of Law Through Mass Protest

[Michał Stambulski is an Assistant Professor in legal theory at Erasmus School of Law, Erasmus University]

Contemporary conflicts over democracy play out on two intertwined planes. In the streets, they are intensely kinetic: bodies of protesters and police collide in public space while livestreams and viral clips race through social-media feeds, competing for attention and spurring fresh waves of mobilisation. Echoing Hong Kong’s maxim that protest should “be like water,” these movements flow around obstacles, spreading through streets and digital feeds alike. At the same time, the struggle unfolds in a constitutional register. Each side frames its own actions as lawful and the others as illegitimate. At least from the 2011 Arab Spring we are observing the shift in contestation movements from utopian anti-capitalist slogans to the language of human rights and the rule of law. In response governments—especially in European states subject to regional human-rights regimes—rarely ban protest outright; instead, they deploy an expanding web of administrative rules, permit hurdles, surveillance measures, and punitive fines that make assembling ever harder without formally criminalising dissent. Such measures drain protests of their energy, cast them as procedurally improper, and tighten the grip of power while maintaining a veneer of legality. Protest thus moves beyond being just one of many individual human rights and becomes a vehicle not only of law but of constitutionalism itself. This post sketches the emergence of a new legal concept of protest—one that is meant not merely to safeguard citizens’ freedom to voice their views, but also to treat mass demonstrations as a fully-fledged argument when assessing the constitutionality of legislation. In other words, protest and dissent are moving from being the outcome of the rule of law to the condition of the possibility of the rule of law. Drawing on the Georgian protests and the subsequent opinions of the Venice Commission, I argue that this shift offers liberal constitutionalism one of the answers to the challenge of autocratic legalism.

No to the Russian Law

In February 2023 the Georgian Parliament passed the “Transparency of Foreign Influence” bill, which used the label “agent of foreign influence” for any NGO, media outlet, or similar entity that receives at least 20 percent of its funding from abroad. Such organisations would now submit extensive financial reports and would be placed under government oversight. The measure was widely viewed as an attack on civil-society groupscritical of the ruling party, drawing comparisons with laws in illiberal democracies such as Hungary and in fully authoritarian states such as Russia. The comparison with Russia was particularly resonant given Georgia’s historical dependence on that state and Moscow’s continuing geopolitical and colonial ambitions.

The bill sparked large demonstrations, and the governing coalition eventually withdrew it. A few months later, however, the proposal resurfaced—this time framing “agents” as “organizations carrying the interests of a foreign power” and retaining virtually the same provisions as the old bill. The re-introduction ignited fresh protests: more than 400 NGOs spoke out against the measure, and by April 2024 as many as 50,000 people were gathering in Tbilisi’s streets, roughly about 5 % of the capital’s residents. It was one of the biggest demonstrations in the country’s history. Fearing a “colour revolution,” government officials portrayed the demonstrators as a threat to „the national sovereignty of Georgia.” President of the European Commission Ursula von der Leyen issued a statement condemning both the planned legislation and “the violence in the streets of Tbilisi,” while acknowledging the protesters’ “strong attachment to democracy.” The crisis intensified after the flawed and unfair parliamentary elections of October 2024, whose results the European Parliament refused to recognise as legitimate. Since then, the foreign influence law as adopted and Georgia’s democracy has become a turbulent mix of ongoing street protests, an escalating government crackdown, and steadily cooling relations with the EU and its Western partners. While scrolling through photos of the demonstrations over the last years, one slogan keeps appearing: “No to the Russian Law.”

Georgia’s trajectory feels all too familiar. Contemporary democratic backsliding now occurs less through outright military coups than through “autocratic legalism”—the deliberate adoption of constitutional and legal arrangements that shrink the space for dissent and all but eliminate the risk of losing elections. Each time a democratic government adopts legislation that limits citizens’ ability to exert democratic influence, it sparks mass protests and mobilises the legal community, that declares the measure unconstitutional or contrary to the rule of law. The authorities dismiss both the arguments and the street-level energy, biding their time until the mobilisation burns out and tightening their power grip in the meantime. From India’s 2019-2020 Citizenship Amendment Act protest, Poland’s 2020 “Black Protest” against restrictions on abortion, to the 2019-20 protests in Hong Kong against regulations on extradition to mainland China and the 2023 Israeli protests against judicial reform, the pattern is strikingly consistent. Citizens recognise—and loudly oppose—what they call “Russian laws,” meaning the weaponisation of legal rules against democratic participation in line with the playbook of autocratic legalism. The government’s reaction is equally familiar: heavier policing of rallies, a growing thicket of bureaucratic obstacles to public assembly, expanded digital surveillance, and intimidation tactics such as home visits and threats aimed at discouraging would-be demonstrators. Next to these policing measures, officials deploy constitutional arguments to delegitimise the protest movement in the eyes of international community.

Protesters as Constitutional Reviewers

The legal sophistication  of contemporary autocracies makes it exceptionally difficult to subject them to meaningful constitutional scrutiny. While citizens worry about the impact of such regulations on the democratic order, judicial review tends to focus on their abstract compatibility with the broader legal framework. Contemporary illiberalism employs a cadre of lawyers who stand ready to justify the need for new regulations—either by invoking solutions adopted in other democratic states international-court rulings to lend the measures an additional veneer of legitimacy or by asserting that external bodies lack the competence to assess domestic law. As a result, constitutional review of such regulations can be cumbersome. This dynamic widens the gap between the expectations and perspective of people on the streets and the capacities and expertise of institutional constitutional reviewers. Two recent Venice Commission opinions on Georgia seek to overcome this impasse by elevating mass protest to the rank of a fully-fledged constitutional argument.

During the first wave of Georgian mass protests, on 21 May 2024 the Venice Commission adopted an urgent opinion on the draft Law on Transparency of Foreign Influence. The opinion was issued at the request of the President of the Parliamentary Assembly of the Council of Europe. The very decision to launch the procedure—and the speed with which the opinion was delivered—constituted a response to the protests themselves. Naturally, this kind of communication always passes through a network of intermediaries—professional politicians, civil-society actors, and the media—but the kinetic force of protest compresses political and legal time, instilling a heightened sense of importance and an imperative for rapid action.

In its opinion the Commission recommended the swift withdrawal of the law on “foreign agents.” Beyond recalling its earlier opinions and the case law of the European Court of Human Rights—which make clear that creating new categories of NGOs and imposing additional reporting or fiscal duties on them is unnecessary in a democratic society—the Commission also acknowledged the constitutional role of mass protest. The Commission explicitly factored the ongoing protests into its assessment of the legislative process and the associated consultations, examining that process through the lens of the rule of law. The Venice Commission’s own Rule of Law Checklist requires legislation to be adopted in a manner that is “transparent, accountable, inclusive and democratic” and the Commissions practice involves assessing not only the content but also the adoption process of the regulation. In the Georgian opinion the Commission asserted the fact that “a similar draft law in 2023 had shown the polarization” highlighted a “particular and demonstrable need to carry out meaningful consultations”—a requirement that was not met. The Commission concluded that “this Law, which is human-rights sensitive but is also highly controversial in Georgian society, as is demonstrated by the massive reactions in the country, was adopted in a procedure which left no space for genuine discussion and meaningful consultation, in open disregard for the concerns of large parts of the Georgian people.” The very fact of mass protest can itself signal a breach of rule-of-law procedural standards, no matter how sophisticated the legislation may appear. It reflects an acknowledgment of citizens’ agency; it affirms both their capacity and the imperative for meaningful participation in the legislative process.

In its urgent opinion of 3 March 2025 on the amendments to the Code of Administrative Offences and the Law on Assemblies and Demonstrations—adopted in the wake of contested elections—the Venice Commission reaffirmed the centrality of public protest to the rule of law. The Commission found that the authorities’ hurried enactment of measures designed to curtail civil liberties “amid mass political rallies” betrayed a lack of the meaningful consultation required for sound legislation and therefore violated fundamental rule-of-law standards. Yet, in this second opinion the Commission went further, adding a pragmatic layer to the procedural critique. Legislation rammed through without consultation and in the face of large-scale demonstrations, the Commission warned, loses its “coercive power,” which depends on “justice and fairness in the eyes of the community whose behaviour it is designed to shape.”

The Venice Commission did not dismantle the restrictive laws; the fate of Georgian democracy remains in the hands of its citizens as the resistance is still unfolding. Nevertheless, this episode illustrates a two-way communication between the international rule-of-law oriented international organization and the streets, between the constitutional and the kinetic. The demonstrations prompted international body to examine the so-called “Russian laws” and their legality, while the Commission’s findings, in turn, armed protesters with fresh arguments and renewed momentum by externally confirming the illegitimacy of the restrictive measures.

Feeling the Rule of Law

Traditionally, protest was conceptualised as one among many rights guaranteed by constitutionalism — an outcome of the legal order. The emerging concept treats protest instead as constitutive of that order: mass demonstrations do not simply exercise rights but provide constitutional arguments in themselves. An unresolved doctrinal question is how to determine when a protest acquires constitutional weight. How large must a protest be before it becomes constitutionally relevant? Is demonstration different from a protest? Must it be driven by ordinary citizens rather than political parties? Does it need a clear target—such as a specific statute—or may it challenge the system as a whole? Legal theorists will doubtless wrestle with such issues, devising ever finer “tests.” For present purposes, however, the crucial development is that protest itself has been acknowledged as a constitutional argument.

We are witnessing an important shift in understanding: the rule-of-law debate is moving, at least in part, from the domain of experts armed with technical legal expertise to the realm of civic perception. The rule of law is no longer only something to obey, promote, or transplant; it is something that can be felt—something that can provoke anger and indignation. Happy people, after all, do not flood the streets. This injects into the notion of the rule of law an element that cannot easily be managed through perfect command of formal legal techniques or by hiring competent legal departments. By acknowledging—and attempting to incorporate—the epistemic-constitutional dimension of contemporary protest, with its insight into both the liberal-democratic standards that should be upheld and those that are being violated, constitutionalism gains a powerful instrument for resisting the “Russian laws.” It turns out that citizens possess their own understanding of the rule of law and are ready to demonstrate it. As such, this civic awarenesshas the potential to destabilize authoritarian legalism. Global constitutionalism should learn from and cultivate this civic insight.