The paper intends to contribute to the study of legal mobilisation and the way law matters for social reform (McCann 2006), with regard to the conditions that favour the adoption of legal strategies. The relevance of law and legal institutions for explaining legal mobilisation and its consequences have attracted growing attention among scholars, both US and European, leading to the development of legal opportunity structure (LOS) approaches, specifically focusing on variables such as access to courts, legal resources and rules governing access to justice costs and lawyers’ fees (Vanhala 2011; Case and Givens 2010; Andersen 2005; Hilson 2002). Empirical studies based on the LOS approach extensively document the way the LOS operates in encouraging or constraining the use of litigation strategies and their success, without however ignoring the reciprocal influence between the structuring environment and actor agency: the LOS might influence the strategy choices of legal actors and the latter might actively engage in expanding opportunities for legal action changing in turn the LOS (Vanhala 2012; Andersen 2005). Relying on the concept of the LOS, the paper aims to provide an empirical account, explain the emergence of litigation on discrimination on grounds of race, ethnic origin and nationality in Italy and assess the success of litigation in ensuring equal rights for migrants in court. Whereas the first years following the adoption of the “Consolidated Immigration Act 1998” (CIA) appear to have been marked by particularly low levels of litigation national reports on the enforcement of the prohibition of discrimination, following the implementation at the national level of the “Racial Equality Directive”(RED), point to significant increase in litigation, with growing engagement of civil society organisations in litigation strategies, in areas such as access to employment and social security. First, the paper focuses on tracing how the implementation of the RED has affected the opportunities for effective enforcement of the prohibition of discrimination at the national level. It will analyse the extent to which such enhanced opportunities have provided the incentives for legal actors to turn to courts and shaped their legal strategies, while highlighting how legal actors have shaped the LOS in turn. The relevance of the shift in the LOS will be then assessed in the light of other factors that might explain increasing litigation and growing engagement of civil society organisations in litigation strategies. Eventually it will provide an overview of how litigation has contributed to shaping equality for migrants in courts. Although there is a growing body of research on legal mobilisation in the EU, most of this research has its focus on the EU level and in particular on the preliminary ruling mechanism and the interaction between national judges and the European Court of Justice. There are indeed only a few studies of legal mobilisation around EU law adopting a domestic point of view, and none of these studies analyses systematically the impact of the implementation of the RED at the national level. The paper will do so, relying on original data gathered from lower courts decisions issued from 1998 to 2015, concerning the enforcement of the prohibition of discrimination under the CIA and the national legislation implementing the RED. The analysis will combine doctrinal research and social sciences research methods.
Shaping Equality for Migrants. Legal Mobilisation in Italy and the Race Equality Directive
Protopapa, Venera
2019-01-01
Abstract
The paper intends to contribute to the study of legal mobilisation and the way law matters for social reform (McCann 2006), with regard to the conditions that favour the adoption of legal strategies. The relevance of law and legal institutions for explaining legal mobilisation and its consequences have attracted growing attention among scholars, both US and European, leading to the development of legal opportunity structure (LOS) approaches, specifically focusing on variables such as access to courts, legal resources and rules governing access to justice costs and lawyers’ fees (Vanhala 2011; Case and Givens 2010; Andersen 2005; Hilson 2002). Empirical studies based on the LOS approach extensively document the way the LOS operates in encouraging or constraining the use of litigation strategies and their success, without however ignoring the reciprocal influence between the structuring environment and actor agency: the LOS might influence the strategy choices of legal actors and the latter might actively engage in expanding opportunities for legal action changing in turn the LOS (Vanhala 2012; Andersen 2005). Relying on the concept of the LOS, the paper aims to provide an empirical account, explain the emergence of litigation on discrimination on grounds of race, ethnic origin and nationality in Italy and assess the success of litigation in ensuring equal rights for migrants in court. Whereas the first years following the adoption of the “Consolidated Immigration Act 1998” (CIA) appear to have been marked by particularly low levels of litigation national reports on the enforcement of the prohibition of discrimination, following the implementation at the national level of the “Racial Equality Directive”(RED), point to significant increase in litigation, with growing engagement of civil society organisations in litigation strategies, in areas such as access to employment and social security. First, the paper focuses on tracing how the implementation of the RED has affected the opportunities for effective enforcement of the prohibition of discrimination at the national level. It will analyse the extent to which such enhanced opportunities have provided the incentives for legal actors to turn to courts and shaped their legal strategies, while highlighting how legal actors have shaped the LOS in turn. The relevance of the shift in the LOS will be then assessed in the light of other factors that might explain increasing litigation and growing engagement of civil society organisations in litigation strategies. Eventually it will provide an overview of how litigation has contributed to shaping equality for migrants in courts. Although there is a growing body of research on legal mobilisation in the EU, most of this research has its focus on the EU level and in particular on the preliminary ruling mechanism and the interaction between national judges and the European Court of Justice. There are indeed only a few studies of legal mobilisation around EU law adopting a domestic point of view, and none of these studies analyses systematically the impact of the implementation of the RED at the national level. The paper will do so, relying on original data gathered from lower courts decisions issued from 1998 to 2015, concerning the enforcement of the prohibition of discrimination under the CIA and the national legislation implementing the RED. The analysis will combine doctrinal research and social sciences research methods.
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