Shareholders are not allowed to bring actions for damages due to a fall in share value or loss of dividend, which are “reflective” of their company’s loss. Later, this principle also found its application to “reflective” losses of employees and creditors. The Supreme Court, however, in Marex Financial v Sevilleja, unanimously held that the principle would apply only to shareholders and not to creditors. The article argues that, while the majority opinion in the Marex decision is reasonably balanced, the minority opinion went a step further by even doubting the very existence of the no reflective loss principle without properly appreciating what shareholding entails. If the minority’s position becomes the law, it will jeopardise companies’ existence as separate legal entities with the capacity to decide with respect to their assets. Further, if the protection of the principle is removed, companies’ counterparties will have to worry constantly about facing numerous direct shareholders’ actions, whether they settle the dispute with the company or not. As a result, if the minority view becomes the law, it can potentially make the company a less dependable commercial partner.

What are the legal and political criteria that distinguish between ‘correct’ and ‘unacceptable’ legal mobilisation? How does populism facilitate legal mobilisation? The questions of the workshop organizers led us back in Hungary to the democratic transition from socialism to liberal democracy in 1989, when legal mobilisation for the rule of law, democracy and human rights was led first and primarily by non-state actors (National Round Table). Participants of the democratic transition prepared the complete revision of the 1949 Constitution, which was an emblematic element in addition to the many legislative drafts of the transitory nature of the creation of the new system. In 2010, after the successful political mobilisation, the populist party coalition (lead by Viktor Orban) gained a two-thirds constitution-making majority in Parliament (in the absence of two opposition parties), and the Parliament adopted the new Fundamental Law (new constitution). This was also an emblematic element of the new legal mobilisation conducted by the two-thirds populist Government majority. This article will describe how populism – through the instrumentalisation of the law (disregarding the inherent values in/of law based on value choice) and the destruction of institutional checks and balances – facilitated new legal mobilisation. Based on this experience of the outcome of the equally strong and effective legal mobilisation in Hungary of the liberal and the illiberal (democratic and autocratic, respectively) transitions, in this article we aim to make valid theoretical propositions on how to assess ‘correct’ and ‘incorrect’ legal mobilisation and what influences the relevance of non-state actors in populism.

The role of social movements and civil society actors in rights advancement has been frequently emphasised. The assumption is that legal mobilisation by civil society actors works towards the extension of rights and the emancipation and advancement of justice for distinctive (minority) groups in society. While traditionally, socio-legal attention on social movement and civil society actions around rights promotion was particularly prominent in the US, for some time now the European context has also been approached from such a socio-legal lens. However, a one-sided, liberal–progressive understanding of social mobilisation around rights has, importantly, been put to the test by recent manifestations of societal actors. Conservative actors tend to (1) promote a restrictive interpretation or a radical reinterpretation of existing rights (e.g. abortion, free speech), (2) limit the diffusion of new rights (e.g. the rights to euthanasia or legalizing surrogate maternity) and/or (3) call for the interruption of the further extensions of rights (e.g. with regard to same-sex marriage, LGBTIQ issues). The analysis of legal mobilisation by such conservative right-wing actors indicates that mobilisational repertoires are strikingly similar to those of liberal actors. This article will discuss the notions of civil society and legal mobilisation and call for a rethinking of these concepts, in part because of the increasing manifestation of societal actors that are in contrast to the traditional liberal paradigm. The article will subsequently engage in a detailed study of one such actor – the Polish legal think tank Ordo Iuris (OI) – with regard to its third-party or amicus curiae interventions at the European Court of Human Rights (ECtHR), stressing the difference of orientation of such interventions from those of liberal actors and also indicating dimensions of ambivalence and similarity in their approaches.

This paper analyses the growing litigation before the European Court of Human Rights (ECtHR) by conservative European Non-governmental Organizations (NGOs) who exploit legal opportunities and other advocacy tactics. These actors oppose the liberal insistence on permissive individual freedom, minority rights and mandatory vaccination. Instead, they promote the sanctity of life, traditional values and harsh terrorism penalties. In this study we show that conservative legal mobilisation is not only related to litigation but also covers the execution of certain ECtHR judgments and the nomination of some European judges. We analyse their tactics using legal and sociolegal methodology (interviews, analysis of legal documents and jurisprudence and network analysis) to characterise their influence on the European human rights system and the reactions of the Council of Europe. We reflect on the moral values claimed by conservative NGOs and their liberal counterparts by analysing how powerful private actors, driven by material and moral interests, take creative initiatives that shape or reshape case law and its politicisation through alliances with so-called ‘illiberal’ and ‘populist’ states.

This article serves as an introduction to the special issue on ‘Populism and Right-Wing Legal Mobilization in Europe’. We point to the dependence of populists in power on non-state actors: populist governments have ideological and political reasons to need the support of civil society’s right-wing representatives and have the financial and institutional means to strengthen those organizations. We then map right-wing legal mobilization in Europe based on the analyses in the special issue. By right-wing legal mobilization, we understand the organized efforts, resources, and strategies employed by individuals, groups, or organizations with conservative or right-leaning ideologies to embody their values in positive law and its interpretation. The text concludes with a dynamic normative framework to assess this type of mobilization. Drawing on recent contributions from comparative constitutional law, human rights, and socio-legal studies, we argue that the analysis and evaluation of right-wing legal mobilization could be based on a comprehensive analysis of three bundles of issues: (1) the relationship between mobilizing actors and the courts, as well as the local standard of judicial independence, (2) the relation of right-wing argumentation to systemic linkages and historical trajectories of human rights, (3) the redistributive effect (economic and symbolic) and the potential success of such mobilization on the legal capacities of other actors who may have opposing interests. From this perspective, the problematic part of right-wing legal mobilization in the context of populism is, therefore, not its ideological, conservative character but its influence on the rule of law to gain strategic advantage. In the process, the very idea of the rule of law and the related issue of civic agency may be compromised.

Though the Polish rule of law crisis has been on the scholarly agenda since the Law and Justice Party (PiS) took power in 2015, the individual agents of legal disruption within the judiciary have been largely off the radar. This intervention aims to fill this gap. This article analyses the legal mobilisation practices of the Supreme Court (SC) judges appointed by the PiS party in a court-packing manner after 2017. It is argued that this is a specific type of legal mobilisation; because it is conducted from within the legal system by judges, it aims to challenge doctrinal views strategically and to legitimise the status of unlawfully elected judges, which consequently destabilises the legal system. Because the legal tools to solve the conflict appear to have been exhausted, new judges engage in public discourse to convince citizens that they have a right to sit on the bench. In the first part of this paper, I critically analyse this public discourse in order to explain the framing of the rule of law crisis. The analysis of this discourse is drawn from 106 texts produced by new SC judges between 2017 and 2023. It is argued that although the ‘populist’ group of SC judges is internally differentiated and does not exhibit clear ideological linkage with the PiS party, it strategically produces certain legal narratives in which their appointments and judicial practices at the SC conform to the Constitution and to relevant statutes and, as such, are legitimate in legal terms. The new judges’ narratives are based on four populist dichotomies that distinguish them from old judges (legitimacy–lack of legitimacy, autonomy–political dependence, formal rule of law–legal anarchy and accountability–corporatism). In the second part, the article proceeds to analyse selected case law of the Supreme Court to explore whether and how court-packing makes it more responsive to the legal mobilisation of the conservative Christian organisation Ordo Iuris (OI) and helps the governing party maintain its power. It is argued that the judicial mobilisation inside the packed Supreme Court is mostly of a discursive nature, as there is limited evidence that newly appointed judges side ideologically with the government and right-wing organisations in recent case law.