Defining Democratic Protest: Higher Courts and the Institutionalization of Dissent

Protest is widely recognized as an ordinary component of democratic politics, yet its institutional position remains conditional and contested. Successive protest waves introduce new actors, claims, and disruptive repertoires that unsettle inherited distinctions between democratic participation, public-order disturbance, coercion, and unlawful conduct. Legislatures, executives, police, and prosecutors respond by classifying some forms of protest as exceeding the boundaries of legitimate dissent. These classifications, however, acquire authoritative and durable meaning partly through adjudication. This conceptual paper develops a framework for examining how higher courts participate in the historical institutionalization of dissent within democracy. More specifically, the paper considers courts' role in drawing and revising the boundary between protected legitimate protest and punishable disruption, and how they construct such revisions as continuous with existing constitutional and democratic principles. Bringing democratic theory into dialogue with comparative judicial politics, the paper argues that higher courts are institutional sites where the place of dissent within democratic order is repeatedly negotiated and stabilized. Germany and Sweden provide a comparative setting for investigating how distinct judicial structures, constitutional traditions, and approaches to protest governance shape this boundary work. Rather than presenting empirical findings, the paper specifies the conceptual framework, comparative logic, and propositions for a subsequent historical longitudinal analysis of higher-court protest jurisprudence.