Legal Mobilisation: Interactional Law as a Bridge between Instrumentalism and Law’s Values

Category: General

23 Mar 2016

Taekema2Sanne Taekema, Erasmus School of Law

Legal instrumentalism has a bad name: it is criticized for reducing law to a policy instrument for external political or economic goals. During the ISS Dialogue on Civic Innovation Research on April 4, I aim to rehabilitate instrumentalism, at least to some extent, by reinterpreting it from the perspective of pragmatist interactionism. By seeing law as emerging from the interactional expectancies of people towards one another, law is conceptually based on horizontal relationships (building on the theory of Lon Fuller). I will argue that this horizontal orientation can provide a specific version of an instrumental view of law because it pluralizes law’s instrumentality. Law is no longer seen as a policy instrument in the hands of authorities, but as a tool for everyone who makes use of it (making use of John Dewey’s pragmatism). Such a bottom-up account of law as an instrument requires arguing how the purposive activities of people in legal practices shape law as an interactional phenomenon. It also requires an argument on how the horizontal and vertical dimensions of law are connected. This means exploring to what extent law as set by official authority figures in, limits or enables, the different uses ordinary people make of law. Legal mobilization by activist individuals and groups is used to see how the vertical relationship involves bottom-up instrumentalization of law and how this relates to law’s values.

Statements

  1. To give a good account of legal mobilisation, we need to rethink the idea of law merely serving as a policy instrument.
  1. Law does not only consist of rules and is not framed by legal professionals exclusively; we also need to acknowledge and better understand the creative role of citizens and social movements.
  1. Legal mobilization needs to engage with law’s internal values, not work against them.

 

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Jeff

March 23rd, 2016 at 3:12 pm

Legal mobilization is a crucial topic to discuss, particularly among those in the legal field who tend to get stuck in normativity. As I noted in a recent interview, in relation to legal mobilization for climate change:

“Law is inherently political, although some lawyers would prefer not to face up to this.”

http://blog.eur.nl/iss/ggsj/2015/12/15/legal-mobilisation-and-climate-change/

This discussion is equally crucial for social scientists, who may also tend to have an understanding of law that is reduced to norms alone.

In fact, law has both normative content, and fulfils a range of different functions, whether social, cultural, political or economic.

By discussing law as interactional, it is possible to discuss both dimensions in an integrated way.

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Jeff

March 23rd, 2016 at 3:39 pm

Here is a more concrete example:

If you are discussing THE ROLE OF LAW IN PROTECTING THE ENVIRONMENT AGAINST THE EFFECTS OF CLIMATE CHANGE, it is important to have knowledge about the many international treaties and national-level implementing legislation, not least the recent treaty signed in Paris that contains a number of commitments that states have agreed to:

http://www.cop21.gouv.fr/en/

However, to make these global norms operational, to realise them (i.e. make them functional), it is important to discuss how these rules can be mobilized, not least to raise awareness of these norms and to confront states with these international commitments.

Legal mobilization can take place in different fora, such as through:

* the media (public awareness about the Paris commitments and government shaming when don’t realise these commitments);

* courts (by way of litigation, such as the recent Urgenda case) – http://www.urgenda.nl/en/climate-case/;

* engaging business when they express a clear intention to reorient their business activities to became more climate-friendly – http://www.merid.org/en/Content/Projects/United_States_Climate_Action_Partnership.aspx ;

and

* exposing businesses that support climate change denial – http://www.greenpeace.org/international/en/news/Blogs/makingwaves/bankrolling-climate-change-corporate-sponsors/blog/47429/

Legal mobilization can also push the normative boundaries of what law promises, e.g. through framing damage to the environment as an international crime:

http://www.haguetalks.com/event/ecocide-the-fifth-international-crime-against-peace/

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4 April 2016: prof. Taekema speaks at ISS – INFAR

March 24th, 2016 at 9:16 am

[…] Read the whole abstract of prof. Taekema on the blog of ISS, by clicking here. […]

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Sanne Taekema

March 29th, 2016 at 9:07 am

It is also helpful to consider some historical examples of mobilizing law for social purposes.
It is good to know that one of the most famous US Supreme Court decisions, Brown v Board of Education from 1954, was part of a campaign by the NAACP. There was a coordinated set of court cases which eventually led to the unique and unanimous decision by the Court.
See: http://www.naacpldf.org/case/brown-v-board-education
Of course, litigation is not the only strategy available, although it is probably the most visible. It may simply be effective to use options available in administrative law or consumer law, which can be used more creatively than legislatures have imagined. This may be about resistance to genetically modified food, about nature conservation or social corporate responsibility.What links such examples is the bottom-up influence on law.

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International Institute of Social Studies

CIRI aims to scale up and identify synergies between existing research at ISS on civic agency and change agents, as drivers of societal change and development. This blog is a forum on which to share and discuss themes and issues which fall within the broad framework of the programme.

  • Paula Sánchez: I will be very happy to bring to the discussion also the current movement nuit debout that is spread [...]
  • Sanne Taekema: It is also helpful to consider some historical examples of mobilizing law for social purposes. It i [...]
  • 4 April 2016: prof. Taekema speaks at ISS – INFAR: […] Read the whole abstract of prof. Taekema on the blog of ISS, by clicking here. […] [...]
  • Jeff: Here is a more concrete example: If you are discussing THE ROLE OF LAW IN PROTECTING THE ENVIRONM [...]
  • Jeff: Legal mobilization is a crucial topic to discuss, particularly among those in the legal field who te [...]