A variety of terms frequently pop up in discussions around using the courts to bring about social change. Some of these terms describe the types of lawyering involved, such as “public interest lawyering” or “radical lawyering”, while others refer to the nature of the cases that are being taken, such as “impact litigation” or “test case litigation.” Although some of these terms can overlap and share similar characteristics, they are still referring to different forms of theory or practice that can show up in strategic litigation.
In this piece, we are exploring one such term that frequently comes up in the context of our work: “movement lawyering.” We will set out how this type of lawyering informs our approach but is still markedly different from what we call “community-driven strategic litigation.”
Cecilia Castelli for Fine Acts
What is “movement lawyering”?
“Movement lawyering” is a term that has grown in popularity over recent years and has started to gain greater traction in Europe, including by institutions engaged in or supporting litigation work. But what does it mean?
The term has its origins in the United States civil rights movement of the 60s and 70s and has gained renewed attention in more recent years following litigation campaigns for marriage equality recognition, challenging post-9/11 anti-terrorism policy, and resisting racist policing. The early proponent of “movement lawyering” in the US, Len Holt, envisaged a bottom-up approach to civil rights lawyering. He saw lawyers playing a role within the civil rights movement of protecting advocates and activists, safeguarding their rights and defending them from legal attack, while bringing claims that challenged specific policies of segregation. He established legal groups that he saw as “legal corpsmen” ready to provide legal “first aid” to the movement.
As such, “movement lawyering” concerns a specific type of legal practice. It foresees lawyers:
- taking direction from and being embedded in affected communities themselves;
- using the law in a way that builds their power and offers them holistic legal support;
- helping bring cases that can dismantle systems of oppression.
Elements of this inform our own approach to litigation at Systemic Justice. We work with the principle that those who are experiencing and resisting racial, social, and economic injustice should be the primary decisionmakers on how litigation can best support their cause and fight for justice. The lawyers in this process must, therefore, take direction from the communities themselves, just like a movement lawyer.
What is the difference between “community-driven strategic litigation” and “movement lawyering”?
The key difference between “community-driven strategic litigation” and “movement lawyering” is the fact that the latter entails doing any kind of legal work that supports or builds the power of communities. This could include drawing up contracts, setting up legal structures for the community, defending against legal threats, and providing legal aid to community members, such as assisting with social housing applications, employment disputes, or visa applications. This is crucial work, but it can also distract or present an obstacle to communities leveraging the law in strategic ways in support of their cause.
At Systemic Justice, we partner with communities to support them in bringing the litigation they want and that they believe can have a broader societal impact – such as changing law, policy, or institutional behaviour. In other words we want to support communities in being the strategists for how the courts can best serve their goals. The role of Systemic Justice is to do the “legal legwork” to put that strategy into practice.
We do, of course, recognise the importance of ensuring other legal support is provided to communities as part of this process. And, where we can, we work to make sure that the other legal needs of community partners are met. But, providing that type of legal support is not the main goal of our work.
The systems of oppression marginalised communities are resisting have many layers, and lawyers can be important allies in communities’ campaigns for change. Just like the law as a tactic does not stand alone but needs to work in tandem with advocacy, campaigning, and policy work, neither movement lawyering nor community-driven strategic litigation alone can shift power structures. But they can be powerful complementary methods, and we can only hope that more and more litigators place taking direction from and building the power of communities central in their work.