O Lungo Drom: Legal Mobilization as Counterpower

Abstract

Legal mobilization is a contested topic. There is little consensus among scholars regarding what legal mobilization is, let alone how it functions, particularly in relation to the separation or balance of powers doctrine, the latter which concerns the formal mandates of public actors and their interactions in relation to rule of law as a form of governance. We argue that the use of law by civic actors to advance social change should be distinguished from the use of law by states and other powerful actors to subvert the rule of law or to suppress critical voices. Thus, in distinguishing legal mobilization from lawfare, we argue that legal mobilization as a legitimate form of counterpower to lawfare has emerged as a viable and important component of governance. Pragmatically speaking, the illegitimate use of law by authoritarian regimes and corporations, the existence of corruption and both substantive and procedural limitations of formal rule of law mechanisms to deliver impartial justice have forced legal advocates to think creatively. In this paper, after conceptualizing legal mobilization and lawfare as opposing uses of law, we analyse the potential of legal mobilization as counterpower in relation to the trias politica doctrine, drawing on a case study of mobilizing Sinti, Roma and Traveller rights in The Netherlands to analyse how law is used to resist lawfare and pursue social justice.