Legal Struggles: A Social Theory Perspective on Strategic Litigation and Legal Mobilisation

Abstract

Social movements, NGOs and other political actors often mobilise the law for social change. Strategic litigation and collective legal mobilisation can be key instruments to face current political challenges like the climate crisis, human rights violations against refugees or the exploitation of workers along global supply chains. Although these struggles are framed by a societal context and have impacts on the political and juridical fields, the literature about legal mobilisation still does not decidedly engage with a social-theory-based perspective on such struggles. By developing the concept of legal struggles, the article proposes a conceptual framework to analyse both the ambivalence and the emancipatory potential of progressive struggles in the juridical field. Critical Theory, Materialist Theory and the Theory of Social Fields by Pierre Bourdieu are combined to investigate the specific form of collective legal struggles carried out in this arena. We examine repertoires and strategies of collective actors as well as the emancipatory potential of these mobilisation strategies. Our conclusions point to the structural distinctions and selectivities which define the juridical field in capitalist societies and also the conditions of possibility of political struggles using the law.

Unionising Sex Workers and Other Feminists

“…Legal mobilisation is a stand of legal consciousness study (Chua and Engel, 2019) that has in common with feminist and Marxist literature a focus on the interrelated and multilayered processes of tactical legal engagement within law and political protest and organising against law to advance the political and justice-based aims of social movements. Protest against the law often deploys legal categoriessuch as rights and equalityto frame the grievance or demand and at some point, a tactical choice is made about whether to enter legal institutions (Buckel et al, 2023;Colling, 2009;Kirk, 2020;McCann, 2006). This vast literature also views liberal law as 'double edged' (McCann, 2004) and questions whether it can enact the emancipatory vision of social movements and/or reproduce liberal legal hegemony, which it tends to answer via an appeal to law's contingency and fine-grained empirical enquiry (McCann, 2004(McCann, , 2006.…”

When norms clash

“…Legal mobilisation may 138 be defined as claiming rights in court in favour of eliciting a greater social change (Şerban, 2022, 2018). It has been used by CSOs across the globe for years to reconfigure power relations between the state and civil society (Buckel et al, 2023). Through legal mobilisation, CSOs and others hope to set a precedent which has an impact on cases beyond the one in question and codify the legitimacy of rights claimed under a particular norm.…”

“…While there were already longstanding debates about the role that law could play in challenging or upholding power dynamics between states and civil society, the situation in Poland presented even more extreme concerns, as even apex courts were subject to political subjugation and rulings from supranational courts are being ignored. A longstanding question related to both strategic litigation and legal mobilisation more broadly is whether the law (even when cases are won by CSOs) could represent a genuine change in the power structures between civil society and the state (Buckel et al, 2023). While this debate was originally about whether the law should be understood as a more 'neutral' force, open to use by both powerful and disenfranchised actors (Scheingold, 2004) or whether it should be understood as a force created to maintain hegemonic systems and preserve existing power dynamics (Börzel, 2006;Editora, 2022), the Polish context is even trickier.…”