The phenomenon of attempting to achieve change beyond the individual case or individual interest through court cases originated from the United States, where important cases such as Brown v. Board of Education sparked a wave of so-called ‘public interest’ litigation.[1] In Europe, a similar trend can be spotted, although the terms strategic litigation and legal mobilization have gained more popularity to describe the same phenomenon. Although the theme of the conference, courts as an arena for societal change, implies a top-down perspective, courts are reactive institutions that are able to make societal impact only when receiving suitable cases. Therefore, a bottom-up perspective of the litigants and their motivations as to why the law is mobilized is warranted as well. When it comes to research that explains why organizations or ‘social movements’ turn to the law; legal mobilization theory offers different perspectives.

External or internal explanations?

Theories to explain why the law is mobilized have undergone different phases. Roughly speaking, different ‘schools’ of thought can be distinguished. The first stems from political science literature on social movements and strategy choice, focusing on political opportunity structures (POS), which entails political access and political receptiveness, to explain why certain movements turn to protest, lobbying or litigation (mobilization of the law). The basic premise of POS is that when political avenues are closed off, movements turn to strategies ‘outside’ of the political realm, such as civil disobedience and litigation, as opposed to an ‘insider’ strategy, such as lobbying.

Legal aspects, such as access to justice (rules on standing, legal costs), were mostly subsumed under POS. Although relevant, no separate status was awarded to these aspects, until Hilson coined the term 'legal opportunity’ in 2002. From this moment onward, a new strand of literature focused on legal opportunity structures (LOS), as opposed to POS, to explain the turn to the courts. Most notably, this theory was developed by Andersen.[2] Aspects of LOS include access to courts, judicial receptivity and availability of justiciable rights. Open LOS can encourage litigation strategies, while closed LOS are expected to prevent legal mobilization.

Nevertheless, more recent literature has pointed towards more internal, organizational factors that can explain mobilization of the law. Most notably, Lisa Vanhala (2012 and 2018) has shown that despite for example closed LOS, organizations still turn to the courts to attain their objectives. Factors such as organizational identity, resources and framing play a role to explain strategy choice, as opposed to the ‘external’ POS and LOS.

Mapping the actors in the field of asylum law

In the field of asylum law, a similar surge in litigation strategies as in other legal fields can be observed. Several high-profile cases decided by national, European and international judicial bodies are the result of a predetermined strategy and no coincidental landmark decisions. More specifically, certain civil society organizations (CSO) are focusing a large part of their work on strategic litigation in the field of asylum law. In the Netherlands, these CSOs include the Dutch Council for Refugees (DCR) and the Public Interest Litigation Project (PILP-NJCM) of the Dutch section of the International Commission of Jurists, whereas in Italy examples of these CSOs are the Associazione per gli Studi Giuridici sull’Immigrazione (ASGI) and the Associazione Ricreativa e Culturale Italiana (ARCI). Although they are all pursuing strategic litigation, the organizations operate in different national political and legal contexts, with different accompanying opportunities and constraints. Moreover, each organization has a different structure, identity and amount of resources. This begs the question what drives them to pursue strategic litigation.

Reviving Political Opportunity Structures?

Empirical data, such as interviews and case law, has been used in the current research to establish what factors are relevant in the choice of the mentioned four CSOs from Italy and the Netherlands to mobilize the law. This empirical data is compared to existing literature on legal mobilization to show a potential revival of the theory that has been left behind over the past few years: POS. For the CSOs researched, possibilities and constraints at the (national) political level do cater in when it comes to their strategy choice. It is no secret that migration and asylum matters have become highly politicized,[3] also in the Netherlands and Italy. In part, this drives the CSOs selected to turn to the courts. Nevertheless, certain differences in perspective on POS exist, even within the same state. One organization can have more political ties than the other, which in turn influences their perceptions of and relations with the government. Thus, perhaps POS as a theory that is external and ‘set in stone’ does not work: the way in which POS are perceived should be taken into account when researching why the law is mobilized as well. The later theories presented by Vanhala can be used to explain these differing perspectives, such as the identity of the organization.

More than 120 scholars from all over the world will share their findings and views on 8 and 9 July 2022 at Leiden Law School during the conference Courts as an Arena for Societal Change. Several blogs will be published on the Leiden Law Blog on the themes of the conference.

[1]Alan K. Chen, Scott Cummings, Public Interest Lawyering: A Contemporary Perspective, Aspen Publishing 2012.

[2] Ellen A. Andersen, Out of the Closets and into the Courts: Legal Opportunity Structure and Gay Rights Litigation, University of Michigan Press 2006.

[3] Wouter van der Brug, Gianni D’Amato, Didier Ruedin & Joost Berkhout (eds.), The Politicisation of Migration, Routledge 2015.