The Courts and Social Movements: Two Literatures and Two Methodologies

By Chris Hilson

The relationship between courts and social movements is a complex one and a rich academic and activist literature has evolved around it. Simplifying somewhat, the academic literature can be divided into two broad camps. First, there is the predominantly U.S. work in the law and society tradition, which has explored the utility of using the courts as vehicles for social change, with classic “anti”s like Rosenberg and his Hollow Hope (1991) and “pro”s like McCann (1994). This work itself arises out of earlier classics on legal mobilization such as Marc Galanter’s “Why the ‘Haves’ Come Out Ahead” (1974). A significant proportion of it is focused on movement outcomes and debates about the success of litigation as a strategy.

In the second camp, there are more recent European and North American studies from the new century which have often sought to explain why it is that social movements employ litigation rather than other strategies such as lobbying or protest. This second camp also differs from the first in seeking to engage much more explicitly with the general social movement literature in political science and sociology. One strand picks up on earlier “political process” accounts of social movements and the notion of political opportunity structure. A foundational work in this tradition was Herbert Kitschelt’s (1986) article in the British Journal of Political Science on anti-nuclear movements in four European countries, which suggested that recourse to strategies—both assimilative (including litigation, but also for example political lobbying) and confrontational (protest)—could to some extent be explained by the prevailing political opportunity structure in the country concerned. However, Kitschelt’s approach arguably did insufficient justice to litigation as a distinct strategy facing its own unique structural opportunities and barriers. For that reason, the concept of legal opportunity structure (LOS) and legal opportunity (LO) were introduced (Hilson 2002) and have been refined (Andersen 2005, Vanhala 2011) and applied in a variety of different contexts since (see e.g. Wilson and Cordero 2006, among numerous others). The idea of legal opportunity, as opposed to legal opportunity structure, was introduced because it served to underline that not all encouraging or discouraging features of judicial systems are necessarily structural in nature. Some features, like standing and official court costs are obviously  structural. However, others, including judicial receptiveness, are more contingent.

Important subsequent refinements of the LO/LOS concept identified the need to adopt an approach that left room, in otherwise structural accounts, for a degree of social movement actor agency. It was pointed out, for example, that activists are to an extent able to shape and create legal opportunities rather than always being shaped by them as structural accounts might imply (Andersen 2005, Vanhala 2011). In addition, in thinking about strategy choice, it was useful to bear in mind the “organizational field” within which a social movement organization (SMO) found itself: not all SMOs would act on legal opportunities because they knew that others within their movement could and would do so (Vanhala 2011).

Just as the general or mainstream social movement literature has in recent years seen a move towards multi-dimensional explanations—whereby resource mobilization theory, for example, might sit alongside a structural political process account—so we have seen a similar approach in relation to law and social movements. Thus, in addition to LO/LOS, there has been an emphasis on resources available to social movements as an explanatory variable in accounting for the take up of litigation as a strategy. While resource-based explanations have a long tradition in the law and society literature from the first camp (again, traceable back to Galanter), these were not often explicitly linked with the relevant social movement theories on resource mobilization. The second camp made such links. However, while earlier work in the second camp focused on “proactive” litigation strategies such as rights-based judicial review—and correctly identified that a lack of resources would often constrain social movement use of such strategies (Anderson 2005; Hilson 2002)—more recent studies have explored the way in which “reactive” litigation largely manages to escape financial resource constraints (Vanhala 2011). Thus, for example, the U.K. has seen significant reactive use of the courts by social movement activists who have been arrested while protesting about, inter alia, nuclear weapons, GMOs, and climate change (Hilson 2009, 2012). Similar examples can be found in France (Doherty and Hayes 2012). During subsequent prosecutions, these activists have been able to use the courts to their advantage as another site of protest and have occasionally secured dramatic acquittals. In doing so, they have been able to legally mobilize without significant financial cost.

Framing is another concept common to the mainstream social movement tradition, which has increasingly been seen in work on law and social movements.  Framing has been described as “meaning work” (Benford and Snow 2000). It is a process in which social movements are “actively engaged as agents in a struggle over the production of mobilizing and counter-mobilizing ideas and meanings” (Benford and Snow 2000). Legal framing reflects the fact that law is, of course, a key meaning-making institution within which interpretive work takes place (Pedriana 2006). Thus far, studies involving legal framing have examined, for example, women’s employment laws (Pedriana 2006), sexual harassment at work (Marshall 2005; Zippel 2006), gay marriage (Smith 2007), the disability movement (Vanhala 2011), the use of an international law frame by the anti-nuclear movement (Hilson 2009), school financing (Paris 2010) and climate change litigation (Hilson 2012).

Framing perhaps best illustrates one of the methodological tensions which exists within some of the key works examining the relationship between the law and social movements—that between positivist social science and interpretivism. As the instructive debate between Rosenberg (1996) and McCann (1996) demonstrates, where one sits on the methodological spectrum will undoubtedly color one’s approach to social movements and the courts. Positivism is focused on identifying causal explanations (in Rosenberg’s case, arguing that it is not courts that cause desired social change); interpretivism, in contrast, is concerned with the shared understandings of activist participants themselves and how they see the law and judicial strategies (Paris 2010). That said, while framing started life within the interpretivist tradition, with its roots in social psychology, it can also usefully be employed by those of a more positivist persuasion, who may, for example, be interested to see whether framing possesses causal explanatory force as a dependent or, perhaps more likely, independent variable. It is, in other words, possible to combine elements of positivist and interpretivist approaches, while being conscious of the fundamental differences between them.

References:

Andersen, Ellen Ann. 2005. Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation. Ann Arbor: The University of Michigan Press.

Benford, Robert and David A Snow. 2000. “Framing Processes and Social Movements: An Overview and Assessment.” Annual Review of Sociology 26(1): 611-639.

Doherty, Brian and Graeme Hayes. 2012. “Having Your Day in Court: Judicial Opportunity and Tactical Choice in Anti-GMO Campaigns in France and the United Kingdom.” Comparative Political Studies.

Galanter, Marc.  1974. “Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change.” Law & Society Rev 9: 95.

Hilson, Chris. 2002. “New Social Movements: The Role of Legal Opportunity.” Journal of European Public Policy 9(2): 238-255.

Hilson, Chris. 2009. “Framing the Local and the Global in the Anti-Nuclear Movement: Law and the Politics of Place.” Journal of Law & Society 36(1): 94-109.

Hilson, Chris. 2012. “U.K. Climate Change Litigation: Between Hard and Soft Framing.” Pp. 47-61 in Criminological and Legal Consequences of Climate Change, edited by S. Farrall, T. Ahmed and D. French (Onati series).

Kitschelt, Herbert. 1986. “Political Opportunity Structures and Political Protest: Anti-Nuclear Movements in Four Democracies.” British Journal of Political Science 16(1): 57- 85.

Marshall, Anna-Maria. 2005. Confronting Sexual Harassment: The Law and Politics of Everyday Life. Burlington: Ashgate.

McCann, Michael. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: Chicago University Press.

McCann, Michael. 1996 “Causal versus Constitutive Explanations (or, On the Difficulty of Being so Positive…)” Law and Social Inquiry 21(2): 457-82.

Paris, Michael. 2010. Framing Equal Opportunity: Law and the Politics of School Finance Reform. Stanford, CA: Stanford University Press.

Pedriana, Nicholas. 2006. “From Protective to Equal Treatment: Legal Framing Processes and Transformation of the Women’s Movement in the 1960s.” American Journal of Sociology 111(6): 1718-1761.

Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press.

Rosenberg, Gerald N. 1996. “Positivism, Interpretivism, and the Study of Law: McCann’s Rights at Work.” Law and Social Inquiry 21(2):435-56.

Smith, Miriam. 2007. “Framing Same-sex Marriage in Canada and the United States: Goodridge, Halpern and The National Boundaries of Political Discourse.” Social & Legal Studies 16(1): 5-26.

Vanhala, Lisa. 2011 Making Rights a Reality? Disability Rights Activists and Legal Mobilization . Cambridge: Cambridge University Press

Wilson, Bruce M., and Juan Carlos Rodríguez Cordero. 2006. “Legal Opportunity Structures and Social Movements: The Effects of Institutional Change on Costa Rican Politics.” Comparative Political Studies 39(3): 325-351.

Zippel, Kathrin. 2006. The Politics of Sexual Harassment. Cambridge: Cambridge University Press.

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Filed under Essay Dialogues, Movements and the Courts

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