Legal Framing

• Pages: 25-59
• Date: 29 April 2013
• Published date: 29 April 2013
• DOI: https://doi.org/10.1108/S1059-4337(2013)0000061005
• Author: Gwendolyn Leachman

LEGAL FRAMING

Gwendolyn Leachman

ABSTRACT

The sociological and socio-legal literatures on social movements have

identified three main types of ‘‘legal framing’’ in contemporary social

movement discourse: collective rights framing, individual rights

framing, and nationalistic legal framing. However, it is unclear from

the current research how movement actors decide which of these

framing strategies to use, under what circumstances, and to what

effect. In this article, I offer a model for future empirical research on

legal framing, which (1) distinguishes legal framing by its argumenta-

tive structure, ideological content, and remedy; and (2) analyzes how

a social movement’s internal culture and institutional environment

constrain the symbolic utility of particular legal frames and shape the

movement’s legal framing strategy. I argue that the alternative

approach offered here will help theorize how social movements strike

a balance between the institutional pressure to reproduce dominant

ideologies and the internal pressure to reform those ideologies. This

perspective thus helps build socio-legal theory on the relationship

between legal framing and social subordination, and on the conditions

under which movements will be able to inflect legal language with

insurgent social movement values.

Studies in Law, Politics, and Society, Volume 61, 25–59

Copyright r2013 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000061005

25

Socio-legal research on social movements increasingly analyzes the relation-

ship between law and social movements through the examination of

‘‘collective action framing,’’ a concept developed in sociological research to

describe the process wherein social movement actors deploy words, symbols

and other interpretive devices to impose political significance on social

situations or events (Beckett & Hoffman, 2005; Benford & Snow, 2000,

p. 614; Hagan, 2000; Hoffman, 2008; Levitsky, 2008; Morgan, 2004; Paris,

2001; Woolford & Wolejszo, 2006). The common use of ‘‘legal framing’’ in

socio-legal and sociological analyses of social movements is one of several

recent developments suggesting that the two fields are on the brink of

unification. Sociology journals are also publishing more articles on framing

that incorporate a socio-legal view of the law as a resource and cultural

force in social movements (Ferree, 2003; Hull, 2001; Pedriana & Stryker,

2004; Stern, 2005). Finally, truly integrative work has also emerged, which

draws from both literatures in a conscious effort to ‘‘elaborate them as a

single approach to studying the construction of grievances’’ (Jones, 2006;

Levitsky, 2008, p. 557; see also Marshall, 2003; Pedriana, 2006; Pedriana &

Stryker, 2004), the most comprehensive of which has been Pedriana’s (2006)

detailed roadmap for integrating the socio-legal and sociological literatures

on ‘‘legal framing’’ or ‘‘rights framing’’ (McCann, 1994, p. 234).

Together, the sociological and socio-legal literatures have contributed

important insights into how law shapes activists’ perceptions, tactics, and

ability to generate social change. However, the literatures remain surpris-

ingly independent bodies of research, each retaining a distinct theoretical

focus. Sociological research tends to examine how legal framing becomes a

dominant tactic, both within and among movements, and to link legal

framing to particular movement outcomes (Armstrong, 2002; Fetner, 2001;

McCammon, 2003, 2009; McCammon, Hewitt, & Smith, 2004; McCam-

mon, Muse, Newman, & Terrell, 2007;McVeigh, Welch, & Bjarnason, 2003;

Pedriana, 2006; Snow & Benford, 1992). Socio-legal research, on the other

hand, is more concerned with determining how the law becomes salient in

multiple social and cultural arenas (Coleman, Nee, & Rubinowitz, 2005;

Dudas, 2005, 2008; Goldberg-Hiller, 2002; Goldberg-Hiller & Milner, 2003;

Hull, 2001; Kostiner, 2003; Marshall, 2005; McCann, 1994; Merry, 2001;

Merry, Levitt, Rosen, & Yoon, (2010); Merry & Stern, 2005; Paris, 2011;

Silverstein, 1996).

There is much to be gained through the cross-fertilization of the fields. It

could produce a coherent approach to the study of legal framing, which

would foster the sharing of concepts, such as ‘‘legal consciousness’’ (Ewick &

Silbey, 1998) and ‘‘master frames’’ (Snow & Benford, 1988), both of which

GWENDOLYN LEACHMAN26

are helpful in understanding the law’s constitutive force in social movement

action. The purpose of this paper is help chart a productive pathway for

future research for socio-legal scholars and sociologists alike. I first integrate

findings from these literatures to create a new ideal typology of legal

framing, which distinguishes legal frames by their logical structure, ideo-

logical content, and remedy. I propose that future research use this typology

in determining how a movement’s internal culture and social environment

constrain the symbolic utility of particular legal frames and shape the

movement’s legal framing strategy (see Williams, 2004). This model draws

heavily from the social constructionist tradition in sociology, which concept-

ualizes social movements as networks of activists engaged in symbolic and

material struggles that target a variety of institutional authorities, and

examines how a movement’s legal framing strategy is constructed in various

social fields (Armstrong & Bernstein, 2008). I argue that incorporating the

social constructionist model into legal mobilization will generate theory on

how activists strike a balance between the competing external pressures

toward institutional reproduction and internal pressures toward institu-

tional transformation, and on the potential for activists to both imagine and

realistically pursue new legal possibilities.

LITERATURE REVIEW

Law and society scholarship has long examined how social movement

actors use legal language to further their political and cultural goals (see

Scheingold, 1975). Since McCann’s (1994) research on the pay equity

movement exposed a multitude of ways in which the law serves a move-

ment’s extra-legal goals, there has been an outpouring of research on the

effect of a movement’s framing its grievance as a legal harm. The primary

task in socio-legal social movement research, including that on legal

framing, is to understand how, and the extent to which, law comes to

constitute the underlying vocabulary, concepts, values, and meanings that

movement actors draw on in their quest for social change (McCann, 1994,

p. 7). Socio-legal scholars conceptualize law broadly as both a cultural

construct and a symbolic resource (see Hull, 2001, p. 19), and emphasize

that informal articulations of the law may be only minimally constrained

by official legal formulations (see Merry & Stern, 2005; Polletta, 2000;

Silverstein, 1996). Indeed, social movement actors often assert rights claims

that judges have explicitly rejected (McCann, 1994). Finally, socio-legal

scholars recognize that formal law may be only a secondary goal when

Legal Framing 27