Regitze Helene Rohlfing defends her PhD thesis at the Department of Political Science

This dissertation is an examination of how European law matters to civil society’s mobilisation of law to defend democratic principles in times of democratic backsliding. It challenges those that argue law as a mean against backsliding has no or only a limited role to play by demonstrating how European law empowers and enables civil society groups’ resistance. For more than a decade, Europe has been crippled by democratic backsliding. This is importantly not happening through classical coups but deliberately and incrementally within the law itself. Described in the literature as a governance technique of autocratic legalism, countries like Hungary and Poland have captured their judiciaries, seized control of the media, and limited the operational space of critical civil society groups through legal means and by leveraging the normative power associated with law. Backsliding is an urgent challenge precisely because this form of gradual legalist degradation distorts the democratic system while hiding in legalese robes. This dismantling has however not gone unchallenged. On the contrary, civil society has doubled down in their efforts to defend democratic principles and has for this turned to law. It can seem counterintuitive to put your faith in law when backsliding is increasingly demolishing the requirements needed for engaging the law, but the claim made here is that the European system with its institutions and laws equips groups to mobilise. While previous literature has demonstrated that European integration has generated new opportunities for mobilising and seen groups readily embracing these, we are yet to comprehensively understand how the European system informs groups’ defence of democratic principles in times of backsliding. To answer this, the dissertation examines the role of European law through 1) an in-depth and comparative case study of the politico-legal opportunities in Hungary and Poland and the legal consciousness that informs how groups engage law, and 2) a statistical analysis of the wider trends of legal mobilisation across Europe. It raises three main arguments. First that Hungarian groups are informed by a consciousness of complimentary law while their Polish counterparts are informed by one of substitutive law. Though it importantly sees Hungarian groups preferring to resist from within the established rules of the system and Polish groups instead seek to break out, both cases show an entrenched reliance on the European system. Second that in an increasingly constrained domestic environment, the European system offers an avenue for action, but it importantly goes beyond merely providing formal remedies. With its legal vocabulary and norms, it plays a crucial role in how groups perceive, frame, and respond to backsliding. This stresses that even when formal remedies are not invoked, groups mobilise in the shadow of European law. This has been helped by unprecedented actions and legal interpretations of the European system that has paved the way for mobilising on issues of backsliding that would have been unimaginable just a few years ago. Through also a

Europeanisation of groups and the European system’s empowerment of private parties to mobilise on the growing levels of justiciable rights, groups have increasingly been turned into central enforcers of democratic principles. Third that these findings are not only limited to the cases of Hungary and Poland. Based on a statistical analysis of European groups’ mobilisation of the ECtHR and the CJEU, the dissertation (tentatively) demonstrates that across Europe backsliding leads to a greater engagement with European law. It points to a growing culture of adversarialism and enhanced processes of judicialisation to defend democracy in Europe and shows that contrary to those pessimistic about law’s role in times of backsliding, European law enables civil society to resist. That European law matters to civil society well beyond the courtroom and is significantly shaping the broader landscape of civil society activism in defence of democracy confirms studies on the constitutive power of law, but it also advances these by extending the scope of the field to the largely untold stories of legal mobilisation against democratic backsliding.