Supporting Legal Action

Laws provide the skeletal frame of a social order but while laws in theory and by tradition serve the cause of justice, they can easily be, and often are, used to reinforce a repressive regime. Here James A. Goldston and Martin O’Brien reflect on the long experience of Open Society Foundations and Atlantic Philanthropies in supporting legal initiatives and the value they see in maintaining that commitment in the future. As their accounts show, legal action remains crucial not only to providing access to justice but, through strategic litigation, to making significant changes to what is considered right and acceptable throughout entire societies.

James A. Goldston writes:

At a time when the rule of law is under siege in large parts of the world, the Open Society Foundations attaches particular importance to strategic litigation and legal tools more generally in advancing human rights and justice. For more than a quarter century, OSF has supported the use of litigation by civil society actors and, where appropriate, state agencies as one component of a multi- pronged strategy for change that includes advocacy, campaigning, community mobilisation and communications.

Strategic litigation creates space for dialogue, evens the field of power, spotlights abuse and focuses public pressure. When

pursued strategically – that is, deliberately and as part of a broader mosaic of tools – litigation furthers open society values on two levels. Most concretely, it contributes to an advocacy goal specific to time and place, from digital democracy in Kenya to racial equality in the United States. Simultaneously, each legal action tells a powerful story: ordinary people can use the law to serve the ends of justice.

The political winds have shifted since the end of Communism and the focus of the law, courts and litigation have shifted with them so that, in too many places, law is the currency by which authoritarian leaders have consolidated control, suppressed dissent and concealed theft. It is also one of the principal levers by which corporate power has been magnified and worker power diminished.

At the same time, popular demands for a better life are framed ever more widely in the language of rights. In many countries, judicial fora remain among the few places where uncomfortable questions can be aired. Litigation cannot change the world by itself but wins in court can be important, granting legitimacy to claims long silenced

and narrowing the range of justifications for defenders of oppression who can no longer say, ‘You may not like it, but it’s the law’. If the world is to re-emerge from this dark authoritarian period, law – and more specifically, litigation – will play a central role in that struggle.

For all its imperfections, litigation can have real and positive impacts along a spectrum from the material to the emotional. At one end, courts order the construction of schools, the provision of reparations for victims of torture and criminal prosecution of perpetrators. At the other, a judgment may offer complainants the personal satisfaction of having officially confirmed a narrative of events falsely but vehemently denied. And in between, lawsuits can lead to enhanced recognition of rights, new institutions to enforce them and the adoption or reform of legislation.

OSF’s commitment to strategic litigation extends beyond grantmaking to operational engagement. In 2003, the foundation established the Open Society Justice Initiative as an in-house public interest law firm to put into practice the rule of law ideals that underpin its financial support for grantees. The ability to deploy legal action and provide legal advice has fostered myriad synergies with OSF and other grantmakers and partners.

Martin O’Brien writes:

The founder of Atlantic Philanthropies wanted to put the foundation’s assets in the hands of people working to make a lasting difference to the lives of marginalised and disadvantaged communities. He believed that deploying funds over a fixed period could maximise their impact. The foundation closed in 2020 after distributing just under $9 billion. The mission of making a lasting difference led Atlantic to support strategic litigation.

We believed that if you could change the law you could make broader systemic change that would benefit larger numbers of people.

Strategic litigation offers opportunities for change at scale. Atlantic supported different change making strategies but strategic litigation was an element across all of the programmes and in nearly all of the geographies where it operated.

In some places and programmatic themes, it was a significant element of the portfolio. For example, we believed that South Africa’s progressive constitution provided lots of opportunities for both our health and human rights grantees to advance change. Among other gains, those investments helped to deliver widespread access to anti-retrovirals for people with HIV, improvements in education for poor people, access to land rights and social welfare benefits and significant gains for the LGBTI community including the right to marriage.

Strategic litigation was attractive for a spend-down philanthropy because changes to the law can establish precedents, often endure and can support a sustainable and systemic legacy and, in planning the wind down of Atlantic, we were keen to ensure that the capacity to litigate endured.

That led to investments in things like the Pils Fund in Northern Ireland which tackles disincentives to litigation by, for example, indemnifying litigants against cost awards. In the Republic of Ireland support was given to PILA to encourage more pro bono support for strategic litigation. Similar efforts were supported in South Africa with probono.org.

Investments were also made in strengthening the capacities and infrastructures of a range of organisations like the Center for Constitutional Rights in the US and Free Legal Advice Centres (FLAC) in Ireland which have litigation as a core activity. Resources also went to encourage new support for organisations that undertake strategic litigation and other human rights activities. Examples include the Constitutionalism Fund in South Africa and the Human Rights Fund in Northern Ireland.

In reflecting on this work, the greatest impact came when litigation was allied to other change strategies such as community organising, mobilising opinion and legal advocacy. The impact is also greatest when those who need the change are closely involved in the development of legal strategies and allied campaigns. The lawyers work at the service of the clients rather than the other way round. It’s also clear that you can sometimes lose in court but win in the broader campaign because the case mobilises opinion and drives change. The converse is also true. Donors interested in supporting strategic litigation should also resource efforts to secure implementation of legal judgments. Just because it’s the law doesn’t mean that change happens on the ground.

In common with other philanthropic strategies for change, there can often be unintended consequences. Unless carefully thought through, cases can establish regressive and concealed theft.

precedents. Alternatively, they can yield unintended benefits. For example, in the US, as part of work to abolish the death penalty Atlantic supported the Roper case which successfully challenged the juvenile death penalty in the Supreme Court. Happily, this death penalty case has also had significant impact on the broader juvenile justice system.

 

James A. Goldston is executive director of the Open Society Justice Initiative.

Martin O’Brien is director of the Social Change Initiative and former senior vice-president at Atlantic Philanthropies.