Law and Social Mobilisation

Ana Côrtes (2021)

Our Global fellow Marta Rodriguez de Assis Machado, the coordinator for the “Effects of Rights and Law” project at partner institution Getulio Vargas Foundation’s São Paulo School of Law, has recently organised and co-authored a book on Law and Legal Mobilisation. The book has seven chapters, one of which was written by our researcher Ana Côrtes.

Although social sciences that study social movements have been researching the social mobilisation for a long time, the legal aspect of it, meaning the mobilisation using law as a tool in or out the Judiciary system, is much more recent. Since the 90s, the legal mobilisation literature has gained strength and examined the strategies of using the Law as a tool that can be used to promote social transformation. The effects of this way of mobilising can be observed in two different ways: through instrumental effects and results (such as laws and court decisions) and through cultural or political effects (how the organisations learn to mobilise and the effects it has in their identities).

The chapters in the book address the relationship under construction between law and legal mobilisation politics. A fertile field of research, especially considering that they propose an intersectional look in a context in which jurists and social scientists use to look at different aspects. Each book chapter brings up different dispute arenas and facets of the relationship between Law and social mobilisation.

In the book’s first chapter, Natalia Neris addresses the possibilities of participation in constructing the Brazilian constitution. Her work is the result of careful empirical research with constituent records and shows how the black movement, the best organised so far, acted, as well as its achievements, defeats, and claims. Many of the claims, such as police violence, racism, and discrimination in employment access, are still relevant nowadays.

The second chapter, written by Larissa Margarido, reconstructs the history of Brazilian women movement since the 70s until the most recent years. The text also describes the movement’s acting during the constituent process and describes some challenges and victories the movement had, afterwards showing the paradox of having growing violence against women in Brazil after achieving legislation protecting against it.

Then, Livia Buzolin analyses two of the most important decisions from the Brazilian Federal Supreme Court: the one that recognised the possibility of civil union for same-sex couples and the one that recognised homotransphobia as a crime. Through the chapter, she assesses the effects of civil society participation as amicus curiae, both direct ones, like correlation in arguments from manifestations and decisions, and symbolical effects of representativity. In these cases, the presence of both LGBT organisations and religious groups has grown during the last years. Livia presents the court as an arena with great social repercussion and, therefore, effects that transcend the Judiciary.

Also addressing disputes in the Federal Supreme Court, Ana Côrtes presents the process of enlargement of possibilities for civil society organisations to take part in the constitutional process and the mobilisation in order to achieve that. The chapter accounts the process since the promulgation of the 1988’s constitution until a decision, issued in 2018, that recognises for the first time the possibility for a social movement organisation to propose a constitutional case in the concentrated constitutional review. However, the formal enlargement does not end the democratisation battles since the organisations have yet to face social selectivity from the court that demands expressive human and financial resources.

Taís Penteado, then, analyses the decision in the case that recognised the possibility of abortion when the fetus is anencephalic. Taís proposes a different methodology for examining the results of strategic litigation in this case, looking at the decision’s reasoning and not only the results, seen as a significant victory for the pro-choice movement. Her work profoundly discusses the reasoning and shows how it does not open legal opportunities for future litigation, which leads to a reflection on the effects and implications of legal reasoning.

In the following chapter, Milena Ginjo makes an almost ethnographic examination of the “Pinheirinho” case, in which during almost eight years the arguments for forcedly removing hundreds of persons from a property in possessory dispute. Her work thoroughly shows aspects of repression and resistance until the forced remotion that showed how perverse and violent can apparent legal and formal law be. On the other hand, without minimising the violence that affected hundreds of lives, Milena shows the existing legal possibilities for keeping battling, for example, international instances and indemnity actions.

Last, Marta Machado co-authors a chapter with Felipe Gonçalves e Lorena Otero. This chapter addresses the history of the “Marcha da Maconha” (Marijuana’s March), an annual event since 2007, in Brazil. Their work shows the opposition between room for mobilisation and repression, highlighted when the march caught the attention of official organs that began to question the protest’s legitimacy. The march came to be criminalised under the argument that it would stimulate crimes and the use of narcotics and the repression episodes lasted until the Federal Supreme Court recognised the march’s legitimacy. The chapter also explores the different and complementary strategies used aiming the legalisation of Marijuana: cases taken to the Federal Supreme Court and protests on the streets (the annual marches).

All the texts contribute to thinking and discussing how the Law can influence and transform processes and strategies of social mobilisation, but also and simultaneously how these social disputes shape the Law. These mutual influences invite us to take a new look at legal mobilisation from both inside and outside the Law.

The book, unfortunately only available in Portuguese, can be freely accessed through the following link: