A Study On Legal Mobilization And Legal Opportunity Structure In Safeguarding Rights Of Homeowners

From the perspective of legal sociology, this paper studies safeguarding rights ofhomeowners in three residential districts. Safeguarding rights of homeowners is a typical kind of“safeguarding rights in accordance with the law”, which has reached a consensus in academia.With the law is entering the era of sociology, it is more important to study safeguarding rights ofhomeowners in order to break the separate intellectual tradition between the sociology and lawfrom the perspective of legal sociology. Although the current study on safeguarding rights ofhomeowners stresses that law is the consistent pivot, law is used as a kind of background materialand Conclusive language, which neglects the role of law in safeguarding rights of homeowners.Owing to the absence of the perspective of legal sociology, the current study is full of strategy andabsence of ligation and overinterprets the meaning of safeguarding rights of homeowners so thatthe nature of law in the process of safeguarding rights of homeowners is ambiguous. For exploringthe nature of law in the process of safeguarding rights of homeowners，we must bring theperspective of legal sociology into the study of safeguarding rights of homeowners, and as thebasis of constructing theoretical analytical framework of safeguarding rights of homeowners.The author learns legal mobilization theory and legal opportunity theory as the interpretiveframework from the study on law and social movement. Legal mobilization is the process oftransforming discontents, claims and goals into right claims, and its consequence depends on thechanging environment largely. In China legal environment, the legal opportunity structureinvolves five dimensions: legal stock, legal cost, alliance and anti-alliance， judicial receptivityand legal consciousness. The three cases of safeguarding rights of homeowners in differentresidential districts are analyzed and compared each other in these two legal analytical framework.The author finds as a kind of communicative praxis in safeguarding rights of homeowners,law shapes the mode of communication, expection, comprehension, and interaction between homeowners and the imagination of the possibility of social and political life, in which legaldiscourse, legal consciousness, legal symbol, and legal interactive mode are the main forms. Lawis a kind of governance technology, which can be used to regulate, deal with and even suppresshomeowners’ action and yield twice the result with half the effort. Law is also a kind of strategicresource, which can be the discourse resource, mobilization resource， legality resource andcognition resource and expand other resource further.This paper analyzes the process of legal mobilization, that consists of contentious agendasetting, realized by naming, blaming and legal clamming; learning law, popularizing law andlearning litigation strategies and technology; and drawing on formal legal action-litigation and theanalysis and assessment of the “legacy” in legal mobilization. Legal mobilization is “reactive legalmobilization” after the failure of self-reliance relief and administrative relief in the threeresidential districts. However, there is a trend that “reactive legal mobilization” is transforminginto “proactive legal mobilization”, even though it is not obvious. This paper also finds therelationship between legal mobilization strategy of homeowners and none-legal strategy is onedimension, in which the former does not effect the latter and the latter does effect the former, andit is different from the conventional conclusion that the legal mobilization strategy and none-legalstrategy is dialectical in the study on law and social movemen.The study on legal consciousness is one of the core issues in the study on legal mobilization.This paper finds the legal consciousness of homeowners is not invariable, in contrast it is changingin the process of legal mobilization: at the beginning of safeguarding rights, homeowners’ legalconsciousness is “before the law”, then it is changed into “with the law” following the formallegal action-litigation, and homeowners’ legal consciousness is divided after litigation: losingtransformed homeowners’ legal consciousness into a kind of “suspending legal consciousness”and winning will intensify the legal consciousness of “with the law” further.This paper finds the opening degree of legal opportunity structure in safeguarding rights ofhomeowners rises obviously in vertical: legal stock is rising and the legal status of homeownersand homeowners committee is definite; legal cost is falling to some extent because homeownersdraw on a variety of litigation strategies or they do not hire lawyers in order to avoid litigation costand the ability of proof is rising; the alliance oh homeowners is rising while the anti-alliance is alittle waken; judicial receptivity toward to safeguarding rights of homeowners and homeowners’ legal consciousness are rising greatly. This paper also finds there are regional diversities in theopening degree of legal opportunity structure after the comparative study on the three cases ofsafeguarding rights of homeowners in the three residential districts in different regions in horizon,that is major in the two dimensions of alliance and anti-alliance and judicial receptivity. So, weshould inspect the different legal context when studying the opportunity structure of safeguardingrights of homeowners.This paper clarifies the mainstream “ideology” in the study on safeguarding rights ofhomeowners, which is regarded as the way to construct civil society. The homeowners regard lawas instrument of safeguarding rights rather than believe in the law and their ethical bases of actionis not citizen’s autonomous practical ethics, instead of Confucian culture ethics and simple dailylife ethics in M housing estate and X housing estate. Their persistance to appeal is not based ondiligently strive for legal belief rather than the logic of “avengement” that is “the superiorgovernment is better than the subordinate government” in the traditional sense. From thisperspective, the logic of legal relief of homeowners is no different than traditional relief logic suchas petition, that just asks for protection of their state-conferred-rights from the lower rules byquoting the authority of higher rules. Therefore, the safeguarding rights of homeowners do notgenerate civic consciousness and civic courageous more or less in these two residential districts,and is not the citizen’s subjective construction of homeowners, and their action is still confined intraditional ethical consciousness and the frame of subject obligation. So, the interpreting themeaning of safeguarding rights of homeowners should inspect the inherent logic and practicalethics in the process of safeguarding rights in detail rather than handle it simply and romantically.