The Role of Support Structures and Judicial Receptivity in Shaping Legal Mobilisation: The Case of Brazil's Landless Workers Movement

Introduction?

Legal mobilisation refers to the process whereby activists and social movements utilise legal institutions and strategies to advocate for social justice. According to Epp (1998), it entails asserting legal rights through coordinated litigation and the courts (p. 18). Zemans (1983) describes legal mobilisation as a transformation of “wants into demands as an assertion of rights” (p. 700), such as through legal advice or invoking legal norms. Michael McCann (2006) argues that “litigation alone rarely advances significant social change” (p. 4), and he emphasises the importance of integrating litigation with other forms of mobilising like protests, lobbying, and advocating for legal rights, which Celeste Arrington (2019) agrees with, noting that these strategies can complement each other to support a social movement, with litigation potentially enhancing lobbying efforts or protest movements and even extending bargaining power (Arrington, 2019; McCann, 2006). Given these insights a critical question arises that remains the focal point of this research: What are the key factors that incentivise or discourage activists and organizations from engaging in legal mobilisation for social change? This paper posits that two fundamental factors—efficacious support structures, specifically public interest lawyers, and judicial receptivity—are critical in enabling successful legal mobilisation across various socio-legal landscapes. Examining the case of Brazil's Landless Workers Movement (MST), it highlights how MST utilized support from public interest groups like the Pastoral Land Commission (CPT) and National Network of Popular Lawyers (RENAP) to bolster their legal claims and activities. Concurrently, a responsive judiciary, illumined by favourable landmark rulings, enhanced their mobilisation efforts. The study underscores the crucial link between effective support structures and a receptive judiciary in the realm of legal mobilisation. Through examining historical and political contexts, existing scholarship, and MST’s activism, this paper demonstrates how access to legal expertise and accommodating judiciary actors motivated and facilitated the movement’s sustained legal mobilisation efforts in the pursuit of land reform.?

Literature Review

Sociological Institutionalism?

Sociological institutionalism stresses that non-material factors like the nature of social movements, identity, and the way they are framed have a big impact on legal mobilisation (Vanhala, 2017, p. 395). Additionally, it explains how shared norms and values shape behaviour within institutions. This theory suggests that activists’ perception of law as a suitable and ethically acceptable avenue for change encourages legal mobilisation. Groups are more likely to engage in legal mobilisation when their identity and framing processes identify the law as an effective and morally acceptable action target. Vanhala (2017) emphasises the role of collective action framing and the impact of groups’ interpretation of the law itself in understanding legal mobilisation. On the surface, this theory seems applicable to the MST case. The movement framed land reform as a legal right enshrined in Brazil's 1988 Constitution. Their identity as marginalised peasants demanding social justice aligned with using constitutional provisions to advance their claims (Robles & Veltmeyer, 2015). However, sociological institutionalism does not sufficiently explain what enabled the MST to operationalize legal mobilisation beyond just conceptual acceptance. Despite viewing legal strategies positively, the MST still faced severe resource limitations as landless peasants, which could have hindered mobilising litigation. They needed material support to translate their rights-based framing into tangible results. Here the support structure explanation becomes salient, as Epp (1998) notes how vital resources facilitate sustained legal mobilisation. For the MST, support came from partnerships with public interest lawyers who provided vital legal knowledge and guidance for navigating constitutional arguments (Houtzager, 2005). Without this expertise, the MST’s grassroots identity could have deterred complex litigation, despite their positive perception of legal mobilisation. They relied on allies to unlock the potential of constitutional provisions. Additionally, the MST endured political repression that could have negated their receptivity to legal?strategies, as authorities used force to quell land occupations (Robles & Veltmeyer, 2015). However, favourable court rulings reinforced the viability of litigation, incentivizing further legal action. Thus, judicial receptivity emerged as another key determinant, regardless of institutional identity. The MST case demonstrates the limitations of solely identity-based explanations. Attention must also be paid to how groups gain access to legal systems and how judicial allies can validate legal mobilisation. With adequate support structures and judicial receptivity, framing legal claims as acceptable becomes less central.?

Political Opportunity Structures?

Political Opportunity Structures (POS) assess how the political environment influences social movements’ prospects (Hilson, 2002, p. 242). Changes in power relations can impact movement strategies, including legal mobilisation (Hilson, 2002, p. 243). Andersen (2006) and McAdam (1996) agree that political receptivity is crucial; even with access, unreceptive elites can deter success, leading groups to pursue alternatives like litigation. If political venues seem closed while courts are receptive, groups are more likely to mobilise through the law. This argument seems applicable to the MST case, as the transition to democracy in 1985 opened political opportunities, encouraging their mobilisation. However, POS overstates the importance of political contexts while overlooking legal factors. The MST case demonstrates this, as they pursued legal mobilisation even during politically repressive periods, like under the Cardoso administration in the 1990s. When the state used force to restrain land occupations, the courts upheld the MST’s constitutional arguments, validating legal mobilisation despite political setbacks (Carter, 2010). Additionally, POS does not address how marginalised groups navigate legal systems once opportunities emerge. As the MST case shows, judicial receptivity created tangible openings for legal action, but landless peasants still required vital resources to capitalise on these openings. The MST established education programmes in occupied settlements not just for basic literacy but also to cultivate grassroots legal?leadership within the movement. As Wolford (2010) discusses, the MST National School trained activists on land expropriation laws and court procedures to lead local struggles. By educating members, the MST essentially built its own support structure to sustain legal mobilisation. This grassroots legal training, along with partnerships with public interest lawyers, helped decipher complex constitutional arguments (Houtzager, 2005). Thus, while the 1985 democratic transition politically empowered the MST, these enduring educational and legal support structures were equally, if not more, instrumental for strategic legal mobilisation over time.?

Legal Opportunity Structures?

Legal Opportunity Structures (LOS) is a framework that focuses on the institutional constraints and incentives that influence an organisation’s use of legal proceedings as a strategy (Vanhala, 2017, p. 384). It highlights the importance of access to justice in determining the likelihood of groups utilising the law as a mobilisation tool (Hilson, 2002, p. 243). It also considers laws related to standing, the availability of state legal funding, the presence of favourable legal precedents (legal stock), and the receptiveness of the judiciary to specific policy arguments (Hilson, 2002; Vanhala, 2017). In analysing the MST’s use of litigation tactics and courts to advance their goals, LOS sheds light on several important aspects. For instance, Brazil’s 1988 Constitution became a valuable legal tool as it acknowledged land reform as a legal right, essentially enhancing the MST’s “legal stock” (Vanhala, 2017). Similarly, receptivity within the judiciary came into play, as evidenced by certain Brazilian judges who recognized MST’s claims. One notable instance was in 1997, when the Supreme Court ruled that the concentration of land was contrary to the constitutional mandate of land reform, thus affirming the main argument of the MST movement (Santos & Carlet, 2008). While the LOS framework offers valuable insights, it alone does not fully explain why MST’s activists have turned to litigation. Epp’s (1998) support-structure explanation introduces additional factors that complete the picture, including collaboration with legal?professionals and organisations, robust knowledge of law and legal systems, and international support. These support structures significantly empower and encourage MST activists to advance their claims through litigation processes and courts.?

Support-Structure Explanation?

The support-structure explanation, according to Epp (1998), argues that a robust network made up of rights-advocacy organisations, legal professionals, and financial resources is crucial for driving and sustaining legal mobilisation. It helps level the playing field for marginalised groups in litigation against more resourceful opponents. Epp challenges views focused solely on judicial receptiveness or constitutional provisions, emphasising the need for “material support for sustained pursuit of rights” (1998, p. 17). While judges and constitutional guarantees are indeed relevant, Epp (1998) notes that support structures found in civil society are necessary for sustained constitutional litigation (p. 6). Such support structures not only democratise access to the legal system but also ensure that rights are protected and preserved. As seen in MST’s case, solely relying on the LOS framework may be insufficient to explain the use of litigation. MST's success in leveraging its litigation is not solely attributed to judicial openness or constitutional guarantees as implied by LOS, although these are undoubtedly important factors. Instead, the support-structure explanation offers a more comprehensive understanding by emphasising the importance of resources (both material and non-material) and collective efforts (Epp, 1998, pp. 5-6). In situations where MST found their legal standing compromised, the movement leaned on rights-advocacy organisations that helped legitimise their claims in court. Advocacy groups RENAP were instrumental in representing MST's cause and bridging communication with judicial institutions. These collaborations often produced new legal interpretations favourable to MST's rights, demonstrating the practical effectiveness of this interconnected structure. In terms of material resources, international donors, NGOs, and progressive lawyers provided not just legal advice but also financial assistance, thereby ensuring MST's financial stability for pursuing legal channels. Within the MST community, a culture of mutual trust and internal collaboration further complements and enhances both the LOS and support-structure frameworks. Building a shared sense of purpose and unity amongst MST activists strengthens their resolve and bolsters their collective bargaining power in the legal arenas.?

In essence, the combination of the LOS approach with the support-structure explanation reveals the layers of MST’s strategic use of litigation. The LOS concept predominantly addresses the political and judicial landscape, while the support-structure encompasses the practicalities of resource networks and internal solidarity. Therefore, combining LOS with the support-structure explanation can lead to a more complete understanding of how MST activists have effectively used litigation to advance their cause.?

Historical and Political Context: The Case of MST in Brazil?

Historical Overview?

Brazil is the world's ninth largest economy and the globe's tenth-most-unequal society in terms of income distribution. The wealthiest 10 percent of the population holds 45 percent of the nation's income, whereas the poorest 20 percent holds less than 3 percent of this income (UN Development Programme, 2007). The inequity over land ownership in Brazil is rooted in colonial-era land-distribution policies, wherein land ownership was largely monopolised by private landowners (Nicas, 2023; Robles & Veltmeyer, 2015, p. 65). Persisting land disparity can be attributed to the Lei de Terras (Land Law) of 1855, which transitioned land acquisition from monarchy-provided grants to a commoditized model favouring the affluent. This policy side-lined the rural poor, predominantly former slaves, and small farmers, perpetuating the trend of concentrated land?ownership (2015, p. 69–72). In the 1960s and 1970s, after the 1964 coup d'état, a military dictatorship gained control in Brazil. This regime focused largely on agricultural modernization and farmland expansion, neglecting urgent calls for land redistribution and agrarian reform. Under this regime, land reform was confined “to a colonisation program in the Amazon and largely removed from public debate” (Carter, 2010, p.194). There were few attempts at agrarian reform, such as the 1964 Statute of the Land, but these failed due to bureaucratic interference and opposition from the landowning elites (Marques, 2013, p. 76). Liberation theology, a Catholic doctrine advocating social justice and the rights of the poor, emerged during this era (Houtzager, 2005, p. 232). This doctrine inspired church activists to support landless peasants, starting with land occupations in Rio Grande do Sul in the late 1970s and eventually leading to the Landless Workers Movement (MST) in 1984 (Hammond & Rossi, 2013, p. 1).?

Political Context?

The emergence of the MST must be understood in the larger socio-political context of Brazil in the late 20th century. Even after the transition to democracy in 1985, Brazil continued to be controlled by influential landowners who were aligned with global agribusiness interests. This alliance among the landed elites, agribusiness, and the state worked together to prevent significant land reform and maintain Brazil's highly unequal agrarian structure (Robles & Veltmeyer, 2015, p. 120). Furthermore, while the 1988 Constitution recognised land reform and the social function of property as legal rights, in principle, barriers remained — including the MST’s lack of formal legal standing to file lawsuits or participate as interested parties, necessitating representation through advocacy groups, NGOs, or legal professionals (Brazil, 1988; Houtzager, 2005, p. 218). Yet impoverished peasants cannot afford legal costs, depending on external funding and pro bono assistance. The complexity of Brazil's legal system poses additional hurdles. The decentralised?judiciary allows local judges latitude to interpret laws and undermines the impact of high court rulings. Lower courts frequently decontextualise and depoliticise the collective socioeconomic struggles of peasant movements. Nonetheless, some political and legal openings emerged for mobilisation to exploit legal channels. The rise of the leftist Workers’ Party (PT), and progressive shifts within sectors of the Catholic Church created opportunities for the MST and land reform struggles. These political openings allowed the MST to contribute to significant legal changes regarding land rights. The PT provided political allies for the MST, moving land rights issues into the national political debate. Simultaneously, networks of progressive lawyers, such as the National Network of Popular Lawyers (RENAP), emerged, bridging the gap between social movements like the MST and judicial institutions. Today, the MST has solidified its position as the world’s largest democracy-operational, Marxist-inspired movement. Having witnessed 40 tumultuous years of land occupations, the movement has morphed into a significant political, social, and cultural force in Brazil. It has rallied hundreds of thousands of Brazil’s working class to appropriate unused land from wealthier counterparts for collective farming, which is largely favoured by the leftist ideology. This has resulted in a political quandary for the leftist president, Luiz Inácio Lula da Silva, a long-time supporter of the movement, who now grapples with building bridges in Congress and the potent agriculture industry. Despite this, the movement continues to grow with an estimated informal membership approaching nearly two million people or almost one percent of Brazil’s population (Nicas, 2023).?

Analysis?

Utilising Robust Support Networks?

Support structures serve as crucial foundations for social movements such as the MST, bolstering their capacity to confront opponents and successfully negotiate the legal arena. By?providing essential resources, expertise, and representation, these structures can significantly influence court decisions in favour of marginalised groups. In the MST’s battle for land reform, numerous instances demonstrate the vital role of these partnerships in surmounting legal obstacles. Among these compelling partnerships that have shaped MST’s journey is the Pastoral Land Commission (CPT), an “ecumenical agency linked to the Catholic Church,” which has played an instrumental role in the MST’s ongoing struggle for land reform (Carter, 2010, p. 194). As an advocate for the marginalised rural poor, the CPT has offered crucial legal support to landless peasants, while simultaneously leveraging the moral force and public influence of the Church to highlight the pressing issue of land conflicts (Meszaros, 2000). One particularly notable case that underscores the impact of the CPT's involvement is the 2012 Felisburgo Massacre. This tragic incident, in which 27 shelters and a school were burned down, resulted in the death of five landless workers during a land dispute in the state of Minas Gerais (BBC News, 2013). Initially, the court proceedings were stymied by resistance from local judges who had ties to landowning interests. However, thanks to the concerted efforts of the CPT and other human rights organizations, not only was the trial moved to a federal court, but it also concluded with the conviction of the landowner, marking a significant victory for landless peasants (Houtzager, 2005). This case effectively demonstrates the transformative power of strategic alliances in overcoming entrenched resistance in the quest for social justice.?

Another prominent ally in the MST’s fight for land reform has been the Rede Nacional de Advogados Populares or National Network of Popular Lawyers (RENAP). This network of public interest lawyers provides legal support for social movements. These lawyers have been instrumental in helping MST members navigate lawsuits and criminal charges related to land occupations. To illustrate, RENAP often linked inexperienced local lawyers with nationally recognized jurists and played a crucial role in building trust between social movements and judicial protagonists (Houtzager, 2005, p. 236-7). This has helped produce new legal interpretations and court rulings favourable to the MST's goals. These allies were instrumental in advancing MST's agenda, providing financial support, legal expertise, and strategic guidance amidst an unreceptive political and legal environment. For example, in September 1998, approximately 600 landless families occupied farmland called Fazenda Primavera in Rio Grande do Sul, Brazil. The land was leased by Merlin Industries. Merlin expelled the families and filed for a repossession order, arguing the families were criminally trespassing. A local judge agreed. The lawyers appealed to the S?o Paulo Tribunal of Justice, reframing the conflict as a public interest issue involving constitutional rights to dignity and land that serves its social function. They highlighted the landowner’s failure to pay taxes and debts. One month after the occupation began, the Tribunal overturned the repossession order, accepting that constitutional principles took precedence over civil code, and recognizing the state’s duty to ensure fundamental social needs (Houtzager, 2005, p. 223). This allowed the families to remain on the land and pressured the owner to negotiate transferring the land to the federal land reform agency. Furthermore, the Human Rights Sector of the MST provided critical support by training MST members and providing legal assistance through a network of over 500 attorneys across Brazil. This network helped advocate for the rights of landless rural workers and legally defended them in the face of human rights abuses. Finally, despite facing severe backlash and repression under the Cardoso administration, MST showed extraordinary resilience. The movement expanded international solidarity networks like ‘Friends of the MST’ and rallied financial aid from Catholic foundations and NGOs, managing burdensome legal costs (Santos & Carlet, 2008, p. 23).?

These relationships acted as a support structure by facilitating an understanding of legal texts and possibilities, advising on strategy, and providing services that would otherwise have been inaccessible (Epp, 1998). It was the work of these advocacy organisations and public interest lawyers that have allowed MST to penetrate the intricacies of Brazil’s legal texts and codes, strengthening their grasp of constitutional rights and effectively unlocking legal access for the previously disenfranchised landless demographic (Houtzager, 2005, p. 224; Santos & Carlet, 2008, p. 22).?

Judicial Receptivity: An Incentive for Legal Mobilisation?

Judicial receptivity, or the openness of the judicial system to reformist claims, is another influential factor in MST’s shift towards legal mobilisation. Epp (1998) argues that judicial receptivity might be even more significant for legal mobilisation than the presence of progressive legislation itself. In the case of MST, the Supreme Court's rulings in 1996 confirmed the constitutionality of the group’s land reform demands and were instrumental in mobilising the MST (Robles & Veltmeyer, 2015, p. 97). When the courts acknowledged the social function of land and the need for agrarian reform, they gave MST and their supporters greater confidence in the utility of legal mobilisation. It illustrated that the judiciary, under the right pressures, could serve social justice ends. Thus, it is evident from the MST case that judicial receptivity can incentivize legal strategies and can be a valuable tool in social movements.?

Furthermore, in Brazil, the MST has cleverly manoeuvred within a legal terrain typically ruled by conservative judges closely linked to landowning factions. Facing a rocky landscape filled with potential pitfalls, the MST has nonetheless managed to fend off various accusations successfully. This resilience is manifested not only in leveraging the progressive provisions within the Brazilian Constitution and shaping strategic legal alliances but also in capitalising on the changing attitudes in the judiciary. Over time, there has been an observable shift. The once-rigid judiciary is now warming up to the realisation that land reform has a significant role in the socio-economic equilibrium of the nation. A testament to this lies in the emerging jurisprudence sympathetic to their cause (Houtzager, 2005). For example, the state of S?o Paulo has a?conservative judicial tradition, but judges committed to a constitutionalist view of law, human rights, and the democratisation of the judiciary, formed the Association of Judges for Democracy (AJD) in 1991, which came shortly after Brazil's new democratic constitution was enacted in 1988, which the AJD sought to uphold. The decision of the Sao Paulo judges to create independent and formal organisations paradoxically reflects their tenuous position within the state's magistracy. However, some Brazilian courts have failed to acknowledge the constitutional principle that land should fulfill a social function, thereby upholding private property law and exacerbating land conflicts. Although most courts have supported enforcing this social function requirement. For example, in 1998 the Rio Grande do Sul Court of Justice ruled in favor of landless families occupying the Primavera Ranch. One judge stated that Brazilian law prioritises social value over individual value, so property rights should only be protected when the constitutional social function requirement is met. Simply asserting ownership is insufficient; fulfilling the social function is also a legal imperative. This decision has been extensively analyzed by legal experts, strengthening legal arguments for land reform in various Brazilian courts. By elevating social function over private property rights, rulings like this create jurisprudence to aid the struggle for equitable land distribution (Santos & Carlet, 2008, p. 71).?

Conclusion?

In conclusion, this analysis of Brazil's Landless Workers Movement demonstrates that access to robust support structures and an increasingly receptive judiciary played a pivotal role in the movement's ability to effectively utilise legal mobilisation in their struggle for equitable land reform. By leveraging the expertise and resources of allies like the CPT and RENAP, the MST bolstered their legal capacity and obtained favourable rulings that advanced their constitutional claims. Furthermore, the gradual shift within the Brazilian judiciary towards greater sympathy with?land reform struggle provided key incentives for the MST to pursue legal strategies. Landmark decisions upholding the constitutional principle of land's social function established valuable legal precedents that could be utilised to justify occupations and apply pressure on landowners. Ultimately, the MST case reveals how social movements aiming to enact progressive change through legal institutions depend heavily on securing efficacious support networks and cultivating judicial receptivity. When these key ingredients are present, the pathway for successful legal mobilisation opens, creating opportunities for activists to skilfully translate social justice claims into legally enforceable rights and protections. Though the road remains filled with obstacles, the MST's effective harnessing of these vital enablers of legal mobilisation serves as an inspiring model for movements around the world still striving to achieve structural reforms through nonviolent advocacy, undeterred by hostile socio-legal environments.?

Bibliography?

Arrington, C.L., 2019. The Mechanisms behind Litigation's “Radiating Effects”: Historical Grievances against Japan. Law & Society Review, 53(1), pp.6-40.?

BBC News. (2013, October 13). Brazil landowner jailed for 115 years over landless deaths. https://www.bbc.com/news/world-latin-america-24510210?

Brazil. (1988). Constitution of the Federative Republic of Brazil. Brasília, DF: Senate.?

Carter, M. (2010). The Landless Rural Workers Movement and Democracy in Brazil. Latin American Research Review. DOI: 10.2307/27919219?

Emanuelli, M.S. (2014). The Social Function of Land Ownership: Social Claims and Legal Decisions in Rural Brazil. In Take Back the Land! The Social Function of Land and Housing, Resistance and Alternatives, Passerelle. Ritimo/Aitec/Citego.?

Hammond, J. L., & Rossi, F. M. (2013). Landless Workers Movement (MST) Brazil. In D. A. Snow, D. della Porta, B. Klandermans, & D. McAdam (Eds.), The Wiley-Blackwell Encyclopedia of Social and Political Movements. https://doi.org/10.1002/9781405198431.wbespm328?

Hilson, C., 2002. New social movements: the role of legal opportunity. Journal of?

European Public Policy, 9(2), pp.238-255.?

Houtzager, P. (2005). The Movement of the Landless (MST), juridical field, and legal change in Brazil. In B. De Sousa Santos & C. Rodríguez-Garavito (Eds.), Law and Globalization from Below:?

Towards a Cosmopolitan Legality (Cambridge Studies in Law and Society, pp. 218-240). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511494093.009?

Marques, M. E. (2013). Land Reform in Brazil: the arrival of the Landless Rural Workers Movement (MST) in the Orange Zone, frontier of struggle for land in the state of Bahia. Ambiente & Sociedade, 16(2), 69-88.?

Meszaros, G. (2000). Taking the land into their hands: The landless workers' movement and the Brazilian state. Journal of Law and Society, 27(4), 517-541.?

Michael W. McCann (2006), 'Legal Mobilization and Social Reform Movements: Notes on Theory and Its Application', in Law and Social Movements, ed. Michael McCann?

Mier, B. (2017, September 5). MST and the Fight to Change the Brazilian Power Structure: An interview with Gilmar Mauro. Council on Hemispheric Affairs. https://www.coha.org/wp-content/uploads/2017/09/Brian-Mier-Gilmar-Mauro-Interview.pdf?

MST. (2009, July 7). History of the MST. https://www.mstbrazil.org/content/history-mst?

Ondetti, G. (2008). Land, Protest, and Politics: The Landless Movement and the Struggle for Agrarian Reform in Brazil. Pennsylvania State University Press.?

Robles, W., & Veltmeyer, H. (2015). The Politics of Agrarian Reform in Brazil: The Landless Rural Workers Movement. Palgrave Macmillan.?

Santos, B. D. S., & Carlet, F. (2008). The Landless Rural Workers’ Movement and its Legal and Political Strategies for Gaining Access to Law and Justice in Brazil. Preliminary Draft, Subject to Revision. Prepared for World Justice Forum, Vienna, July 2-5, 2008. https://www.lexisnexis.com/documents/pdf/20080924043058_large.pdf?

Santos, B. D. S., & Rodríguez-Garavito, C. A. (Eds.). (2005). Law and Globalization from Below: Towards a Cosmopolitan Legality. Cambridge University Press.?

Simmons, B. A. (2009). Mobilizing for human rights: International law in domestic politics. Cambridge, UK: Cambridge University Press.?

Vanhala, L. 2017. Is legal mobilization for the birds? Legal opportunity structures and environmental nongovernmental organizations in the United Kingdom, France, Finland, and Italy. Comparative Political Studies, 51(3), pp.380-412.?

Wolford, W. (2010). Participatory democracy by default: Land reform, social movements and the state in Brazil. The Journal of Peasant Studies, 37(1), 91-109.?

Zemans, F.K., 1983. Legal mobilization: The neglected role of the law in the political system. American Political Science Review, 77(3), pp.690-703.?