By Siri Gloppen
Will going to court help or harm the cause? This is a burning question for social movements and scholars siding with them. And it should be given careful consideration, in light of socio-legal scholarship suggesting that the “haves” come out ahead in court (Galanter 1974), and that even when social movement litigation succeeds, court victories are “hollow hopes” (Rosenberg 1991) bringing no real change. Fears are not only that it is ineffective and a waste of resources, but also that it may be counterproductive—that courts-centered activism will legitimize the system, circumscribe the struggle in ways that prevent radical challenges to the status quo, and change and de-radicalize the movement itself (Scheingold 1974).
Still, social-movements engage in legal activism, and increasingly so. What should we make of this? How, when, and why do social movements decide to use the courts as a strategy for pursuing their goals?
The quick answer is that social movements pursue court-centered activism when this, on balance, and given their opportunity situation is perceived as the best option (or complementary strategy) to further the cause. The interesting question is what goes into the calculation (Gloppen forthcoming).
In part, it depends on how favorable their legal opportunity structure is—which barriers the social movement faces in voicing its concern as a court case (such as lack of rights awareness; the nature of the law; thresholds of access to court—rules of standing, procedural requirements, costs, time, need for legal expertise); the resources available to it for overcoming these barriers (organizational and financial resources and legal support structures–including intellectual, political, and financial support from transnational activist networks); and the potential gain from pursuing a legal strategy (prospects for succeeding/ advancing the cause, based on previous experience and perceptions of judicial independence and effectiveness) (Gloppen 2008). Inspiration is drawn from court cases where social movements have succeeded, and where this has served as a catalyst for transformation–such as the Treatment Action Campaign’s court cases on access to HIV/AIDS medication in South Africa, transnational legal mobilization for generic medicines and lower drug prices, and indigenous movements’ litigation for land and cultural rights (Langford 2008).
What the alternatives are also plays into the equation. Most important in this regard, is the political opportunity structure—the chances of winning through political mobilization (including social mobilization and media campaigns). This depends on the responsiveness of the political elite, generally and with respect to the issues involved and whether the resources available to the social movement and its allies are sufficient to make headway by creating political pressure. The more unlikely social and political mobilization is to yield results, the more likely social movements are to engage in litigation—even when the legal opportunity structure seems relatively unfavorable. This is often the situation for marginalized and unpopular groups (insular minorities) who lack political clout. Deliberative space provided by courts may be their best option, even if chances of success are meager.
Where the legal opportunity structure is favorable (for example because the threshold to access court is low—as in India when the Supreme Court introduced the Public Interest Litigation provision, or in Costa Rica where anyone can access the Constitutional Court without paying any fees and the court itself provides the necessary legal assistance—or where legal expertise is readily available, or previous successes are plentiful), social movements may engage in court-centered activism also when there are feasible alternatives, for example in the form of a relatively open political opportunity structure (Wilson & Rodrigues 2006). Hence, where court presents an easy alternative to collective action, it may work against the formation of strong social movements (Yamin & Gloppen 2011).
But litigation is not necessarily an either-or. It often forms part of a broader political mobilization strategy. A court case may be pursued less for the judgment itself than for its mobilization and agenda-setting potential—or because having a case before the courts (“negotiating in the shadow of litigation”) provides social movements access to decision-making forums and adds leverage to their demands. Hence, decisions to litigate are not necessarily based on prospects for court victory—even if a case is likely to be lost, gains could be made (“winning by loosing”) (McCann 2006, Yamin & Gloppen 2011).
When courts damage the cause of social movements
However, loosing in court could also damage the cause, delegitimize it, exhaust resources, and set back the struggle both politically and internally. And court victories may turn out to be pyrrhic. For example, where liberal causes (e.g., LGBT rights, abortion, abolition of the death penalty) succeed in court in the face of strong and widespread social resistance against such liberal values, this may trigger a political back-lash (at least in the short term; it could still contribute to long-tem social change).
Courts are also weapons used by governments to repress dissent and weaken social movements. This takes many forms, and is more overt in some societies than others. Sometimes governments present trumped-up charges against social movement activists. More commonly, charges are pressed against activists for irregularities and “victimless crimes” that otherwise rarely would go to court (“for my enemies the law” as the old saying goes). Laws and regulations may be passed or strengthened to criminalize the ways of life and modes of action of social movements, thus increasing the chances of successful prosecution and the severity of penalties. Even where courts eventually rule against the state, court actions tie social movements up in court for lengthy periods, forcing them to spend time and resources that could have been used to further their cause. It also sends a strong signal to others. Courts are particularly problematic for social movements where judicial independence is weak and activist risk lengthy sentences for “crimes” that never happened and actions that do not warrant prosecution. For governments, “repression by law” has advantages. While there may still be criticism, (the semblance of) a proper legal process lends credibility.
Paradoxically, the use of courts by the state to repress activism may make litigation a more attractive strategy for social movements, for several reasons: It is a form of activism that is rarely subject to state reaction. It has the potential to attract international visibility and assistance from transnational activist networks (Sikkink 2011). And domestic litigation, even when unsuccessful can provide a route to regional courts and treaty bodies that may give high visibility and a prospect for redress (in particular for social movement activists in Eastern Europe and Latin America where regional courts are comparatively strong) (Simmons 2009). Thus, even domestic courts that lack independence and are unlikely to rule in favor of social movements may be useful arenas.
The diverse experiences of social movements within the field of law, reflected in contemporary socio-legal literature, have changed how we think about the relationship between social movements and the courts, with more scholars seeing the courts as useful arenas, and court-based activism as a more appropriate route to social change (Gargarella et al. 2006; Gauri & Brinks 2008; Rodriguez-Garravito 2011; Yamin & Gloppen 2011).
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Gargarella, Roberto, Pilar Domingo, and Theunis Roux. 2006. Courts and social transformation in new democracies : an institutional voice for the poor? Hampshire, England ; Burlington, VT: Ashgate.
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Gloppen, Siri. Forthcoming. “Studying courts in context: the role of non-judicial institutional and socio-political realities” in L.Haglund and R. Stryker (eds) Economic, Social, and Cultural Rights: Emerging Possibilities for Social Transformation.
Gloppen, Siri. 2008. “Public Interest Litigation, Social Rights and Social Policy” in Dani and a. De Haan (eds,) Inclusive States. Social Policy and Structural Inequalities. Washington DC: World Bank (2008) 343-368.
Gloppen, Siri. 2009. “Legal Enforcement of Social Rights: Enabling Conditions and Impact Assessment” Erasmus LR 4:2.
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Rodríguez Garavito, César. 2011. ”Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America”. 89 Tex. L. Rev. 1669
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Sheingold, Stuart, The Politics of Rights: Lawyers, Public Policy and Political Change (New Haven, Conn.: Yale University Press, 1974)
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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: 325-351,
Yamin, Alicia Ely and Siri Gloppen. 2011. “Litigating Health Rights: Can Courts Bring More Justice to Health?”. (Harvard Law School HRP series) Harvard University Press.