The role of law and the function of the courts in society has been attracting significant attention, particularly in relation to the treatment of people of colour. Citizens and civil society organizations, often as part of broader social movements, have turned to the courts when it is determined that administrative and legislative authorities are directly or indirectly contributing to systemic inequalities and injustice. However, as a liberal solution that is preoccupied with individual outcomes, the results of court challenges have been mixed, leading to public dissatisfaction and often outrage.

Redressing systemic, racial injustices through the courts reveals how, as with any use of law, legal mobilization is not self-evident, or apolitical. It requires deliberate, strategic, bold and innovative approaches, including an intersectional understanding of how systemic inequality and discrimination operate.

Different actors and forms

Legal mobilization involves multiple actors and adopts different forms. Mobilizing the law via the courts involves more than just an individual claim, but tends to involve a consortium of social justice organizations. As part of a broader struggle for systemic (racial) justice, these organizations hold the government and public authorities accountable in the face of violations of human rights.

Legal mobilization can take multiple confrontational forms. Alongside litigation, advocates have engaged in public shaming, civic protests and civic boycotts. Legal mobilization can also adopt cooperative forms; in particular, participation in policy-making processes, training courses on systemic racism awareness and various forms of local mobilizing in partnership with municipal and national government actors and law enforcement officials.

Legal mobilization as legitimate counterpower

Legal mobilization has been pursued through the courts in the Netherlands and globally, as a form of legitimate counterpower in order to address administrative deficiencies. This includes legal mobilization efforts through the courts to address racial justice.

Organizations such as the Center for Constitutional Rights in New York City and Public Interest Litigation Project (PILP) in Amsterdam (part of the Netherlands Lawyers Committee on Human Rights, NJCM) have persistently challenged a range of racial injustice issues and governance problems through the courts. This includes court challenges by both organizations against abusive immigration practices, discriminatory (border) policing and Muslim profiling, including by major airline carriers such as KLM in response to then president Trump’s ‘Muslim Ban’. Through strategic litigation, these organizations have not just revealed, but explicitly pushed back against systemic practices of racial profiling and discrimination.

Racial profiling and regulating access in the Netherlands

We discuss two, concrete legal mobilization claims aimed at redressing systemic injustice. Both are examples of an implicit agreement in society about who does and does not belong. The specific governance problems we have singled out are first, the racial profiling case against the Dutch border police and second, the regulation of access in the Netherlands based on place of birth, and discrimination practices associated with this.

We chose these two claims because they are especially relevant to the Netherlands at this point in time. Civil society organizations have expressed concern about them. Strategic litigation has already been used in the racial profiling case against the Dutch border police and is being considered in relation to regulating differential access based on place of birth.

In our paper we explore the legal claims and what makes them suitable for strategic litigation (or not). In particular, we consider whether legal mobilization through the courts can address systemic violations. Questions also arise as to the legitimacy of such litigation, in light of the judicial function.

Unpacking legitimacy

Beyond explaining legal mobilization through the courts as a form of counterpower, we explore how legal mobilization through the courts can legitimately address governance problems. We assume that reacting to knowledge about the causes and impacts of racial injustice is a fixture of participation in democratic governance and that civil society organizations may wish to mobilize the law in different ways.

To understand this participation, it is useful to unpack aspects of legitimacy. For social legitimacy, the responses by stakeholders are relevant. Moreover, the types of claims and the manner in which litigation is conducted, can also be assessed based on normative legitimacy criteria. Within the framework of this paper (for the Conference ‘Courts as an Arena for Societal Change’), however, we focus on the normative legitimacy of the international case law invoked in the domestic litigation (i.e. does this case law meet normative legitimacy criteria?). These questions are relevant not only for academics. They are also relevant to those working for civil society organizations who are considering whether and how to use strategic litigation. They need to decide not just whether, when and where to litigate, but also what law and interpretations to invoke.

Legal learning

Through analysing the potential of legal mobilization and with an eye to those involved in the practice of legal mobilization, our goal is pedagogical. Jessop and Knio refers to this as ‘legal learning’, which in this case concerns the need to understand the function of strategic litigation in order to address racial justice as a key global challenge, embedded in the Sustainable Development Goals of the United Nations. Taking a participatory as well as reflexive approach to this helps us to understand what is impactful, legitimate and supportive of the rule of law and ultimately contributes to addressing systemic inequalities.

As three concrete examples of legal learning: in Nijmegen we have started the Special Interest Group Academic Citizenship at the Radboud University Nijmegen, together with scholars from law and other fields and disciplines. With various Dutch and international academic and societal partners we have formed a Legal Mobilization Platform, hosted by the International Institute of Social Studies as a collaborative partnership with others that builds on an earlier project. Finally, at the global level, we interact with various organizations and academic platforms, including Third World Approaches to International Law or TWAIL, which as another example of legal learning, reflects on theory and praxis.

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.