196 Pía Marchegiani and Louisa Parks
introducing legal pluralism in its more and less formal dimensions, some of these
approaches may prove useful to legal and socio-legal scholars, and we therefore
use some space to give an overview of them here.
The first useful point taken from the literature on collective action is Tilly’s
concept of the action repertoire or, in the case of social movements, the repertoire of contention (della Porta and Diani, 2005; McAdam et al., 2001). This
term is used to recognize that collective action takes many forms, and that those
forms are linked to time, place and other considerations. There is thus a sort of
menu of actions available to collective actors – like the local communities that
drafted the Kachi Yupi community protocol discussed here – depending on what
is feasible and deemed appropriate in light of circumstances. In this view, we can
understand the decision to draft a community protocol as one available action
in the repertoire available to these local communities. At the same time, the
concept of the action repertoire also underlines that all collective action choices
must be interpreted within specific contexts (Tarrow, 1998). To better reflect
on the collective action choices of different types in the case described in this
chapter, social movement studies supply another useful approach – p olitical process or political opportunity (ibid). Although this approach began with attention
to political contexts (a consequence of the clearly political aims and engagement
of many social movements that have attracted scholarly attention), it was later
integrated with attention to legal (and discursive) contexts too. The political
opportunity approach is based on the observation that collective action choices
are logical, and that to understand this logic, proper attention needs to be paid to
context. It was first developed in scholarship on social movements to understand
why and how social movements mobilize, and then used in the study of influence
and outcomes (Meyer, 2004). It generally concerns opportunities and threats
stemming from structural conditions determining how “open” or “closed”
a polity is to different types of collective action, as well as describing various
aspects that help researchers to identify more time-dependent or dynamic factors
in political contexts that similarly facilitate or hinder certain actions, and thus
ultimately shape outcomes (see, e.g., Giorgi, 2018).
The approach has expanded over time in response to critiques that other types
of contextual factors are equally important to explain collective action. One such
expansion is the legal opportunity approach, which aims to account more specifically for action in courts. Existing work focuses on the structural features of legal
stock (the body of law applicable in a particular context), rules on legal standing (access to courts) and rules about legal costs (Vanhala, 2018). Community
protocols would require further specification of the legal opportunity structure
to accommodate the aim of achieving, or at least demonstrating the possibility
of, legal pluralism. The approach as it is currently used focuses mainly on the
decision to litigate, whereas community protocols challenge legal structures on
the basis of customary and international laws. Essentially, they can be thought
of as tools that seek to push the boundaries of legal systems and demonstrate
where they can be more “convivial” (Bavikatte et al., 2015) and overcome the
introducing legal pluralism in its more and less formal dimensions, some of these
approaches may prove useful to legal and socio-legal scholars, and we therefore
use some space to give an overview of them here.
The first useful point taken from the literature on collective action is Tilly’s
concept of the action repertoire or, in the case of social movements, the repertoire of contention (della Porta and Diani, 2005; McAdam et al., 2001). This
term is used to recognize that collective action takes many forms, and that those
forms are linked to time, place and other considerations. There is thus a sort of
menu of actions available to collective actors – like the local communities that
drafted the Kachi Yupi community protocol discussed here – depending on what
is feasible and deemed appropriate in light of circumstances. In this view, we can
understand the decision to draft a community protocol as one available action
in the repertoire available to these local communities. At the same time, the
concept of the action repertoire also underlines that all collective action choices
must be interpreted within specific contexts (Tarrow, 1998). To better reflect
on the collective action choices of different types in the case described in this
chapter, social movement studies supply another useful approach – p olitical process or political opportunity (ibid). Although this approach began with attention
to political contexts (a consequence of the clearly political aims and engagement
of many social movements that have attracted scholarly attention), it was later
integrated with attention to legal (and discursive) contexts too. The political
opportunity approach is based on the observation that collective action choices
are logical, and that to understand this logic, proper attention needs to be paid to
context. It was first developed in scholarship on social movements to understand
why and how social movements mobilize, and then used in the study of influence
and outcomes (Meyer, 2004). It generally concerns opportunities and threats
stemming from structural conditions determining how “open” or “closed”
a polity is to different types of collective action, as well as describing various
aspects that help researchers to identify more time-dependent or dynamic factors
in political contexts that similarly facilitate or hinder certain actions, and thus
ultimately shape outcomes (see, e.g., Giorgi, 2018).
The approach has expanded over time in response to critiques that other types
of contextual factors are equally important to explain collective action. One such
expansion is the legal opportunity approach, which aims to account more specifically for action in courts. Existing work focuses on the structural features of legal
stock (the body of law applicable in a particular context), rules on legal standing (access to courts) and rules about legal costs (Vanhala, 2018). Community
protocols would require further specification of the legal opportunity structure
to accommodate the aim of achieving, or at least demonstrating the possibility
of, legal pluralism. The approach as it is currently used focuses mainly on the
decision to litigate, whereas community protocols challenge legal structures on
the basis of customary and international laws. Essentially, they can be thought
of as tools that seek to push the boundaries of legal systems and demonstrate
where they can be more “convivial” (Bavikatte et al., 2015) and overcome the