Strategic litigation is a powerful tool for change. We have seen it challenge school segregation, affirm equal marriage, and hold states and big companies to account for the damage they are doing to the planet. It can also be used to achieve right-regressive means. For example, in the US, a steady legal campaign has been trying to end affirmative action in university admissions while the recently leaked draft of a Supreme Court opinion showed that nearly 50 years of litigation to get Roe v. Wade, which guarantees federal protection of abortion rights in the US, overturned may have been successful.
While the courts are powerful agents for change, marginalised communities are unable to leverage the full potential of litigation for their causes and campaigns. Litigation is generally underutilised, often due to limited access to knowledge on what it can and cannot do and existing litigation efforts often do not serve these communities or centre their needs. For example, current climate litigation does not address the needs of marginalised groups, and the marriage equality movement has been critiqued for privileging whiteness and subordinating non-normative relationships.
An intersectional approach is lacking, often due to uneven power dynamics between communities and those doing the legal work. Legal fees are high, processes are complex, and the legal profession continues to inadequately reflect our society. This means that litigation tends to be closed off to and not driven by the communities that could use it the most.
So: building an initiative that can meet communities where they are, without having to first bridge a gap of vastly diverging lived experiences, seems to make sense. But: does it? Why would we want to create a new initiative to work inside the very system that is failing communities at such a massive scale?
A different approach
With Systemic Justice we want to radically transform how the law works for communities fighting for racial, social, and economic justice by building their power to leverage the courts in their campaigns for change and levelling their access to justice. By creating a truly participatory, open model of partnership, strategic litigation can not only strengthen existing campaigns for justice but also be a point of gravity around which solidarity and new campaigns are built. Centring communities’ perspective and lived experience is key here. Instead of having lawyers take over and set the agenda, we will develop community-driven litigation campaigns, opening up the law to those who need it the most.
There currently is no organisation in Europe that works with community partners on strategic litigation by taking a community-driven, intersectional approach, and that is also Black-led. So: building an initiative that can meet communities where they are, without having to first bridge a gap of vastly diverging lived experiences, seems to make sense. But: does it? Why would we want to create a new initiative to work inside the very system that is failing communities at such a massive scale?
Some of the biggest changes we’ve seen in history were all unimaginable at some point. We need to remember, though, that the systems fighting against some of us are all man-made. This also means that we can change them.
“The master’s tools will never dismantle the master’s house. They may allow us to temporarily beat him at his own game, but they will never enable us to bring about genuine change.”
These lines from Audre Lorde are almost over-cited, but they ring true in this context: litigation is about as “master’s tools” as you can get. Why focus on engaging in the master’s game, instead of tearing down the house through different means?
This is the recurring question within activism of working within the systems or outside of them to make change happen. I believe it needs to be a combination of both.
I genuinely believe that it is possible to create a better world. Some of the biggest changes we’ve seen in history were all unimaginable at some point. We need to remember, though, that the systems fighting against some of us are all man-made. This also means that we can change them. As to how we’ll get there: that is a different question. Personally, I’d like to see the white supremacist, capitalist patriarchy be ground to dust tomorrow. Burn it all down and build something better and new. But the reality is that this won’t happen overnight, and, in the meantime, we need to have better options to strengthen and reinforce our struggles for justice for all in our society.
Litigation is one of those options and while this may not be the tool of choice for everyone or for all scenarios, it needs to be an option that is equally accessible to all, on the terms of those whose rights are at stake.
Communities should be able to make informed choices about how they want to incorporate litigation in their campaigns for change.
This addition “on their own terms” may seem trivial, but this is where the crucial difference lies. Communities should be able to make informed choices about how they want to incorporate litigation in their campaigns for change. Should we be satisfied with the banning of hijabs being framed in court as a freedom of religion matter only, rather than one that sits at the intersection of religion, gender, cultural expression, and race? Do we want to let human rights claims be limited by the fact that intersectionality is hardly ever engaged with by the European Court for Human Rights or are we happy to take a few losses in the courtroom to start building this narrative? When will we start seeing cases about air pollution framed through a racial and economic justice lens? And, more generally, what defines success in these matters: a narrow victory in court or being able to speak to our issues from our lived realities and empowering our communities in the process?
Much of this will also include redefining what we consider success (or, in funders’ speak, “impact”) and developing a more holistic understanding of how adding litigation to a campaign can lead to change through other channels than the courtroom itself. More reflections on this –– the ways in which strategic litigation can strengthen campaigns for change and the defining success in this context –– will follow in upcoming blog posts.
How can we build an organisation that lives its values of anti-oppression, justice, and intersectionality not only in how it approaches working with the communities it seeks to serve, but also in the way it works internally, in its systems, processes, and internal power-sharing?
To do things differently, we also have to be a different kind of organisation. How can we build an organisation that lives its values of anti-oppression, justice, and intersectionality not only in how it approaches working with the communities it seeks to serve, but also in the way it works internally, in its systems, processes, and internal power-sharing? How do we care properly for our team and our partners in doing long-term, challenging, and often personal work? What should accountability look like? How can and should we fund this work? And what implications do these choices have for navigating both the expectations and requirements of external stakeholders?
These are things we are actively reflecting and working on, as we build Systemic Justice’s work. Over the coming months, I’ll be sharing reflections on different parts of this journey on this blog. Not because we’ll have ready-made answers to all these questions, or to reinvent the wheel, but rather to be open about our journey as it may be useful to others engaged in similar processes. And of course, it would be great if some of you have ideas and thoughts to share with us as well: I can think of few greater luxuries when trying something new than to learn from the experiences of others who have gone before you. So: stay tuned and let’s talk!