Reference no: EM13798492

Introduction

Legal opportunity and legal opportunity structure are ideas that are critical in the study of law and social movements.

Legal opportunity is important in explaining the choice of strategies by social movements. In the article "new social movements: the role of legal opportunity" Hilson introduced the concept of legal opportunity into the theory of social movements.

Hilson suggest that while ligation, lobbying, and protest are strategies adopted to realize policy change, political scientist have tended to study the three strategies independently from one another. Hilson places the three strategies within a single analytical framework by adopting a novel social movement viewpoint. He adds the concept of legal opportunity in explaining unusual political activity. From Hilson's perspective, the lack of political opportunity plays a role in the adoption of litigation as a strategy instead of lobbying, and that the preference for protests in influenced by reduced legal and political opportunities. Legal opportunity serves to emphasize that not all the characteristics of judicial systems are fundamentally structural in nature because some characteristics such as judicial receptiveness are contingent.

Analysis

The relationship between judicial systems and social movements is an intricate one and extensive academic literature is based in it. These academic literatures can be categorized into two broad camps. In the first camp is the American work in society tradition and law, which has studied the use of courts as agents of social change. This work is the outcome of past classics on legal mobilization. A large proportion of this work emphasizes on social movement results and the achievement of litigation as a strategy. The second camp is made up of North American and modern European studies that attempt to explain why social movement organizations adopt litigation instead of other strategies such as protest and lobbying (Kirsch, 2005). These two camps are distinct in that the second camp seeks to engage openly with social movement literature in the fields of political science and sociology.

An example of this strand of work is Herbert Kitschelt's article that was published in the British Journal of Political Science concerning anti-nuclear movements in European countries. In the article, he argues that the choice of a strategy-both confrontational such as protests, assimilative such as litigation and political lobbying are to a large extend determined by the prevailing political opportunity structure in the country. Such an approach did injustice to litigation as a unique approach faced with its own barriers and structural opportunities (Koopmans, 1996). Hislson introduces the concept of legal opportunity structure and legal opportunity, which has been applied in various contexts to explain the choice of strategy by social movement organizations (2011).

Hilson uses modern social movement organizations such as animal welfare, environmental, women movements and lesbian and gay social movements to introduce the concept of legal opportunity rather than legal opportunity structure because it underlines that not all positive or negative characteristics of judicial systems are fundamentally structural in nature.

Noteworthy successive refinements of legal opportunity concepts have recognized the need to adopt as an approach that accommodates a degree of actor agency. It is probable for social movement organizations to create and determine legal opportunity instead of being shaped by them as implied by structural accounts. Additionally, the "organizational" field of social movement organizations also influences strategy choice because not all organizations will exploit legal opportunities due to the presence of other organizations within the movement who could exploit them.

Using the example of women organizations, Hilson has demonstrated that opportunity must be viewed in terms of access and receptivity. The reason for women organizations adopting court litigation strategy was due to the lack of political opportunity at the state and European community level. Ehen women's movement started in the late 1970s and early 1980s, the British government was not interested to moves to expand the sex discrimination, and equal pay acts (Kay, 2011). Although the European community was receptive to such moves, it was facing challenges to persuade the council to expand existing legislations due to the unanimity requirement needed, which implies that such moves were destined to fail. However, the European-based national legal opportunity favored the litigation strategy such as the equal opportunities commission in the United Kingdom. Access to the national courts was made possible through direct support to individual litigants and bringing judicial review proceedings under its own name. Furthermore, industrial tribunals were able to make direct references the European Court of Justice (ECJ). The first sex discrimination cases by the ECJ were activist and tribunals were certain the courts decisions would allow the European community law to defeat national policy (Kay, 2011). The creative approach adopted by the ECJ enables it to expand the scope of European community policy. The success of this legal institutional mobilization meant that there was no need for women's movement organizations to resort to unconventional strategies.

Hilson's article is an example of mainstream literature that has moved towards a multi-dimensional explanation of strategy choice by social movement organizations. He utilizes resources mobilization theory and structural political processes to account for the strategy choice by social movement organizations. The availability of resources to these organizations is a critical factor in the choice of litigation as a strategy. The classical theories that characterized the 1960s and 70s stressed the significance of grievances or dissatisfaction in explaining the materialization of social movements. However, resource mobilization theories are more relevant in explaining the emergence of social movements because discontent and grievances are present in societies of all times (Kirsch, 2005). Availability of resources is what converts grievances to movements. It is evident that the new social movements have increased during the times of post-material plenty, and to be successful these movements must mobilize resources from the public. The economic boom realized in the United States in the 1950s and the post war economic situation in European countries played a significant role in the emergence of large numbers of social movement organizations. Although it may appear as if resource mobilization theories may seem as describing interest-type social movement organizations than unconventional social movement organizations, a resourced-based approach influences the choice of strategy by all social movement organizations.

Hilson is right to argue that organization select strategies that suit the resources available. The definition on resources in this case is wide to incorporate both finance and factors such as educational and professional background of members. For instance, political lobbying may be a suitable strategy for those with a background in policymaking. Policy makers are less likely to pay attention to individuals who lack a professional background in policymaking. Although political lobbying may seem costless at the domestic level, but in practice, it is financially burdensome because it entails hiring a professional lobby group who suit the policymaking mould. For success, costly lawyers must be employed and in case one loses, they are liable to pay the opponent's cost. Litigation becomes a suitable choice for social movement organizations if they have professional lawyers within their cadres. The use Compassion in world farming and Greenpeace by Hilson as social movement organizations that utilize litigations frequently is because these organizations have lawyers within their ranks (2011). This implies that financially disadvantaged organizations are left with protests as their only strategy of effecting policy change. Despite the significance of financial capital to even unconventional protests, social movements can compensate the lack of money by suing close networks as social capital.

Hilson also touches on a vita framework that can explain the activity of social movement organizations, which is identity politics. The orientation of an organization is also a determining factor in the choice of a strategy. The political identities of social movement organizations may be counter-cultural, instrumental, or sub-cultural. Counter-cultural social movement organizations define their political identity through confrontations with opponents. Organizations such as Green First utilize protests as a means if attaining their goals. Instrumental social movement organizations are likely to prefer any strategy so long as it leads to achievement of a goal. They are likely to adopt protest, lobbying, or ligation to realize a desired goal. For sub-cultural social movement organizations, their identity is defined through inter-group interactions: therefore, their choice of strategy is determined by their lifestyle and expression of identity as well as attaining an instrumental objective.

Hilson supports his suggestion that political opportunity and legal opportunity should not be viewed in isolation by underlining the significance of ideas and values in influencing strategy choice. The source of ideas of a social movement influence their choices of strategy for instance organizations that draw upon anarchist ideas are likely to choose protests over litigation and lobbying. Another example is the use of outrage as motivation by lesbian and gay groups. These organizations are likely to choose protests and lobbying over litigation based on their rights because litigation is seen as fostering assimilation instead of recognizing their sexual differences (McCann, 2008). Since social movement organizations are made of diverse individuals with differing value systems, values influence the choice of strategy. Individuals who respect the law and abhor violence are likely to influence their organizations to disregard violent protests as a strategy.

Although Hilson's argument is based on the premise that the lack of political opportunity may lead to adoption of litigation as strategy rather than lobbying (2011), and that protests are chosen due to lack of legal and political opportunities, it is imperative to reconsider this argument. Litigation was used by all the organizations used by Hilson as examples to over come the lack of political opportunity. Additionally, there are instances where direct action is chosen due to poor legal and political opportunity. It is lonely in women's movements that direct action is absent due to favorable legal opportunity. It might be tempting to make a conclusion that it is difficult to mobilize direct action around an individual issue, but Hilson is careful not to fall into such a trap. Strategy choice does not follow a specific or choice-based logic (2011). In some cases, the choice of strategy may follow a temporal logic from political strategies to litigation and finally to protests, but in some other cases protests may come before litigation. Additionally, social movement organizations do not choose lobbying, litigation and protests in such a sequential order because some groups prefers different strategies as equally vital for the realization of policy change (McCann, 2008). This leads to the conclusion that there is need to differentiate between movements as single entities and specific groups in the movements. Choice of strategy is by conventional groups in a social movement organization are determined by the existing legal and political opportunities (Kirsch, 2005).

Framing is another significant idea common to conventional social movement organizations. Framing refers to "meaning work" and is a process through which social movement organizations engage as agents if the struggle over the generation, rallying and counter-rallying of ideas and meanings. Legal framing mirrors the fact that law is a meaning-making establishment through which interpretive work takes place. Framing provides the framework of for examining the relationship between law and social movement organizations (Rosenberg, 1996). The courts do not cause the desire change, but the lack of legal opportunities that motivate social movement organizations to adopt specific strategies to achieve a desired change.

Conclusion

It is evident from Hilson's article that the lack of legal and political opportunities is the main factor in the adoption of protests as a strategy of effecting change by social movement organizations (2011). The examples used by Hilson shows that protests is a strategy selected due to legal and political exclusion. Other strategies such as litigation and lobbying are influenced by the availability of resources, and values and ideas of entities within a movement. Social movement organizations adopt litigation when legal and political opportunities offered by lobbying are poor, and protests become an option when these conditions are not favorable.