Legal Mobilization Research Articles

Right to Water and Courts in Brazil: How Do Brazilian Courts Rule When They Frame Water as a Right?

The international protection given to the right to water has increased over the last decades, with two United Nations’ resolutions establishing a freestanding right to water in 2010. Several countries have a right to water enshrined in their constitutions, while in other countries, this right has been recognised by the courts. This study aims to assess whether and how Brazilian courts are deciding water-related conflicts using the “right to water” frame, what the content given to this right is, and whose rights are protected. We created a comprehensive database of decisions issued by Brazilian courts at different levels containing the expression “right to water”. Our main findings are that the great majority of decisions are from lower courts and were issued on individual cases related to water supply. Further, we have seen that courts are frequently prohibiting the disconnection of water supply services when extreme vulnerability is argued. The same has been seen in other Latin American countries, such as Argentina, Colombia, and Costa Rica, with the one main difference that in these countries, the right to water has been carved out by the Constitutional Courts. The Brazilian Federal Supreme Court, which has the last word on the interpretation of the constitution, has not issued any decisions establishing a right to water, but there is legal mobilisation aiming for this and using UN resolutions as a key argument.

Legal Mobilization and the Internationalization of Anticorruption Enforcement

This article contributes a critical study of efforts to internationalize the investigation and prosecution of corruption. The efforts to internationalize anticorruption enforcement are visible, for instance, in calls for an International Anticorruption Court (IACC) or an Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC). Inspired by a historical sociological perspective, this article investigates mobilizations around these initiatives, how mobilizers frame their engagement, and the ideological context in which they operate. In particular, the article zooms in on elites and how they push for states to internationalize the investigation and prosecution of corruption. This article situates the efforts of these elites in a larger historical context and compares the push to internationalize anticorruption enforcement to earlier legal mobilizations in the field of international criminal justice focused on atrocity crimes.

Minorities as citizens: The legal advocacy of language rights by the Hungarian minority in Romania

AbstractThis article investigates the assertion of language rights through legal mobilization by the Hungarian minority in Romania, thus examining this emergent kind of mobilization aimed at the claiming of rights, often rights recognized by law, but not enforced in practice. This incongruity between rights on paper and their execution provokes interethnic rivalry for the visibility of language and culture, in which the exclusive ownership of sovereignty is marked by the dominance of national language in physical spaces coined as ‘linguistic territoriality’ (Csergő, 2007), fostering parallel, monolingual public spheres. Applying Rancière's theory to the case of the Hungarian minority in Romania, it is argued that civil society activists' legal mobilization initiatives are a manifestation of ‘politics’ in the Rancièreian sense as they challenge the distribution of public spaces along ethnic lines through pushing forward their integrative vision of the same spaces—thus ‘seeking the litigious distribution of places and roles’ (Rancière, 2003, p. 201).

Grassroots mobilization in Brazil’s urban Amazon: Global investments, persistent floods, and local resistance across political and legal arenas

• We analyze how the urban poor mobilize against floods in the context of a major urban development project in Latin America. • We find a mix of optimism and skepticism regarding the potential changes brought by political and legal mobilization. • The judicialization of flood-related claims in the legal arena coexists with social mobilization in the political arena. • For grassroots movements, litigating against social-ecological injustices is a means to foster better urban governance. By the 1980s, the Brazilian Amazon was already an urbanized forest. A large portion of its population was living in non-rural areas attracted by better service provisioning and economic opportunities in fast-developing urban centers. Located at the Amazon Estuary-Delta, Belém is the Amazon’s largest metropolitan area, marked by informal urban expansion, and serving as an illustrative case of the opportunities and challenges with which urban populations deal in the region. Faced with significant pressures of absent infrastructure, high rates of poverty, precarious settlements, and ever more frequent flood events, already in the 1980s, Belém was home to the biggest urban reform project of its time in Latin America: The Macro-Drainage Project of the Una River Watershed. Costing over 300 million USD, the project was intended to have a multilevel governance system through which the Inter-American Development Bank and local government could coordinate project activities. Yet, due to the combination of poor infrastructure and changing rainfall patterns, about half a million people currently remain vulnerable to flood hazards and property damages. Our analysis uses a socio-legal approach to studying grassroots mobilization against the violation of social and environmental rights aggravated by floods. We also draw on Ostrom’s concepts of action arena and action situation to examine collective action across political and legal arenas within which individuals, grassroots organizations, and the state negotiate/contest flood-related issues. Conducting archival and ethnographic research, we find a story of conflict and cooperation between the civil society and political and legal actors, which accounts for a mix of optimism and skepticism regarding the improvement in the livelihood of the urban poor affected by this developmental program. This interdisciplinary lens contributes to understanding the limits and potentials of collective action to address, whether through political and/or legal mobilization, urban inequalities and social vulnerability to environmental and climate change.

Contesting large-scale land acquisitions in the Global South

• The analysis synthesizes the case study literature to explain how communities contest large-scale agricultural investment. • Communities use varied tactics, mostly from the repertoires of everyday resistance, collective action, and rights-based means. • Rural communities face unfavorable circumstances for organized protests. • Certain political opportunities and involvement of local leaders enable contentious collective action or rights-based resistance. As agricultural investors have acquired large tracts of land in the Global South recently, many affected communities and civil society groups have contested what they perceive as land grabbing. These communities have struggled to retain their land, protect their livelihoods, or benefit from the investment. There has been much academic interest in these conflicts. Studying the emerging literature, this review identifies the main theoretical perspectives and synthesizes the case study evidence. The goal is to better understand how communities contest large-scale land acquisitions (LSLAs) and to explain their tactics. For this purpose, a sample was collected that consists of 46 studies and 28 LSLA cases from the Global South. Since most of these studies adopt single theoretical perspectives from resistance research, the present study links multiple theoretical strands, most importantly everyday resistance, contentious politics, and legal mobilization. Based on the cases reviewed, the analysis shows that the tactics of contention are diverse but can also be grouped into three repertoires. It is found that affected communities use everyday resistance mostly when they face particularly unfavorable circumstances. In contrast, certain political opportunities and involvement of local leaders enable organized protests through either collective action or rights-based contention. Overall, this study contributes to the literature not only by bringing together case observations to see the big picture, but also by identifying the main repertoires, tentative frequencies of tactics, and less relevant circumstances and mechanisms. In practical terms, the findings suggest that development and civil society actors can play important roles for assisting rural populations and local leaders in fending off land grabs.

Inequality and the Human Right to Tuition-Free Higher Education: Mobilizing Human Rights Law in the German Movement against Tuition Fees

Why do activists employ international human rights law in domestic policy disputes and to what effect? Can international human rights law play an important role in cases where its direct application and justiciability by domestic courts is questionable? This study considers these questions in the area of socioeconomic rights by analyzing the mobilization of human rights law in the German social movement against tuition fees. Whereas legal mobilization theory is broadly concerned with the invocation of law on behalf of political demands, this article emphasizes discursive opportunity structures and vernacularization to make sense of which rights are adopted, why, and with what impact. I draw on content analysis of movement and political party documents, court decisions, and news reports as well as semi-structured interviews and participant observation. I find that activists in Germany were not naive about human rights. Instead, activists invoked human rights to resist political elites’ framing of education as a private good and students as consumers and to broaden the issue to include social inclusion and justice throughout the German education system. The mobilization of human rights law also was an effective means by which activists generated media attention and pressured politicians.

Профессиональная юридическаямобильность выпускников вузов Министерства внутренних дел Российской Федерации: миф или реальность

Modern conditions of service for graduates of higher education institutions of the Ministry of Internal Affairs of Russia in the territorial bodies of internal Affairs, among the many law enforcement requirements imposed on young professionals, additionally indicate that it is not necessary to form a sufficiently high level of professional legal mobility, the ability to easily start professional law enforcement activities in a different direction from the one in which his training was carried out at the university of the Ministry of Internal Affairs of Russia. In this article, in addition to studying the concept and content of professional mobility, the reasons for its insufficient level among graduates of the Ministry of Internal Affairs of Russia, proposals are formulated for its improvement, transformation from a semi-mythical category into the reality of the service of an employee of the territorial body of the Ministry of Internal Affairs of Russia.

“We the prosecutors”: Challenges to social participation in Brazilian public law litigation

Abstract The Brazilian Ministério Público (MP) is an agency that aims to monitor the enforcement of criminal law, prosecuting wherever necessary, in addition to protecting relevant collective goods, such as those included in consumer and environmental regulations. These latter types of powers—established for the first time in the 1934 Constitution and consolidated in the 1988 Constitution—are uncommon from a comparative perspective. Although at first glance they could be seen to be useful for enforcing important principles and fundamental rights, I argue that the gradual empowerment of the MP could potentially have damaged civil society associations’ (CSAs) capacity for legal mobilization, since the areas of competence of this legal institution largely overlap with the niche in which civil society advocacy organizations operate. The experimentalist constitutional design combined with the gradual activist behavior from its members, have positioned the MP as perhaps one of the major institutional guardians of the public interest after Brazil’s re-democratization. I conclude by suggesting that the MP should develop strategies to enhance the representativeness and effectiveness of CSAs by engaging in a fruitful dialogue with them, including the monitoring of those cases once they leave the courtroom. In turn, CSAs also have strategic incentives to align with the MP, mainly to withstand current judicial skepticism about its institutional capacity for public law litigation.

Claiming Religious Freedom at the European Court of Human Rights: Socio-Legal Field Effects on Legal Mobilization

How do legal strategies at the European Court of Human Rights (ECtHR) vary among activists in highly asymmetrical social positions? Social scientists have demonstrated that legal mobilization raises the pressure on states to provide broader minority accommodation. While this may be true, such outcome-oriented studies overlook the fact that judicial mobilization is itself deeply imbued with inequalities and divergent interests among diverse activists. We lack comparative studies to examine how such differences play out in litigation. Drawing on a qualitative in-depth study among Sikh, Muslim, Catholic, Evangelical, and secular advocacy groups involved in religious freedom disputes at the ECtHR, this article argues that claims making often is a balancing act between legal power relations and extra-legal commitments, which leads to variation in activists’ leverage to challenge legal marginalization. First, hostile legal environments discourage more easily activists with weaker transnational connections who are in vulnerable domestic positions. Second, while the most marginalized readily seek to fit identity narratives into dominant legal frames of religion, more powerful actors can target the core of legal principles and power distribution within the legal field as such. Even when unsuccessful in judicial outcomes, they might affect broader political and legal debates.

The Limits and Power of Law: What the Absence of #MeToo in Taiwan Can Tell Us about Legal Mobilization

The #MeToo movement gained global prominence after Hollywood celebrities came forward with their experiences of sexual violence and encouraged others to do the same. This was by no means the first time a woman had told the world of her experience of sexual violation, but this time, the powerful were paying attention: “Women have been saying these things forever. It is the response to them that has changed” (MacKinnon 2020, 7). High-quality investigative journalists vetted the women's accounts and provided more stories of sexual abuse and predation. Many survivors have since come forward with their own names and their perpetrators’ names, leading some prominent men to be deprived of their fame and positions of power. The #MeToo movement makes two things matter and count: what the victims say and what the perpetrators did. It has raised the perpetrators’ accountability and the victims’ credibility and reversed the scenario of sexual violation: making the perpetrator, not the victim, pay for the sexual harm.

Living It Up at the Hotel California: Employee Mobility Barriers and Collaborativeness in Firms’ Innovation

Research has long recognized the importance of collaboration for innovation, but relatively little is known about the strategic drivers of collaborative innovation in firms. We posit that robust collaboration within firms can increase the interfirm mobility of inventors and increase spillovers of innovative knowledge to competitors by mobile inventors. Therefore, by mitigating these value capture hazards associated with collaboration, barriers to employee mobility may induce firms to increase collaborativeness in innovation. Additionally, consistent with the mechanism underlying this proposition, we hypothesize that firms whose innovation entails more complex knowledge, which is known to impede interfirm knowledge spillovers, will increase collaboration less when employee mobility increases. We test these hypotheses by leveraging quasi-exogenous changes in two legal mobility barriers for inventors across U.S. states and find that higher-mobility barriers are associated with greater inventor collaboration (as observed in patented innovation), and this effect is weaker for firms possessing more complex knowledge. These findings deepen our understanding of the strategic tradeoffs between value creation and value capture entailed in collaborative innovation within firms and of human capital strategies that help to manage these tradeoffs.

Water rights, indigenous legal mobilization and the hybridization of legal pluralism in Southern Chile

Experiences in Andean countries reveal that constitutional recognition of plural rights systems is not enough to reduce the detrimental impacts of hydropower on Indigenous communities. In this article, critical legal pluralism serves as an entry point from which to raise questions about the formal recognition of Indigenous legal orders in Chile. Drawing from an hydroelectic project that would dam the Neltume lake, this study examines how to take diverse local water rights systems seriously, without wiping them out by equilizing their divergences with logically ordered, hierarchically differentiated, official law. Accordingly, it shows how a series of legal networks overlap, intersect, and mutually shape each other, as it relates to struggles over water control in Mapuche-Williche territories. Through an ongoing engagement with critical anthropological thought, the article ends by addressing how it can be challenging to translate Indigenous epistemologies and political identities into the most official of all state documents, namely, the Constitution. Considering the present-day constitution-making process in Chile, the research combines several techniques for gathering qualitative data, including in-depth interviews with respondents involved in the conflict, videography, document analysis, and secondary historical sources.

Legal mobilisation, legal scepticism and the limits of ‘lawfare’: between law and politics in union activism in Botswana

ABSTRACT Against legal scepticism which constructs litigations as negative or useless ‘lawfare’, this article argues for the need to recognise that taking government to court is part of a wider strategy of social mobilisation and campaigns for social justice, as others have also claimed. Legal mobilisation during a public sector strike in Botswana in 2011 was, the paper argues, only one strategic part of a more comprehensive campaign to call on government to pay its workers a living wage. The paper calls for anthropology to re-examine some of its assumptions about the role of the law in postcolonial nations. Despite the possibility that judges may be biased or vulnerable to political influence, and despite the courts’ restricted ability to implement their judgements - it is nevertheless the case that ethics, morality and the law, when mobilised alongside concerted political and civic activism, may play a critical role in advancing the cause of citizens’ rights against an apparently all-powerful government.

Why People Turn to Institutions They Detest: Institutional Mistrust and Justice System Engagement in Uneven Democratic States

Does political mistrust lead to institutional disengagement? Much work in political science holds that trust matters for political participation, including recourse to the justice system. Scholars of judicial institutions, relying largely on survey research, argue that low trust decreases legal compliance and cooperation, threatening the rule of law. Legal consciousness and mobilization scholars, meanwhile, suggest that trust does not drive justice system engagement. However, their single-case study approach makes assessing the wider implications of their findings difficult. Based on an innovative comparative focus-group study in two uneven democratic states, Chile and Colombia, we show that trust is not the primary factor driving justice system engagement. Rather, people’s engagement decisions are shaped by their expectations and aspirations for their political system and by their politically constructed capacities for legal agency. Our study offers insights of relevance for analysts of various forms of political participation in uneven democratic states across the globe.

Legal Mobilization to Protect Women against Rape in Islamist Sudan

The article explores the variety of normative and legal resources that Sudanese women inside and outside of Sudan’s Islamist regime, as well as their conservative religious opponents, have mobilized to campaign for legal reform to protect women against rape. Women’s rights activists and Islamist women within government institutions have largely mobilized in parallel, without much interaction and collaboration, to address the problems associated with the law’s definition of rape as adultery and fornication without consent. In 2015, Sudan’s National Assembly enacted an amendment to the 1991 Criminal Code with a new definition of rape, de-linking it from adultery and fornication; a process which completely excluded consultation with civil society. The reform has been poorly enforced and has come under harsh critique especially for not explicitly criminalizing marital rape.

Legal mobilization via preliminary reference: Insights from the case of migrant rights

Over the years, many theories have tried to explain the puzzle of cross-national variation in preliminary reference rates before the ECJ. Most of the contributions focused on the role of national judges, examining their legal education, policy preferences, workload, and attitude towards higher courts. This article adopts, instead, a legal mobilization perspective that decentralizes the role of courts and redirects the focus to the litigants and their political context. Relying on empirical research and on a comparison of three country case studies in the field of migration, the article argues that national patterns of mobilization influence the emergence of preliminary references. Moreover, it identifies three factors at the national level that help understand when legal mobilization occurs via preliminary reference: altruism, Euro-expertise, and EU legal opportunity structure. The article makes both an empirical and a theoretical contribution by bridging the scholarship on legal mobilization and EU judicial politics.

“A Strange, Contagious Fear”: Scarlet Letters and Shame in the Time of Coronavirus

AbstractPublic shaming has a long history in the United States, and the image of the “scarlet letter” is an integral part of that history. This essay examines how American media accounts in the first year of the coronavirus pandemic invoked the image of the scarlet letter to describe the shame of infection at an individual, institutional, and national level. The first section discusses the colonial sources that Hawthorne used in creating the image as well as the ways in which his romance associates it with social shame and stigma. The second section focuses on media accounts that equate wearing a mask, or declining to wear a mask, with wearing a scarlet letter like Hester Prynne. The final section considers how the scarlet letter has been used in accounts of communal infection rates and forced closures. In their invocations of the scarlet letter, reporters, essayists, and bloggers have repeated the central conflicts between individual freedom and social responsibility, moral good and legal constraint, mobility and isolation, and selfishness and empathy that have long dominated scholarly interpretations of The Scarlet Letter. In doing so, they demonstrate the continuing potency of the cultural work of Hawthorne's classic novel.

Legal mobilization without resources? How civil society organizations generate and share alternative resources in vulnerable communities

AbstractScholars often assume that social movements and civil society organizations can draw on deep wells of traditional resources, such as money and lawyers, to finance legal mobilization. However, resource mobilization is rarely so straightforward in developing countries such as Mexico. I show how under‐resourced civil society organizations create and mobilize alternative resources which they share with marginalized communities, increasing those communities’ access to environmental justice. This occurs in developed countries too, but where money is scarcer, alternative non‐material resources are more important. The findings contribute to debates on social movement resource mobilization and on legal mobilization in defence of vulnerable communities facing development pressures from extractive and other industries. The article also provides a fine‐grained analysis of how environmental movements act on the ground, focusing on Mexico as an important case of environmental mobilization in a context of poorly resourced and vulnerable communities.

Channeling Water Conflicts through the Legislative Branch in Colombia

This paper answers the question: has the Colombian Congress been effective at addressing relevant water conflicts and making them visible? While courts and social movements have been key for the advancement of social rights in Latin America, the role of legislators remains unclear. We conduct content analysis of all water-related bills, proposed bills, and constitutional amendments filed in Colombia from 1991 to 2020; we also analyzed Congress hearings of political control related to water, and the statutes of political parties who hold majority of seats in Congress; we also conducted interviews with key actors on water governance in Colombia. We find that only three bills have passed in the 30-year time frame and that relevant water conflicts have not been addressed by Colombian legislators. We find that water conflicts are not reaching the political agenda of Congress, yet through political control hearings, it has given some late visibility to critical territorial conflicts in which water is a key element. We analyze our data in light of literature on legislative politics and legal mobilization in Latin America. This study adds to global research on the role of legislators in advancing the human right to water, particularly in Latin America.

With or Without You: Qing, Li, Fa, and Legal Pluralism in China

Abstract The concept of legal pluralism was introduced to China in the mid-1990s to address the conflict between state law and local norms and customs. More than two decades after its introduction, the scope of legal pluralism in China has shifted to the coexistence and interaction between state law and nonstate orders. In this article, I review theoretical discussions and empirical studies on legal pluralism in China. The existing studies on legal pluralism focus mostly on rural villages, which marginalizes the lived experience of urban residents who are also caught in China’s rapid legal transplantation in recent decades. At the same time, law and society scholars who study labor dispute resolution in urban China tend to frame the questions as legal mobilization, rather than legal pluralism. The term qingli 情理[commonsense feelings of justice] is a common theme underlying the scholarship of legal pluralism and legal mobilization in China, and thus it has the potential to bring them together and bridge the findings of the two bodies of scholarship. This article contributes to the literature on Chinese law and society by demonstrating the role that qingli plays in bridging different areas of sociolegal studies.