“I Can’t Go to Court," How Perceptions of Litigation Impact Legal Mobilization?

• In Event: Making Rights Claims: Environment, Land, Gender, and Sexuality - Who Claims and How?

Abstract

What motivates people to make rights claims? What impacts the kinds of strategies people choose to solve problems concerning their rights? This paper addresses these questions by exploring how one’s perception of rights, courts, and the act of litigating impact their choice to make use of legal institutions to protect their social and economic rights in post-apartheid South Africa. To remedy the poverty and inequality caused by apartheid, the 1994 constitution granted everyone rights to access various social and economic goods and services, like adequate housing, health care, and water. The post-apartheid constitution also empowered courts to adjudicate social and economic rights claims. Although there are institutional tools and legal mechanisms available for people to secure access to socioeconomic goods and services, few have expressed willingness to use legal channels to secure access even though insufficient access to these goods stubbornly persists. This paper uncovers why by investigating how language, culture and lived experience influences people’s decisions to mobilize their problems of access as legal claims through courts. Drawing on the theoretical framework of law and society scholarship, this paper approaches “the law” and its related institutions as socially constructed, subject to various interpretations. With empirical data collected from multi-sited fieldwork in South Africa, this paper examines the various ways black South Africans make sense of basic goods and services, rights, courts, and the process of mobilizing through courts. This paper also investigates under what conditions will black South Africans express willingness to use courts to mobilize their claims in light of these meanings. The findings in this paper encourages us to question whether human rights are really empowering.

Author

• Kira K Tait, University of Massachusetts-Amherst