Pressure Through Law

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Overview

Group litigation has been recognised by political scientists in the States as a useful method of gaining ground and attracting publicity for pressure groups since the turn of the century. In Britain however, recognition that the courts fill such a role has come more slowly. Despite this lack of recognition, pressure through law is far from a modern phenomenon. As the authors show, such cases can be identified in Britain as early as 1749 when abolitionists used the court to test conflicting views of slavery in common law.

This book looks at the extent to which pressure groups in Britain use litigation, presenting a view of the courts as a target for campaigners and a vehicle for campaigning. It begins with a description of the tradition of pressure through law in Britain, tracing the development of a parallel tradition in the United States, which has been influential in shaping current British attitudes.

The authors analyse the significance of the political environment in Britain in test-case strategy. In contrast with America, Britain has no written constitution and no Bill of Rights and its lack of Freedom of Information legislation makes both litigation and the monitoring of its effects very difficult. However, the centralised character of the British government means that the effects of lobbying are rather more visible in the corridors of power.

The authors examine a large number of case studies in order to analyse current practice, and they look at the rapidly changing European and international scene, discussing transnational law, the European community and the Council of Europe. They also look at the campaign tactics of global organisations such as Amnesty and Greenpeace.

Carol Harlow and Richard Rawlings are experienced in public law and familiar with political science literature. They are therefore able to relate legal systems to the political process, in a book designed to be accessible and important to lawyers, to political scientists and to lobby group activists.

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Editorial Reviews

Herbert M. Kritzer
Starting with various descriptions of cases brought by the NAACP Legal Defense and Educational Fund (LDF), American political scientists, historians, and legal scholars have documented and analyzed the use of courts in the United States by interest groups. In PRESSURE THROUGH LAW, Carol Harlow and Richard Rawlings (both faculty members in the London School of Economic's Law Department), seek to extend this type of analysis to twentieth-century Britain. The result is a rich body of materials that (1) adds to the growing skepticism over American exceptionalism regarding the role of law, and (2) provides a perspective on British politics typically overlooked by political scientists. Every political scientist who teaches and writes about law, courts, and politics in the United States is familiar with Alexis de Tocqueville's 19th century observation that "[s]carely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." In contrast, how many are aware that the end of slavery in England was accomplished primarily through a court decision (pp. 12-17)? While it was not until 1833 that the British Parliament acted to end slavery throughout the British Empire, slavery in England was effectively ended by the decision of Lord Mansfield in Somerset v. Stewart, a decision handed down in 1772, four years before the American colonies declared their independence. The Scottish courts handed down a similar ruling six years later in Knight v. Wedderburn. PRESSURE THROUGH LAW opens with a chapter that traces early use of court action by English pressure groups on several issues: slavery, women's suffrage, civil liberties (e.g., against compulsory vaccination, rights of public protest, etc.), animal welfare, environmental issues (e.g., preservation of green spaces, archeological sites, etc.), and public morals (campaigns against prostitution, profanity, drunkenness, obscenity). These early examples involved a mix of civil actions and criminal prosecutions brought by private parties (prosecution in England was, and technically still is, a private matter, albeit it is usually handled today by the Crown Prosecution Service). While, many of the early attempts to use the courts and legal action were unsuccessful, that does not undercut the point that there is a long history of such activities in England. After the introduction to interest group litigation in England, the authors take the United States as the paradigmatic case of such action. They review the historical bases of such action in the U.S. and discuss the recent significance of litigation in U.S. for issues such as civil rights, civil liberties, criminal justice, and abortion rights. Along the way the authors discuss the key role played by prominent groups such as the LDF and the ACLU, both as litigants and as third parties acting as amicus curiae. There is also some discussion of the research literature on courts and interest groups in the United States (e.g., Epstein's CONSERVATIVES IN COURT), but this does not form the core of the chapter, nor does it serve to initiate a discussion of a theoretical framework for what is to follow. The four central chapters of the book examine British interest group activity in the courts: one chapter on civil actions as a primary mode of court use, one chapter on court action as an ancillary activity to public campaigns and the lobbying of Parliament and the bureaucracy, one chapter on the linkage between interests and the criminal courts, and one chapter on extra-national activities involving the European Convention on Human Rights (including the European Court of Human Rights) and the European Court of Justice (the court of the European Economic Community). Each of these chapters discusses a variety of examples, some successful and some unsuccessful, of interest group use of the courts. Care is given to map institutional factors that condition these actions: the English fee shifting rules in civil Page 31 follows: litigation (i.e., the loser pays rule), the funding of court action through legal aid, and the availability of private prosecution in the criminal courts. To the reader familiar with the courts and interest groups literature from the United States, some of the examples discussed in the chapter on civil litigation seem more like large scale, noninterest group actions. For example, Harlow and Rawlings include disaster litigation (e.g., vaccine damage) in the chapter on "Group Action in the Civil Courts"; while this discussion serves as a nice lead-in to the absence of American-style class actions, it seems to have little to do with interest groups as that concept is typically used by political scientists. Other examples (e.g., the activities of the Freedom Association) discussed sound very similar to interest group litigation in the United States. Throughout the civil litigation chapter, the authors consider how the institutional arrangements (funding rules, cost rules, standing rules, the role of the Attorney- General, etc.) serve to encourage or inhibit group litigation. In the chapter on "Courts, Campaigns, and Lobbyists," Harlow and Rawlings use a variety of examples to show how some interests have succeeded in using the courts and litigation as a part of a larger political program. Sometimes a group finds a way to package a case (or set of cases) so that it fits nicely into the perception of courts as having a limited role. For example, the Anglers' Cooperative Association (ACA) assists landowners (who happen to be fishing enthusiasts) to bring property actions against upstream polluters; the success of these actions affects all anglers who use the stream in question. The good fit here reflects the English courts' traditional role as protectors of property rights. While these instances of good fit are noteworthy, most of the examples cited by the authors in this chapter do not fit as neatly as the ACA actions. The range of groups and campaigns discussed demonstrate both successful and unsuccessful uses of the courts by British interest groups. As noted previously, the role of private prosecution in Britain opens up an avenue of group action that does not exist in the United States. While interest groups in both countries may be involved in lobbying public prosecutors for action in certain types of cases (typically vice-related), in Britain some groups organize to bring cases themselves. A good example is in the area of animal rights and welfare, where the Royal Society for Prevention of Cruelty to Animals investigates tens of thousands of complaints a year, and successfully prosecutes about 2,000 cases a year. In Britain, it is common to include within the criminal law areas which in the U.S. are largely (if not exclusively) civil. Thus, as polluters become subject to criminal sanctions, groups like the ACA have begun to institute private prosecutions to curb pollution. British interest groups are no longer limited to bringing cases in the British courts. Increasingly, it has become possible for these groups, perhaps working with similar groups in other countries, to turn to the European Court of Justice (the court of the European Community), or the European Commission (and Court) on Human Rights (which investigates and rules on issues under the European Convention on Human Rights). More generally, Britain's international treaty obligations (whether to Europe or through institutions such as the United Nations) create legal vehicles which transcend any limits within the British courts. For example, while Britain does not have a national equivalent of the American Bill of Rights or the Canadian Charter of Rights and Freedoms, the European Convention on Human Rights provides some similar protections; the (British) National Council on Civil Liberties has successfully brought a number of cases to the European Court of Human Rights. Single-issue groups (e.g., Society of Teachers Opposed to Physical Punishment) have also had a measure of success bringing cases under the terms of the Convention. Until the final chapter, Harlow and Rawlings' discussion is largely descriptive, showing the various ways that interest groups have sought to use the British (and European) courts to exert influence on public issues. In the final chapter, the Page 32 follows: authors make some efforts to add theoretical insights to their analysis. For example, they argue that British politics in the post-War years moved in the direction of pluralism (a trend that was accelerated by Thatcherism), and this spurred interest groups to consider avenues of influence through the courts. They argue that explanations of interest group success developed in the American context are wanting in the British context, and they try to develop more institutional explanations (e.g., group personality, "good fit", etc.). Lastly, they try to apply a set of metaphors to contrast the American ("freeway") and traditional British ("drainpipe" with the judge's hand on the stopcock) approaches to access to the courts, and argue that changes in Britain have moved away from the drainpipe toward a "funnel" (i.e., more open at the top, but still constrained at the output end). Overall, this is a valuable book, less for the brief (and not altogether satisfying) theorizing that seems a bit tacked on, than for the extensive descriptive discussion. The range of cases and groups considered in PRESSURE THROUGH LAW belies the view that courts are an unimportant player in British politics albeit the authors do not argue that the political role of courts is equal to that of courts in the United States. While others have argued that courts are an important part of the British polity (see J.A.G. Griffith's THE POLITICS OF THE JUDICIARY), political scientists specializing in British politics more broadly have yet to devote significant attention to the courts. (While several judicial scholars have looked at judicial process in Britain as political scientists have looked at judicial process in the United States, this work has not considered the courts more broadly as part of a larger political system). Hopefully, the wealth of material provided by Harlow and Rawlings will lead to increased efforts to bring theories of governmental institutions and political processes to bear on the study of courts in Britain.
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Product Details

  • ISBN-13: 9780415015493
  • Publisher: Taylor & Francis
  • Publication date: 11/17/1992
  • Pages: 392
  • Product dimensions: 6.14 (w) x 9.21 (h) x 0.94 (d)

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