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Mobilising for a Just World: Legal Mobilization for Whom?

By Jeff Handmaker 31 January 2023

Both scholars and practitioners engaged in either researching or advancing legal mobilization recognize that law can be used to guide legal interventions seeking to trigger transformative justice. A persistent question faced by legal mobilization practitioners and researchers alike is: who are we mobilizing for, and with whom? As a member of the Legal Mobilization Platform (LMP), I sought to answer this question during the platform’s launch on 12 January 2023 in The Hague.

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”.

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author:

Jeff Handmaker is Associate Professor of Legal Sociology at the International Institute of Social Studies and, together with Margarethe Wewerinke-Singh at the University of Amsterdam Law School, a member of the Steering Group of the Legal Mobilization Platform

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Legal mobilisation in the court of public opinion by Lotte Houwing and Jeff Handmaker

By Jeff Handmaker 12 September 201818 May 2020

The idea of a dystopian government that is all-powerful, unrestrained and especially all-seeing is centuries-old. Machiavelli, Orwell and many others have pondered the opportunities and challenges of allowing a government, particularly an authoritarian one, to have access to a system of surveillance that provides every detail of people’s lives. But few could have imagined the implications of modern technologies, such as DNA testing and facial recognition software. What can be done by way of legal mobilisation, beyond the courtroom, to restrain the government when threats to human rights by surveillance agencies are regarded as unacceptable?

The societal debate in The Netherlands regarding privacy and surveillance has been accelerated by the process of reform of the Dutch Intelligence and Security Services Act (in Dutch, the WIV). The Bill was met by an unprecedented level of reaction from the public in a consultation round that took place over the Internet (reference in Dutch). Shortly thereafter, five students from the city of Amsterdam took the initiative to petition for a referendum on the Bill, which was accompanied by a public campaign wherein the students succeeded in collecting even 344,126 more than the required 40,000 signatures. After the students succeeded, several organisations joined in campaigning, highlighting a variety of human rights concerns. Subsequently, the Public Interest Litigation Project (PILP) announced that it would explore the possibilities to start strategic litigation concerning a number of human rights violations that they alleged would be a direct consequence of proposed amendments to the Act.

The outcome of the referendum confirmed that the majority of Dutch citizens were against the Act as it was drafted by the government. This was a huge victory for the students, organisations and other privacy advocates. In response, the government formulated a proposal to make certain changes to the Act. Unfortunately, these changes were not much more than cosmetic. However, since the proposal entails a new legislative process, there is a fresh opportunity to lobby Parliament to introduce more far-reaching amendments.

These forms of legal mobilisation—petitioning for a national referendum, law-based campaigns, (the threat of) strategic litigation—and now a renewed opportunity to lobby Parliament on the revised Bill, reveal the power of public pressure to restrain government over-reach and leverage possibilities for rights-based advocacy and reform.

Where does it hurt?

One of the guiding questions of the PILP in assessing the challenges and potential for launching strategic litigation is: “where does it hurt”? The general problem of the Act is that it contains several capabilities that allow for data collection of people that are not targets of the intelligence and security services. Bulk interception, for example, entails the automatic collection of incredibly large amounts of data before the data even gets analysed by anyone.

The problem with this capability is that the (communications) data of anyone can be gathered, without having taken into account whether individuals form any risk at all from a national security standpoint. It is this specific capability that led to the name “sleepwet”, a portmanteau word of the Dutch word for dragnet (“sleepnet”) and law (“wet”). Besides bulk interception, the Act includes other capabilities with untargeted effects: the capability to hack third parties; to gain real time access to databases; to acquire bulk (personal) datasets; and to exchange (unevaluated) data with foreign intelligence agencies.

Apart from the direct consequences of exercising these capabilities to obtain and share large amounts of data of innocent people, there is the chilling effect. This effect refers to the inhibition or discouragement of the legitimate exercise of certain fundamental rights caused by surveillance measures. For example, in an age of social media, most people recognise the situation of typing something, and then removing the social media post before sending it, because they do not have control over who will read it. Sometimes, such restraint can be a good thing. However, it is harmful for a democracy when political dissidents or whistleblowers begin censuring themselves and are discouraged from making political statements or revealing something bad that is happening.

A broader campaign on privacy

The controversial law reform process of the Act fired up a broader public debate, and, especially in the run up to the referendum, led to accompanying campaigns on privacy in The Netherlands. The most common reaction has been: “but I do not have anything to hide”. However, the campaign waged against specific parts of the Act succeeded in planting seeds of doubt and criticism against this popular, though indifferent attitude. Also, it was the first time that the secrecy of the Dutch surveillance regime was brought into question.

Beyond the Netherlands, the debate has international ramifications. The Netherlands is not the only country that is in the midst of an overarching law reform regarding its intelligence and security services. France, Germany, the U.K. and Finland, among others, are in the midst of comparable processes. The debate in the Netherlands is of international relevance because the Dutch law reform fits in an international trend wherein untargeted surveillance measures are introduced, Internet service providers are more involved in the application of the capabilities, and the focus shifts from content to metadata. Nevertheless, there is a sufficient extent of transparency and free speech in The Netherlands to have an open debate—circumstances which enable legal mobilisation to play a crucial role in bringing issues to the public’s attention, i.e. beyond the courtroom. The broader debate and campaign over privacy is therefore still highly valid.

What is the role for strategic litigation?

The PILP coalition, which has been discussed in an earlier blogpost, focuses on strategic litigation for human rights. Strategic litigation, a specific form of legal mobilisation, involves the strategic use of legal procedures to bring about certain social, political or legal changes. Strategic litigation often accompanies campaigns or other means to amplify the voice of people and/or organisations fighting for this change.

What is PILP doing in this specific case?

Regarding the Intelligence and Security Services Act of 2017, PILP is coordinating the legal procedures of a broad coalition of lawyers, journalists, NGOs, and IT/tech companies. This coalition is legally represented by the renowned law firm Boekx Advocaten. Within this file, two separate procedures are underway. First, PILP petitioned for an urgent procedure to force the postponement of the entry into force of the Act until the proposed changes had been passed by the Dutch Parliament. Unfortunately, the judge declined to answer this claim.

Secondly, the coalition is assessing the possibility of starting strategic litigation to challenge the untargeted effects of aforementioned capabilities provided for in the Act itself against the framework of the European human rights treaties. This procedure will be conducted if the changes made by parliament will be insufficient to address the fundamental human rights problems of the Act.

Given the unpredictability of the judicial system, it is difficult to predict the outcome of the lawsuit. However, it is very clear that the other forms of legal mobilisation—a law-based referendum and campaign—have not only underscored the value of taking matters to the formal courts. They have been doing well in their own right; restraining government through the Court of Public Opinion.

Picture credit: Magic Madzik

About the authors:

Lotte Houwing is File Coordinator at the PILP concerning the WIV. Her views do not necessarily represent those of the organisation.

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

Human Rights Inside and Outside: Introducing the 2018 INFAR Conference

By Admin 24 May 201818 May 2020

The ISS next week hosts a conference organised by INFAR on “Human Rights Inside and Outside”, with a special focus on the Rule of Law and human rights. These two concepts are core normative ideas for law, yet their intrinsic value and application is contested. This blog details the conference proceedings and briefly describes the conference theme and the main questions participants will seek to answer. It also serves as an invitation for interested parties to attend the conference.

On 31 May and 1 June 2018, the International Institute of Social Studies (ISS) will host a conference titled “Human Rights Inside and Outside”. This conference is being organised in the framework of the Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR) Research Excellence Initiative, a 5-year (2015-2020) joint project of the Erasmus School of Law and the ISS of Erasmus University Rotterdam. Over one and a half days conference participants will gather to discuss the application of the Rule of Law (RoL) and human rights norms in relation to civic participation, contested constitutionalism, and corporate responsibility.

What is the conference about?

The Rule of Law (RoL) and human rights are core normative ideas for law, yet their intrinsic value and application is contested. Some have even argued that the human rights movement is on a regressive path, frequently leaving the most vulnerable without voice, ignoring economic considerations, and lacking prospects of securing access to justice.

International and supranational organisations today are dedicated to the promotion of the RoL and human rights, but they face problems in how to progress towards these purposes. The European Union (EU) finds that its new member states are unable to deliver on the RoL commitments made when they joined the EU. The United Nations struggles with RoL and human rights in post-conflict states, for instance when the UN takes on the role of government, as in Kosovo, and in transnational trade contexts, where the UN tries to provide guidelines for how business actors should take responsibility for human rights protection.

Part of the difficulty in realising and critiquing RoL and human rights interventions emanates from the divergence of views among actors regarding their overall meaning and purpose. The RoL and human rights are well-known legal and also political and economic concepts, as law and development scholars note. However, the content of these concepts is a contested subject. Policymakers, regulatory agencies and private actors tend to take a functionalist approach in which the RoL and human rights are viewed as instruments for stimulating economic growth or political stability. On the other hand, courts and most other legal actors view the RoL and human rights as intrinsically valuable norms, but fail to address the circumstances that lead to (dis)function. That is, they fail to realise how the application of RoL and human rights is contingent upon and vulnerable to economic and political struggles, and how battles over these norms are won and lost for economic and political expediency.

INFAR’s interest in RoL and human rights

A core assumption of the INFAR project is that it is not enough to shine light on the conceptual tensions and dilemmas of RoL and human rights arising through processes of globalisation and financialisation, such as in adjudications involving trade law and human rights. The global issues of inequality and political exclusion do not have a quick fix, but a fruitful approach towards them could be investigating the specific social settings where fallouts from the broader conceptual tensions and dilemmas are registered: the human consequences for people and groups and a fuller appreciation of which actors and what norms affected individuals must compete with. Micro ethnographic and other socio-legal studies within public and private settings that examine different forms of struggle against plural forms of expropriation and exclusion can tell us much about the success and deficits within a specific context.

Through these studies we find out more about the RoL and human rights elements that are frequently undermined by increasing economic inequality or political exclusion, and the processes surrounding and facilitating such outcomes. Such context-specific studies enable us to appreciate that both answers and obstacles to human rights and RoL questions are not controlled by the state and can involve private actors who bring their own understandings of what RoL and human rights mean within their operations.

Against this background, the conference will explore what RoL and human rights norms are invoked in different settings, involving constitutional courts, corporations, governments and regulators; how those rights interact with the political and economic purposes and incentives of those actors; and why the realisation of rights can involve innovative or adverse results. Accordingly, we will study how the substantive meaning of the RoL and human rights differs depending on circumstances.

We will explicitly examine the role of private actors in RoL and human rights conversations:

How might strategic litigation efforts assist in achieving social justice for Roma travelers under consistent threat of forced eviction?

How can legal guarantees for public participation be operationalised in private settings?

And how can human rights based constitutions remain a meaningful framework in divided societies?

When considering these questions we keep the people whose rights are at stake at the forefront of our discussions, while recognising the dangers of doing so from an epistemic standpoint.

Conference proceedings

The first session on citizenship and discrimination will focus on the global, European and Dutch responses to Roma rights, with papers from Julia Sardelić, Claire Loven and Leonie Huijbers, Helen Hintjens and Kristin Henrard. On the topic of contested constitutionalism we hear from Jeff Handmaker and Wil Hout, Otto Spijkers and Sanele Sibanda. On corporate social responsibility, Liesbeth Enneking discusses global value chains, Nicola Jägers, the Sustainable Development Goals, Peter Knorringa and Samer Abdelnour speak on global standards for sustainability, and Rachel Adams presents on transparency and human rights. On human rights and mining, Anneloes Hoff will present ethnographic research on the practical application of the corporate responsibility to respect human rights, Kinnari Bhatt discusses an unusual example of private contracting between a concessionaire and an Aboriginal group, and Jackie Dugard presents on the constitutional rights to property and equitable access to South Africa’s mineral resources.

After an exciting roundtable debate and Q&A on how human rights can be strategically mobilised for political and social change, the conference closes with a Keynote Address by South African Sociology of Law Professor Jonathan Klaaren of the University of the Witwatersrand in Johannesburg.

All are welcome! Register for the event here. A conference programme can be found at the same link.

Authors:

Nathanael Ali, Kinnari Bhatt, Jeff Handmaker and Sanne Taekema (conference co-organisers)

Toward greater tolerance? Ethno-nationalist lawfare and resistance through legal mobilisation by Jeff Handmaker

By Jeff Handmaker 26 January 201818 May 2020

About the author:

Jeff Handmaker teaches law, human rights, development and governance and conducts research on legal mobilisation at the ISS. He is also an associate member of the Faculty of Law at the University of the Witwatersrand in Johannesburg, Editor-in-Chief of the South African Journal on Human Rights and a member of the EUR INFAR Project.

In September 2014 Henk van Oss, a caravan dweller and member of the Dutch traveler community, received a letter from the Dutch municipality of Oss. Condolences were expressed for the recent death of his mother. And, in accordance with the Dutch “extinction policy”, he was informed that the permit for his mother’s caravan had been withdrawn and that he had to leave. His story of ethno-nationalist lawfare and the struggle for citizens to defend themselves reveals the importance of research on the contested terrain of legal mobilisation.

Victory for van Oss

Mr. van Oss, who had cared for his mother until her death, did not accept the municipality’s demands. He came in contact with the Dutch organisation Public Interest Litigation Project, who took his case to the Netherlands Human Rights Institute and brought a legal claim against the municipality of Oss. While the legal battle continued for some years, it was ultimately successful. The Human Rights Institute declared that the actions of Oss Municipality were unlawful. The courts (on appeal) declared that the municipality had acted illegally by withdrawing their permission for the caravan stand.

It was in some respects a legal tale of David and Goliath. From an analytical standpoint it was a classic case study of how ethno-nationalist lawfare to end what the Dutch government regards as an undesirable cultural practice met the counterpower of the Sinti, Roma and Traveler community, who used strategic litigation, a form of legal mobilisation, to claim their rights.

The traveler community: A precarious existence

The history of the Sinti, Roma and Traveler community in Europe is not an altogether happy one. Historicially, the community travelled for economic opportunities or to escape persecution. But this wasn’t always enough. During the Second World War, several hundred members of the community were arrested and deported from the Netherlands by the Nazi occupation authorities. They were sent to concentration camps; most died. While the number of persecuted travelers in the Netherlands was relatively small, they met a similar fate as several hundred thousand other travelers did across Europe.

Ander-kamp-Oss-in-2013-grotendeels-ontruimd-3 — A modern-day caravan in the Netherlands.

Over the course of the past few decades, a range of restrictive legal measures have been taken against Sinti, Roma and Travelers by both national and municipal governments across Europe. These measures frequently reflect ethno-nationalist, autocratic tendencies rather than the values expected of liberal democratic states. Such measures are also rooted in populism. They are framed by over-exaggerated perceptions of criminality and sometimes invoke the mantra of integration or even emancipation as a thin, and disingenuous form of justification.

It is not surprising, therefore, that the Dutch “extinction policy”¹, largely implemented at the municipal government level, and sometimes containing a benevolent, moral message aimed at improving the socio-economic conditions of the community, is met with such revulsion and hostility. Ultimately, the government’s legal measures represent an oppressive use of law, with the overall aim of reducing, if not completely eliminating the community; in other words, these measures are a form of lawfare.

Resistance through legal mobilisation

Meanwhile, civic-led, law-based efforts to protect members of the community facing discrimination and to advocate for more rights-respecting policies make it difficult for such restrictive measures to take hold legally, particularly at the local/municipal level. These efforts serve as a counterpower to the exercise of ethno-nationalist lawfare against these legally-recognised ethnic groups.

As I argued in a paper presented at the Dutch-Flemish Socio-Legal Studies Association (VSR) in January 2018, legal mobilisation as an analytical lens can help to explain the potential for civic-led legal instrumentalism to protect groups against retrogressive measures by the state. According to my colleague Sanne Taekema, Professor of Legal Theory at Erasmus School of Law and leader of the project on Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR) in which I am also participating,

traditional separation or balance of powers focuses on formal mandates of public actors and their interactions. Given the fact that in many states executive and legislative powers have become strongly intertwined, a veritable trias politica is merely an ideal.

Taekema’s research explores whether a model of balance of powers can be extended to include non-state actors. Together, we are investigating whether it is possible to revise the theory to include counterpowers outside of the state and serve as “direct and indirect checks” on government abuse of power. More broadly, my research explores how an analytical lens of lawfare can explain governmental-led instrumentalisation of law against communities, such as the Sinti, Roma and Travelers community, and how an analytical lens of legal mobilisation can explain the strategic potential of law-based, civic-led social justice claims.

A legal mobilisation lens: Useful in practice

The usefulness of a legal mobilisation lens is is further affirmed by Dutch attorney Jelle Klaas, litigation director of PILP, who led the strategic litigation on behalf of Henk van Oss. The Amsterdam-based organisation pursues what it describes as strategic litigation, a concept that is in fact broader than what most legal advocacy organisations traditionally understand strategic litigation to be, and incorporates various forms of law-based, civic-led advocacy. Klaas has noted that

sometimes, alternative routes to justice are blocked. Sometimes dialogue and lobbying are ineffective on their own. In these cases, legal action may be necessary as a form of counterpower to curb government overreach or harms caused by corporations.

PILP’s work is about using legal action to bring about social, political or legal changes. The goal is not necessarily to win a case for a particular client. Strategic litigation complements other ways of bringing about change: from lobbying and advocacy to community organising and protests. According to this approach, an organisation focused on strategic litigation should act as an ally to activists, NGOs and grassroots organisations. Klaas further explains PILP’s litigation strategies:

Usually, the aim is to go to court for a legal victory, but sometimes you can win by losing a case. Where injustice is exposed and publicity generated, there is often an opportunity for non-state actors to be a form of counterpower, regardless of the outcome of the case.

Conclusion

The case brought by Henk van Oss was “won” by PILP-supported lawyers in 2017, albeit not on the grounds of human rights violations as PILP had hoped and eloquently argued for. However, the case elevated the plight of Sinti, Roma and Travelers to the national spotlight. Furthermore, in laying out a detailed dossier of state-based discrimination, the case produced a vivid portrait of the community, giving the legal issue a human face and according credibility to the Sinti, Roma and Traveler movement’s campaign to end discrimination.

Beyond this particular issue, I feel it is crucial to understand the dynamics of legal mobilisation, both in a specific case and – generally – as a form of counterpower against lawfare exercised by state and indeed corporate actors. In this regard, context always shapes the socio-cultural possibilities for legal mobilisation. Furthermore, it is crucial to understand the structural bias embedded within national and international laws that condition the opportunities for exercising agency. Finally, the existence of structural bias, carefully leveraged, can form a powerful basis for advancing a social justice claim.

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