Vol. 24 No. 11 (November 2014) 539-541
RIGHTS AND COURTS IN PURSUIT OF SOCIAL CHANGE: LEGAL MOBILIZATION IN THE MULTI-LEVEL EUROPEAN SYSTEM, by Dia Anagnostou (ed.). Portland, OR: Hart Publishing. 2014. 240 pp. Cloth: $84.70. ISBN: 9781849463904.
Reviewed by David Schultz, Department of Political Science, Hamline University. Email: email@example.com.
Legal mobilization and caused-based lawyering is a frequent topic of analysis among American public law scholars, asking questions about the capacity or the legitimacy of the courts to achieve social change. Scholars as diverse as Muir (1973), Scheingold (1978), Sorauf (1976), Horowitz (1977), Cooper (1988), Rabkin (1989), Feeley and Rubin (1998) and Rosenberg (1991) have examined the impact that Supreme Court decisions have had on social change. Additionally, McCain (1994) and Schultz (1998) have addressed the role of interest groups and lawyers in affecting litigation and using the courts for policy change. Largely the conclusion is that the courts, lawyers, and social groups can achieve some change under the right conditions. However, little research has been done by either American or non-American scholars on legal mobilization and caused-based lawyering in Europe, especially that involving the European Union. Dia Anagnostou’s book is a good first step in addressing this gap.
Anagnostou’s edited volume takes as its intellectual starting point Stuart Scheingold’s THE POLITICS OF RIGHTS and to a lesser extent Gerald Rosenberg’s THE HOLLOW HOPE. Both of these works raised questions about the efficacy of rights-based claims to achieve social change and, especially with Rosenberg, the ability of groups to mobilize and use the courts, especially, the Supreme Court, to achieve social change. Both books provided guarded suggestions regarding the conditions and circumstances under which going to the court made sense to make policy or create or vindicate rights. Both Scheingold and Rosenberg write within the context of an American culture fixated on pursuing a rights-based strategy. Cultural and governance changes in Europe have created new opportunities for legal mobilization or a rights-based strategy.
Anagnostou notes how Europe, especially those within the jurisdiction of the European Union (EU) or the Council of Europe, have witnessed a rights revolution. This revolution has occurred for several reasons. First, the expansion of the EU, especially to many formerly communist countries, has brought with it expanded new rights. This is also the case with their membership within the Council of Europe. But even for Western European and the historically non-communist countries, both the EU and the Council of Europe have fostered a new rights culture. The Council of Europe, the European Convention on Human Rights (ECHR), and with that, the jurisdiction of the European Court of Human Rights (ECtHR), has meant that diverse parties can now challenge sovereign laws as violations of the ECHR. Moreover, recent adoption of human rights provisions in the EU similarly means that parties can either challenge in domestic courts or in European Court of Justice (ECJ) alleged human rights violations. While not trying to force the metaphor, membership in the EU and the ECHR is almost like the Bill of Rights [*539] incorporation movement in the United States. It opened up the federal courts to rights adjudication, while at the same time forcing state courts to hear federal claims. Incorporation and the federalization of rights claims in the U.S. eventually lead to changes in State constitutions, thereby creating multiple venues and forums to pursue rights strategies.
After the introductory chapter, the book unfolds into three sections. Chapters two to four examines language rights of minorities across Europe (chapter two) with chapter three looking at legal mobilization to protect those rights in Navarre, Spain. Chapter four looks to how the left and lawyers mobilized to protect rights in France since 1968. Part two of the book focuses on the use of European courts as opportunities for legal mobilization, with attention given to domestic sovereign courts as well as the ECtHR and ECJ. Chapter six is a case study of Greece and how its courts and lawyers had to respond to changes in rights adjudication for migrants and asylum seekers. One of the major conclusions of this chapter is the impact that EU and Council of Europe membership had on issues such as jurisdiction and the ability of individuals in Greece to use that nation’s judiciary to litigate claims. Finally, part three explicates the role of NGOs in legal mobilization and rights strategies, with chapter seven looking at rights during armed conflict, chapter eight examining gay rights and chapter nine drawing general conclusions for the entire book.
Europe offers multiple contexts and opportunities for legal mobilization for rights. These occur at different levels of government. There is almost a E.E. Schattschneider aspect to rights litigation in Europe, with different groups socializing, shrinking or expanding the location of adjudication depending on a host of factors, including whether domestic courts have broad enough concepts of standing to allow for a case to be heard, what the issue is, how receptive local courts are to it, or whether there is sufficient publicity locally or across Europe for a case to receive a sympathetic hearing. It might not quite be accurate to say that litigants forum shop but that appears to be the case. While one conclusion of the book is that trans-European rights is driving a convergence of legal norms and creating new opportunities for rights claims, national differences still fragment many claims. Some countries still are less hospitable to some litigation and despite pressures from the ECtHR and the ECJ, who the litigant is, what is being litigated, and where, make a difference.
One also learns from this volume that we must look for the efficacy and impact of legal-mobilization and rights-strategy in different ways. The general tendency of research in the United States has been to focus on the U.S. Supreme Court and ignore lower federal and state courts. Another failure has been to assume litigants always seem intent on using the law and courts for singular and similar purposes and not understanding the different ways groups and individuals mobilize for a variety of objectives. The strength of this book is an appreciation of the multiplicity of approaches and strategies among parties. It also points to change as occurring in how local law is altered, jurisdiction affected, or otherwise how policy change occurs in an often dialogical approach across multiple levels and institutions, even beyond the courts.
What one takes away from this volume are several important lessons. First, the [*540] changing legal structure in Europe is creating new opportunities to mobilize for rights. Second, legal strategies work but only up to a point. Third, as the editor indicates, legal mobilization and rights litigation is relatively new to much of Europe and it is going through a learning curve. This learning curve affects strategy and goals. Finally, the book offers powerful comparisons and perhaps even lessons for the literature and researchers who have focused almost exclusively on the U.S. One weakness of the book is that it does not as substantively as it could draw on the U.S. scholarship on this topic,,at times almost making it look like no one has examined the topic of rights mobilization in a federal context. But the parallels and contrasts between the U.S. and Europe offer enticing possibilities for future research in terms of what both can learn from one another and what differences are significant in terms of making a difference in describing the efficacy of using the courts for social change.
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Feeley, Malcolm M. and Edward L. Rubin. 1998. JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURT’S REFORMED AMERICA’S PRISONS. Cambridge: Cambridge University Press.
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© Copyright 2014 by the author, David Schultz.