Movement Lawyering in Times of Rising Authoritarianism
This post introduces a symposium on movement lawyering in times of rising authoritarianism, run in collaboration with the Global Network of Movement Lawyers and Movement Law Lab. (Available also in Espanol and Português).
With authoritarianism, war, climate disaster, and extreme socio-economic inequality on the rise across much of the world, the conditions for achieving emancipatory visions of justice grow increasingly dire. From the genocide in Gaza, to the housing crisis in Spain, to renewed forms of austerity in Argentina overseen by an ultra Right-wing government, a series of acute crises are forcing us to confront the growing cracks in both our domestic and international legal orders. Now is the time not only to evaluate the present conjuncture but also to surface how movements around the world are responding to these conditions in an effort to combat despair and encourage protagonism. To that end, this past July we gathered practicing lawyers, academics, and activists in Rio de Janeiro to discuss how movement lawyers in different global contexts have used law to support social movements in the face of repressive or authoritarian regimes.
As this introduction and the pieces to follow will show, “movement lawyers” – or “abogadxs populares,” “advogadxs populares,” or whatever locally-employed term describes lawyers who critically use the law to build the power of social movements and organized communities – are using the law counter-hegemonically to confront systemic oppression inherent in our present global political economy. In collaboration with movements and communities, they are devising creative legal tactics in defense of democracy, pluralism, land sovereignty, and self-determination. Highlighting these movements for a largely US-based audience is important, we believe, as it helps clarify that – across countries that differ in many important respects – neoliberal hegemony at the global level has served as a backdrop for democratic backsliding and rising authoritarianism. We also believe, more optimistically, that there is much to learn from our counterparts in other parts of the world.
The Neoliberal-Authoritarian Tandem
Although they are in different stages of development in diverse contexts around the world, neoliberalism and authoritarianism operate everywhere in tandem, shaping the terrain on which we struggle. Neoliberalism as an ideology has reached hegemonic status, defining both the contours of our global political economy and the institutions/relations that underpin it, as well as the everyday common sense of individuals. And as the neoliberal project approaches its full maturity, its incompatibility with democracy becomes increasingly evident, while authoritarianism emerges as the manner of governance that best fulfills its dictates.
While the working class had been the central agent of change in the political imaginary for most of the 20th century, the neoliberal turn in the latter part of the century replaced this vision of mass politics with the moral exaltation of the individual who must fend for himself. This neoliberal subjectivity, which makes any expression of collective organization undesirable, is born of a confluence of forces acting on those not wealthy enough to avoid them: the gig-ification of labor, the increasing precarity of daily life as social protections diminish, the erosion of public goods and infrastructure, the fast-approaching precipice of ecological collapse, and indebtedness as a trap and mechanism to feed finance capital disconnected from the productive economy. More recently, the pandemic has catalyzed processes of social fragmentation by, for example, replacing vibrant spaces of human interaction with isolating digital realms and creating a sense of “every man for himself,” thereby exacerbating a feeling of growing precarity and generalized anxiety in the absence of any safety net.
This precarity and hyper-individualism has provided the ideal substrate for authoritarianism to take root and spread around the world, with the extreme Right taking advantage of a heightened sense of vulnerability and cynicism about the prospects for a better future. By undermining our social safety net, neoliberalism has been eroding the idea of “community” and, with it, the foundations of democracy and liberal democratic institutions (however flawed). And by cultivating a sense that democracy is incapable of solving basic social problems, neoliberalism has been preparing people to willingly consent to authoritarian rule.
Authoritarian leaders, in turn, aid the project of neoliberalism. They advance a totalizing narrative that places the blame for the material fallout resulting from neoliberalism’s failures on their chosen scapegoats, thus providing cover to the core project of neoliberalism – namely, the upward redistribution of wealth and the elimination of the public domain or any social welfare programs designed to repair harms arising from historical injustice. With the backing of the wealthy classes that benefit from these policies, authoritarians gain ground by spinning working class discontent and grievance into popular support as they posit themselves as the antidote to material precarity and feelings of large-scale abandonment. In other words, as people begin to feel their material, emotional, and physical security at risk, authoritarian leaders propose autocratic, top-down modes of governance as necessary to guarantee the public’s safety, while they in fact work to preserve the current neoliberal, racial-capitalist system – at the behest of the tiny number of global oligarchs whose interests it serves. In this sense, neoliberal-authoritarian ecosystems are configured, composed of authoritarian leaders, the bureaucratic structures that support them, certain concentrated sectors of global markets (global oligarchs from the tech industry, among others), and a popular base that disseminates viewpoints and values that favor social inequality.
In this dialectic, law plays a central role. Through judicial capture, the gutting of oversight and regulatory agencies, crackdowns on civil society, tampering with the electoral process, and the creation of more restrictive regulatory frameworks, law becomes a tool through which neoliberal-authoritarians: (a) exercise greater social control, (b) reestablish or consolidate colonial and hierarchical relations of exploitation and extraction, (c) destroy or undermine existing protections for the environment and historically oppressed groups, and (d) refound the set of values and acceptable social discourses that dominate political life. In addition to weaponizing the law, authoritarians and the movements that sustain them co-opt tactics commonly believed to be the province of progressive social movements, such as street mobilizations, grassroots organizing, and strategic litigation, among others.
This dynamic leaves us, as movement lawyers, with a challenging playing field to navigate as we continue to accompany organized communities and social movements. We must understand how this present conjuncture necessarily shapes the tactics and strategies we deploy, how we organize ourselves, and how we position ourselves with respect to social movements. As lawyers who not only leverage national courts but also regional and international legal forums, we are forced to reckon with the crumbling international legal architecture and crisis of legitimacy of institutions like the UN, given their inability to effectively respond to the most pressing global issues (pandemic, war, climate change, etc.) in a way that saves lives, promotes peace, and advances political and economic stability.
The Work of Movement Lawyers in These Times
Through the lens of law and political economy, movement lawyers understand that the law and legal institutions have primarily served to protect capitalism and not everyday people. The movement lawyering approach adopts this lens to come up with creative ways of using the law to confront the structural impediments inherent in our global economic and political order that limit the emancipatory horizons to which movements may aspire.
But, as lawyers accompanying social movements around the world, we face the following challenge: the international human rights legal system is ill-equipped to redress the material harms presented by communities suffering the structural violence of our global political economy, and yet it is often the only forum to which social movements and aggrieved communities can bring their claims. So the question for us is whether a movement lawyering approach can both extract wins from the system while exposing its structural inadequacies for the sake of building a more just system in the future.
As movements wield the discourse of human rights, it is important to distinguish the formal conception (the ensemble of treaties, mechanisms and jurisprudence that make up the formal international human rights system) and the grassroots interpretation of human rights, an organic interpretation that focuses on dignity as the central concept from which rights must flow. The current formal human rights framework is unable to deliver on the demands for human rights in their grassroots expression because of its structural inability to stand up to the neoliberal order. This framework and the broader post-World War II international legal order were designed to preserve the dominance of Western liberal states and facilitate a neoliberal global economy, with the formal expression of human rights acting as a liberal appendage to provide an outlet for people to decry the inequities of the system – without forcing it to transform. The state-centric nature of the system, in which states voluntarily opt in to binding human rights or other legal instruments that largely depend on naming-and-shaming as the main way to stem violations, has proven to be wholly inadequate to hold powerful states accountable for their violative conduct (e.g., the U.S., Russia, Israel) and exceedingly weak for social movements and groups of marginalized people to win material benefits for the people they represent.
Despite these structural flaws, the human rights framework has developed into the primary language of global struggle. This is, at least in part, because neoliberalism stymied the success of a series of emancipatory projects and anti-capitalist proposals arising from the period of decolonization that may have advanced an alternate vernacular for justice and dignity.
This is why movement lawyers do not ground their work in the formal conception of human rights, instead centering the grassroots interpretation of “human rights” by which communities may conceive of justice and dignity beyond the rights of a human individual (by, for example, including the well-being of the natural environment and wildlife into their concept of dignity). Struggles by social movements for human rights, so understood, have been one of the few channels for the expression of alternative worldviews to the neoliberal order, based on solidarity, a sense of community, and material construction of rights.
These struggles seek to challenge neoliberalism not from a formalist viewpoint or one that is only concerned with the content of the law, but rather from a materialist and situated perspective that rethinks the political organization of institutions, spaces, and bodies. This perspective, which focuses on concrete conflict as a site for generating rights and developing new conceptions of justice, allows us to analyze the threads that connect the global political economy with various situated struggles in which movement lawyers intervene alongside movements, such as policing, the migration crisis, or the housing crisis. Thus, the practice of movement lawyering is not, in the first instance, concerned with the law itself, but on the question of the power relations implicated in a given actually-occurring conflict. And the movement lawyer, by primarily aligning themselves with the grassroots interpretation of rights, understands their key task to be to make tactical use of the formal human rights system – in addition to any other legal tool at their disposal – to support communities in winning the change they seek in a way that substantively shifts the content of human rights away from its Western liberal roots towards other conceptions of dignity and justice.
In this respect, social movements at the local level develop a discussion on multiple dimensions: on the one hand, a tactical discussion that aims to improve living conditions and which requires the State to fulfill certain human rights obligations through public policies, and on the other hand, a longer-term strategic discussion that tries to build a narrative around new social relationships based on solidarity, equality, redistribution and repair.
Within this environment, movement lawyers aim to find ways to level-up these multi-dimensional discussions by identifying tactical work inside the institutions, and strategic work beyond the institutions, to help build a new collective political subject (different from the neoliberal subject) and imagine possible futures and utopias. To do this, it is essential to note that there is no single struggle in any location that will trigger the kind of structural change we are aiming for. We therefore need to find ways to connect with each other, understand patterns or trends, understand the power structures pushing against us, and create bridges between the struggles on the ground.
Finally, we have to focus our vision on how rising authoritarianism has shifted the political map: our present task is mainly defensive, but it cannot be limited to that. It is important to defend what has been achieved and, for this reason, the defense of the democratic institutions (despite all their limitations) matters. But in doing so, we must qualify what we mean by democracy: true democracy must not only involve fundamental political freedoms (protest, association, freedom of expression), but also a pathway towards social and ecological justice. These latter aims require the deconcentration of income and resources (material and symbolic), the deconcentration of ownership of land, and the building of popular power (including, but not limited to, increased representation of historically oppressed groups in public institutions).
The pieces in this symposium will present how movement lawyers are responding to this present conjunctural moment of rising authoritarianism and neoliberal hegemony in different parts of the world, from Argentina and Brazil to Palestine, Spain, and Tunisia. They will look at the productive practices that social movements and movement lawyers have been developing to challenge neoliberal-authoritarian schemes and to prefigure from the law (and against the law) an emancipatory horizon. We believe it is essential to build theoretical knowledge from practical experiences to understand the face of rising authoritarianism in different parts of the world and how movements are confronting it in their respective locations. We hope this symposium can serve as a small contribution in this regard.
