Download The Dog That Barked Rather Quietly: The Role of Law in Social

The Dog That Barked Rather Quietly:
The Role of Law in Social Movement
Studies
PPL Symposium Weds 27 April
Media, Politics & Activism
David Mead
Professor of UK Human Rights Law
UEA Law School
 Informal networks…based on
 Shared beliefs and
solidarity…mobilising about
 Conflictual issues through
 Frequent use of forms of protest
(della Porta & Diani, 1999)
“…tended to be overlooked that political
opportunity structures are but one set of
opportunity structures for movements,
alongside media & also of course legal
academic & many other types of structures”
(Crossley, 2002)
“Many of the more recent studies build on
relatively
narrow
but
unarticulated
conceptions of law, mostly focusing on
litigation outcomes and the roles of lawyers.”
(McCann 2006)
“…much scholarship is committed to making
claims about law without clearly thinking
through the complex, multiple dimensions of
what often are recognized as law and
legality.” (McCann 2006)
Lawyers generally are
interested in only one thing...
….RULES
Five differing conceptions of law
• Law as binary divide
• Law in its constitutive guise
• Law as schematic
• Law over disorder
• Law as norm-setter
•
•
•
•
Initiation / mobilisation
Organisation
Goals
Operation
How can law inform our understanding of
the initiating trigger?
• Legal rule as the direct site of contention
• Law as background structure
• The law in action – the shadow of the law
• Law as claim-framing device
“…by adopting a legal discourse, a movement is
constrained by its discursive logic even when it
struggles against it” Ferree & Merrill (2004)
• Law gives contentious flavour to initiating
event
How can law inform our understanding of
the organisation?
• Law might impose an organisational straitjacket
• Law might create organisational (dis)incentives so
as to (dis)favour informal
participation
• Law might determine
organisational resources
Holder v Humanitarian Law Project (2010)
How can law inform our understanding of
an SMO’s goals?
• Reversing legal rules
• Law reform as diversion
• Law as wider norm-setter
McCann 1994
• Industry own-goals, Hilson 2015
How can law inform our understanding of an
SMO’s operations?
It is here that the literature has been most
focused but still rather narrow
What strategies or tactics does an SMO employ –
and for what purpose? Not all are about the endgame; some are organisational / mobilisational
Institutional vs. confrontational
• Legal mobilisation –
essentially juriscentric,
& effectively litigation
strategies
• Pro-active vs. reactive
– Public law challenges/judicial
review
R (oao Public Law Project) v
Lord Chancellor [2016] UKSC 16
– Criminal prosecutions
– Civil suits
Vanhala 2011: active reactive or passive reactive?
The gains of legal mobilisation
“Inside a movement, activists deploy litigation to
mobilize and empower constituents and to aid
fundraising. Outside a movement, advocates use
litigation to gain publicity, raise funds from
foundations and allies, obtain leverage with
government officials, convince the public, and
influence elites. While these benefits may emerge
from legal victory, they may also result from the
initial act of rights claiming and from the mere
process of litigation. In fact, advocates may even use
litigation loss to raise consciousness, fundraise, and
bargain with state decision makers” Nejaime (2012)
Some issues surrounding legal mobilisation
•
•
•
•
•
Access to justice
Procedural hurdles
Elite power… and co-option?
Repeat players v. “one-off hitters” (Galanter, 1974)
Diverts resources from political struggle
(Scheingold, 2004)
• Individualised
• (Excessive) judicialisation
“the whole point of a SLAPP suit is to convert a
matter of public interest into a technical private law
dispute, robbing it of political framing and providing
a legal one instead” (Hilson 2015)
Doctrinal disjuncture
Activists ‘must articulate their claims so that they fall
within the categories previously established by an
amalgam of constitutional, statutory, administrative,
common, & case law’ (Andersen 2006, p.12).
R (oao Corner House Research & CAAT) v Director of
the SFO [2008] UKHL 60
Richardson v DPP [2014] UKSC 8
A more enriched & nuanced legal terrain
• Law over disorder
 Law as disruption
• Law as a constituting agent
 Legal rules dictate where we protest
 Legal rules construct deviance i.e. what we can do
 The legal construction of terrorism
• Law as schematic
 Legal framework structures political opportunities
 Informal power – bargaining in the shadows
 Law critical in structuring police response
• Law’s symbolic power as norm-setter
 Law confers (il)legitimacy on strategies, tactics even
causes
 Using law’s symbolic strength as a repertoire
 Legitimacy as a mobilising factor
Some concluding words
• The problem redefined
 Law: vast potential for both SMOs & scholars but...
 Historic focus on what law does, something running
in parallel, perhaps opposition
 Instead, we need to think about law as a reflexive
social construct, of what law does or is capable of
doing, and as undergirding and overarching
• Two largish gaps in the literature
 Law being seen only as an activists’ tactic or
resource
 Even within that, dominant view is of lawyers & of
going to court