The Scandinavian Rights Revolution: Courts, Rights and Legal Mobilization Since the 1970s

Abstract

In light of previous research, Denmark, Norway and Sweden seem unlikely cases for a ‘rights revolution’ to occur, whether it’s because of a political culture based on ‘strong state’ corporatism and parliamentary sovereignty; a distinct variety of a civil law legal system where courts traditionally defer to elected branches of government; or a dominant doctrine of Scandinavian legal realism dismissing rights talk as nonsense. Yet in recent years, diverse groups in Scandinavian civil society increasingly have used strategic rights litigation to pursue social change on a broad array of causes, ranging from lawyer-driven legal aid organizations via environmental conservationists and indigenous rights groups to antiabortion activists and LGBT advocates.

This paper seeks to explain this shift, drawing on a broad range of qualitative and quantitative data and offering a structured comparison of three parallel episodes of contention since the 1970s. In the 1970s, litigation was chiefly a marginal strategy pursued by entrepreneurial activists off the fringes of the political mainstream, challenging an expansionist welfare state from the left in Denmark and Norway and from the right in Sweden. However, the mounting impact of the European Convention on Human Rights from the 1980s expanded the opportunities for rights mobilization in courts, attracting ever more civil society groups to add litigation strategies to their repertoires. In recent decades, civil society litigation has matured and normalized, while courts have continued to expand their role as arenas for political struggles, and policymakers have slowly learned to adjust to the new landscape.

The paper thus makes two key contributions: Empirically, we offer a novel, original account of the
emergence of strategic litigation in Scandinavia. Theoretically, given that the Scandinavian states are ‘unlikely cases’, they also allow us to determine the scope conditions of theories of legal mobilization developed for other contexts. Specifically, we employ conceptions of political and legal opportunity, detailing how different structural conditions, despite the systemic similarities of the Scandinavian states, have set different constraints and incentives for civil society legal mobilization across the three cases.

Keywords: legal mobilization, strategic litigation, Sweden, Denmark, Norway, legal opportunity, European Convention on Human Rights

JEL Classification: K00