Defining Democratic Protest: Judicial Independence and the Governance of Dissent in Germany and the Netherlands

Protests in European Western democracies have long been understood as a supplementary component of routine politics, embedded in civil society, party competition, and institutional channels. In recent years, however, the protest arena has become increasingly fragmented and heterogeneous, marked by a wider range of actors, claims, and tactics. Alongside climate-driven mobilization, protest spaces have seen the growing presence of far-right groups, farmers, and other actors whose demands and repertoires differ from those of traditionally left-libertarian movements. At the same time, political and institutional authorities increasingly portray certain protest waves as exceeding democratic boundaries by relying on disruption, coercion, or interference with the rights of others, while critics argue that the space for protest in liberal democracies has been steadily shrinking with the expansion and execution of restrictive policies governing protest, public order, and political dissent. These developments raise fundamental questions about judicial independence and the role of courts in shaping, constraining, or legitimizing policymaking in politically sensitive domains. While judicial independence is often conceptualized in de jure terms, less attention has been paid to how courts exercise de facto autonomy when confronted with executive and legislative strategies that narrow the democratic space for protest, or new protest actors and tactics that challenge the boundary of what counts as "democratically legitimate behavior". This paper examines how courts in Germany and the Netherlands respond to restrictive protest governance, focusing on judicial decision-making in protest-related criminal and administrative cases. It asks how courts interpret and apply newly restrictive legal frameworks, to what extent judicial responses reflect de facto independence from political and enforcement pressures, and how courts construct the meaning of “democratically legitimate behavior” in tense political environments where protest is increasingly framed as a threat to public order or democratic stability. Building on theories of the rule of law and socio-legal approaches, the paper employs a comparative qualitative research design combining systematic analysis of court decisions with elite interviews with lawyers and legal experts that can give insights into the real practices of courts. Germany and the Netherlands are selected as theoretically informative cases due to their shared liberal democratic credentials and comparable protest movements (including, but not only, the climate movements) but distinct judicial structures, legal cultures, and approaches to constitutional review. The paper contributes to comparative judicial politics by conceptualizing judicial independence as an interpretative and relational practice rather than a purely institutional attribute. In doing so, it advances rule-of-law erosion debates by showing how courts actively participate in defining the boundaries of democratic contestation when restrictive protest policies are advanced by other branches of the state.