In the article “Movilización y contra-movilización legal. Propuesta para su análisis en América Latina” (Política y Gobierno Vol. XXII, No. 1, 2015: 175-198), I present an analytical framework for the study of legal mobilization processes in Latin America that combines three theoretical perspectives developed in separate fields of scholarship, which are usually not connected: social movement theory, the strand of constitutional theory known as democratic constitutionalism, and legal mobilization studies.
The proposal is structured following the three main frameworks developed by social movement studies, which allows us to merge the contributions of the other two fields in a systematic and analytically productive way, and facilitates the application and transference of concepts and insights from one field to the others. Hence, the theoretical propositions of legal mobilization studies and democratic constitutionalism are combined under the three main set of variables developed by social movement theory: the availability of resources for legal mobilization, the development of cultural framings, and the political opportunities for movement’s influence.
The underlying premise, following democratic constitutionalism, is that social movements can be central actors in the generation of a discourse that begins from the bottom and that may influence the law officially sanctioned by the state. In fact, by locating courts´ decisions in a broader discursive and political field and tracking the influence of social movements in constitutional doctrine, democratic constitutionalism is the field that most emphatically acknowledges the role of social movements in legal change. It provides a unique perspective for understanding the nature of the interaction between social movements and legal institutions, and the role of courts in the institutionalization of societal claims. However, with illustrious exceptions, constitutional theory does not take into account the collective action processes involved in the creation of legal concepts and discourses by social movements, or the organizational and contextual factors that affect movements’ capacity to influence legal reform. This is why Reva Siegel, who has pioneered the incorporation of social movement insights into constitutional theory, has called for “a thicker description” of the concepts and actions developed by social movements aimed at influencing legal change. The operationalization of the cultural, organizational and contextual dimensions of social movements’ work and their relationship to the legal field - the dimensions that most crucially contribute to a thicker description of the legal work done by social movements - demands an integration into the analytical framework of the other two scholarly fields; that is, social movement theory and legal mobilization studies.
Furthermore, drawing from social movement theory, the article proposes to analyze the mobilization by conservative social sectors in Latin America as counter-movements, and to apply the same categories and frameworks for the study of this type of collective action in the region. Specifically, the article proposes the term counter-legal mobilization to refer to the legal strategies developed by conservative actors.
Throughout the article, examples from processes of legal mobilization and counter-mobilization in the field of abortion rights in Latin America are offered. The abortion controversy is especially apt to analyze the role of social movements in broad processes of legal mobilization and legal change, as well as the role of courts in these processes. The legalization of abortion has been a core claim of one of most prominent contemporary social movements in Latin America; it is a paradigmatic case of interaction between movement and counter-movement; it has motivated the intervention of constitutional courts; and it includes prominently the crucial problem of implementation of legal decisions. Furthermore, in Latin America, the rise of women’s demands for abortion legalization intersected with the expansion of constitutional justice and the judicialization of the political process, in the aftermath of reforms that created new constitutional courts or reformed existing supreme courts with ultimate judicial review powers. In sum, abortion politics and abortion legal struggles in Latin America offer a particularly appropriate field in which to analyze the role of social movements in legal processes that are part of wide-ranging social and political conflicts.