Backlash Against Rights: Conceptual Apparatus and Research Agenda

Abstract

What do we mean by backlash against rights? How does backlash vary? What explains its variation? Although backlash is recognized as a crucial problem in the legal mobilization literature, it is treated as a residual category. This paper proposes a conceptual apparatus and research agenda for its identification and analysis. We propose a definition of backlash that distinguishes it from ordinary legal mobilization, and identify key dimensions along which backlash varies – actors, realms, tactics, goals, and outcomes. We propose typologies to explore how backlash differs across these dimensions. For each dimension, we offer criteria to distinguish between the different forms of backlash, use examples to illustrate their particularities, and propose hypotheses regarding the factors that may explain variation. The main innovation of our approach is the concept of veiled backlash, which occurs in the backdoor of state agencies when regressive networks have dominant influence thereon. We claim that veiled backlash often employs pseudolegal tactics, which are difficult to detect and challenge, thus increasing the likelihood of backlash’s success. We further argue that veiled backlash tends to be cumulative; it has the ambitious goal of curtailing pro-rights policies or state agencies, yet it can go unnoticed because it relies on tactics that appear like ordinary legal mobilization.