Since a few weeks ago I have been thinking more and more about social movements and the law. A few years ago, I published an article called The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics, published in the Harvard Law Review. I wrote it because I wanted to sound the alarm that progressive lawyers and activists were criticizing the law and the power of governmental institutions to bring change in counter-productive ways and at the same time, conservative social movements were in fact using the courts, the legislature and the executive branches in more effective ways. Here is the abstract. I might have written the article differently today but the core of it is still very much relevant to 2016:
The limits of law in bringing about social change have long preoccupied legal thinkers. A recent development, however, is that new schools of thought build upon the critical understanding of these limits to produce a body of literature that privileges in a variety of ways extra-legal activism. These writings present themselves as alternatives to the path of legal reform, avoiding the risks of cooptation and deradicalization which have been the fate of earlier legalistic activism. Three extra-legal focal points emerge in this literature: (1) a move away from professionalism to “lay lawyering”; (2) a move from the legal arena to an “autonomous sphere” of action; and (3) a departure from formal legal norms to softer, “informal” normativities. The article demonstrates how these recent developments are misdirected, as they draw erroneous conclusions from critical understandings about the cooptative risks of legal strategies. In particular, contemporary proposals of extra-legal reform strategies fail to recognize ways in which such alternatives are frequently subject to the same shortcomings they seek to evade by opting out of the legal arena. Linking historical examples of critical analysis of the labor and the civil rights movements to contemporary public interest literature, the article charts a more nuanced map of legal cooptation critiques, which include distinct claims about resources and energy, framing and fragmentation, lawyering and professionalism, crowding out effects, institutional limitations, and legitimation. The article argues that the contemporary manifestation of a critical legal consciousness has eclipsed the origins of critical theory, which situates various forms of social action on more equal grounds. The new extra-legal truism, which rejects law reform as a transformative path for social change, consequently risks reinforcing the very account that it sets out to resist – that the state is no longer able to ensure socially responsible practices in the 21st century economy.
Posted by Orly Lobel on November 29, 2016 at 02:05 PM