Law as Weapon of the Weak? A Comparative Analysis of Legal Mobilization by Roma and Women’s Groups at the European Level

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  his article is interested with the legal mobilization of transnational interest groups at the European level (European Union and Council of Europe). It compares the legal and political lobbying strategies of two umbrella organizations – the European
  This article was downloaded by: [FNSP Fondation National des SciencesPolitiques]On: 24 March 2014, At: 00:46Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Journal of European Public Policy Publication details, including instructions for authors andsubscription information: Law as weapon of the weak? Acomparative analysis of legalmobilization by Roma and women'sgroups at the European level Sophie Jacquot & Tommaso VitalePublished online: 21 Mar 2014. To cite this article:  Sophie Jacquot & Tommaso Vitale (2014) Law as weapon of the weak?A comparative analysis of legal mobilization by Roma and women's groups at the Europeanlevel, Journal of European Public Policy, 21:4, 587-604, DOI: 10.1080/13501763.2014.887138 To link to this article: PLEASE SCROLL DOWN FOR ARTICLETaylor & Francis makes every effort to ensure the accuracy of all the information(the “Content”) contained in the publications on our platform. However, Taylor& Francis, our agents, and our licensors make no representations or warrantieswhatsoever as to the accuracy, completeness, or suitability for any purposeof the Content. Any opinions and views expressed in this publication are theopinions and views of the authors, and are not the views of or endorsed by Taylor& Francis. The accuracy of the Content should not be relied upon and should beindependently verified with primary sources of information. Taylor and Francisshall not be liable for any losses, actions, claims, proceedings, demands, costs,expenses, damages, and other liabilities whatsoever or howsoever caused arisingdirectly or indirectly in connection with, in relation to or arising out of the use of the Content.This article may be used for research, teaching, and private study purposes.Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly  forbidden. Terms & Conditions of access and use can be found at    D  o  w  n   l  o  a   d  e   d   b  y   [   F   N   S   P   F  o  n   d  a   t   i  o  n   N  a   t   i  o  n  a   l   d  e  s   S  c   i  e  n  c  e  s   P  o   l   i   t   i  q  u  e  s   ]  a   t   0   0  :   4   6   2   4   M  a  r  c   h   2   0   1   4  Law as weapon of the weak? Acomparative analysis of legalmobilization by Roma and women’sgroups at the European level Sophie Jacquot and Tommaso Vitale  ABSTRACT  This article is interested with the legal mobilization of transnationalinterest groups at the European level (European Union and Council of Europe). Itcompares the legal and political lobbying strategies of two umbrella organizations –the European Women’s Lobby (EWL) and the European Roma and TravellersForum (ERTF), which seek respectively to promote the rights of women andthose of Roma – focusing on their interactions with European institutions andlaw. The article analyses the contrasted relationship of these groups to legal mobil-ization as a rights advancement strategy, shedding new light on how law can be stra-tegically used by both strong and weak civil society actors. Beyond classical factorslinked to organizational characteristics and identity, the differential usages of law by the two groups are explained by the role of strategic actors who adapt to the spe-cificities of the system of governance in the two policy sectors – gender equality andanti-discrimination. KEY WORDS  European Union; interest groups’ strategies; lobbying; Roma’srights; transnational legal mobilization; women’s rights. The European Union (EU) can be defined as a ‘community of law’; it exists by virtue of law and through its usages. EU and the Council of Europe (CoE) haveplayed a significant role in the international development and diffusion of a ‘language of rights’ (De Bu`rca  1995; Scheingold 2004), which is an increasingly  central aspect of its identity as a common polity constitutive of a singular ethicalstandard (Kelemen 2011). European treaties have progressively developed thedefence and promotion of many categories of rights, including Roma andwomen’s rights. Since the 1970s, policies have also been developed in orderto implement these rights, and funding programmes have been launched tosupport these policies.By virtue of these instruments, the European Union has contributed to theempowerment of civil society groups based on these rights categories. Thisarticle compares two European-level interest groups–the European Women’s # 2014 Taylor & Francis Journal of European Public Policy, 2014Vol. 21, No. 4, 587–604,    D  o  w  n   l  o  a   d  e   d   b  y   [   F   N   S   P   F  o  n   d  a   t   i  o  n   N  a   t   i  o  n  a   l   d  e  s   S  c   i  e  n  c  e  s   P  o   l   i   t   i  q  u  e  s   ]  a   t   0   0  :   4   6   2   4   M  a  r  c   h   2   0   1   4  Lobby (EWL) and the European Roma and Travellers Forum (ERTF), whichseek respectively to promote the rights of women and those of Roma – onthe basis of their diverse and sometimes ambiguous interactions with Europeaninstitutions and law. Law is here understood both as a resource (the EU asalternative to national venues, law as a source of legitimization, case law as a source of rights promotion) and as a constraint (the strict and even restrictiveperimeter of EU competencies, and the definition of who is/who is not legiti-mate with respect to this perimeter).These groups were selected following the principle of paired comparison(Tarrow  2010). Since they operate in the gender equality and anti-discrimination fields, it entails that both groups can be considered as relatively weak groups within the framework of the European system of interest represen-tation: they are transnational public interest groups; with a small-scale budgetand staff; directly engineered and financially maintained by the European insti-tutions. They differ, however, in their approach to law as a rights advancementtool. This point is particularly interesting as it allows to link together two differ-ent bodies of literature, i.e., the authors who characterize law as a tool oftenmobilized to the advantage of strong actors – such as private companies, orbroad actor coalitions built on public–private machines (Bo¨rzel 2006;Harding  1992; Stone Sweet and Brunell 1998), together with socio-legal studies, where law is represented more frequently as a weapon of the weak (Guiraudon 2001; Scheingold 2004; Zackin 2008) or as an effective way to increase the power of weak actors (Vanhala  2011).So, is law a weapon of the strong or of the weak? In this article, we show thatlaw can be a weapon of both strong and weak civil society actors. The EWL andERTF  adapt   to the changing institutional context of anti-discrimination andgender equality policies in a highly reflexive manner. Our approach is embeddedin the studies on European-based civil society organizations which are w illing toanalyse their strategies to promote causes and seek political leverage. 1  We arecontributing to this strand of literature not only by focusing on how forms of mobilization reflect the logic and structure of EU institutions (Marks andMcAdam 1999), but also by looking at how the organizations interact witheach other ‘while competing over resources and positions as well as co-operating and forging alliances’ (Johansson and Lee 2013: 4). Thus, in order to solve ourpuzzle and explain the different ways in which the EWL and ERTF bring into play law as an instrument, we will mobilize three main sets of variables:organizational resources; collective identity; the positions within the Europeanpolitical system. LAW AS A LEGITIMIZING AND RESTRICTIVE TOOL:EUROPEAN INSTITUTIONS AND THE EMERGENCE OF TWOEUROPEAN-LEVEL PUBLIC INTEREST GROUPS  As ‘guardian of the treaties’ and initiator of EU law, the European Commissionhas begun to finance European civil society groups as a way of bolstering its 588 Journal of European Public Policy    D  o  w  n   l  o  a   d  e   d   b  y   [   F   N   S   P   F  o  n   d  a   t   i  o  n   N  a   t   i  o  n  a   l   d  e  s   S  c   i  e  n  c  e  s   P  o   l   i   t   i  q  u  e  s   ]  a   t   0   0  :   4   6   2   4   M  a  r  c   h   2   0   1   4  supranational stature. This was seen as a means to develop a stable system of influence to boost the integration process, and it provided a remedy to the Com-mission’s lack of expertise and information in some fields. The EWL and theERTF are paradigmatic examples of the way in which this functionalist logicplays out in the field of rights promotion for women and the Roma people. Fur-thermore, the Commission has developed incentives to spur the creation of umbrella groups (Pierson 1996). With the help of more activist elementswithin the Commission, law has indisputably allowed these groups to exist. At the same time, it has had the effect of circumscribing whom exactly thesegroups can and should represent. In other words, it has defined the legitimatecategories of Roma people and of women protected under European law.This circumscription has introduced dividing lines within the interest groupsthemselves. All interest groups – transnational groups especially – constitute politicalarenas in which actors must formally and informally negotiate the political, cul-tural and social meaning and orientation of their collective action. To make itpossible, a political process of collective identity construction must take place, inwhich common interests are unified into a singular ‘interest group’. WhileRoma and women’s groups can be defined as relatively weak actors withinthe European interest representation system, their creation has been synon-ymous with the empowerment of   some   Roma people and of   some   women,because of the restrictive power of the law, in accordance with these internallines of division. The EWL: engineering the representation of some ‘women of Europe’? Sonia Mazey has underlined the extent to which the Commission has ‘encour-aged the growth of a transnational European women’s lobby to support andlegitimize Commission initiatives in this sector’ (Mazey  1995: 142). Themost remarkable aspect of the creation of the European Women’s Lobby in1990 lies in its late arrival if we consider: that the Treaty of Rome includedan article on equal pay (Art. 119, now Art. 157); that the first directive onthe equal treatment of women and men dates from 1975; and that the firstruling from the European Court of Justice (ECJ, now the Court of Justice of the European Union [CJEU]) dates from 1976. In the light of this long process, two main characteristics should be emphasized. Firstly, the creationof the EWL was an exercise in engineering, supported and even sustainedthroughout by dedicated femocrats (McBride Stetson and Mazur 1995),whose ‘dream’ was to enable ‘women’s organisations to co-ordinate in orderto be able to influence institutions’ (Man 1997: 127). Secondly, the diversity of women’s and feminists’ movements throughout Europe also delayed theprocess. Ten years went by before a European-level e´lite of specializedwomen’s representatives – meeting the standards and requirements of the Com-mission (i.e., participating in the gender equality policy process) – finally emerged in 1990. Since then, the operating grant allocated each year by the S. Jacquot & T. Vitale: Analysis of legal mobilization by Roma and women’s groups 589    D  o  w  n   l  o  a   d  e   d   b  y   [   F   N   S   P   F  o  n   d  a   t   i  o  n   N  a   t   i  o  n  a   l   d  e  s   S  c   i  e  n  c  e  s   P  o   l   i   t   i  q  u  e  s   ]  a   t   0   0  :   4   6   2   4   M  a  r  c   h   2   0   1   4
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