Law and Social Movements: Old Debates and New Directions

• Author: Sandra R. Levitsky
• Pages: 382-398

The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.

© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.

Introduction

In 1954, in a historic case called Brown vs. Board of Education, the Supreme Court of

the United States declared segregation in public schools to be unconstitutional.

Brown not only seemed to transform the social and political landscape of the time,

but brought into focus for the first time the power of the courts to trigger those

social and political transformations.

For over twenty years Brown defined what people thought about law. It was a compelling

narrative about powerless people banding together to vindicate their rights. Lawyers

and judges were the human heroes, but the ultimate hero, if we can use that term for an

abstraction, was rights. Rights were seen as the key to social change. The dispossessed,

silenced and oppressed could get justice by going to court. … Like all myths, the story

became, for a brief but crucial moment, one that was accepted as conventional wisdom.

(Milner 1991: 255)

Even as desegregation efforts foundered in the face of staunch legal, political, and social

resistance to the Supreme Court’s decision in Brown, other social movements – the

women’s movement, the consumer rights movement, the prisoners’ rights movement,

the environmental movement, among many others – adapted the NAACP’s litigation

strategies to their own ends. In the face of this widespread embrace of legal tactics, a

series of debates emerged in the legal academy and social sciences about the efficacy

of relying on rights, litigation, lawyers, and the ideology of liberal legalism to achieve

social change. In this chapter, I classify these debates into three historical “moments”

as a way of tracing the evolution and future direction of scholarship on law and social

Law and Social Movements

Old Debates and New Directions

Sandra R. Levitsky

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Law and Social Movements 383

movements. The first moment briefly captures the ideological and institutional

debate over whether law matters for social movements. The second embraces the skep-

ticism of the previous debates, but shifts to a more nuanced investigation of how law

matters for social movements. And the third, still nascent, moment deepens the criti-

cism of civil and political rights strategies and shifts to the question of how social

movements can help define new understandings of law.

Defining Law and Social Movements

A social movement is commonly defined as a collectivity acting with some degree of

organization and continuity partly outside of institutional channels for the purpose of

promoting or resisting change in the group, society, or world order of which it is a part

(Snow and Soule 2010). Social movements vary widely, from “Not in My Backyard”

mobilizations against an incinerator moving into a neighborhood to mass demonstra-

tions that topple governments. They involve street protests, petitions, strikes, art and

theater, marches, sit‐ins, mass meetings, hacktivism, consumer boycotts, lobbying, and

lawyering. Despite the tremendous variation in what social movements do and what

they hope to achieve, social movements aren’t hard to define. In contrast, law is.

As others have observed (McCann 2004), much of the debate about the relationship

between law and social movements comes from the divergent ways of understanding

and studying law itself. Most commonly, when scholars refer to “the law,” they mean

official legal institutions, such as courts, legislatures, the criminal justice system, or

administrative agencies. Or they are referring to legal actors, such as judges, lawyers,

legislators, and police, or to the formal rules embedded in constitutions, statutes,

and court decisions. But other researchers have conceptualized law more broadly,

“as a system of cultural and symbolic meanings [more] than as a set of operative

controls. It affects us primarily through communication of symbols – by providing

threats, promises, models, persuasion, legitimacy, stigma, and so on” (Galanter

1983a: 127). Law can be understood as a language for legitimating grievances,

constituting identities, and for communicating meaning both within a movement

and to elites and the broader public. As the following discussion shows, the tensions

between these different views of law have important implications for how researchers

view the relationship between law and social movements.

Does Law Matter For Social Movements?

The ideological debate

The most influential critique of the growing number of movements relying on the

discourse of rights and litigation strategies came from the critical legal studies (CLS)

movement beginning in the late 1970s. CLS scholars maintained that while in the

short run the extension of legal rights by courts and legislatures may mobilize