IJ CS
Article
Legal opportunity structure
and social movement strategy
in Northern Ireland and
southern United States
International Journal of
Comparative Sociology
53(1) 3­–22
© The Author(s) 2012
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DOI: 10.1177/0020715212439311
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Gianluca De Fazio
Emory University, USA
Abstract
The Civil Rights Movements in the southern United States and Northern Ireland were able to mobilize
African Americans and Irish Catholics respectively against minority discrimination. These movements initially
displayed very similar goals and tactics, looking at courts to counter institutional discrimination, but in
successive stages of contention their trajectories fundamentally diverged. While legal mobilization in the
United States constituted one of the pillars of the civil rights strategy of contention, in Northern Ireland
legal tactics were supplanted by a transgressive (and at times violent) repertoire of contention. To explain
this discrepancy, this article relies on the concept of legal opportunity structure (LOS) as an analytical tool
to investigate how a state’s legal structure affects social movement legal mobilization. Accessibility to courts,
availability of justiciable rights and judiciary receptivity are identified as the three core dimensions of the LOS
shaping its degree of openness/closure. The paired comparison of these movements reveal that a closed LOS
may narrow down the array of tactical options available to social movements, redirecting activists’ efforts
towards protest. Conversely, an open LOS may encourage legal mobilization as a viable tactical option and,
under certain circumstances, even promote contentious activities.
Keywords
Civil Rights Movement, legal opportunities, Northern Ireland, paired comparison, social movement strategy
In the 1950s and 1960s, Northern Ireland and the southern United States shared strikingly similar
features in their political configuration and societal structure. Both embodied politically peripheral units vis-à-vis their larger states (Rose, 1971, 1976) with central governments deliberately
failing to interfere with ‘local matters’ in those peripheries. With the tacit approval, if not endorsement, of London and Washington, local majorities organized and administered political power
around one-party governments (Unionist in Northern Ireland, Democratic in the US South) for
decades. As a result, these political configurations de facto excluded minorities from participating
and having an input in the political decision-making process. Local majorities ‘abused
Corresponding author:
Gianluca De Fazio, Department of Sociology, Emory University, 1555 Dickey Dr., Atlanta, GA 30322, USA
Email: [email protected]
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International Journal of Comparative Sociology 53(1)
their political position to control the local minority [. . .] through systematic gerrymandering,
manipulations of the franchise, economic discrimination, cultural oppression, and ethnically partisan policing and administration of ‘‘justice’” (McGarry and O’Leary, 1995: 314). Dominant
groups in these polities – Protestants loyal to the Union with Great Britain in Northern Ireland and
whites in the US Deep South – essentially exercised an unopposed monopoly of political, administrative and cultural power in favor of their own kind (Rose, 1976).
These exclusionary systems of power fostered societies characterized by social, cultural, and
spatial divisions. While Irish Catholic nationalists in Northern Ireland were subdued along an
ethno-national cleavage, African Americans in the southern United States epitomized a subordinate community along racial lines. These excluded minorities shared a similarly subordinate structural position within their respective societies, with social and residential segregation signifying a
crucial feature of everyday life.1 The predictable outcome of these social circumstances was economic deprivation, political disenfranchisement and disillusionment for the minorities living in
those regions.
From these similar socio-political milieus, two Civil Rights Movements (CRMs) emerged, in
United States in the 1950s and in Northern Ireland in the 1960s. These movements did not just
exhibit the same ‘civil rights’ moniker but, more importantly, were able to mobilize African
Americans and Irish Catholics respectively against minority discrimination. These movements initially displayed very similar goals and tactics, looking at courts and the judicial system to counter
institutional discrimination, but in successive stages of contention their trajectories fundamentally
diverged (De Fazio, 2009). Legal mobilization in the United States constituted one of the pillars of
the civil rights strategy of contention, yielding paramount judicial decisions like Brown v. Board of
Education. Conversely, attempts to defy institutional discrimination in Northern Ireland through
legal tactics were supplanted by a transgressive (and at times violent) repertoire of contention
which set the terrain for the outbreak of the Troubles, a 35-year long ethno-national conflict which
killed more than 3600 people.
Why did these two social movements, notwithstanding displaying very similar claims, targets
and tactics, and operating in comparably exclusionary socio-political contexts, follow such divergent strategies of contention? Why was legal mobilization a cornerstone of the civil rights strategy in the United States and not in Northern Ireland? To answer these questions, this article relies
on an expanding field of scholarship which examines the relationship between law and social
movements (see Barclay et al., 2011; Marshall, 2005; McCann, 1998, 2006). In particular,
Andersen (2005) advanced the concept of ‘legal opportunity structure’ (LOS) to examine how
social movement legal mobilization emerges and develops. In this literature (see Evans Case and
Givens, 2010; Hilson, 2002; Wilson and Rodriguez Cordero, 2006), LOS refers to the features of
the legal system which facilitate/hinder social movements’ chances to have their grievances
redressed through the judiciary. These studies claim that the legal opportunities available to social
movements shape their prospects to advance some of their goals via legal mobilization (Burstein,
1991; Zemans, 1983).
To explain the discrepancy in the trajectory of contention of the two CRMs, this article aims
to unpack the differential configuration of the LOS they had to face. I argue that unfavorable
legal opportunities tend to restrict the tactical options available to movement organizations,
channeling activists’ efforts towards more contentious techniques of protest. Conversely, an
open LOS might promote litigation in courts as a viable tactical option for activist groups, while
not undercutting the antagonistic aspect of social movements and their extra-institutional activities. Relying on archival sources and secondary data, I show how the British judicial system
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De Fazio
denied Northern Irish activists the legal opportunities to press their case in courts, limiting the
range of possible strategies to more contentious methods. In contrast, the judicial activism of the
US Supreme Court and state courts provided favorable opportunities to civil rights advocates for
successful legal mobilization. The initial legal victories increased the perceived likelihood of a
political victory against racism and discrimination, thus instigating mass mobilization in the US
Deep South.
This article aims to contribute to the burgeoning scholarship on LOS in two ways. First, it
employs a paired comparison research design (Tarrow, 2010) which substantively expands the
LOS approach beyond the single case study. Research on LOS mainly focuses on single country
case studies, mostly (yet not exclusively) in North American contexts. To my knowledge, this is the
first study to advance a cross-national comparison of the impact of LOS on movement strategies.
Second, this article theoretically refines current conceptualizations of LOS, as it proposes a sequential analytical model in which the three main dimensions of LOS – access to courts, justiciable
rights and judicial receptivity – are conceived as causally related steps that a social movement goes
through when considering legal mobilization as a tactic.
The expansion of the LOS theoretical framework to comparative analysis highlights how the
relative openness/closure of the LOS can affect a movement’s decision to turn to the courts and, as
a consequence, its broader repertoire of contention (Tilly, 2008). A set of hypotheses on the effects
of legal opportunities on movements’ recourse to direct action strategies are discussed at the end of
the article, indicating possible avenues for future comparative research.
Social movement strategies of contention
Research on social movement strategy emphasize that, in addition to the strategic value activists
attribute to a tactic (McAdam, 1983), internal and external factors influence tactical choices (Meyer
and Staggenborg, 2008; Taylor and Van Dyke, 2007). Thus, ideological orientation (Taylor and
Rupp, 1993; Whittier, 1995), material and cultural resources (McCarthy and Zald, 1977), and
framing of grievances and solutions (Gamson, 1992; Jasper, 1997; Snow and Benford, 1988), all
shape the internal processes through which movement organizations debate, decide and modify
their strategies. Externally, the political opportunity structure (POS) available to activists affects
their strategic choices (e.g. Kitschelt, 1986; see also Meyer, 2004; Meyer and Minkoff, 2004).2
Unfortunately, the structure and features of the judicial system are rarely considered a relevant
component in the development of movement strategies (Barnes and Connolly, 1999; Pedriana,
2004). Legal opportunities are only occasionally mentioned as a factor in the elaboration of movement tactical choices (e.g. Hilson, 2002, 2009; Meyer and Boutcher, 2007). This relative neglect of
law and legal opportunities in social movement theory is especially surprising in light of the fact
that scholars and the lay public alike widely regard legal reform as one of the ultimate goals of
social movements (Coglianese, 2001; Handler, 1978).
Legal opportunity structure
As courts’ power to affect governments and policy-making is increasing (Cichowski, 2006),
social movements recognize that judicial systems constitute potentially valuable arenas for
contentious politics. Indeed, national courts3 sometimes play a decisive role in advancing
social movements’ rights-based agendas. Socio-legal researchers advanced the concept of
legal opportunity structure to study the relationship between social movements and legal
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International Journal of Comparative Sociology 53(1)
mobilization. This notion is admittedly rooted in social movement scholarship, as Andersen
(2005: 9) recognizes that ‘several of the most commonly articulated dimensions of political
opportunity structure [. . .] are also dimensions of legal opportunity structure’ (emphasis in
original; see also Hilson, 2002). The LOS may be considered as part of the broader political
opportunity structure social movements encounter, affecting their tactical choices about litigation and therefore their larger repertoire of contention (Hilson, 2002). Empirically, legal and
political opportunities tend to interact and affect each other, as, for instance, shifts in one
opportunity structure may facilitate the opening of the other. However, I argue that it is important to discern conceptually between LOS and POS, as they have distinct effects on movement
strategies, LOS representing a valuable additional tool for POS scholars.
Drawing on this body of literature, I claim that a LOS is composed of three dimensions:
1) accessibility to courts; 2) availability of justiciable rights;4 3) receptivity of the judiciary
toward a social movement’s claims. These components largely reflect previous conceptualizations of the LOS;5 yet, they partially diverge from past studies. First, this theoretical framework
has an explicitly comparative focus, as it aims to compare and contrast how different configurations of LOS may influence movement strategies across time, countries and social movements.
The paired comparison approach adopted here allows refining current theoretical elaborations
and generating hypotheses for future research (Tarrow, 2010). Second, the ordering of the dimensions of LOS is not accidental, a seriatim list of items; instead, the three elements represent three
logically and causally related steps in a movement’s decision to engage in legal mobilization.
When a movement considers pursuing a legal strategy, it has to secure access to the courts; otherwise there would be no point in regarding litigation as a possible tactical option. If access to
courts is granted, the rights a movement is trying to advocate have to be justiciable (i.e. remediable) in court. Finally, the judicial system has, to some extent, to be receptive toward the movement’s legal claims, signaling to activists the openness of the LOS and the potential viability of
a legalistic strategy.
Each step/dimension identified in this framework embodies a composite system of institutions,
actors and relationships, whose complexity would be virtually impossible to fully render within the
limits of this article. However, I now discuss briefly the three elements of LOS – access to courts,
justiciable rights and judiciary receptivity – to highlight their basic functioning and how they might
be relevant in affecting movements and their mobilization.
Access to courts. The ease of access to courts is the first key dimension of the LOS, as the costs and
constraints associated with it are widely recognized as determinants of legal mobilization
(Andersen, 2005; Evans Case and Givens, 2010). Two main factors shape accessibility to courts in
a judicial system: 1) rules for legal standing; 2) costs/affordability of the legal process.6
Rules for legal standing relate to the legal right of an individual to initiate a lawsuit. The norms
regulating who may qualify for legal standing allow (or veto) potential claimants to mobilize the
law to their advantage.7 Activists may also invoke the principle of ‘associational standing’, the
possibility for an organization to bring a legal claim to court on behalf of one of its members.
Restrictive rules for legal standing negatively impact movements’ prospects to pursue litigation in
a country (Evans Case and Givens, 2010).
Litigation is time-consuming and expensive. State and government actors may provide resources
for legal advocacy (Evans Case and Givens, 2010), such as attorney fee shifting rules and legal aid
programs (Brodie, 2002; Epp, 1998; Lawrence, 1990; Morton and Knopf, 2000) to make access to
courts more affordable to disadvantaged citizens.8 Relatively powerless groups may also acquire
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some of the structural advantages of ‘repeat players’ if they can rely on a privately or publicly
funded ‘support structure for legal mobilization’, made up of ‘rights-advocacy lawyers, rightsadvocacy organizations, and sources of financing’ (Epp, 1998: 18). The availability of resources
for legal advocacy and/or a support structure for legal mobilization in a judicial system lowers the
costs of litigation, granting activists easier access to courts. A relatively easy access to courts is an
important, yet not sufficient condition for an effective legal strategy: justiciable rights are another
necessary element of the LOS.9
Availability of justiciable rights. Political scientist Richard Rose remarked that:
most nations in the world today provide a catalogue of rights in their Constitutions, but constitutional dicta
do not ipso facto ensure citizen rights. Much else must happen if the will and whim of a government is to
be regulated on behalf of minorities or individual citizen rights. [. . .] Enumerated rights must be justiciable
rights [. . .]. To have a right without a remedy is to have something of a limited value. (Rose, 1976:
254–255)
In other words, to have a real, tangible value for legal mobilization, enumerated rights must also
be justiciable, that is, they can be secured through courts. Legal systems have not only to establish
inviolable rights for individuals, but also have to arrange a set of mechanisms (e.g. provisions for
judicial review) which render these rights substantially enforceable. If rights are judicially enforceable, they allow rights litigation and provide a conduit for participation in the legal-political system
(Cichowski, 2006). Lack of justiciable rights may on the other hand hamper social movements’
attempts to engage successfully in legal mobilization.
Justiciability of rights is intrinsically related to a central feature of a legal system, specifically
whether it is a civil law or a common law system. Even though we should not overstate the differences between these systems, it is generally easier to recognize new rights in common law countries, where courts can confer rights through statutory interpretation and the accretion of judicial
precedent. Conversely, in civil law countries where judicial precedents play less of a role, judges
have usually less latitude to establish new rights and enforce enumerated rights.10 Broadly speaking, legal mobilization in civil law systems is a less effective tool than in common law ones, and a
less valuable tactical option for social movements (Epp, 1998).
Receptivity of the judiciary. Access to courts and available justiciable rights alone do not inevitably
lead social movements towards an effective legal mobilization. For a movement to regard courts
as a valuable arena of contention, the judiciary power has to display at least some receptiveness
to the legal claims it is advocating for. A judicial culture averse to confer certain rights, together
with judges and courts mostly impervious to claims promoting those rights, provides an uncongenial scenario for legal mobilization. Vice versa, courts’ judicial activism in favor of certain
issues may signal to social movements that a legal opportunity exists to undertake litigation,
activists usually being aware of judges’ ideological leaning and planning accordingly their legal
tactics (Andersen, 2005).
Following Hilson (2002), I suggest that access to courts and availability of justiciable rights are
relatively stable features of the LOS, as they are embedded in the legal tradition and configuration
of a national legal system. As such, they are usually subject to change only in the long term. On the
other hand, judicial receptivity is a contingent aspect of the LOS, as courts’ political preferences
are much more volatile and susceptible to variation than the procedures which regulate access to
courts and the justiciability of rights (Andersen, 2005; Hilson, 2002).
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International Journal of Comparative Sociology 53(1)
Figure 1. Open and closed legal opportunity structure.
LOS and legal mobilization
In Figure 1, I illustrate how the three elements of the LOS – accessibility to courts, availability of
justiciable rights, and receptivity of the judiciary – may combine to generate a range of scenarios,
each one indicating a different level of openness of the LOS. In fact, it is not the LOS per se that
influences social movement strategies. Rather, it is the contingent degree of openness/closure of
the LOS, its modifications over time and activists’ perceptions of those shifts that matter for social
movement tactical choice (see Klandermans, 1984; McAdam, 1983).11
For reasons of visual clarity, each dimension of the LOS in Figure 1 is depicted dualistically:
access to courts is either restricted or unrestricted, justiciable rights either unavailable or available,
and judiciary receptivity either adverse or supportive. Yet, the openness or closure of each of the
three dimensions varies in terms of degree. We can think of LOS as a series of gates that can be
open more or less widely, or shut completely. The three different instances of a ‘closed gate’ are not
equivalent, though; rather, they lie along a continuum which represents various degrees of openness/closure. On the right side of Figure 1, the down-pointing arrow denotes the increasing level of
openness of the LOS, from cases where the LOS is fundamentally closed (i.e. when the stable
features of LOS are unfavorable), to instances of partial closure (i.e. when only the contingent
receptivity of the judiciary is adverse), and situations of open LOS.
The extent to which courts are accessible to citizens is significantly affected by the degree of
affordability of litigation and the level of severity of legal standing rules. For instance, before the
establishment in 1989 of a new Supreme Court which granted affordable legal mobilization to
powerless groups, access to courts in Costa Rica was de facto restricted (Wilson and Rodriguez
Cordero, 2006), as the upper section of Figure 1 indicates. The LOS in Costa Rica before 1989 was
essentially closed. In the mid-section of the diagram, justiciable rights are described as either being
available or not. Again, the extent to which social movements can draw on justiciable rights is
subject to cross-national and temporal variation. As I discuss below, the CRM in Northern Ireland
in the 1960s could not challenge discrimination through legal mobilization because justiciable
(civil) rights were unavailable.
When justiciable rights are, broadly speaking, available, activists have to determine the receptivity of the judicial system toward their legal claims. In the lower portion of the chart, judicial
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receptivity is depicted as either adverse or supportive. However, it is highly unlikely that courts
will strike down all lawsuits, or, conversely, rule favorably on all lawsuits brought by a social
movement. As a result, while it is important to distinguish analytically between these two opposite
ends of a continuum, it may be particularly difficult to empirically establish the tipping point after
which the judiciary may be deemed receptive to a movement’s claims. The openness of the judiciary receptivity gate can only be estimated as a matter of degree. For instance, legal efforts to outlaw
Jim Crow legislation during the Reconstruction Era mostly failed because of the Supreme Court
aversion to promote individuals’ civil rights.
I expect movements perceiving the legal opportunities for litigation as open (or opening) to be
more likely to include litigation in their repertoire of contention, all other factors affecting movement strategy being equal. Activists contemplating legal mobilization, besides assessing abstractly
the openness of the LOS, are probably eager to test the receptiveness of the legal system and the
effectiveness of litigation. Even when movements perceive some of the ‘gates’ of LOS as not fully
open, some will nonetheless file test cases in courts to try to ‘slip into the gate’, or even as an attempt
to ‘break it down’. Indeed, while my focus here is on the structural features of law, I do not ignore
its contingency and polyvocality. Even the stable features of LOS are in a state of flux, rarely
embodying entirely fixed and settled entities; movement lawyers work hard to develop arguments
that stretch the meanings of rights and rules to wedge themselves into the litigation process, while
their opponents work hard in the opposite direction (see Goldberg-Hiller, 2002). Due to social
movement contention and judicial activism (especially of supranational courts like the European
Court of Justice: Stone Sweet, 2004), there is also cross-national variation in the ways that rights and
access to courts are constantly evolving, in some cases perhaps questioning their alleged stability.
The structural component of this approach is further mitigated in two other respects. First, I
conceive the LOS framework as not being rigidly sequential, but as having more of a circular
nature, since the dynamic leading to legal mobilization does not have to begin necessarily with
access to courts. In fact, a shift in any of the dimensions of the LOS signaling its opening to activists may increase the feasibility of legal mobilization as a social movement tactic. For instance,
social unrest or lobbying by legal reform advocates may shape a change in judicial receptivity in
which the judges themselves are the ones that start the sequence by widening access to courts,
enhancing justiciability of rights and thus encouraging social movement use of litigation.12 Second,
and to reiterate a previous point, structural factors are not considered sufficient to explain legal
mobilization, as ‘shifts in LOS provide opportunities for action, not the action itself’ (Andersen,
2005: 215; emphasis in original); movement framing and organizational resources are decisive
factors for activists to perceive, interpret and take advantage of those shifts.
While the basic argument that open systems facilitates litigation is not novel, the sequential
analytical model proposed here allows a much greater analytical purchase on the relationship
between social movements and legal strategies. In the remainder of the article, I use this framework to compare the Civil Rights Movements operating in southern United States and Northern
Ireland to explain why, while initially advancing similar claims and tactics (legal mobilization to
challenge discrimination), they ultimately diverged in their trajectories of contention. Drawing
upon this comparison, I then articulate a set of hypotheses about the connection between LOS and
contentious tactics.
Data and methods
In contrast to past research on LOS, which mostly produced single case studies, this article deploys
a paired comparison approach – with a most-similar systems design – to unveil how legal
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opportunities may shape social movement legal mobilization. This research strategy is well-suited
to answer our research question and explain the divergent trajectories of contention of the Civil
Rights Movements in Northern Ireland and southern United States.
According to Tarrow (2010: 243), similarly to single case studies, paired comparisons draw on
‘deep background knowledge of the countries being examined’ providing ‘an intimacy of analysis
that is almost never available to large-N analysis’. However, ‘the moment we go from one case to
two [. . .] we are in the realm of hypothesis-generating comparative study, while also enabling
ourselves to examine how common mechanisms are influenced by the particular features of each
case’ (Tarrow, 2010: 247). The paired comparison method is especially appropriate to assess the
influence of institutions on social outcomes, as differences in institutional forms – for example,
national legal structure – can be used as a variable to understand intrasystemic behaviors (Tarrow,
2010).13 Finally, this is an effective research design in generating an intermediate step in theory
building, as it allows one to refine existing theories but also to generate new hypotheses for multicase comparative analysis.
Social movement scholarship produced an uneven amount of research on the two cases under
examination here. While the American CRM has been widely investigated (Morris, 1999), the
activities and trajectories of the CRM in Northern Ireland have only lately been the subject of
academic scrutiny (e.g. Bosi, 2006, 2008; Maney, 2000; Purdie, 1990). As the broad narrative
lines of civil rights contention in the United States are generally well known, I draw from a wellestablished body of literature to portray the American case, accentuating some aspects of an otherwise familiar storyline. In particular, I give emphasis to the literature which examines the interaction
between the CRM and the legal system and how it shaped the CRM’s strategies of contention. For
the CRM in Northern Ireland, I complement the existing literature with archival research I conducted in 2009 at the Northern Ireland Political Collection at the Linen Hall Library in Belfast and
the Newspapers Library at the Belfast Central Library.
The Northern Ireland Political Collection holds over a quarter of a million items, from pamphlets and leaflets to correspondence and political manifestos, recording since the late 1960s the
activities of all the actors who participated in the conflict in Northern Ireland. The Collection also
houses more than 35 boxes of ephemera of the various organizations that composed the CRM –
Campaign for Social Justice (CSJ), Northern Ireland Civil Rights Association, People’s Democracy,
Derry Citizens’ Action Committee – and is considered the movement’s official archive. From this
large amount of archival material, I examined the publications, transcripts of meetings and newspaper accounts of the activities regarding the CSJ, the main civil rights organization embarking in
legal mobilization. At the Newspapers Library, I consulted local newspapers (Irish Times, Belfast
Telegraph) for the 1968–1969 years and inspected the articles about the CRM, its political claims
and public debate on tactics and strategies. While I rely on socio-legal literature to describe the
LOS available in Northern Ireland, archival data reveal how civil rights activists perceived the
LOS, how they attempted to mobilize the law, and how the failure of legal mobilization affected
the strategy of contention of the incipient CRM.
Legal mobilization for civil rights in Northern Ireland
and the US South
The first steps in the struggle against institutional discrimination in the two countries followed a
legalistic approach. This is hardly surprising, as civil rights activists wanted, at first, to play according to the rules of the political game. People’s right to petition authorities, at least implicitly, dates
as far back as the Magna Carta, while the English Bill of Rights of 1689 explicitly recognizes the
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‘right of the subjects to petition the king’. The English Bill of Rights inspired the US Bill of Rights,
but while the former enunciated the rights of citizens before the Crown, the latter crucially
addressed them as represented by Parliament. The US Bill of Rights retained the basic tenet of the
right to petition, as the First Amendment protects ‘the right of the people [. . .] to petition the
Government for a redress of grievances’. The right to petition is not restricted to the government,
but it was also expanded to all three branches, including the judiciary.
From its foundation in 1909, the National Association for the Advancement of Colored People
(NAACP) was one of the leading civil rights organizations in the United States. The NAACP’s
main strategy was to pursue legal mobilization to challenge racism and segregation (Berg, 2005;
Goluboff, 2007; Tushnet, 1987), by filing individual legal cases alleging racial discrimination to
state and federal courts. The ultimate goal was to have discriminatory practices considered illegal and prosecuted. Even though the NAACP civil rights litigation strategy had to surmount
particularly hard legal and political impediments to achieve its goals, it eventually culminated in
the historic 1954 Brown v. Board of Education ruling, which ordered school desegregation
(Kluger, 2004).
In Northern Ireland, mobilization for civil rights at first focused on the issue of discrimination
in public housing and jobs. In January 1964, an Irish Catholic physician, Conn McCluskey, and
his wife Patricia, initiated a ‘Campaign for Social Justice’ (CSJ) in Dungannon. Its declared goal
was ‘to collect comprehensive and accurate data on all injustices done against all creeds and
political opinions, including details of discrimination in jobs and houses and to bring them to the
attention of as many socially minded people as possible’ (McCluskey, 1989: 17). The CSJ
embraced a legal and institutional strategy of contention to denounce the Unionist discriminatory
practices perpetrated against the Irish Catholic minority in Northern Ireland.14 The campaign
planned to reach both Irish and British audiences through the publication of well-researched and
clearly argued pamphlets,15 and to target MPs at Stormont (the Northern Irish parliament) and
Westminster via lobbying, petitioning and letter-writing (McCluskey, 1989). Moreover, CSJ tried
legal mobilization to challenge discrimination in employment and public housing. Similar to the
NAACP’s strategy, CSJ filed specific individual cases of discrimination in court against local
councils. The underlying logic of CSJ’s tactic was identical to the NAACP’s: first, to attain the
legal acknowledgement of the institutionalized discrimination perpetrated against a minority
group; and second, to eradicate those practices through courtrooms and eventually legislation
(McCluskey, 1989).
Access to courts
The legal structure of both countries formally granted access to courts to their citizens and organized groups. By and large, citizens in Northern Ireland and the United States had the formal possibility to gain access to courts. In practice, though, access to courts was denied to entire categories
of people for a long time (Rhode, 2005).
Because of the high costs of legal representation, the ‘de facto requirement that one be represented by an attorney to carry one’s case to court is the most severe limitation on equal access to
the judicial process’ (Lawrence, 1990: 4) in the United States. It was only in the midst of the War
on Poverty in the 1960s that federally funded Legal Aid programs rendered access to courts more
affordable (Lawrence, 1990; Rhode, 2005). Before then, privately funded rights-advocacy organizations like the NAACP or the American Civil Liberties Union were the only actors constituting
the support structure for legal mobilization. In particular, by becoming a ‘repeat player’ in the legal
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International Journal of Comparative Sociology 53(1)
system, the NAACP was capable of overcoming the costs of legal mobilization and gaining access
to the courts to challenge racial segregation.
In 1964, during a press conference in Northern Ireland, British Prime Minister Alec DouglasHome stated that ‘any person who felt himself discriminated against could seek redress in the
courts under the [Government of Ireland Act 1920]’ (CSJ, 1966: 1). When CSJ wrote to the Prime
Minister to ask to which provisions of the Act he was referring to, he indicated Sections 5 and 8 (6)
(CSJ, 1964b). However, these sections prohibited the Northern Ireland parliament and government
to enact discriminatory laws on the basis of religion, but did not protect individual citizens from
acts of religious discrimination by local authorities, the most pressing issue for the Irish Catholic
minority in Northern Ireland. CSJ further inquired of the Prime Minister if he would consider initiating legislation to protect individual citizens from religious discrimination; on 3 September
1964, the office of the Prime Minister wrote to CSJ that ‘the matters you raise appear to be within
the field of responsibility of the Parliament and Government of Northern Ireland, and are not,
therefore, matters upon which the Prime Minister can properly comment. Nor is it possible for the
Prime Minister to advise on the possibility of initiating legal proceedings in Northern Ireland’
(CSJ, 1964b: 8). Similar to the reluctance of the US federal government to interfere with Jim Crow
laws in the South, the British government was averse to intrude into Northern Ireland affairs. CSJ
could thus expect little help from London. Yet, when in November 1965 a public Legal Aid Scheme
was introduced in Northern Ireland, ‘seventeen years after it was instituted in the rest of the United
Kingdom’ (CSJ, 1966: 2), the CSJ believed that a propitious opportunity for legal mobilization had
emerged (CSJ, 1966), immediately seeking Legal Aid to go to courts.
In a pamphlet eloquently titled ‘Legal Aid to Oppose Discrimination – Not Likely!’, the CSJ
recounted its failed attempt to secure legal aid to advance anti-discrimination litigation (CSJ, 1966;
see also McCluskey, 1989; Purdie, 1990). In November 1965, the CSJ Committee instructed a
solicitor, ‘on behalf of a Catholic textile worker [. . .], to commence proceedings against Dungannon
Urban District Council for discrimination in the matter of Council housing allocation’ (CSJ, 1966:
3). When the solicitor submitted a Legal Aid request, this was denied, ‘the refusal saying ‘‘the
proceedings to which the application related are not proceedings for which legal aid may be given.’’
There was no further information about the reason for its rejection’ (CSJ, 1966: 3). CSJ appealed
this decision, but on 2 November 1966 the appeal was rejected ‘because the applicant ‘‘has not
shown reasonable grounds for taking or being a party to proceedings’” (CSJ, 1966: 3); in other
words, because of its legal standing in that case. CSJ estimated that if litigation had to go as far up
as the House of Lords, it might have cost up to £20,000, concluding that ‘denial of Legal Aid
amounts to denial of access to the courts’ (CSJ, 1966: 3).
In contrast to the NAACP’s status of ‘repeat player’, the CSJ epitomized the inexperienced and
structurally disadvantaged ‘one shotter’ in court.16 Issues of affordability and legal standing clearly
represented an obstacle for civil rights litigation in Northern Ireland. While the establishment of
Legal Aid signaled an opening of the LOS that the CSJ tried to capitalize on, the first gate of the
LOS was only partially open. Limitations in access to courts, nevertheless, did not thwart the CSJ’s
efforts to pursue legal mobilization; rather, it was the lack of justiciable rights that prompted the
failure of civil rights litigation in Northern Ireland.
Justiciable rights
The crucial divergence between the LOS in the United States and Northern Ireland related to the
differential availability of justiciable rights for their citizens, in particular their minorities. Sociolegal scholars in Northern Ireland remarked that:
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De Fazio
the most obvious explanation for this failure of law and lawyers [to further civil rights in Northern Ireland]
was the absence of any formal guarantees in the British and Northern Irish constitution of basic civil rights
and the consequent lack of any tradition of civil rights litigation. This is in direct contrast to the situation
in the United States [. . .] where such formal guarantees are included in written constitutions and have been
relied on in court actions. The part played by the United States Supreme Court in the development of civil
rights is well known. [. . .] (T)he US example has shown the value of fundamental legal and constitutional
guarantees. (Boyle et al., 1975: 10)
In the late 1960s, in the British legal and political system there was neither a written, formal
constitution, nor any legislation resembling a Bill of Rights with provisions expressly devoted to
safeguarding human and civil rights.17 Moreover, ‘until the early seventies there were few educational or informational materials on civil rights and liberties in British law’ (Epp, 1998: 141) and
there was ‘a total lack of systematic information [. . .] no textbooks and hardly any practitioners’
books [. . . few] courses [. . . and] no legal specialists’ (Dhavan and Partington, 1986: 246–247).
In March 1967, the Ministry of Home Affairs in Northern Ireland used the Special Powers Act
to declare Republican organizations illegal; one year later, authorities charged a Mr McEldowney
of being a member of a Republican Club, most likely to try out the legality of the ban (Boyle et al.,
1975). A test case to challenge this decision was put forward, ultimately making it to the British
House of Lords. In April 1969, the appeal was dismissed; the law lords acknowledged that ‘so
broad a grant of discretion in banning political organizations was lawful’ (Rose, 1976: 277).
According to Hadden and Hillyard (1973: 13):
(t)he decision of the House of Lords in this case was in line with the prevailing British approach to
constitutional law in refusing to challenge ministerial discretion in the absence of clear proof of bad faith.
But in the context of Northern Ireland it was the final proof to the minority community that they could
expect no aid from Britain in their struggle for what they regarded as their legitimate civil rights. [. . .] there
can be no doubt of its symbolic importance in showing the futility of pursuing the civil rights campaign
through courts. (emphasis added)
A few months later, Father Denis Faul, a supporter of the CRM, summarized Irish Catholic
distrust toward the judiciary when he wrote:
Our people are afraid of the courts: they believe the judicial system as it operates in the blatantly sectarian
conditions of life here is loaded against them. Whether this is based on fact or not is important enough, but
the really vital point is: if the common opinion of reasonable men of the minority believes that justice is
difficult or impossible to obtain in many cases, especially in those with a sectarian or political tinge, then
the law has lost the confidence of a large section of the people where it should be operated for the common
good of all the people and it should be seen to operate fairly towards all sections. (The Irish Times, 2
December 1969, p. 8; emphasis in original)
The structural lack of justiciable civil rights and a widely shared perception among Irish
Catholics of a biased judicial system (Livingstone, 1994) undermined ‘(t)he necessary confidence
in the judicial system as a means of securing justice’ (Boyle et al., 1975: 11). These factors constituted an insuperable barrier to challenge discrimination through civil rights litigation in Northern
Ireland (Carroll, 1973).
Judiciary receptivity
During the 1960s, the judiciary in the UK was adamant in its rejection of any civil rights claims
contradicting government policies because of its intrinsically conservative nature (Epp, 1998).
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International Journal of Comparative Sociology 53(1)
Moreover, the British legal culture favored the constitutional doctrine of parliamentary sovereignty
over judicial policy-making, shaping judges’ diffidence toward undertaking new courses in the law
(Epp, 1998). Fundamentally, the British constitutional context and the structure of the British state
‘provide(d) an inhospitable climate for a rights revolution’ (Epp, 1998: 116) advocacy groups typically avoiding litigation as a strategy of action. The LOS for the CRM in Northern Ireland was thus
eminently closed, as access to courts was limited, justiciable civil rights were mostly unavailable,
and the judiciary was hostile to the civil rights cause. More generally, poor legal opportunities
delayed the incorporation of legal mobilization in the repertoire of contention of most British
social movements.
Contrary to the British judicial structure, the American legal system granted not only the formal
protection of individual and civil rights, but offered also substantial procedures to pursue judicial
review and legal mobilization. A set of legal mechanisms to enforce constitutional rights were, at
least in principle, available since the end of the Civil War and the Reconstruction era. Yet, the
NAACP’s initial efforts to promote civil rights via litigation proved to be partially ineffective, as it
had to endure several defeats in the courtrooms (Tushnet, 1987).18 In fact, until the 1930s the predominant judicial philosophy of the US Supreme Court conceded primacy to states’ rights over
individual rights. This judicial view maintained that ‘neither the Fourteenth nor the Fifteenth
Amendments conferred upon the federal government the constitutional authority to enforce directly
the civil and political rights of citizens’ (Barnes and Connolly, 1999: 336). The Supreme Court’s
tendency to favor state’s rights critically undercut the federal government’s attempts to implement
civil rights legislation, letting state courts decide on cases of racist white violence (Barnes and
Connolly, 1999). In the South, this ensured virtual impunity to white segregationist violence
against African American activism for civil rights (Barnes and Connolly, 1999).
During the 1930s, though, the Supreme Court reversed its view on individual rights, gradually
adjudicating against state-mandated segregation (McAdam, 1982). As the judiciary became more
receptive of the civil rights issue, the LOS opened up for the NAACP, and a series of rulings progressively asserted the unconstitutionality of many discriminatory laws in force in southern states.
Trend data on Supreme Court ideology confirm that the years leading to the early 1960s represented the zenith of judicial receptivity for the CRM, as ‘the Court’s decisions become increasingly
liberal [i.e. pro-civil rights], [. . .] averaging a full standard deviation above the [1956–1989 years]
mean throughout the 1950s and early 1960s. The liberalism of the Court levels off in the mid1960s, then falls precipitously across the [Chief Justice] Burger years, after which there is a continuing, but much more gradual and intermittent, increase in conservative decisions during the
1980s’ (Mishler and Sheehan, 1993: 90).
LOS, legal mobilization and its consequences
The opening of the judicial receptivity gate encouraged legal mobilization for civil rights in the
United States. Paramount victories like Brown further reinforced the perception of the viability of
legal mobilization: ‘prior to 1954, most blacks were unlikely to see the courts as providing any
solution to the problem of state-mandated segregation. Indeed, there was no ‘‘legal remedy’’ to this
problem until the NAACP LDF created one through a series of Supreme Court test cases’ (Lawrence,
1990: 6). The possibility of having a legal remedy to institutionalized racism furthered a process of
‘cognitive liberation’ (McAdam, 1982: 48–51) among African Americans and fueled the perception that political and social change was indeed possible: ‘[Brown] literally swept away the legal
grounds on which Jim Crow stood. African Americans were filled with hope by the ruling, believing that finally it was realistic for them to believe that legal racial segregation was on its deathbed’
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De Fazio
(Morris, 1999: 521). Most importantly, legal victories and the language of rights had a catalyzing
effect on the CRM’s capacity to recruit people to participate to direct action. As Polletta (2000:
401) observed:
. . . rights claimsmaking was effective in mobilizing people [in the South] for non-litigational activities
such as registering to vote, participating in economic boycotts, demonstrating against segregated facilities,
and forming parallel political parties. Rights claimsmaking inserted enough uncertainty into long-standing
relations of domination to give people a sense that change was newly possible, and provided recognition
for efforts whose immediate yields were far from clear.
In Northern Ireland, the lack of entrenched constitutional rights, a tradition of civil rights litigation and a support structure for legal mobilization meant that, unlike the US, the stable features of
the LOS were essentially closed. The CSJ believed that the establishment of Legal Aid signified a
shift in legal opportunities for litigation; however, after repeated defeats in court, it realized that
courts were an ineffectual arena of contention. As a prominent civil rights activist, who later
became a lawyer, stated:
. . . unlike in the US, we didn’t hold out much hope of going to court. The courts were seen very much as
part and parcel of the Unionist establishment. Legal Aid wasn’t as readily available and apart from a few
honourable exceptions, I don’t remember lawyers tripping over themselves to do pro-bono work. (cited in
McEvoy, 2011: 358)
The tactical options to pursue civil rights were thus crucially restricted in Northern Ireland.
Republican Labour MP and civil rights activist Gerry Fitt cogently encapsulated the feelings of the
minority in Northern Ireland during the summer of 1968: ‘the days for talking have long since
gone. The time for action has arrived [. . .] if constitutional methods [i.e. litigation and lobbying]
do not bring social justice – if they do not bring democracy to the North then I am quite prepared
to go outside constitutional methods’ (Belfast Telegraph, 22 July 1968). As movements tend to
select the arena of contention in which they expect to have ‘a fighting chance’ (Meyer and
Staggenborg, 2008: 213), civil rights activists moved their operations to the streets. In the late summer of 1968, a network of civil rights organizations, clearly inspired by the American CRM’s
rhetoric and tactics (De Fazio, 2009), initiated a campaign of direct action against discrimination,
including sit-ins, marches and mass demonstrations. Civil rights protests immediately collided
with the police and Protestant counter-demonstrations; street confrontations quickly escalated into
civil disturbances and violence, eventually leading to the outbreak of the Troubles.
Implications of the comparison: LOS and contention
The paired comparison unveiled how various configurations of LOS may influence social movements in their adoption of legal mobilization. The decision to undertake (or renounce to) litigation,
however, is consequential for movements’ tactical choices, suggesting that the LOS has, at least, an
indirect effect on contention. While this study cannot provide conclusive evidence on the relationship between LOS and contention, it can generate some preliminary hypotheses for future research.
In particular, I advance four hypotheses about how the openness/closure of the LOS – in interaction
with other non-structural factors – may affect protest.
In the case of the US CRM, the opening of judicial receptivity to civil rights issues led to historic Supreme Court decisions. These had a galvanizing effect on civil rights activists: as the movement constituency realized that a political victory was feasible, more people were willing to
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International Journal of Comparative Sociology 53(1)
participate in social movement activities. This finding is consistent with what some researchers
observed about legal wins acting as a catalyst for movement recruitment and mobilization (e.g.
Schneider, 1986; see also Barkan, 2009). According to Pedriana (2006: 1751), ‘(o)nce a movement’s interests and identities become widely understood as legal rights, they significantly expand
the cultural and symbolic resources available to challenger groups by further legitimating their
grievances and objectives’. Thus:
Hypothesis 1: If both legal opportunities for legal mobilization and for courtroom victories are favorable
and lead to legal wins, then the latter will affect positively the capacity of social movements to sustain
strategies of direct collective action.
Courtroom victories, in other words, may generate more recruits and more credibility to a
movement, thus extending and strengthening the life of a social movement (Pedriana, 2004).19 For
example, McCann (1994) showed that the early legal victories of the US pay equity movement
prodded popular mobilization in the 1980s. Ironically, though, legal success can also have the
opposite effect. If the raison d’etre of a movement is eliminated (i.e. its politico-legal goals are
fully achieved), this may render protest unnecessary (Hilson, 2002), or even certify the end of
the movement itself. Thus, the ultimate success of the temperance movement in the United States
to amend the Constitution and bring about the Prohibition Era, prompted its decline and progressive disappearance.20
The analysis of the CRM in Northern Ireland revealed that a closed LOS and a basic distrust
toward the legal system induced civil rights activists to discard the avenue of legal mobilization in
favor of direct action tactics. When encountering failed litigation, activists realize that the LOS is
closed, negatively affecting their expectation of success (Klandermans, 1984) and their support of
legal strategies. A closed LOS can also discourage other conventional social movement strategies
like legislative lobbying, as the whole institutional system may be perceived as tainted by obduracy
to their cause.
The CRM in the US also had to face a closed LOS for several years, as the failed attempts of the
NAACP up until the 1930s confirm. Yet, the LOS in the United States was only partially closed, as
it mostly concerned the contingent feature of judicial receptivity. The stable feature of access to
courts and justiciable rights were instead already open to legal mobilization, and the NAACP’s
ability to build a self-reliant support structure allowed its legal challenge against discrimination to
endure. In a situation of partially closed LOS, movements may pursue several tactical options.
They may decide not to abandon completely legal mobilization, but to wait in the wings until the
judiciary is perceived as receptive; or they may continue to submit test cases to embarrass, threaten
their targets,21 or try to ‘force’ the gate of judicial receptivity. In these scenarios, the analytical
capability of LOS alone is admittedly limited. Jasper (2004: 7) rightly observed that ‘structures are
only important because they shape our choices. We can never delineate structure or agency in isolation from the other’. Thus, broader political opportunities, movement resources, ideology and
‘agency’ are decisive factors in tilting social movements toward one strategy over the other.
Activists adopt litigation not only because of favorable LOS; organizational resources and collective action frames have to be propitious too (Vanhala, 2010).
The combination of different degrees of closure of the LOS with factors like resources and legal
framing may generate differential effects on movement strategies. I suggest the following hypotheses about the effect of a closed LOS on contention:
Hypothesis 2: If the stable features of LOS are closed, signaling the futility of legal mobilization, then
social movements will commit to contentious strategy of direct action.
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De Fazio
Hypothesis 3: If only the contingent aspect of judiciary receptivity is closed but movement resources and
legal framing are conducive to litigation, then social movements will maintain legal mobilization alongside
protest tactics.
Hypothesis 4: If only the contingent aspect of judiciary receptivity is closed and/or movement resources
and legal framing are not conducive to litigation, then social movements will renounce legal mobilization
and focus on contentious tactics.
Past studies of movements’ mobilization lend preliminary support to some of these hypotheses.
For instance, due to a mostly unreceptive politico-legal system to environmental claims, a direct
action anti-roads campaign developed in the UK in the 1990s (Hilson, 2002). The resources and
ideology of environmental groups like Earth First! were unfavorable to legal mobilization, leading
to aggressive tactics like the protest camps and roads blockades displayed during the 1992 Twyford
Down campaign (Doherty, 1999; Rootes, 1999). The success of that campaign in halting the construction of a highway in the English countryside marginalized groups like Greenpeace and their
litigation efforts. As a result, legal mobilization was progressively abandoned by the British environmental movement during that period (Hilson, 2002).
Conclusion
Until recently, research on contentious politics overlooked the significance of legal systems for
processes of social and political mobilization (Barnes and Connolly, 1999; McCann, 2006).
However, law can be a valuable ally for a movement’s cause, strategy and objectives, as it represents ‘a unique type of symbolic resource; it is not only a means by which movement can, by
appealing to deeply resonant legal symbols, garner legitimacy and support for the movement. Law
in part also represents the ends of that process’ (Pedriana, 2006: 1729; emphasis in original). The
comparative analysis of the two movements that altered the history of Northern Ireland and the
United States demonstrated that legal systems and opportunities can indeed have a momentous
impact on a movement’s trajectory.
Notwithstanding sharing anti-discrimination goals, exclusionary socio-political systems and, at
first, the adoption of legal tactics, the CRMs in Northern Ireland and southern United States radically diverged in their courses of contention and outcomes. I argued that this is in large part due to
the differential structure of legal opportunities which shaped the movements’ available tactical
choices and decisions. Expanding on the current literature on legal opportunities, I proposed to
consider accessibility to courts, availability of justiciable rights and judiciary receptivity as three
sequential ‘gates’ that constitute the LOS available to activists. The paired comparison of the two
CRMs unveiled how, in the United States, the NAACP was able to construct a support structure for
legal mobilization, exploit an open LOS and obtain momentous legal victories against segregation.
These victories galvanized the African American community and facilitated its mass mobilization
in the South. In Northern Ireland, CSJ saw an opening of the LOS when a Legal Aid Scheme was
introduced in 1965, but as the Irish Catholic minority did not have justiciable rights (as well as a
basic trust in the British legal system), the LOS in Northern Ireland turned out to be essentially
closed. Ultimately, civil rights activists gave up on legal mobilization and turned to direct action.
The LOS not only affected the movements’ legal mobilization, but it had at least an indirect effect
on their broader repertoire of contention, shaping their overall destinies. Relying on the insights
from the paired comparison, I submitted a series of hypotheses about the link between LOS, movement resources, agency and contention.
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International Journal of Comparative Sociology 53(1)
As ‘in many countries, courts have now emerged as active participants in the political process,
offering new opportunities to individual citizens, social movements, interest groups’ (Wilson and
Rodriguez Cordero, 2006: 327), this study embraced a comparative perspective to provide an additional step in unpacking the theoretical and empirical significance of legal opportunities for social
movements. Future research should further assess the validity of the LOS argument through multicase analyses. For instance, cross-national studies could employ LOS to investigate the effects of
judicial systems on legal mobilization. To measure the openness of a country’s LOS, one could
examine the type of legal system (common law vs civil law), the extensiveness of specification of
rights in constitutions, the prevalent judicial philosophy of the judiciary and its degree of independence from the executive. In more general terms, social movement scholars should look more
closely at the legal system, the opportunities for action that it provides, the constraints it imposes,
and the effects of legal mobilization on the broader repertoire of action. The LOS, in fact, represents a concrete specification of an under theorized aspect of the larger POS framework, that is the
crucial impact legal systems can have on social movement lives, tactics and outcomes.
Acknowledgements
At the Linen Hall Library in Belfast, Ross Moore was a precious aid in navigating the archives of the Northern
Ireland Political Collection. I would like to thank John Boli, Lorenzo Bosi, Roberto Franzosi, Alex Hicks, Jeff
Mullis and Jeff Staton for their valuable comments on various versions of this article. Heather Scheuerman
helped with the editing of the final draft of the article.
Funding
An Andrew Mellon Pre-Dissertation Fellowship of the Council for European Studies at Columbia University
provided the financial support to conduct archival research in Belfast in 2009.
Notes
1. These similar structural positions did not translate in identically harsh social conditions, though, as
African Americans experienced a much higher level of discrimination and more severe exclusionary
conditions than Irish Catholics in Northern Ireland.
2. Political process scholars investigated an extensive number of features of the political system which
might affect protest, including, among many others: access to institutions, divided elites, state capacity, government repression, counter-movement activities, and activists’ perceptions of the POS (Meyer,
2004).
3. Supranational courts like the European Court of Justice have gradually become a suitable arena for both
national and transnational movements to further individual and human rights (see Cichowski, 2006,
2007; Hilson, 2002; Stone Sweet, 2004). While supranational legal opportunities represent an important
area of inquiry in need of further theoretical development, it is outside the scope of this article to address
it.
4. A right is justiciable when it is capable of being decided by a court and is therefore enforceable.
5. For instance, Evans Case and Givens depict the LOS as having three main dimensions: ‘the nature of
the available legal stock, the rules governing access to the judiciary, and resources for legal advocacy’
(Evans Case and Givens, 2010: 233; see also Andersen, 2005).
6. Other factors include geographical distance of the courts, level of education of the claimants, legal consciousness (understanding that some of the grievances are legal ones), and access to lawyers.
7. For instance, the efforts of gay rights activists to topple sodomy laws in the United States clashed with
the existing legal standing rules, as the effect of those laws was considered as only indirectly harmful to
plaintiffs (Andersen, 2005). Conversely, since anti-gay ballot initiatives were inflicting direct damages
to gays, legal efforts to counter such measures easily gained access to courts (Andersen, 2005).
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De Fazio
8. Marc Galanter (1974: 97) famously distinguished between ‘one shotters’, claimants who resort only
occasionally to courts, and ‘repeat players’ who tend to engage in litigation regularly (usually a large unit
like a firm or government). Repeat players have structural advantages over one shotters, as the former
have access to specialists, develop expertise and ‘bargaining reputation’, and enjoy economies of scale
(Galanter, 1974). The unequal distribution of legal services further reinforces the structural advantage of
repeat players, as courts are largely passive and overloaded institutions (see Galanter, 1974).
9. Wilson and Rodriguez Cordero (2006) demonstrated how the establishment in 1989 of a new set of rules
granting affordable and open access to the Costa Rican Supreme Court allowed local movements to litigate effectively on behalf of powerless groups. Successful litigation, though, was possible also because
the Costa Rican Constitution enumerated an extensive number of individual and social rights (Wilson
and Rodriguez Cordero, 2006).
10. Several Latin American civil law countries deviate from this trend, as some constitutional provisions
that were explicitly non-justiciable became justiciable over the last 20 years. For instance, health rights
were explicitly non-justiciable in Colombia’s 1991 Constitution; yet, the Constitutional Court gradually
accepted it as a justiciable right and is currently one of the most litigated rights in Colombian courts (see
Gloppen et al., 2010; Wilson, 2009).
11. Although this article focuses on the structural side of the judicial system, it is not intended to deny the
importance of the subjective dynamics of movement activity. Social movements are affected not only by
the structure of LO, but also by choices that social movements make in regard to legal framing (Pedriana,
2006). However, as my goal here is to illustrate the importance of legal opportunities for movement litigation, I mainly look at the external legal factors which influence movement strategies, mentioning the
role of legal framing, resources and agency when appropriate.
12. This seems to be especially the case of transitioning democracies or even authoritarian regimes (Moustafa
and Ginsburg, 2008), where a ‘judicial support network’ of reform-minded judges and activists can circumvent the problem of collective action and of limited public space for open dissent (Moustafa, 2007: 44).
13. This is particularly true for most-similar systems design, ‘in which common systemic characteristics are
conceived of as ‘‘controlled for,’’ whereas intersystemic differences are viewed as explanatory variables’
(Tarrow, 2010: 234).
14. Since at least 1962, C. Desmond Greaves and the Connolly Association, a republican socialist organization, proposed civil rights agitation against discrimination as a strategy to weaken the Unionist regime
and force the British government to address the issue of Partition. However, when the CRM network
emerged in the late 1960s, it deliberately avoided advocating for a united Ireland.
15. These include: ‘Northern Ireland: The Plain Truth’ (1964a); ‘Northern Ireland: Why Justice Can Not Be
Done – The Douglas Home Correspondence’ (1964b); ‘Northern Ireland: What The Papers Say’ (1964c);
‘Londonderry: One Man, No Vote’ (1965); ‘Northern Ireland: Legal Aid to Oppose Discrimination –
Not Likely!’ (1966); ‘Northern Ireland: The Mailed Fist’ (1972). For a detailed analysis of CSJ’s publications, see Purdie (1990).
16. McEvoy (2011: 359) also emphasized the ‘culture of quietism’ that permeated Northern Irish lawyers in
the 1960s, due to the small size of the legal community and their lack of technical skills.
17. The Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law, for
the first time granting British citizens the equivalent of a formal Bill of Rights.
18. There were some notable exceptions, nonetheless. For instance, in 1915 Guinn v. United States declared
the grandfather clause unconstitutional, while in 1917 Buchanan v. Warley barred municipalities from
passing/enforcing ordinances requiring residential segregation in housing.
19. To be sure, favorable court decisions do not automatically translate into mobilization, as ‘in order for a
decision to become a movement resource, activists must interpret and subsequently mobilize around the
decision’ (Boutcher, 2011: 179).
20. Legal victories can, therefore, yield two very different life span trajectories for a social movement. While it
is rare that a social movement is capable to fulfill entirely its agenda through legal reform, ascertaining the
conditions that facilitate one trajectory over another is a theoretical and empirical project in its own right.
21. The pay equity movement in the United States was notable in that no appellate court recognized the
claim of comparable worth (McCann, 1994), and yet the threat of litigation prompted many public
employers into negotiating with unions and employee groups (McCann, 1994).
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