Strategies of legal mobilization in the European judicial network – evidence from interviews with German interest groups

Legal mobilization has been acknowledged as part of the strategic toolkit of interest groups. However, its exact status remains indeterminate. While some scholars associate legal mobilization with an insider strategy akin to the discreet, secretive lobbying of policy-makers, others subsume legal mobilization under an outsider strategy aimed at generating and augmenting publicity for a particular cause. Against this backdrop, this paper addresses two desiderata in the literature on legal mobilization and strategic litigation: First, it accounts for the fact that legal mobilization can serve contrasting functions and purposes, ranging from the enforcement of formal legal norms to a reinterpretation, and ultimately the invalidation and/or disapplication of law. What is more, the invocation of legal norms may assist the defense of private interests as much as it may promote the realization of a collective cause. Second, the paper considers the existence of a European judicial network in which different sources of law with (quasi-)constitutional status – national law, EU law and the ECHR – co-exist as a fundamental opportunity structure for a legal mobilization strategy. Wedding interest group and socio-legal research, this paper adopts an actor-centric approach to explore the relationship between form and function of legal mobilization and shed light on actors’ perceptions of the strategic opportunities afforded by the compound, multi-level structure of rights protection in EU Member States. What motivates and incentivizes organized interests to mobilize the law? What relative weight do actors place on mobilizing and invoking the protection of fundamental rights – and how is this mediated by the character of the issue? To address these questions, the paper builds on a theoretical framework inspired by interest group research. The organizational format, the logic of organizational maintenance and the availability of resources, is considered the key independent variable to explain variation in the objectives and desired outcomes of legal mobilization. The nature of an issue, and more precisely the degree to which legal mobilization may be based on provisions stemming from national law only or tapping into EU law and/or the ECHR, is posited to have a moderating impact. The working hypothesis of the paper is: Non-membership organizations, notably firms, and sectional groups like trade, business and professional associations employ legal mobilization primarily as a defensive strategy aimed at preserving the political-legal status quo. In addition, they will mobilize the law to defend their private interests or the interests of a clearly circumscribed group of beneficiaries (members). This implies a preference for confidentiality and secrecy in judicial proceedings. By contrast, cause groups with a diffuse membership base, like environmental or civil and human rights groups, are assumed to use legal mobilization as a strategy to shift the political-legal status quo. In addition, they will mobilize the law in pursuit of the interest of a potentially large and diffuse range of beneficiaries. This implies a resort to publicity and campaigning. To substantiate these theoretical expectations, the paper draws on qualitative case studies and interview data with respondents from a sample of 60 interest groups from Germany.