Law can counter oppression even if it sometimes enables it.

In our aspirations for progressive change, engaging with the law is not a free choice among tactics. It is a necessity. Egalitarian activists are routinely forced into legal engagement by the omnipresence of law as a violent force imposing hierarchical order and harsh punitive constraints on oppressed populations. Although activists are often motivated by the quest for legal recognition of rights claims, offensively mobilizing law to support egalitarian struggles is only a small part of movement appeals to law. Defensive actions to evade law’s repressive force or to protect previous gains are often much more significant. In our view, there is surprisingly little rigorous theorizing about the different types of struggles on the terrain of law, the most useful indicators of effective legal action, and especially the measures of egalitarian or inclusionary change.1

Law is an enduring site for progressive democratic contestation. Although official law is often a tool of repression, legal norms and institutions can also be resources for egalitarian rights claims, and, at certain historical moments, even social transformation. No matter how radical one’s political aspirations, the necessarily long-run character of revolutionary social transformation requires a series of intermediate steps, including those on the terrain of law. As the British socialist E. P. Thompson (1975) asserts,

Most [people] have a strong sense of justice, at least with regard to their own interests. If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just. . . . The rhetoric and the rules of a society are something a great deal more than sham. In the same moment they may modify, in profound ways, the behavior of the powerful, and mystify the powerless. They may disguise the true realities of power, but, at the same time, they may curb that power and check its intrusions. . . . And it is often from within that very rhetoric that a radical critique of the practice of the society is developed. (436–39)

In this chapter, we describe legal mobilization as the articulation of a social interest, general policy, or a societal vision in terms of legal entitlement. As Frances Kahn Zemans (1983) famously put it, legal mobilization entails that “a desire or want . . . is translated into a demand as an assertion of one’s rights” (3). Since legal language is indeterminate and polyvalent, it is contestable. Dominant legal norms are incomplete and rife with tensions, and they adapt as the perceived interests of dominant groups respond to, or occasionally converge with, the demands of oppressed groups (Bell 1980). Although much legal contestation occurs between recognized rights-bearing subjects over the authoritative meaning of clashing liberal legal principles, legal mobilization also involves oppressed groups mobilizing liberal principles against illiberal, repressive modes of social control. These contests over ascribed race, gender, sexual, immigrant, and other marginalized identities often expand the rule of liberal legalism (Smith 1997; Orren 1992). More importantly, struggles by progressive activists can use the liberal principle of equal citizenship to counter the property- and contract-based principles of capitalism, thereby challenging unequal resource distribution and class exploitation (Brown 2003; Smith 1997). As Stuart Scheingold (1974) argues, “law cuts both ways,” both for and against egalitarian social justice (91; see also McCann 1994).

When, how, and to what degree legal discourse and institutions provide resources for oppressed groups depends largely on the mix of legal and especially extralegal factors in a given historical context. Our research devotes considerable attention to the changing features of the cultural and institutional terrain that delimit the possibilities and forms of contestation within and against law. Of course, fighting for control of legal institutions and principles does not guarantee radical social change. But succumbing to anti-legalism cedes control over the terms of institutional organization, instrumental rule, and regime legitimation to dominant forces propelling capitalism and other hierarchies.

We recognize that our approach is at odds with some important recent movements and their interpreters. Arguably, the Occupy movements in and beyond the United States expressed a notable disdain for legal rights claiming, litigation strategies, and general appeals to legal strategies (Almog and Barzilai 2014). This disenchantment with law, legal processes, and lawyers is understandable in the post-civil rights era and the immediate post-recession moment. Indeed, wariness about law is always sound. Moreover, Occupy did profoundly reorient the dominant agenda in many parts of the global North. It put “deficit and debt hawks” on the defense and elevated concerns about economic fairness and the political accountability of private financial managers. At the same time, Occupy espoused and enacted little in the way of institutional changes within government and capitalist society. By shedding any reliance on discourses of rights, Occupy arguably limited its use of important ideological resources in the neoliberal context (Brown 2003; Obando 2014).

It is noteworthy that many movements inspired by the Occupy movement— especially among low-wage workers and advocates for corporate accountability— have recovered and prominently invoked rights claims and legal resources. Indeed, there has been a recent convergence around rights-based claims by campaigns for a minimum wage and sick pay, for immigrant rights and support, for LBGTQ rights, for the Black Lives Matter movement, and for other progressive and radical causes in the United States. Their reliance on lawyers and litigation has varied widely, but none of these movements discount them as much as did the earlier Occupy movement. Furthermore, many grassroots struggles in both the global North and South—against apartheid; for indigenous people’s sovereignty; for socioeconomic entitlements to housing, health-care, education, and minimum income—also appeal to legal or human rights and rely in part on national or transnational courts (Haglund and Stryker 2015; Rodriguez-Garavito 2011).