Lecture 4 - Populism and the Abuses of Law

According to Michael McCann, what is legal mobilization?

According to Zemans (1983), the law is mobilized when a desire or a want is translated into a demand as an assertion of rights. Studies of legal mobilization focus on the actions of legal subjects, especially non-official legal actors.

What was a key development in American politics that reflected the rise of scholarly interest in legal mobilization?

The legacy of high-profile litigation for social change dating from rulings on racial segregation in Brown v. Bd. of Education (1954), and continuing with issues of rights for civil law, reflected the rise of scholarly interest in legal mobilization.

What is the "disputing pyramid" model and what does it illustrate?

The "disputing pyramid" portrays a broad base of citizen "grieving" grounded in legally actionable injuries that narrows progressively with subsequent stages of "claiming," "disputing," "lawyer involvement," and finally, the infrequent "trial". It expresses that a great deal of law is in interactions far from courtrooms and captures the relationship between formal litigation and informal disputing.

According to studies of legal mobilization, is the capacity of citizens to mobilize law equal?

Virtually all studies of legal mobilization emphasize that the capacity of citizens to mobilize law is highly unequal. Legal systems tend to secure the privileges of unequal power, and mobilizing law requires resources like money, expertise, and political connections.

What is "legal consciousness"?

Legal consciousness refers to "the way that people conceive of their ‘natural’ and normal way of doing things, their habitual patterns of talk and action, and their commonsense understanding of the world" and is shaped by social and institutional contexts.

What are the three general "schemas" of legal consciousness identified by Ewick and Silbey?

Ewick and Silbey identify three general "schemas": Before the Law, With the Law, and Against the Law.

According to the text, what is "hegemony" in the context of legal mobilization?

Hegemony refers to the systemic processes that contain, channel, divert, and absorb citizen challenges.

What did Scheingold's "The Politics of Rights" (1974) argue regarding courts and social change?

Scheingold argued that neither federal courts nor civil rights provide reliable protections of freedom and equal opportunity for most citizens and that courts are highly unreliable agents of progressive change. However, rights and rights-based litigation can be important political resources.

What is "cause lawyering"?

Cause lawyering focuses on activist attorneys, and the key questions are essentially the same as those concerning scholars of legal mobilization and social reform litigation generally.

According to Kim Lane Scheppele, what is "autocratic legalism"?

Autocratic legalism describes how new autocratic leaders govern by appealing to electoral legitimacy while using the tools of law to consolidate power. They pay extraordinary attention to law as a tool of power consolidation.

What are some typical actions of leaders practicing autocratic legalism?

They weaken opposition support structures, monopolize broadcast media, harass critics, and tinker with election rules. They also rewrite constitutions to legitimize their actions.

How do legalistic autocrats often achieve the look of normality?

The new autocrats achieve the look of normality by steering clear of human-rights violations on a mass scale and instead use subtle methods of oppression, manipulation, and domination.

What is "constitutional capture" according to Jan-Werner Müller?

"Constitutional capture aims at systematically weakening checks and balances and, in the extreme case, making genuine changes in power exceedingly difficult".

What are some of the methods used by legalistic autocrats to undermine liberalism while maintaining a democratic appearance?

They copy features from good democracies to bad effect while omitting compensating features, such as using gerrymandering without adequate limits or judicial review.

In his 2007 lecture, what was Jarosław Kaczyński's view on the true measure of the rule of law?

Kaczyński stated that "the true measure of the rule of law is not how it is applied to an average thief, but how it operates in extreme situations—when there is a conflict between the need for some form of repression and the legal principles that uphold social distinction".

What does the "Autocratic legalism playbook" refer to?

It refers to the recipe or strategies employed by "legally clever autocrats" to consolidate power using legal means.

What was the significance of the "The Constitution" poster in Warsaw in 2017?

The poster became a symbol of resistance and patriotism in a time when the rule of law was perceived to be under pressure. Its open-source license facilitated widespread participation.

What actions did legal professions in Ankara plan in 2020 in response to proposed amendments?

They planned a "Defense March," informative newspaper ads, social media campaigns, a "Standing President" action, filing an annulment case in the Constitutional Court, and a "Last Watch" during the court negotiations.

According to Margaret Ng, what is essential for preserving freedoms when transitioning to a totalitarian regime?

While written instruments are important, action and implementation are crucial for preserving human rights and safeguarding freedom. She also recognized that democracy is necessary for the protection of freedom.

What was the Venice Commission's assessment of the law on foreign agents in Georgia?

The Venice Commission regretted that the law was adopted in a procedure that left no space for genuine discussion and meaningful consultation, disregarding the concerns of a large part of the Georgian people.

What does the concept of "militant rule of law" suggest?

It suggests that the rule of law cannot be neutral in the face of threats to its foundations and may need to actively defend itself.

According to András Sajó, what is necessary to protect the constitution?

To protect the constitution, knowledge is needed and should be freely accessible to everyone (open access).

What did Gleb Pavlovsky say about constitutional action?

Gleb Pavlovsky stated that "constitutional action sometimes requires street fighting".

What is "militant democracy"?

Militant democracy refers to equipping democracies with instruments to protect itself against its own decay, often by using the force of law and empowering courts to confront democratic adversaries.

What is "civic militancy" as proposed by Ursus Eijkelenberg?

Civic militancy suggests that constitutional action sometimes requires struggle, contestation, and political fighting on the streets at a foundational, civic level. It emphasizes the need for a democracy-preserving civic body.

What concern does Eijkelenberg raise about liberal democracies extensively absorbing political challenges into the legal domain?

He is concerned that it reduces the necessity for citizens' engagement, which can erode the internalization of a "value consciousness" regarding basic constitutional and democratic principles and weaken the ability to recognize danger.

In her mitigation plea, what did Margaret Ng consider to be Hong Kong people's most precious right?

She considered "the freedom of expression and the freedom of peaceful assembly" as the most precious right.

What role did Margaret Ng believe the representative of the legal profession in LegCo had?

She believed they had a duty to listen, consult, and explain the law to the community, to alert people to their rights and obligations, and to represent their concerns to the government.

What was Margaret Ng's adapted version of Sir Thomas More's last words?

"I stand the law’s good servant but the people’s first. For the law must serve the people, not the people the law".

What did Associate Justice Anthony Kennedy emphasize regarding judicial independence in his Hong Kong speech in 1999?

He emphasized that judges need the jurisdiction, right, and official capacity to decide all matters necessary to ensure liberty and human freedom, and that the bar and society must press to expand this jurisdiction if it is too narrow.