Social movements lashing back: Law, social change and intra-social movement backlash in Canada

• DOI: https://doi.org/10.1108/S1059-4337(2011)0000054008
• Pages: 113-140
• Date: 22 February 2011
• Published date: 22 February 2011
• Author: Lisa Vanhala

SOCIAL MOVEMENTS LASHING

BACK: LAW, SOCIAL CHANGE

AND INTRA-SOCIAL MOVEMENT

BACKLASH IN CANADA

Lisa Vanhala

ABSTRACT

Introducing the concept of intra-social movement backlash this chapter

explores the ‘‘legacy phase’’ of legal action focusing on conflicts and

debates within a social movement that has mobilized. Using a legal

mobilization framework attuned to the recursive relationship between

rights, rights-claiming activities, and collective identity, the chapter

analyzes the mixed legacies of movement strategic litigation. Empirically,

the chapter offers two illustrative case studies of intra-movement

backlash in the women’s and the disability rights movements in Canada.

The findings suggest that while this form of backlash can have negative,

disempowering effects, it also offers opportunities to challenge hegemonic

structures within a social movement and re-imagine collective identities.

Special Issue: Social Movements/Legal Possibilities

Studies in Law, Politics, and Society, Volume 54, 113–140

Copyright r2011 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000054008

113

INTRODUCTION

It has long been noted that one of the limits of mobilizing the law in pursuit

of social change is that judicial decisions that are seen as unpopular or

illegitimate can sometimes provoke political reactions that are ultimately

counterproductive. A growing literature on socio-legal backlash explores

adverse reactions to a social movement’s use of legal strategies and to the

outcomes of legal mobilization. The term ‘‘backlash’’ has been used to refer

to the misinterpretation of rights; to describe campaigns seeking to overturn

or undermine the substance of rights or to portray the sentiment of hostility

or resentment toward those claiming rights (Dudas, 2005; Keck, 2009;

Krieger, 2003). A shared yet implicit assumption of existing research on

socio-legal backlash is that those expressing opposition to a campaign for

legal and social change or its outcomes – that is, those ‘‘lashing back’’ – are

social movement outsiders. For example, opposition may come from a

judiciary applying a narrow conception of rights, from hostile political

opponents in elected positions or in the media or it may stem from members

of the public who mobilize against the claims being advanced by a social

movement. However, sources of resentment to legal mobilization and

subsequent conflict can also lie within a social movement. The phenomenon

of intra-social movement backlash has been largely ignored by the existing

literature on socio-legal studies despite its potentially important implica-

tions both for theory and for the practice of legal mobilization.

Although there has been a wide body of research, led by legal realist

scholars, arguing that legal mobilization is ineffectual at best and counter-

productive at worst as a source of social change, none have explicitly

explored the phenomenon of intra-social movement backlash. Scholars

deploying bottom-up approaches, such as legal mobilization frameworks,

emphasizing the role played by activists and the many ways in which they

understand and mobilize the law focus on the terrain of social movement

identity and conflict in which I am interested, but for them, the phenomenon

of intra-movement backlash has tended to recede into the background.

In this chapter, I seek to bring this phenomenon to the foreground and

ask what happens when socio-legal backlash comes from within a social

movement? That is, what are the dynamics at play when resentment or

hostility to those seeking legal or social reform through mobilization of

the law comes from those who normally serve as partners and allies?

Theoretically, what does an enhanced understanding of the concept of

backlash contribute to theories about the relationship between law, social

movements, and social change?

LISA VANHALA114