Does democratic backsliding motivate or limit legal mobilisation? A case study of movements and interests groups’ (non-)engagement with legal activism in Hungary and Poland

Legal mobilisation is used by movements and organisations to influence policy and behaviour through activation of the law and legal techniques. Legal mobilisation covers both formal, quasi-formal and in-formal tactics ranging from direct use of courts and providing legal advice or financial aid; to right claims and campaigns as well as coordinating legal research and education. European civil society has in recent years increasingly drawn on these forms of legal mobilisation. It has proven an effective way for changing laws and institutions but is it a feasible tool at all times and for all movements and organisations? Countries like Hungary and Poland are marked by democratic backsliding, which targets both the political system, independence of the judiciary, and the civic space available. In an EU context, this has often been termed a rule of law crisis. Political and legal tools are used to serve an illiberal agenda that challenges democratic features and fundamental rights and freedoms, which is normally understood as the backbone of European democracy. The literature often focuses on the reasons and mechanism of this illiberal agenda, while fewer studies have dealt with the consequences it poses to civil society. In settings where the civic space is shrinking and government-critical movements and organisations find it increasingly difficult to operate, can legal mobilisation serve as an alternative strategy to challenge right violations and democratic issues? Through an interdisciplinary focus combining political science and law, this paper looks at how and why movements and organisations engage in legal mobilisation or what prevents them for doing so. It is generally seen that politically disadvantaged groups tend to turn to the judicial arena but what happens when the judiciary is constrained and can restrictions at the domestic level motivate the use of European courts? Based on a unique dataset of survey and interviews, the paper offers important insights into how Hungarian and Polish movements and organisations seek to mobilise the law and how issues of structures, resources, and framing affect their legal mobilisation. Building on a constituent and instrumental understanding of legal mobilisation, the paper adds to the ongoing debates on how law can be mobilised at the national and European level and what forms this take.