Reimagining Civil Resistance: From Balkan Streets to Legal Duty
Reimagining Civil Resistance: From Balkan Streets to Legal Duty1
Everything around us is moving, shaking, disrupting, trying to move walls and break barriers. The Western Balkans are one of the most seismically active regions in Europe, where the collision of major tectonic plates constantly shakes the ground. Yet the tremors I am concerned with here are not geological ones. The tremors I have in mind begin above the ground. Over the past three years, the streets of many Western Balkan cities have become sites of anger and dissatisfaction with the status quo embodied in existing governing structures. Despite their different causes, including institutional non-accountability, limited public participation, and complicity in violations of international legal standards, these movements resist democratic backsliding by challenging practices that undermine democratic values. Questions surrounding the accountability of public institutions following the collapse of the railway station canopy in Novi Sad, the devastating floods in Jablanica, and the fatal tram accident that killed 23-year-old student Erdoan Morankić in Sarajevo have each triggered civil mobilisation. Meanwhile, pro-Palestinian mobilisations calling for the severance of ties with Israel and public opposition to the sale of parts of Albania’s coastline for luxury resort development without meaningful public consultation have likewise given rise to different forms of civil resistance. These coordinated, non-violent forms of collective action are shaking the status quo by contesting institutional failures, demanding accountability, and challenging government policies and public authorities. Like earthquakes, these tremors release accumulated energy and demand systemic change. If the ground beneath the Western Balkans must inevitably release the energy accumulated beneath its surface, must citizens also release the pressure that builds beneath unjust structures? Put differently, do we, as citizens, have a legal duty to resist in order to protect the democratic principles our states claim to uphold when those principles are in decline? This text invites us to rethink student protests in Belgrade and Sarajevo, civil protests in Tirana, pro-Palestinian mobilisation across the Western Balkans, and other forms of civil resistance not merely as expressions of individual freedom, but as potential manifestations of that legal duty to defend democracy. By rereading the democratic principles embedded in our legal systems, we can move beyond the traditional understanding of rights and freedoms as individual entitlements and recognise civil resistance as a legal responsibility within a democratic community. Yet, while legal frameworks may adapt to changing realities, especially through judicial interpretation, they remain conceptually static in one crucial respect: approaching civil resistance primarily through the paradigm of individual rights rather than recognising it as a legal duty to defend democracy.
From Geological to Social Tremors of the Western Balkans
On one side, there are tremors; on the other, there is positive law. The ground moves, and people move. Everything appears to be in motion. Except the law. It may appear almost self-evident that the stability of the legal system is perceived as one of its greatest strengths. Presented as stable and neutral, the positivist legal order appears detached from the turbulence—from protests, boycotts, and other forms of civil resistance. From within its own perspective, opposition through assembly, protest, and strikes appears merely as one social phenomenon among many requiring regulation. For example, the participants of the so-called Flamingo Revolution, a series of civil protests in Albania challenging government decision perceived as undermining public interests, are approached by positive law primarily through mechanisms of public order regulation, rather than recognised as political actors whose resistance may constitute a defence of the democratic values upon which the legal order itself rests. By prioritising stability, public order, and institutional continuity, positive law tends to overlook civil resistance as a means of restoring, rather than disrupting, democratic foundations. But should law, in the name of protecting democratic values, recognise civil resistance as a legal duty?
Democratic principles within a positive legal system inhabit a paradox. This should not be understood as an expression of pessimism, since paradoxes are inherent to legal regulation. As Teubner2 highlights, “self-reference, paradox and indeterminacy” are present everywhere within law. To engage with law, therefore, is to confront its inherent paradoxes, including the one that emerges when resistance is invoked as a means of protecting the democratic system itself. The paradox lies in the fact that positive law derives its legitimacy from democratic principles, yet it frames democratic participation primarily through the language of individual rights and freedoms. Freedom of assembly, expression, and association are recognised as essential guarantees of a democratic society, but generally understood as individual entitlements rather than legal responsibilities to engage in civil resistance and safeguard democracy. If democracy is recognised as a foundational constitutional value but the legal order does not recognise a corresponding duty to defend it, who ultimately bears responsibility when democratic and formal legal institutions begin to fail? Democratic backsliding rarely arrives as a sudden rupture. Rather, it is a process unfolding in plain sight: in the lack of accountability after the Novi Sad railway station canopy collapse, the absence of responsibility for the deaths caused by the Jablanica landslides, and the failure to address the fragmentation of Albania’s territory for luxury resorts.
Democracies, understood as systems of government by the people, rest on the defence of democratic principles when they are under threat. The expression of public dissatisfaction is often embodied in civil resistance. As “a method of active conflict in which unarmed people use a variety of coordinated, noninstitutional methods — strikes, protests, demonstrations, boycotts, alternative institution-building, and many other tactics, to promote change without harming or threatening to harm an opponent”3, civil resistance constitutes a sine qua non of any democratic system. At its most basic level, civil resistance is reflected in the legal protection afforded to a range of fundamental rights, most notably the freedoms of peaceful assembly and expression. Grounded in democratic values, the legal understanding of civil resistance focuses on positive rules governing when, where, and how citizens may oppose authority through assembly, strikes, or other collective action. But is it sufficient to understand resistance solely at this level? Is it enough to confine questions of accountability for lost lives and stolen land to a legal framework that merely guarantees the right to protest—and stops there?
Future of Civil Resistance: From Recognition to Duty
Civil tremors across the Western Balkans raise a fundamental question: what role do legal orders assign to citizens when democratic values and institutions begin to erode? Do we have a legal duty to resist democratic backsliding?
I propose distinguishing three levels in the legal understanding of civil resistance to democratic backsliding, recognising that the third extends beyond current positive law and raises a normative question about its future development. The first level concerns the recognition and protection of rights through which citizens realise democratic values and principles. These include, most notably, the freedoms of assembly, expression, and association, as well as the right to strike. The second level concerns the law’s interpretation of these freedoms, namely whether it understands their exercise primarily as disruptive activities that threaten public order or as progressive forms of civil engagement that contribute to democratic development. The third level concerns the question of whether resistance itself may be understood as a legal duty, namely whether the exercise of legally guaranteed rights and freedoms can also constitute a legal duty to defend democracy.
The first level is not specific to any particular national legal system; rather, it is embedded in the broader framework of written positive law. In this context, recognition and protection can be found in the leading legal instruments governing civil and political rights, such as the International Covenant on Civil and Political Rights (Articles 19 and 21), the International Covenant on Economic, Social and Cultural Rights (Article 8), and the European Convention on Human Rights (Articles 10 and 11). Thus, the first level of the legal regulation of civil resistance is observable primarily through normative acts of different hierarchical levels. The primacy of the first level in understanding civil resistance within a democratic system remains the same at the national level. For example, The Preamble to the Constitution of Bosnia and Herzegovina emphasises the importance of democratic systems in ensuring a peaceful life within the community. Furthermore, Article I(2) defines Bosnia and Herzegovina as “a democratic state”. Article II(3) provides a catalogue of citizens’ rights and freedoms. Although all listed rights reflect democratic values, those most directly connected to their expression are the freedom of expression, peaceful assembly, and association. At the constitutional level, Bosnia and Herzegovina does not move beyond the first level of understanding civil resistance, leaving aside the interpretative role of the European Court of Human Rights discussed below.
The second level, namely the interpretative dimension of civil resistance, goes beyond the first level and can, inter alia, be identified in the case law of the ECtHR. This body of jurisprudence allows examination of whether positive law approaches the exercise of certain freedoms as a threat to public order or recognises it as a progressive democratic practice. In Handyside v. the United Kingdom (Application no. 5493/72, judgment of 7 December 1976, para. 49), the ECtHR held that: “Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man”. Although the case concerned freedom of expression rather than assembly or protest, its broader significance lies in recognising that democratic societies require legal protection of forms of expression and civic engagement that may challenge, disturb, or unsettle existing arrangements. Another ECtHR case situated within the second, interpretative level of civil resistance is Plattform “Ärzte für das Leben” v. Austria (Application no. 10126/82, judgment of 21 June 1988). Named case llustrates that freedom of assembly cannot be understood merely as a passive obligation of the state to refrain from interference. By imposing a positive obligation on the state to take reasonable and appropriate measures to enable lawful demonstrations to proceed, the Court recognises the democratic function of collective action within the legal order.
The third level, namely the level of resistance as a legal duty, is more difficult to identify within existing positive legal frameworks. An example that can be seen as a step towards the third level of understanding civil resistance is Article 20(4) of the German Basic Law, which explicitly recognises a right of resistance against attempts to abolish the democratic constitutional order. This provision establishes that all Germans “shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available”. Although it does not impose a legal duty to resist, it demonstrates that constitutional law may recognise resistance as a means of protecting democratic order. In this sense, Article 20(4) provides a normative reference point for considering whether civil resistance can be understood not only as a protected liberty, but also as a legally grounded democratic responsibility, as the recognition of a “right of resistance” moves beyond frameworks protecting only political freedoms by placing resistance itself within constitutional recognition. Beyond such exceptional case, legal systems generally protect civil resistance indirectly through guarantees of expression, assembly, and association.
In lieu of a conclusion: Can Law Be Shaken to Save Democracy?
Before dismissing civil resistance in its many forms as rupture, disorder, or conflict, we should ask whether the legal system ought to recognise it as a legal duty to protect democratic values. This text has proposed three levels through which law can engage with civil resistance: its recognition through positive legal norms, its interpretation in judicial practice, and its possible understanding as a legal responsibility to defend democracy. Developing more resilient democracies, particularly in the Western Balkans, requires rereading existing positive legal norms through a gradual movement towards the third level of engagement with civil resistance: its recognition as a legally grounded duty to defend democracy.
- This article draws on broader research conducted within the framework of the Horizon Europe project “Social Sciences for Democracy: A training program for improving research on illiberal systems and finding ways to build more robust democracies”, Grant Agreement No. 101119678 (September 2023–August 2027).
- Gunther Teubner, Law as an Autopoietic System, Blackwell Publishers, 1993, p. 5.
- Erica Chenoweth, Civil Resistance: What Everyone Needs to Know, Oxford University Press, 2021, p. 2.