INTRODUCTION
Social movements have increasingly incorporated legal strategies into their repertoires of contention. The classic example is the NAACP’s strategic litigation that lead to the seminal case of Brown v. Board of Education within the broader civil rights movement (McAdam Reference McAdam1982). In the United States, the perceived success of the campaign led to a diffusion of legal strategies within social movements. As David Meyer and Steven Boutcher (Reference Meyer and Boutcher2007, 88) argue,
the visible extent of organizational and strategic emulation is striking. The language of rights and the strategy of litigation extend well beyond the concerns of ethnic minorities, much less African Americans, to include women, disabled people, the environment, gays and lesbians, student journalists, and animals – in laboratories, farms, and the wild. . . . Opponents of the social movements of the 1960s have also organized litigation-oriented social movement groups to advance their political concerns.
If anything, Meyer and Boutcher’s list underrepresents the range of social movements that have come to use legal strategies. A contemporary example is the transnational movement to protect privacy following increasing policy attacks and surveillance, which has also relied on legal mobilization among other, more theatrical strategies such as hacking Web pages (Reference Lehoucq and TarrowLehoucq and Tarrow forthcoming). Legal strategies have not been limited to social movements operating in the United States, or even to those in democratic contexts. Movements comprising groups as diverse as people displaced by civil conflict in Colombia (Rodríguez-Garavito and Rodríguez-Franco Reference Rodríguez-Garavito and Rodríguez-Franco2015) and movements in contexts that we would expect to be unreceptive, such as postcolonial Hong Kong (Tam Reference Tam2012), have also incorporated legal strategies within their repertoires of contention. The use of legal strategies by social movements is quite widespread.
Although the empirical importance of social movements using legal strategies is clear, scholars lack a systematic and theoretically coherent way to conceptualize legal mobilization. As Sidney Tarrow (Reference Tarrow2012, 22) recently noted:
We know well that movements often use legal strategies, as the civil rights movement did in the United States even before the 1950s; and we know that legal frameworks affect movement strategies and outcomes . . . But these are empirical observations: we have no general theory that accounts for the relations between social movements, the courts, and legal systems, although work on “legal mobilization” has provided a start in this direction.
Tarrow’s call for a general theory is as desirable as it is ambitious. Systematic theory building is necessary for knowledge about legal mobilization to cumulate over time and will help scholars reach more valid conclusions. This is important for the social scientific enterprise (Gerring Reference Gerring2011), and also for practice-oriented researchers who need the best possible knowledge to decide appropriate interventions in the social world; better theories allow for better problem solving (Prasad Reference Prasad2018). We argue that a more systematic conceptualization of legal mobilization will go a long way toward providing the foundation integral to the development of systematic theory building. Conceptualization is crucial for social science research within both interpretive and positivist paradigms (Goertz and Mahoney Reference Goertz and Mahoney2012; Schaffer Reference Schaffer2015). Interpretive scholars have proposed the development of “portable insights” (Simmons and Smith Reference Simmons and Smith2017), which requires conceptual clarity even if the goal is not causal inference. For positivist scholars, well-defined concepts that zero in on the attributes of phenomena that make them relevant for hypotheses, explanations, and causal mechanisms are the necessary building blocks of theories (Goertz Reference Goertz2006). This is why in other subfields of political sociology and comparative politics there has been so much attention placed on the definition of concepts, including political opportunities (Meyer and Minkoff Reference Meyer and Minkoff2004), democratization (Collier and Levitsky Reference Collier and Levitsky1997), state capacity (Giraudy Reference Giraudy2012), path dependence (Mahoney Reference Mahoney2000; Rixen and Viola Reference Rixen and Viola2015), and gradual institutional change (Streeck and Thelen Reference Streeck and Thelen2005).
However, this is not yet true for legal mobilization, the concept provided by sociolegal scholars to theorize the use of legal strategies by social movements, as well as other types of individual and collective actors. Existing reviews of the field focus on the relationship between law and power and the degree to which law can be mobilized to challenge the status quo (McCann Reference McCann2006), on different strands and theories within the field (Vanhala Reference Vanhala2011), on how studies of legal mobilization might fit within social movement scholarship (Boutcher and Stobaugh Reference Boutcher and Stobaugh2013), and, more generally, on providing overviews of the field, its evolution, and directions for future research (Levitsky Reference Levitsky, Sarat and Ewick2015). These are all of course important questions, but they assume relative agreement on the phenomena under study, which is required to have meaningful discussions about its causes and consequences. Yet, existing reviews have not paid sufficient attention to definitional debates that might challenge that assumption. Scholars using the concept of legal mobilization have often not been self-conscious about their conceptual choices, an important oversight that we seek to remedy.
Indeed, scholars working in the sociolegal tradition disagree (sometimes in fundamental ways) about what constitutes legal mobilization, which has prompted conceptual slippage in how the term is used in contemporary scholarship. This poses barriers to the aggregation of insights across studies. This article contributes to sociolegal scholarship and social movement scholarship by conceptualizing legal mobilization within a typology of different uses of the law. It also situates the typology with respect to emerging literatures within social movement and sociolegal scholarship and proposes areas for further research that would benefit from a more rigorous conceptualization of legal mobilization. This is an important endeavor given the larger theoretical questions that are involved in the study of legal mobilization and its relation with legal framing and legal consciousness. Questions about the relationship between legal mobilization and social change have marked the field since the early classics. More specific questions, such as the conditions under which social actors engage in legal mobilization, the types of legal consciousness that lead to legal mobilization, and the kinds of legal frames that are most effective at challenging powerful elites, all point to the role of law in reproducing the status quo as well as establishing the conditions for resistance. These questions about hegemony, resistance, and the law have been central to social theory (Bourdieu Reference Bourdieu1986; Poulantzas Reference Poulantzas2000; Thompson Reference Thompson2016). Furthermore, as legal mobilization connects with studies on social movements and contentious politics, an overarching theoretical concern is about reproduction and change in social fields (Fligstein and McAdam Reference Fligstein and McAdam2015).
We define legal mobilization as the use of law in an explicit, self-conscious way through the invocation of a formal institutional mechanism. This allows us to distinguish it from—while also placing it in relation to—legal consciousness and legal framing. Importantly, this definition of legal mobilization is not limited to the use of legal strategies by social movements. Although sociolegal scholars have been particularly interested in social movements, individual and other collective actors besides social movements also engage in legal mobilization. As we show in more detail below, by engaging this conceptualization of legal mobilization, we are better positioned to address new questions raised by the emerging literatures on legal opportunity structures (e.g., Hilson Reference Hilson2002; B. M. Wilson & Rodríguez Cordero Reference Wilson and Rodríguez Cordero2006; Andersen Reference Andersen2009; B. M. Wilson Reference Wilson2009; Evans Case and Givens Reference Rhonda and Givens2010; De Fazio Reference De Fazio2012; Vanhala Reference Vanhala2012, Reference Vanhala2017), legal framing (e.g., McCammon, Muse, Newman, and Terrell Reference McCammon, Muse, Newman and Terrell2007; Leachman Reference Leachman and Sarat2013; Vanhala Reference Vanhala2017), and legal consciousness (M. E. Gallagher Reference Gallagher2006; J. C. Wilson Reference Wilson2011; W. K. Taylor Reference Taylor2018).
In what follows, we offer a systematic, self-conscious review of the myriad ways in which different scholars have employed the concept of legal mobilization, highlighting the key definitional disagreements that have inhibited the development of a theoretically coherent way to conceptualize legal mobilization within the fields of sociolegal studies and social movement studies (Section 2). We then discuss the methodological literature on concept formation as it relates to the concept of legal mobilization and develop our typology (Section 3). We further show how our conceptualization of legal mobilization and related concepts opens up new avenues to explore interesting theoretical questions suggested by recent trends in the literature (Section 4). Conclusions follow (Section 5).
DISAGREEMENTS ABOUT HOW TO CONCEPTUALIZE LEGAL MOBILIZATION
Developing from studies of disputes (Aubert Reference Aubert1963; Felstiner, Abel, and Sarat Reference Felstiner, Abel and Sarat1980; Kidder Reference Kidder1980; Lempert Reference Lempert1980; Mather and Yngvesson Reference Mather and Yngvesson1980; Miller and Sarat Reference Miller and Sarat1980; Cain and Kulcsar Reference Cain and Kulcsar1981), scholarship on legal mobilization has done much to demonstrate the fraught and contingent but potentially transformative effects of leveraging the law in social struggles. Importantly, the early literature on legal mobilization (Scheingold Reference Scheingold1974; Rosenberg Reference Rosenberg1991; M. W. McCann Reference McCann1994) emerged while dominant theorizations of social movements and contentious politics tended not to explicitly take into account the role of law within mobilization (e.g., Tarrow Reference Tarrow1998). These works provided a necessary corrective, and, in the process, they spurred a series of research agendas on the relationships between law and social change and between law, power, and hegemony, encouraging scholars to take seriously everyday encounters with legal discourses, actors, and institutions in addition to high-profile legal cases.
Often, subsequent studies have focused on the use of legal strategies by social movements. However, the literature on legal mobilization cannot be reduced to consider exclusively social movements, which is also true of scholarship on contentious politics. Scholars have demonstrated the utility of examining social movements and other forms of contention together, under the concept “contentious politics” (McAdam, Tarrow, and Tilly Reference McAdam, Tarrow and Tilly2001, 5). Because these different forms of political struggle involve the same types of mechanisms, such a distinction hides theoretically productive comparisons (McAdam, Tarrow, and Tilly Reference McAdam, Tarrow and Tilly2003, Reference McAdam, Tarrow and Tilly2008; Tarrow Reference Tarrow2013). This implies that collective actors that would not properly be categorized as social movements—in other words, “sequences of contentious politics based on underlying social networks, on resonant collective action frames, and on the capacity to sustain challenges against powerful opponents” (Tarrow Reference Tarrow2011, 7)—can also engage in legal mobilization, just as they participate in other kinds of collective political struggle. This is the case, for example, for different kinds of networked actors who have turned to legal mobilization under authoritarian regimes (Moustafa Reference Moustafa2003; Diamant, Lubman, and O’Brien Reference Diamant, Lubman and O’Brien2005; Ginsburg and Moustafa Reference Ginsburg and Moustafa2008; Stern Reference Stern2013; Fu Reference Fu2017).
Still other times, scholars working on legal mobilization have been interested in individuals’ everyday encounters with the law (Zemans Reference Zemans1983; Merry Reference Merry1990; Blackstone, Uggen, and McLaughlin Reference Blackstone, Uggen and McLaughlin2009; Gleeson Reference Gleeson2010; M. Gallagher and Yang Reference Gallagher and Yang2017; W. K. Taylor Reference Taylor2018). The turn to law may be made more or less difficult by various features of the actor that seeks to mobilize the law, but the mechanisms of legal mobilization remain the same whether the actor is a social movement, another kind of collective actor, or an individual. And importantly, both noncoordinated and coordinated individual actions can prompt systemic legal changes, as the work on justice and availability cascades shows (Kuran and Sunstein Reference Kuran and Sunstein1998; Sikkink Reference Sikkink2011).
As Tarrow (Reference Tarrow2012, 22) suggests, sociolegal scholarship on legal mobilization provides a useful starting point to theorize the relations between mobilization, the courts, and legal systems. However, even a cursory review of the classic works shows the diverse and sometimes contradictory ways in which scholars have used the term “legal mobilization.” In an oft-quoted definition, Frances Zemans (Reference Zemans1983, 700) holds that “[l]aw is mobilized when a desire or want is translated into a demand as an assertion of rights.” Richard Lempert (Reference Lempert1976, 173) offers an alternative definition, referring to legal mobilization as “the process by which legal norms are invoked to regulate behavior.” Other early scholars using the term legal mobilization tended to focus on litigation tactics without formally defining legal mobilization as synonymous with litigation (e.g., Black Reference Black1973; Mayhew Reference Mayhew1975; Milner Reference Milner1987). Reviews of the literature on legal mobilization generally have not paid explicit attention to issues conceptualization besides stating a quick definition, often the one provided by Zemans (e.g., McCann Reference McCann2006, Reference McCann, Caldeira, Kelemen and Whittington2008; Vanhala Reference Vanhala2011; Boutcher and Stobaugh Reference Boutcher and Stobaugh2013; Levitsky Reference Levitsky, Sarat and Ewick2015).
We aim to provide a systematic, self-conscious review of the current state of the literature on legal mobilization. Existing reviews of the literature provide excellent lineages of the concept of legal mobilization (McCann Reference McCann2006, Reference McCann, Caldeira, Kelemen and Whittington2008; Vanhala Reference Vanhala2011; Boutcher and Stobaugh Reference Boutcher and Stobaugh2013; Levitsky Reference Levitsky, Sarat and Ewick2015). Our review allows for a grounded assessment of the ways in which scholars conceptualize legal mobilization, and it also allows for the identification of key debates in the field. In an effort to investigate the core debates related to legal mobilization as they play out in practice, we decided to examine articles in the two leading journals in the field of law and society, Law & Society Review and Law & Social Inquiry. Law & Social Inquiry is published on behalf of the American Bar Foundation, and Law & Society Review is the flagship publication of the Law and Society Association, both influential organizations in the domain of sociolegal studies. While authors of articles on legal mobilization might seek to publish outside of law and society journals some of the time, these two journals serve as focal points for scholars working at the intersection of law and social movements or mobilization. The articles we review are meant to capture what the field of law and society considers the best work published in academic journals; however, it is worth keeping in mind our review does not include books or edited volumes. Importantly, while many early scholars of law and social change developed conceptualizations of legal mobilization in books rather than journal articles, the legacies of these conceptual choices (i.e., their impact on the state of the field today) show up most clearly in articles that seek to apply these existing theories in new empirical contexts. While our sample is not representative, it is more comprehensive than existing reviews of the literature on legal mobilization, which tend to center solely on classic scholars.
Because our focus is on how the concept of legal mobilization has been defined in pieces of academic research, we limit our attention to the choices that scholars have made in the context of research publications. A scholar may in everyday usage consider legal mobilization differently than he or she chooses to do in a given publication. There may be any number of reasons for a scholar to do this, the most obvious of which is that everyday conversations do not demand the rigor of a written publication. Yet, scholars who would seek to publish work on legal mobilization must make choices about how to define and delimit the concept. Our goal is to promote greater transparency about those choices and to urge scholars to think carefully about the implications of their choices for both their own research and for research agendas that transcend the interests of any one scholar.
We conducted a search for the term legal mobilization in Fall 2017 in the online archives of both Law & Society Review and Law & Social Inquiry, which yielded 406 articles in total. We reviewed each article to determine the type of article, and we excluded symposium introductions, review articles, and indices so that our analysis would refer only to the concept of legal mobilization as authors in pieces of original research define it. This left us with 152 articles. We further checked to see whether or not the phrase “legal mobilization” actually appeared in the article (at times, the word “legal” and the word “mobilization” appearing separately on the same page triggered inclusion in the search). We removed fifteen articles from our sample for this reason. We report descriptive statistics of what we found to provide an overall picture of the variation in how scholars use the term legal mobilization and, when engaging substantively with it, how they conceptualize it. For a scholarly endeavor aimed at accumulating knowledge about legal mobilization across studies over time, taking stock of the literature in this way is a first step. The phrase “legal mobilization” exclusively appears in the works cited of almost 40 percent of the rest of the articles. A further 30 percent mention the phrase in passing without engaging with it. This leaves forty-one articles that substantively engage with the concept of legal mobilization.Footnote 1 Within these forty-one articles, fifteen treat legal mobilization as an approach, referring to “legal mobilization studies” or “legal mobilization theory,” and twenty-one take legal mobilization as an outcome to be examined, while the five remaining articles explicitly consider legal mobilization as both as outcome and an approach.
The definitions offered by these articles are as varied as classical definitions of the concept, and the differences among them reveal deep conceptual and methodological disagreements between scholars studying the use of law by societal actors. For example, while Julieta Lemaitre and Kristin Sandvik (Reference Lemaitre and Sandvik2015, 8) refer to “a means of seeking social change through legal norms, discourse, or symbols,” Lisa Vanhala (Reference Vanhala2012, 524), calling on Charles Epp (Reference Epp1998, 18), suggests that legal mobilization should be operationalized as “the process by which individuals make claims about their legal rights and pursue lawsuits to defend or develop those rights.” Providing yet another definition, Erin Adam and Betsy Cooper (Reference Adam and Cooper2017, 837) consider legal mobilization as an approach rather than a variable and note that legal mobilization studies “analyze the constitutive role of legal rights by adopting an inclusive definition of the law that emphasizes the effects and development of legal norms, legal symbols, and legal rights discourses across and through movements and counter-movements.” Even just among these three examples we see clear differences in how authors understand the connection between legal mobilization and the formal legal sphere as well as the connection between legal mobilization and social change, among other differences. The authors then go on to operationalize legal mobilization in contrasting ways, reflecting the underlying conceptual choices implied by these definitions. Nearly every article that identifies legal mobilization as an approach cites Michael McCann’s Rights at Work (McCann Reference McCann1994), sometimes in addition to other works. Overall, authors referred to McCann twenty-three times, while Stuart Scheingold (Reference Scheingold1974) and Frances Zemans (Reference Zemans1983) were cited five and six times, respectively, in this capacity.
Through an inductive analysis of the articles on our sample, we determined three major points of discord in contemporary scholarship on legal mobilization. We use the word “discord” intentionally. These are not necessarily points that are the subject of overt debate within the literature, not because they do not signal substantial differences between scholarly approaches, but because scholars using the term legal mobilization have often paid relatively little attention—with just a sentence here or a citation there—to alternative approaches. Thus, points of disagreement are apparent but not fully interrogated in much of the scholarship on legal mobilization. Here it is important to note that in this section we are describing contemporary usage of the term legal mobilization. If an author claims to be studying legal mobilization, we take that claim seriously, even if other scholars might categorize the object of study differently than the author does.
The first point of discord comes with the question of which activities constitute legal mobilization. Should the term be used to simply to refer to litigation or should it also encompass a broader set of claims-making processes? Second, scholars disagree about the extent to which the target of the claim in question matters for whether or not an action ought to be considered legal mobilization. Must legal mobilization be directed at the state, or should the use of legal mechanisms, institutions, and concepts to compel private actors to change their behavior also be considered legal mobilization? Third, scholars disagree about the types of claims that count as legal mobilization. Must actors make claims beyond their own immediate self-interest for those actions to be considered legal mobilization? How conscious must actors be of the political nature of their actions? Does legal mobilization necessarily imply conscious contention, that is, must claimants make an overly political claim or is it sufficient that the claim made would have political consequences? We address each of these tensions in turn.
Which Activities Constitute Legal Mobilization?
Historically, there have been two dominant approaches to delimiting the activities that constitute legal mobilization. One approach focuses on “legal subjects, especially nonofficial legal actors,” rather than simply on cases, and contends that these legal subjects have complex reasons for engaging the law and nuanced expectations about its use (McCann Reference McCann, Caldeira, Kelemen and Whittington2008, 523–25). Legal subjects operate within a social context comprising in part official legal institutions and legal norms (McCann Reference McCann1996). Scholars working in this tradition contextualize litigation within a broader set of dispute and claims-making practices. They also recognize that not all citizens have equal capabilities or capacities to draw on the law. Another set of scholarship has employed the term legal mobilization when referring to use of litigation by social actors, in what might be called a court-centric approach. While those who take the broader approach might raise serious questions as to whether or not legal mobilization should be treated as synonymous with litigation, our analysis of existing literature demonstrates that this is common. The seminal work in this approach is The Hollow Hope (Rosenberg Reference Rosenberg1991), which focused on specific instances of strategic litigation undertaken in the United States. Subsequent scholars working in this tradition have—while continuing to focus exclusively on litigation—examined the use of litigation to advance social movement goals outside of the US context (e.g., Epp Reference Epp1998; Tam Reference Tam2012). These approaches reflect not only differences in what is being studied but also more fundamental debates about the nature of law and its relationship to power.Footnote 2
Of the articles reviewed, ten constrained the definition of legal mobilization to be synonymous with litigation, while twenty-six offered broader understandings of the term, considering legal norms, narratives, and education within the concept of legal mobilization, and five articles did not clarify either way. Importantly, in some cases authors who indicated a broader understanding of the activities that constitute legal mobilization focused largely on litigation in their empirical sections (which reflects a decoupling of conceptualization and operationalization). Although the question of what activities count as legal mobilization appears relatively straightforward in the legal mobilization-as-litigation framework, sticky definitional questions remain. The category of “litigation” is actually quite broad, especially in comparative perspective. On the one hand, the category encompasses strategic litigation, which has often been the focus of work on questions related to law and social change. On the other hand, litigation in practice also includes one-off attempts by individuals to resolve disputes. Strategic litigation drawing on substantial support structures (Epp Reference Epp1998; Teles Reference Teles2008; Vanhala Reference Vanhala2012; M. Gallagher and Yang Reference Gallagher and Yang2017) would appear to differ in kind from pro se litigation where individuals are able to approach the courts themselves to make rights claims, as is the case in Colombia with the tutela procedure (W. K. Taylor Reference Taylor2018), and both of those types of litigation differ from litigation undertaken to resolve factual disputes. Further, the filing of amicus briefs, while not strictly speaking litigation, falls within a court-centered understanding of legal mobilization (Cichowski Reference Cichowski2016).
In the broader conception of legal mobilization, scholars vary as to which activities beyond litigation they consider. For example, Jeb Barnes and Thomas Burke (Reference Barnes and Burke2012) create a “legal mobilization index,” in which they code the experience of various organizations with mobilization related to the Americans with Disabilities Act. The index allows Barnes and Burke to note whether no action was taken against an organization, whether an action short of a legal claim was pursued, or whether a formal complaint or lawsuit was filed. Paul Nolette (Reference Nolette2015) considers changes in organizational practices and legal norms that can be traced back to litigation efforts related to state regulation of the pharmaceutical industry. One example of the impact of litigation on legal norms is how working understandings of what constitutes fraud have changed over time. Christopher Coleman, Laurence Nee, and Leonard Rubinowitz (Reference Coleman, Nee and Rubinowitz2005) take two mobilization strategies—litigation and boycotts—and consider them together, as complementary parts of the civil rights struggle in the United States. Examining only the examples listed above, legal mobilization comprises activities as diverse as writing letters (Barnes and Burke), the creation and contestation of legal meaning (Nolette), boycotts (Coleman et al.), and various kinds of litigation (all).
Who Is the Target of Legal Mobilization?
A further point of disagreement within the articles we reviewed deals with the target of legal mobilization. In broad strokes, the target of legal mobilization may be a private actor or a state actor. This divide relates to the one between traditional litigation and public interest litigation. Traditional litigation refers to the bringing of a lawsuit as “a vehicle for settling disputes between private parties about private rights” (Chayes Reference Chayes1976, 1282), while public interest litigation refers to “civil rights advocacy seeking to restructure public agencies” or public policies (Sabel and Simon Reference Sabel and Simon2004, 1016). The same division between public and private targets also applies when considering a wider range of activities beyond litigation.
Among the articles reviewed, it was more common (eighteen articles) for the primary target of legal mobilization to be the government—a state policy, institution, or actor—than for the target to be a private actor (eight articles). Three articles considered both types of targets, and twelve did not specify the target. For example, several studies on sexual harassment, labor disputes, and workplace discrimination, such as Amy Blackstone, Chris Uggen, and Heather McLaughlin (Reference Blackstone, Uggen and McLaughlin2009), Shannon Reference GleesonGleeson (Reference Gleeson2009, Reference Gleeson2010), and Jennifer Woodward (Reference Woodward2015), examine the claims made against private employers.Footnote 3 Other studies, such as Michael Paris (Reference Paris2001), Lisa Vanhala (Reference Vanhala2012), and Celeste Arrington (Reference Arrington2014), focus on mobilization geared toward forcing the state to enact, revise, or develop policies with respect to issues ranging from the funding of schools and education reform to environmental protection to compensation for previous mistreatment by the state. Erin Adam (Reference Adam2017), in considering legal mobilization that targeted both the state and private actors, describes various campaigns, including efforts to promote marriage equality, access to financial aid, nondiscrimination in the workplace, and immigration reform. Single organizations thus may be involved in multiple campaigns with multiple targets.
What Claims Fall Within the Category of Legal Mobilization?
Related to the question of the target is the kind or kinds of claims that fall within the category of legal mobilization. Zemans (Reference Zemans1983) advocates for the consideration of legal mobilization as a form of political participation, and recently scholars have begun to echo her call (M. E. Gallagher Reference Gallagher2006; M. Gallagher and Yang Reference Gallagher and Yang2017; W. K. Taylor Reference Taylor2018). In this conception, a clear divide between self-interested, particularistic claims and political claims is not viable. Though the initial grievance may be self-interested in nature, the act of making a claim becomes political (Marshall Reference Marshall1998), and the fact of the judiciary adjudicating the claim further cements the political nature of legal claims-making. Further, claimants’ views about the law, about their problems, and even about themselves may change through the process of making claims (McCann Reference McCann1994). Even if individuals or groups initiate a claim with only narrow self-interest in mind, their goals may become more overtly political in nature as the process develops. The question here becomes the extent to which intent matters relative to consequences.
Still, it is possible to identify distinct categories, wherein a self-interested, particularistic claim is one that only has direct consequences for the individual or group advancing the claim—whether in court or outside of it—while a political claim has consequences for those outside the named dispute. For instance, then, a particularistic claim might involve litigation in which the primary legal question has already been decided, and the plaintiffs are seeking a court order requiring compliance with a predetermined standard.Footnote 4 Of the articles reviewed, twenty-three suggested an approach that considered primarily the political nature of claims, while six focused more on self-regarding claims. Three suggested both types of claims, and nine give no indication as to the types of claims under investigation. Often, the type of claim was not stated, and instead, we had to infer the nature of the claim from the empirical discussions offered. Specifically, the author may show that the claims studied have political consequences, but the act of mobilization is not always framed as a political act in itself. We coded these as cases of political claims. In some cases, the determination is an easier one. For example, Verónica Michel and Kathryn Sikkink (Reference Michel and Sikkink2013), Celeste Arrington (Reference Arrington2014), and Erin Adam (Reference Adam2017) explicitly focus on the use of legal mobilization to seek accountability for government policy—whether gross violations of human rights, maltreatment of those suffering from leprosy, or discrimination against immigrants.
A REVISED CONCEPTUALIZATION OF LEGAL MOBILIZATION
Legal Mobilization, Concept Formation, and Social Science Explanation
We provide an overview of the literature on concept formation to make apparent the range of choices when conceptualizing legal mobilization. As Frederic Schaffer (Reference Schaffer2015, 7) notes, scholars use the term “concept formation” to mean both “concept reconstruction” and “concept elucidation.” Our goal is to “fashion precise conceptual tools of the researcher’s design”—or reconstruction. Two well-established approaches in the social sciences for conceptualization are the “necessary and sufficient conditions” (NSC) approach and the family resemblances approach. Under the NSC approach, “to define a concept is to give the conditions necessary and sufficient for something to fit into the category” (Sartori Reference Sartori1970; Goertz Reference Goertz2006, 7). As opposed to NSC, the family resemblance structure for concept formation does not require any necessary condition—it is built on the logic of sufficiency (Goertz Reference Goertz2006; Wittgenstein Reference Wittgenstein2010). There are three ways in which the family resemblance structure can be built. The first indicates individually sufficient conditions that are substitutable among each other. The second refers to “INUS” conditions (Mahoney and Vanderpoel Reference Mahoney and Vanderpoel2015, 79)—that is, conditions that are individually unnecessary and insufficient, but that are necessary components of combinations of conditions that are themselves sufficient (Mackie Reference Mackie1980). The third—which is not “purely” family resemblance, but a mixed structure—corresponds to the use of one or more individually necessary conditions and one or more INUS or sufficient conditions (Barrenechea and Castillo Reference Barrenechea and Castillo2018). As such, the family resemblance structure allows for multiple paths through which cases can be members of the set defined by a particular concept.
Legal mobilization can be conceptualized following either of these approaches. For instance, if one were to define legal mobilization exclusively as the use of litigation against the state, there would be two individually necessary and jointly sufficient conditions. With those conditions, legal mobilization necessarily implies (1) litigating (2) against the state. If one actor is involved in litigation against another private actor, that would not be an example of the concept under this definition. If an actor frames an issue in legal terms, but does not litigate, that would also not be an instance of legal mobilization according to this definition.Footnote 5
Following the family resemblance approach, legal mobilization could instead be defined through the use of INUS conditions. For example, constraining legal mobilization to an act targeting the state, one could postulate that legal mobilization refers to the use of legal framings or the use of litigation to bring about social change or the use of legal education or any other related activity. This approach has not been explicitly used to our knowledge. Instead, the dominant conceptual structure to define legal mobilization has been a mixed one, in which the concept has one individually necessary condition—the use of rights—and several nonspecified INUS conditions—for example, the use of legal frames, litigation, and/or legal education. Under this conceptual structure, legal mobilization necessarily implies the use of rights claims, but the activities through which, and the contexts under which, such claims are made can vary. In other words, they are not individually essential components of the concept of legal mobilization. This structure corresponds to Michael McCann’s (Reference McCann1994) use of the term legal mobilization, though he did not develop his definition explicitly in these terms.
What are the advantages and disadvantages of adopting either of these approaches? Conceptualizing legal mobilization through a family resemblance approach has at least two advantages. First, this approach has been useful in bringing to the table the centrality of law within contemporary mobilization. The flexibility of McCann’s “mixed” approach to conceptualizing legal mobilization can help to explain the proliferation of studies on legal mobilization in a wide variety of empirical scenarios and following different theoretical questions, from LGBT activism in Myanmar (Chua and Gilbert Reference Chua and Gilbert2015), workplace disputes in China (M. Gallagher and Yang Reference Gallagher and Yang2017), and claims by internally displaced people in Colombia (Rodríguez-Garavito and Rodríguez-Franco Reference Rodríguez-Garavito and Rodríguez-Franco2015). This definition has allowed law and society scholars—and later social movement scholars (Pedriana Reference Pedriana2004, Reference Pedriana2006; Meyer and Boutcher Reference Meyer and Boutcher2007; Boutcher and Stobaugh Reference Boutcher and Stobaugh2013)—to describe and theorize the role of law within mobilization. Second, a family resemblance structure more readily allows for the possibility of causal heterogeneity (Barrenechea and Castillo Reference Barrenechea and Castillo2018), which is potentially useful considering the wide range of activities and contexts investigated under the banner of legal mobilization.
However, the family resemblance approach to conceptualizing legal mobilization also has significant drawbacks that are not found in the NSC approach. Most notably, the family resemblance approach is particularly vulnerable to conceptual stretching, given its looser structure. As Giovanni Sartori (Reference Sartori1970) argued, relaxing the bounds of a concept increases its empirical coverage and can do so up to a point that leads to conceptual stretching, wherein attempts to include more and more qualities render a concept stretched beyond recognition and analytically useless (Goertz Reference Goertz2006). In the case of scholarship on legal mobilization, one clear example of conceptual stretching is apparent in studies that simultaneously consider litigation and letter-writing campaigns. Are these activities comparable? Simply because the same actor engages in both does not indicate that they are. The resources necessary to establish a letter-writing campaign differ not only in quantity from those necessary for a litigation campaign, but they also differ in kind. By collapsing both activities into one conceptual category, we run the risk of obscuring important features of both litigation and letter-writing campaigns that may differ across contexts or over time. The claim here is not that scholars should not study letter-writing campaigns as well as litigation efforts, but that they should clearly and carefully specify what is it that they are studying, distinguishing explanations for one activity from explanations for the other, for their own benefit and for the benefit of subsequent scholars who hope to build on, adapt, or further clarify the original study.
This concern with conceptual stretching has led scholars to emphasize analytic differentiation, which allows for the possibility of theoretically capturing diverse forms of empirical phenomena without blurring the boundaries between distinct phenomena (Collier and Levitsky Reference Collier and Levitsky1997). A strict conceptual structure that clearly delimits the contours of legal mobilization through a theoretically justified set of individually necessary and jointly sufficient conditions allows for increased attention to analytical differentiation and conceptual clarity. This, in turn, allows scholars to more consistently build and test theories across geographical and substantive areas, generating findings that more easily lend themselves to systematic aggregation.
Furthermore, the NSC approach to conceptualize legal mobilization facilitates causal inference. Though not all scholars are concerned with causal inference, it has increasingly become the goal of social science research (King, Keohane, and Verba Reference King, Keohane and Verba1994; Brady and Collier Reference Brady and Collier2010; Mahoney Reference Mahoney2010; Gelman Reference Gelman2011; Goertz and Mahoney Reference Goertz and Mahoney2012; Morgan and Winship Reference Morgan and Winship2015). It has long been recognized that well-delimited definitions allow for causal assessment (Sartori Reference Sartori1975, 34; Linz Reference Linz1985, 181–82; Karl Reference Karl1990, 1–2; Alvarez et al. Reference Alvarez, Cheibub, Limongi and Przeworski1996, 4; Adcock and Collier Reference Adcock and Collier2001, 533). Within comparative-historical analysis, for instance, using loosely defined concepts aggregated through a family resemblance structure risks creating false analogies among different cases. NSC conceptual structures are generally better suited to providing clear-cut demarcations than family resemblance structures, and thus, they are better suited to facilitating causal inference.
Finally, within the NSC approach to conceptualizing legal mobilization, it is possible to use typologies to refine the concept and relate it to similar, but not identical, phenomena. Concepts are not useful in isolation, but rather considered in broader conceptual structures that tie together different, but related explanations of social and political phenomena (Goertz Reference Goertz2006). Through the logic of kind hierarchies, conceptual typologies allow researchers to situate “concepts within their semantic field, that is, the constellation of related concepts and terms” (Collier, LaPorte, and Seawright Reference Collier, LaPorte and Seawright2012, 222). The use of law is the basis of legal mobilization. It is also, however, important to related phenomena such as legal framing and legal consciousness. A sound conceptualization of legal mobilization that promotes analytical differentiation should be sensitive to its relationship with both legal framing and legal consciousness, which would allow scholars to examine all three phenomena at once while maintaining analytical differentiation.
In sum, there are important disagreements in how scholars have conceptualized legal mobilization, which has led to conceptual stretching and a lack of analytical differentiation. This has limited theory building and testing, as well as the aggregation of findings across studies. The approach we propose not only overcomes these difficulties, but it also facilitates causal inference (for those scholars interested in such a task) and allows scholars to relate legal mobilization to kin, but distinct phenomena—specifically legal consciousness and legal framing. In the next section we provide a typology to address these conceptual relationships.
A Typological Approach to the Conceptualization of Legal Mobilization
The overarching concept of our typology is the use of law—either as discursive symbols, binding rules, or institutional mechanisms. Following the NSC approach, we identify three conditions that relate different uses of the law and that allow us to distinguish between legal mobilization (LM), legal framing (LF), and legal consciousness (LC). Figure 1 visually represents these conditions.
FIGURE 1. Different Types of Uses of the Law in Mobilization.
Figure 1 makes two aspects about our typological approach clear. First, legal mobilization, legal framing, and legal consciousness are not mutually exclusive concepts. They overlap between each other in complex ways that our approach is meant to highlight, analytically dissect, and invite research on. Second, while not disjoint sets, they are also not indistinguishable. This is also important, and our approach invites analytical differentiation and research on the ways in which they relate to each other. Our typology allows us to define legal mobilization as the use of law in an explicit, self-conscious way through the invocation of a formal institutional mechanism, legal framing as the use of law in an explicit, self-conscious way to give meaning to an event, and legal consciousness as the implicit, nonarticulated use of law to give meaning to an event. As previously mentioned, both individuals and different types of collective actors can engage in these activities. These three concepts are different subtypes of an overarching concept and each of them is defined by individually necessary and jointly sufficient conditions—thus following the NSC approach to concept formation. They are different in that although they are members of a superset, each of them is defined by the intersection between sets and the resulting intersections are mutually exclusive. Returning to the set intersections, it is clear that there are instances of explicit, self-conscious invocations of institutional mechanisms that rely on giving meaning to an event, whether in an explicit, self-conscious way or not, as well as other possible intersections between legal mobilization, legal framing, and legal consciousness.
The invocation of a formal institutional mechanism refers to the use of a venue within the state to file a claim against another actor. This can be done through administrative procedures, quasi-judicial procedures, and litigation. For example, falling within the category of administrative procedures are efforts to obtain welfare benefits, as explored in Lucie White’s ethnography of Mrs. G.’s attempts to navigate the welfare system to claim her rights (White Reference White1990). Quasi-judicial procedures include formal complaints processed by ombudsman’s offices and human rights or gender commissions. Often, NGOs submit amicus briefs pertaining to these complaints or otherwise mobilize around these commissions. Catalina Smulovitz and Enrique Peruzzotti (Reference Smulovitz and Peruzzotti2000) note the importance of ombudsman’s offices and similar commissions throughout Latin America. Although litigation might come to mind first when one thinks of formal institutional mechanisms, it is actually only one subset of the formal institutional mechanisms through which people file claims.
More generally, the choice to engage with the state, particularly through the circumscribed channels of legal institutions, legal rules, and legal mechanisms, has important implications. Formal institutional mechanisms bring with them organizational complexities that claimants need to navigate, for which they need resources, and which they typically only navigate after assessing opportunities and threats. Although domination and resistance is not limited to any one institutional field and different forms of mobilization occur across these various fields (Edelman and Suchman Reference Edelman and Suchman1997; Armstrong and Bernstein Reference Armstrong and Bernstein2008; Edelman, Leachman, and McAdam Reference Edelman, Leachman and McAdam2010; McDonnell, King, and Soule Reference McDonnell, King and Soule2015), the particular domain of legal mobilization is the formal legal sphere. Broadening legal mobilization to other institutional fields would bring lead to conceptual stretching. It is furthermore not theoretically warranted as the mechanisms and processes we expect to operate as social actors invoke the legal institutions of the state are not the same as those when they invoke other social institutions. Invoking administrative procedures, quasi-judicial procedures, and courts all involve the framing of legal opportunities, for example, while this is not the case in other institutional fields. The LGBT movement is a relevant example: When mobilizing against the restriction of marriage for heterosexual couples, it turned to legal mobilization and, while invoking the legal institutions of the state, it did so through the mechanisms we would expect, such as the framing of legal opportunities (Andersen Reference Andersen2009). However, when mobilizing against other institutions, such as the medical establishment, it turned to direct action (e.g., ACT UP), involving other mechanisms of bodily rhetoric and emotions (DeLuca Reference DeLuca1999; Gould Reference Gould2002).
Considering the broad range of formal institutional mechanisms that exist, it is important that scholars specify the mechanism under study and spell out the substantive and theoretical consequences of its structure. Janice Gallagher’s study of legal mobilization against impunity in Colombia and Mexico is an excellent case in point (J. Gallagher Reference Gallagher2017). She disaggregates the judicial process in both countries in whether (1) the legal case is filed, but there is no evidence of investigation; (2) there are concrete investigatory advances and thus indictment; (3) there is a trial; and (4) there is a conviction of at least one party. By specifying the formal institutional mechanisms, Gallagher is able to better assess the conditions under which civil society groups are effective at fighting impunity in homicide cases. Other institutional designs would require different specifications. Furthermore, given the organizational complexity of the state and the variety of nonjudicial and quasi-judicial formal institutional mechanisms, there is all the more reason to clearly specify the formal institutional mechanism under examination.
By “giving meaning to an event,” we mean the explicit, self-conscious or implicit, nonarticulated use of legal rules, discourses, or symbols to understand and frame the social world. At times, this may entail references to formal legal institutions, and at other times, this may entail references to legal tropes detached from any particular institutional structure. These understandings may be constructed, adapted, and disseminated strategically, as is the case with legal framing. On the other hand, they may arise from everyday experiences in what appears to be a decentralized or uncoordinated manner.Footnote 6 Further, the process of conferring meaning onto an event may prompt further action of a specific kind (or limit future actions).
Finally, we distinguish “explicit, self-conscious” and “implicit, nonarticulated” from the perspective of the actor using the law. In including the distinction between “explicit, self-conscious” and “implicit, nonarticulated” action, we seek to differentiate the active, articulated, explicit, and intentional components of legal mobilization and legal framing from commonplace, taken for granted, received, and naturalized understandings of the world that may be consequential for action or inaction but are not chosen as such. These commonplace understandings fall within our conceptualization of legal consciousness. In the domain of culture, the distinction between “explicit, self-conscious” and “implicit, nonarticulated” builds on Jean Comaroff and John Comaroff’s (2008, 22–24) distinction between ideology and hegemony. The latter refers to those cultural elements that “come to be taken-for-granted as the natural and received shape of the world and everything that inhabits it,” while the former refers to “an articulated system of meanings . . . [b]orne in explicit manifestos and everyday practices, self-conscious texts and spontaneous images, popular styles and political platforms.” Thus, concerning the distinction between legal framing and legal consciousness, “explicit, self-conscious” points to the former involving the active awareness in the use of the law to give meaning to an event, while “implicit, nonarticulated” points to the latter involving more of a received habit in the use of the law to give meaning to an event. While actors may make choices about how to engage with the world as a consequence of their legal consciousness, they do not choose to adopt a particular positioning or consciousness as such. In contrast, actors do actively choose to adopt and perpetuate a particular legal frame or to turn to the formal legal system to advance a claim, thus engaging in legal mobilization. The adoption of a specific legal frame and the choice to engage in legal mobilization can be usefully thought of as consequences of legal consciousness; this is something our approach invites scholars to investigate. Clearly, engaging in self-conscious action can take place within the context of formal legal institutions or outside of them. Self-conscious action may or may not include explicitly or consciously giving meaning to an event. For instance, the invocation of a formal institutional mechanism, such as an administrative procedure, may appear to the parties involved to be routine and not to confer any particular meaning onto the dispute in question.
An example can help to clarify the distinction between explicit, self-conscious and implicit, nonarticulated, as well as the complex interrelationship among legal framing, legal consciousness, and legal mobilization. A working class person of color may be socialized into thinking of the law as a repressive system in an unconscious way; this would fall into our category of implicit, nonarticulated use of the law to give meaning to an event, and thus forming part of the concept of legal consciousness. At the same time, an activist from a privileged background—who might see the law as a useful tool for emancipation by default—may propose a campaign depicting the law as repressive to underprivileged communities in an effort to raise funds for her organization; this would fall into our category of explicit, self-conscious use of the law to give meaning to an event, and thus as part of the concept of legal framing. Clearly, in both cases the person of color or the privileged activist can choose to invoke a formal institutional mechanism at some point based on their understanding of the law, thus overlapping with our concept of legal mobilization. Once they have invoked a formal institutional mechanism, both the person of color and the privileged activist may change the way they use the law to give meaning to events. Within the legal system, the person of color can realize she might be more likely to obtain a favorable result by depicting the law as aimed at seeking justice and equality rather than as a repressive system (here explicitly and self-consciously giving meaning by using the law, or engaging in legal framing). Following her encounters with the legal system, the privileged activist may come to unconsciously think of the law as repressive, even though this was not her “default” understanding before (in other words, resulting in a change to her legal consciousness).
Our typology thus facilitates the sound conceptualization of legal mobilization and relates it from kin but not equivalent concepts, legal consciousness and legal framing, that sociolegal and social movement scholars may have an interest in. Our goal is not to artificially divorce these concepts from one another, but to better understand the ways in which they do and do not overlap. These concepts often overlap more in common usage than in our typology, and this occurs in ways that may actually impede the research process, encouraging the conflation of different types of actions as if they were equal for substantive and theoretical purposes. Attention to these conceptual dimensions—whether or not the object of study involves giving meaning to an event; explicit, self-conscious action; and/or the invocation of formal institutions—will allow scholars to be more sensitive moving forward to conceptual clarity and transparency, taking care to use the term that best describes what they actually mean. We argue that our concepts of legal mobilization, legal framing, and legal consciousness capture crucial aspects of current scholarly usage and best situate scholars to develop emerging lines of inquiry in the field of sociolegal studies. However, we do not claim that our approach is fully in line with all current usage, which not only would be impossible, but also against the purpose of this article; we make conceptual choices in our approach, which we are arguing for as desirable.
There are three primary strands of discord in the extant literature on legal mobilization, including which activities constitute legal mobilization, who is the target, and what types of claims fall within the category. As we argue in more detail below, there are important theoretical reasons to restrict legal mobilization to the use of law in an explicit, self-conscious way through the invocation of formal institutional mechanisms. Our conceptualization takes a clear position on the issue that has arguably been the most contentious—that is, which activities constitute legal mobilization. In our conceptualization, these activities include litigation as well as the filing of claims through pseudo-judicial and administrative legal procedures.
Our typology also leads us to take a clear position on the two secondary points of discord within existing accounts of legal mobilization regarding the target and nature of claims. We acknowledge that even legal mobilization aimed at changing the behavior of private actors necessarily involves state institutions and state actors, and thus the divide between state-directed action and private-directed action is perhaps more porous than might be imagined. Also, the invocation of formal institutional mechanisms against private actors, whether it involves political issues or not, is likely to involve similar mechanisms to those involved in targeting the state (McAdam, Tarrow, and Tilly Reference McAdam, Tarrow and Tilly2001). For example, two of those mechanisms are the perception of legal opportunities or the mobilization of resources, which are required regardless of whether the target is a private actor or the state or whether the objective is political or not. Thus, the fact that we expect similar mechanisms operating across these scenarios provides a theoretical rationale for including the invocation of formal institutional mechanisms against private actors in our definition of legal mobilization, as well as for not restricting it based on the type of claims made.
Further, our conceptualization facilitates the study of legal mobilization from the “top down,” with a focus on judges and courts, as well as from the “bottom up,” with a focus on potential claimants. Scholars often adopt these approaches on the basis of different research goals and different starting assumptions, but a common conceptualization of legal mobilization will allow scholars of each persuasion to communicate more effectively with one another and to develop and combine findings across research traditions.
To sum up, scholars using the concept of legal mobilization have not always been self-conscious or transparent about their conceptual choices. We seek to encourage self-conscious reflection on what exactly it is that we are studying, which is an important goal for social scientists. We hold that the NSC approach to concept formation best situates scholars to clearly specify their concepts and differentiate them from similar or related phenomena. Although some scholars might interpret this as detaching legal mobilization from contextual factors, this is not the case. Studies should still have a broad empirical scope and be open to capturing the complex relations between legal mobilization and other phenomena. What we are arguing for is analytical differentiation among them, which will actually promote a better understanding of legal mobilization in relation to its contextual factors.
DEEPENING EMERGING AVENUES FOR RESEARCH
We now turn to a discussion of how the conceptualization of legal mobilization as the use of law in an explicit, self-conscious way through the invocation of a formal institutional mechanism has important theoretical implications. In doing so, we show how our conceptualization best situates scholars to respond to and develop new lines of inquiry raised by recent studies on law and social movements. Further, we demonstrate how our conceptualization will allow scholars to capitalize on cross-fertilization between the fields of social movement and sociolegal studies. In addition to allowing for better theory building and testing, aggregation across studies, causal inference, and relating legal mobilization to kin phenomena, two additional concrete benefits of our proposed definition are that it will help scholars develop new lines of inquiry and draw bridges between social movement and sociolegal studies.
In the last fifteen years, one of the more dynamic strands of research on law and social movements has been the literature on legal opportunity structures (Hilson Reference Hilson2002; B. M. Wilson and Rodríguez Cordero Reference Wilson and Rodríguez Cordero2006; Andersen Reference Andersen2009; B. M. Wilson Reference Wilson2009; Evans Case and Givens Reference Rhonda and Givens2010; De Fazio Reference De Fazio2012; Vanhala Reference Vanhala2012, Reference Vanhala2017). Legal opportunities refer to those dimensions of the legal system that increase actors’ likelihood of using litigation and being successful in doing so. Those dimensions include structural (or stable) and contingent (or variable) features, although this distinction has proven hard to sustain (Vanhala Reference Vanhala2012). Among the structural dimensions are laws on standing and access, legal funding, the available legal stock, and courts’ operating rules on legal formality. The contingent variables include the configuration of power among judges or justices and judicial receptivity. Legal opportunity structures have been used as an independent variable to account for why movements turn to litigation instead of lobbying or protesting (Hilson Reference Hilson2002; De Fazio Reference De Fazio2012), to specify the circumstances under which rights claims are more or less likely to prevail in court (Andersen Reference Andersen2009), to explain the mitigated need for extensive resources for mobilization (B. M. Wilson Reference Wilson2009), and to account for the power of political minorities to realize their rights (B. M. Wilson and Rodríguez Cordero Reference Wilson and Rodríguez Cordero2006). Finally, the legal opportunity structure has also been used as the dependent variable in studies that deal with legal change (Evans Case and Givens Reference Rhonda and Givens2010; Vanhala Reference Vanhala2012).
We argue that these studies on legal opportunities have given rise to theoretical questions that might be better addressed by our strict definition of legal mobilization structured by the NSC approach. First, if the legal opportunity structure is to be used to explain why actors recur to litigation instead of lobbying, then a clear-cut delimitation between legal mobilization and lobbying should be drawn. If actors use both litigation and lobbying in the same campaign—as has been the case, for instance, in campaigns for marriage equality in several countries—then scholars would need to account for the use of two different strategies and understand their relationship and different dynamics (e.g., the resources required, the kind(s) of organizing in which collective actors engage, and so on). Second, if the legal opportunity structure is to be useful for the specification of the conditions under which actors are likely to prevail in courts or in accounting for political minorities’ power to push their rights, then legal mobilization has to be distinguished from both legal framing and legal consciousness. Indeed, it is likely to be the case that the legal framing employed by these actors and the legal consciousness embodied by them also affect these outcomes, and thus distinguishing these phenomena from legal mobilization is crucial to assessing their relative impact.
Another set of studies that has advanced our understanding of law and social change focuses on legal framing (Pierceson Reference Pierceson2005; Pedriana Reference Pedriana2006; McCammon et al. Reference McCammon, Muse, Newman and Terrell2007; Leachman Reference Leachman and Sarat2013; Vanhala Reference Vanhala2017). Legal framing refers to the inclusion of legal rules, ideas, or symbols in collective action frames. It is thus a subset of the concept of collective action frames within social movement scholarship, which refers to “action-oriented sets of beliefs and meanings that inspire and legitimate the activities and campaigns of a social movement organization” (Benford and Snow Reference Benford and Snow2000, 614; Snow and Benford Reference Snow and Benford1988). Scholars have noted the pervasiveness of legal framing and its importance to describe movements’ framing activities, transformations, and reform objectives (Pedriana Reference Pedriana2006). Recent studies have used the concept of legal framing as an independent variable to account for courts’ varying approaches to particular policy questions (Pierceson Reference Pierceson2005), the likelihood of NGOs recurring to litigation to pursue their policy goals (Vanhala Reference Vanhala2017), and collective actors’ likelihood of influencing political decision makers to reform policies (McCammon et al. Reference McCammon, Muse, Newman and Terrell2007). Finally, scholars have also distinguished different kinds of legal frames and taken them as a dependent variable, focusing on how the internal cultures of movements and their institutional environments shape the adoption and utility of a particular kind of frame (Leachman Reference Leachman and Sarat2013).
Our strict definition of legal mobilization structured following the NSC approach also facilitates the exploration of questions raised by recent studies on legal framing. First, if scholars wish to study the impact of legal frames on actors’ ability to influence policy makers (including legislators, government officials, and judges) and courts’ differential approaches (e.g., more or less “aggressive,” “activist,” or “interventionist”) to policy questions, then a distinction between legal framing and legal mobilization must be drawn to study their relative impact. By defining legal mobilization as the use of law in an explicit, self-conscious way through the invocation of a formal institutional mechanism, rather than the mere use of rights claims, scholars will be better placed to specify the importance of legal framing for actors’ success in legal mobilization in relation to other key factors. Second, if legal frames are to be used to help explain the likelihood of actors investing in litigation instead of other strategies, then a clear-cut distinction between legal framing and legal mobilization is necessary. To address this question, legal frames can refer to the explicit, self-conscious use of law to give meaning to an event and legal mobilization to the explicit, self-conscious invocation of formal institutional mechanisms. By analytically differentiating these phenomena, it is then possible to assess the impact of variation in the use of legal frames by actors on legal mobilization.
Finally, we propose that recent studies on legal consciousness have suggested promising new questions to pursue. Sociolegal scholars have broadly defined legal consciousness as “the ways people understand and use the law . . . the way people conceive of the ‘natural’ and normal way of doing things, their habitual patterns of talk and action, and their common-sense understanding of the world” (Merry Reference Merry1990, 5). Studies on legal consciousness have developed as a dedicated subfield within law and society scholarship, and the questions addressed in it are too varied for us to adequately capture them here (though see Ewick and Silbey Reference Ewick and Silbey1998; Silbey Reference Silbey2005 for overviews). Recently, scholars have examined how legal consciousness is affected by their experiences with litigation (M. E. Gallagher Reference Gallagher2006), how legal consciousness reproduces the law’s legitimacy (Silbey Reference Silbey2005; J. C. Wilson Reference Wilson2011), and what kinds of legal consciousness are or are not conducive to legal mobilization (W. K. Taylor Reference Taylor2018).
We suggest that a clearer definition of legal mobilization and a deeper investigation into the relationship between legal consciousness and legal mobilization are needed to address the questions posed by these studies. Considering that legal consciousness involves the possibility of mobilization—and the literature actually focuses on both understandings and uses of the law—there is an important, but undertheorized, overlap between legal mobilization and legal consciousness. Generally speaking, studies of legal consciousness are more focused on how individuals or groups think about their engagement with legal actors, institutions, and tools rather than on the conditions under which they actually invoke formal institutional mechanisms to make claims. Importantly, legal consciousness is as much about when actors view problems in their lives as falling outside the domain of the law or when actors do not think about the law in the first place as about when actors view those problems as fundamentally legal in nature (Nielsen Reference Nielsen2000). The exact relationship between these unconscious or subconscious elements of legal consciousness and whether, when, and how actors mobilize law remains to be identified in future research. We hold that precisely because of this existing definitional ambiguity between legal consciousness and legal mobilization around the question of the use of law, scholars interested in exploring the relationship between these two topics have a stake in clearly conceptualizing both phenomena. Our NSC approach to defining legal mobilization helps to clarify the differences between legal mobilization and legal consciousness.
CONCLUSIONS
We began this article by highlighting a paradoxical situation. Although social movements have increasingly used legal strategies (Meyer and Boutcher Reference Meyer and Boutcher2007), we lack a general theory to account for the relations between social movements, the courts, and legal systems (Tarrow Reference Tarrow2012). Because well-defined concepts are the building blocks of theories (Goertz Reference Goertz2006), we have focused on how to best conceptualize legal mobilization. Indeed, as we have demonstrated, scholars working in the sociolegal tradition disagree (sometimes in fundamental ways) about what constitutes legal mobilization, which has resulted in conceptual slippage around how the term is used in contemporary scholarship. This paradoxical situation is of particular concern since the specific questions about legal mobilization we highlighted touch upon larger, important discussions in social theory about law and power. Specifically, they point to the role of law in perpetuating the status quo, as well as the conditions under which resistance occurs (Bourdieu Reference Bourdieu1986; Poulantzas Reference Poulantzas2000; Thompson Reference Thompson2016). The broader theoretical problem, connected to social movements and contentious politics, is that of the reproduction and change in social fields (Fligstein and McAdam Reference Fligstein and McAdam2015).
Formalizing definitions and seeking systematic theory building is crucial for scholars interested in legal mobilization. Both are necessary to reach valid conclusions and for knowledge to cumulate (Gerring Reference Gerring2011). For practice-oriented researchers, better theories foster better problem solving (Prasad Reference Prasad2018); it is only by having valid knowledge on the factors driving the social phenomena in which we seek to intervene that we can make more effective interventions.
Some scholars might argue that rather than working to formalize a common definition of legal mobilization, authors investigating these related topics should simply use the term legal mobilization to refer to a general research paradigm, or that these authors could just be more forthright about how they understand legal mobilization and, for example, legal opportunity relative to existing studies. At the extreme, this position would hold that there is no better or worse definition of legal mobilization, but rather various definitions for different research purposes. These suggestions are plausible for the discrete production of academic texts, but they are lacking if the goal is to develop a coherent, additive research agenda across scholars, disciplines, and issue areas. We argue for a standardized definition, which will allow for more meaningful theoretical debates about legal mobilization, as well as better understanding of other sociolegal phenomena by promoting exploration guided by analytical differentiation.
This article contributes to sociolegal and social movement scholarship by conceptualizing legal mobilization within a typology of different uses of the law that can take place during mobilization by individual or collective actors or outside it. We define legal mobilization as the use of law in an explicit, self-conscious way through the invocation of a formal institutional mechanism. Distinctly, we define legal consciousness as the implicit, nonarticulated use of law to give meaning to an event, and legal framing as the explicit, self-conscious use of law to give meaning to an event. We further show how such a conceptualization better positions both sociolegal and social movement scholars to address questions raised by the emerging literatures on legal opportunity structures, legal framing, and legal consciousness.
We encourage scholars engaging with legal mobilization to take our concern with sound conceptualization seriously. Careful attention to how we specify what it is that we are studying will not limit our ability to creatively approach new empirical phenomena, nor will it limit the kinds of questions we can ask about the world. Instead, the opposite is true. Rather than recurring to underdeveloped conceptual starting points or drawing incommensurate conclusions, with a sound conceptualization of legal mobilization, we will be able to generate deeper understanding of the diverse ways in which social actors use the law across time and across contexts. We hope that both sociolegal and social movement scholars will embrace our conceptualization, which draws on the necessary and sufficient conditions structure.
We close by noting opportunities for future research and cross-fertilization between the fields of sociolegal studies and social movement studies that would benefit from our rigorous conceptualization of legal mobilization. Ultimately, the payoffs of our approach will come from empirical research informed by it. By restricting legal mobilization to litigation and differentiating it from legal framing and legal consciousness, our definition is well suited for use in future studies involving legal opportunities (Hilson Reference Hilson2002; B. M. Wilson and Rodríguez Cordero Reference Wilson and Rodríguez Cordero2006; Andersen Reference Andersen2009; B. M. Wilson Reference Wilson2009; Evans Case and Givens Reference Rhonda and Givens2010; De Fazio Reference De Fazio2012; Vanhala Reference Vanhala2012, Reference Vanhala2017; Arrington Reference Arrington2019): When do actors turn to legal mobilization instead of other tactics such as lobbying or protesting? When are actors likely to prevail in courts? Our definition based on necessary and sufficient conditions is also well suited for use by scholars interested in further investigating questions raised by studies on legal framing (Pierceson Reference Pierceson2005; Pedriana Reference Pedriana2006; McCammon et al. Reference McCammon, Muse, Newman and Terrell2007; Leachman Reference Leachman and Sarat2013; Vanhala Reference Vanhala2017): How does variation in legal framing impact actors’ success with legal mobilization? How does variation in the use of legal frames relate to the conditions under which actors turn to legal mobilization to advance claims? Recent studies on legal consciousness and legal mobilization (M. E. Gallagher Reference Gallagher2006; J. C. Wilson Reference Wilson2011; W. K. Taylor Reference Taylor2018) also point to questions that our clear-cut definition is well suited to address: What are the particular configurations of legal consciousness that lead to legal mobilization? How is legal consciousness affected by the process of legal mobilization?
Further, legal mobilization under authoritarianism is a growing area of empirical research in which a more systematic conceptualization would improve efforts at comparative understanding. Although scholars have made significant inroads into the study of courts in authoritarian regimes (e.g., Ginsburg and Moustafa Reference Ginsburg and Moustafa2008), much less is known about claims-making practices in these contexts. While scholars have begun to examine these claims-making processes in China (M. E. Gallagher Reference Gallagher2006; M. Gallagher and Yang Reference Gallagher and Yang2017), Hong Kong (Tam Reference Tam2012), Russia (Hendley Reference Hendley1999; van der Vet Reference Vet2018), as well as Myanmar and Singapore (Chua Reference Chua2014; Chua and Gilbert Reference Chua and Gilbert2015), they have done so in a largely particularistic manner and have drawn on different understandings of legal mobilization that do not readily aggregate together. Relatedly, scholars have yet to consider potential differences between legal mobilization in common and civil law systems, or to investigate the extent to which these different institutional environments condition the ability and proclivity of actors to engage in legal mobilization in both democratic and authoritarian contexts. As is the case with legal opportunities, legal framing, and legal consciousness, we hold that our definition of legal mobilization best situates scholars interested in legal mobilization in authoritarian contexts to develop general theories and cumulative knowledge about the intersection of law and mobilization across geographic contexts and substantive issue areas.
Interestingly, several of the directions for future research we have pointed to converge on the significance of thinking of legal mobilization as a member of a larger repertoire of contention. Within social movement scholarship, repertoires of collective action refer to “the ways that people act together in pursuit of shared interests” (Tilly Reference Tilly2015, 41). It is important to keep in mind that our concept of legal mobilization also includes its use by individuals, while the concept of repertoires of contention only covers collective actors. However, within the latter, conceptualizing legal mobilization as one element within the set of ways people act together in pursuit of shared interests might be useful to unify different research agendas and possibly think in new ones. Tilly (Reference Tilly1978, Reference Tilly2010) theorized the way in which repertoires of contention vary as a function of political regimes. Thinking of legal mobilization as an element of such repertoires raises the question of its predominant use within democratic regimes, but also of its increasing usage in authoritarian regimes, as well as the commonalities and differences.
Furthermore, scholars studying repertoires of contention are also interested in how particular tactics are chosen and change during events of contention (Alimi Reference Alimi2015). The factors that influence these choices merit further study (V. Taylor and Van Dyke Reference Taylor and Van Dyke2004). It is useful to conceptualize legal mobilization as one of the many possible tactics that actors can chose from, including protest, lobbying, petitioning, marches, strikes, demonstrations, engaging in violent acts, rituals, and performances. Legal mobilization is best described as a subtype of institutional tactics (Field Reference Field1976; Scott Reference Scott1990; O’Brien and Li Reference O’Brien and Li2006), and future scholarship should examine when particular institutional tactics are chosen, as well as the relationship between institutional and extrainstitutional tactics.
Supplementary material
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