Who takes the lead in legal mobilization claims?
It should be a standard response that any legal mobilization claim should be led by individuals and organizations who experience violations. However, this is not always the case. The structure of the legal profession often obscures the agency of those whose rights have been violated. Contradicting the approach of Systemic Justice, those who are centred in strategic litigation are often the NGOs and law firms – however well-intended – that are officially presenting a particular claim, rather than the communities and individuals affected by violations.
As a researcher wanting to understand these dynamics better, but also as someone with a long history of advocacy in my earlier career as a human rights lawyer, it has always been important for me to understand the objective of a legal mobilization claim and to critically reflect on my role in it.
The Legal Mobilization Platform (LMP) is a large and broad platform of researchers and practitioners, where legal mobilization researchers and practitioners can interact with each other in a dynamic and reflective shared space. From the overwhelming responses we have received thus far, there appears to be a very strong interest in better understanding and reflecting upon which forms of legal mobilization work and which don’t to trigger transformative change. To give an example, LMP-member Systemic Justice orient their work around “community-driven litigation”. Their goal is
…to radically transform how the law works for communities fighting for racial, social, and economic justice. Centring affected communities in joint litigation, Systemic Justice will help broaden access to judicial remedies for those fighting for justice and equality. This will help dismantle the power structures that underpin and fuel racial, social, and economic injustice.
People can certainly be both a researcher and advocate. However, these roles are different: what researchers aim for are solid arguments based on a convincing methodology; for practitioners, the aim is for transformative change. Without being clear what one’s role is, one can end up being of little use to either scholars or to activists. Nevertheless, for both researchers and practitioners, being a critically reflexive researcher or a conscientious advocate may involve standing up for cause, just as much as it may be necessary to step back, allowing others to take up the research or advocacy space and above all supporting others, or what Aminata Cairo refers to as “holding space”.
Recognizing one’s privilege
The questioning of who represents what goes even further than this. Before deciding whether one has the legitimacy to either research or represent a cause, it is critical for one to recognize one’s privilege. Critical scholars problematize this from the fields of critical race studies, critical feminist studies and critical legal studies, such as TWAIL. From a methodological standpoint, it is critical to recognize one’s positionality in relation to both the issues and people that are the focus of research, as well as the importance of praxis.
However, even more crucially, social justice activists frequently insist on questioning who, and in what manner, individuals can credibly speak out on issues such as the Dutch slavery and colonial heritage, which is currently a topic of much debate in the Netherlands and a focus of the LMP.
The challenges of patriarchy, racism, elitism, and anthropocentrism
Apart from crucial matters of ownership and positionality, there are myriad institutional structures and systems that can pose challenges for legal mobilization practitioners to navigate. To begin with, the patriarchal character of law, legal process and systems, including universities and the legal profession, structurally privileges men. But this is not the only problem. Patriarchy also corrodes the way institutions operate, with a tendency towards non-collaboration, individualism, and a high level of competitiveness. Similarly, the racialized character of law, legal processes, and systems structurally privilege white people. We see this problem in efforts to accomplish gender diversity and inclusion, within the public sector, courts, and universities where racist stereotypes persist, and even within NGOs, as Doctors Without Borders has acknowledged.
Alongside patriarchy and racism is the elitist character of the law and legal process that systemically protects the interests of a handful of affluent people, the so-called 1%, allowing some individuals to acquire massive opulence that can eclipse the GDP of entire nations, while allowing ample opportunities to avoid the payment of tax, hindering the equitable distribution of wealth.
And finally, the law and legal process tend to be highly anthropocentric, which means that they structurally privilege humans and disregard non-human interests. Here we are talking about the rights of nature, which researchers such as Dr. Daphina Misiedjan focuses much of her research on.
All of this involves (or at least it should) a great deal of legal learning, which Karim Knio and Bob Jessop recognize are part and parcel of a pedagogical approach to understanding how crises, whether they be of a financial, social, or political nature, are construed and managed.
More than litigation
Finally, legal mobilization is much more than litigation alone. As Eva Rieter and I have argued, it is about many different uses of law, incorporating other confrontational forms, including, but not limited to, litigation, e.g. protests, corporate shaming, civic boycotts. But legal mobilization can also adopt cooperative forms, such as participation in policy-making processes, training courses on systemic racism awareness, and partnerships with municipal and national government actors and law enforcement officials to develop, monitor, and implement policies for tackling systemic racism.
In all respects, solidarity is key. Solidarity involves first and foremost, listening to those affected by racial, climate, and socio-economic injustice, which is not always easy for researchers and practitioners alike as systemic justice involves one fundamentally questioning liberal values that are dominant both in systems of law and governance, not to mention economic relations.
The future of legal mobilization
So how should one take these reflections forward in practice? A key strategy for tackling all of these dilemmas in legal mobilization practice has been demonstrated by Amsterdam-based member of the Platform Public Interest Litigation Project or PILP, which applies a broad understanding of strategic litigation and asks, “Where does it hurt?”.
Another example of going beyond litigation is De Zwart Manifest (“Black Manifesto”), which recognises that, according to the Dutch Constitution, “everyone in the NL is treated equally in equal circumstances”. However, “the reality is different. In the NL there is a racialized order”. In other words, the claim of the manifesto is not to champion equality, but rather to redress systemic inequalities, or what Gloria Wekker, a member of the Legal Mobilizational Platform, refers to as “radical equality”.