Alliance webinar: Law, philanthropy and justice

Amy McGoldrick

Celebrating the launch of Alliance’s new issue in our 25th year, last week’s webinar explored the relationship between philanthropy and the law. Guest editors and panellists Nicolette Naylor (Ford Foundation, South Africa) and David Sampson (Baring Foundation, UK) argue that legal philanthropy is at its most profound and purposeful when helping to enlarge the space for communities to seek justice. Does this represent a shift in thinking in philanthropic circles? Will the next 25 years of philanthropy in the law look rather different to the last 25? Joining the webinar as a panellist, we also had Lorenzo Wakefield (Mott Foundation, South Africa) and Alliance’s Executive Editor Charles Keidan as moderator.

Nicolette Naylor, Guest Editor of Alliance‘s March issue

Naylor was the first to present her thoughts. Speaking around the conception of the issue, Naylor said she was keen for ‘us to adopt a much more expansive view of legal funding as one of the many strategic tools in our philanthropy toolboxes’, instead reimagining beyond the narrow frame of litigation and courtrooms, with the aim to disrupt inequality. However, Naylor wanted to make clear that this issue was not about romanticising law and litigation. ‘On its own, it can’t change the world… But I still believe in the symbolic significance of the work, and the power of making invisible issues visible.’

Naylor then turned to the history of the Ford Foundation itself in this space. In 1977, the board approved the foundation to do work in South Africa (SA). ‘That was at the height of apartheid and our purpose then was to establish much deeper relationships with a group of lawyers who were doing political defense work to challenge [it].’ These lawyers had become aware of new legal institutions in Australia, Britain and the US around legal aid for the poor, and civil rights law groups like the NAACP. ‘So in 1978, Ford did some experimental grants to promote international collaboration, instructing new forms of legal aid and public interest law institutions inside South Africa. The reason we could do this was because in the ‘70s, Ford was deeply engaged in helping US lawyers institutionalise public interest law [there]. This concept that these public interest law firms would be able to work to promote and protect human rights was really at the core of what we tried to do.’

This led to the start of cross-collaboration and building alliances between SA lawyers and US advocacy institutions. ‘We started to establish some of the first law centres and public interest law centres in South Africa and expanded to setting up similar entities in Zimbabwe and Namibia, and then worked to continue to connect public interest lawyers in the global south, most notably in India.’ What has become most striking is the need for a robust and healthy ecosystem. Coupling that support with other forms of legal action at the community level, Ford has ‘worked to bring lawyers, community paralegals, researchers, artists and academics together to work around social change. We know that the next frontier of this work requires us to really make sure that we’re bridging the gap between what communities want and need, and what happens in legal spaces to move to what Lorenzo Wakefield writes about with people-centred justice.’

‘I encourage funders to take some risks, be bold, and see law as a tool.’

More recently, in October 2020 the Ford Foundation doubled their funding support for US-based racial justice and civil rights groups. ‘We announced $180 million in new funding, and this is to boost Ford’s ongoing commitment to racial equity and racial justice in America, and we’re directing these funds to groups who are creating structural change through strategic litigation, policy advocacy and grassroots organising’ – thereby recognising the importance of both. ‘Our most urgent priority for this infusion of funds is to meet activists and litigators where they are, and ensure that groups on the ground at this historic moment of racial reckoning have the resilience and the resources they need to build the future that we want.’ Closer to home in SA, the foundation is asking how to strengthen the legal sector. There, ‘we’re trying to go back to the ‘70s – how do you foster more cross-border solidarity and South-South connections? The issues the world faces today, from misogyny to white supremacy, require stronger alliances and networks of organisations where we’re really building and learning from each other at the global level, the transnational level.’

Keidan stated that 90 per cent of all legal philanthropy is concentrated in the US and asked Naylor why she thought this might be, and whether we need to see more of an even distribution of funding globally.

Naylor responded in the affirmative. There’s a strong history of US foundations supporting legal work domestically, ‘but I really think that particularly global foundations – OSF, Atlantic Philanthropies – have started to seed this work across other parts of the world. That’s really the next frontier; we have to globalise the movement for legal action, and funders have to start thinking about this work and committing more resources to it.’ Naylor understood that there are hesitations from funders, however. ‘I think the skepticism and the lack of funding in this space has largely been because of conversations around success, impact or nervousness about whether it’s appropriate to engage in this field. We’re hoping that this issue will show people you can engage in this… and have some success in many parts of the world. Our African contributions came through quite strongly to show us that there is a lot of work that can be done, there’s a lot of results that can be seen on the African continent and we have to start getting massive engagement. The $180 million we are putting into the US work, we want to see big investments like that into African legal infrastructure. That would be fascinating and exciting for all of us.’

David Sampson, Guest Editor of Alliance‘s March issue

Next to speak was Sampson, who acknowledged that the Baring Foundation had seen great examples of legal action in parts of the world they weren’t expecting, but ‘we were very conscious that we felt like we were missing out on a community of practice at the global level, and understanding of the different aspects of legal action which philanthropy was funding in different jurisdictions.’

An article that stood out to Sampson was the work of the Freedom Fund around digital rights in Europe. ‘It’s often very large, generous foundations seeding money to new areas of work and really creating organisations which are agile in their grantmaking around legal action, and building these communities of practice in very new ways – and certainly building our thinking and understanding as a field – which I think is really exciting.’

Sampson believes that ‘legal action is only of any value if it means that social change can be achieved by those communities who are working on it – that their goals are realised through these processes,’ and spoke of the ‘sea change’ occurring both in the way that legal action is being used by civil society, and how philanthropy is supporting it. ‘Both of those different aspects are key to understanding the emphasis on the ecosystem, and the broad range of work which needs to happen in this field.’

In terms of the work happening within the Baring Foundation, ‘over the last five years we’ve really focused on legal action as a tool of social change’. This has meant a lot of experimentation, particularly in the wake of the Covid-19 pandemic. ‘In the last year, we’ve done far more at the coal face of litigation and action in the courtroom than we ever thought we would as a foundation, which really looks to root work in civil society and develop the long term capacity of that work.’ Baring took the view that they needed support organisations to use legal action to engage with the rapid public policy changes taking place in the UK. ‘That’s meant very fast-moving grantmaking in relation to things like the wholesale transfer of public data from the National Health Service to private companies, to the calls for a public enquiry into the coronavirus pandemic and the public decision-making behind it. That for us felt like we had to take those decisions in that moment and support that kind of work, but it sits alongside the root of the program, which has really always been about long term resourcing for that ecosystem of legal expertise, and a knowledgeable and confident sector which feels comfortable using these tools and rooting them in the kind of broader strategies that they have for the social change that they want to see.’

‘We have to globalise the movement for legal action, and funders have to start thinking about this work and committing more resources to it.

For those funders engaging with this issue for the first time, as well as those for whom this is a routine part of their grantmaking, Sampson believes that the justification is simple. ‘I simply believe that the elements of good grantmaking in this space are the elements of good grantmaking which read across so many areas of our work. We need to understand what our grantholders are doing, we need to understand the needs of the communities that we’re seeking to serve, and we need to make grants which are both accessible and long term for the kind of work which needs to happen. We’ve talked about the previous 25 years; legal action and the infrastructure which sits behind it is a long term endeavour, both for philanthropy and for civil society. That kind of shift to longer term grantmaking is actually going to be the key to empowering those organisations and to making it accessible to communities who are currently left out.’

Wakefield was last to speak on the Mott Foundation’s support of the paralegal infrastructure in SA. Initially that support was for paralegals’ work in community advice offices, which during the apartheid were seen as the place for community resistance. Post-1994, while ‘we entered a democratic era in SA… we’ve not really done away with injustices as such.’ A lot of the work of these offices was centred around addressing injustice, and the Mott Foundation has been supporting this ever since. The hope is also to get government financing for this work.

More recently, ‘the Mott Foundation can be found in our new civil society program from 2019-2028, in which we’re expanding our justice grantmaking approach to four additional countries beyond South Africa. We will support paralegal, community-driven justice issues in countries such as Malawi, Sierra Leone, Kenya, Rwanda and South Africa.’ Additionally, another part of that work is supporting continental learning ‘to create some form of an African movement to speak about things that are financing community-based justice, people-centred justice work, and also elevate that – not just at a continental level, but also at a global level.’

Why the focus on people-centred justice? ‘A big answer is that the justice gap is large, and it continues to grow – in this time especially. The 2019 Justice for All Report found that 5.1 billion people around the world lack access to meaningful justice, and the majority of these people also do not really have the financial means to appoint lawyers, or to help them with their problems. More importantly, in many instances lawyers are not always needed to solve day-to-day injustice, or justice problems. So community paralegals here play a crucial role as they are normally situated within communities, and therefore they are trusted by members of the community, but also because they understand the nature of the injustices that their communities face. Not only then do they provide a service, but more and more they’re involved in campaigns against systemic injustices.’ The solution is therefore not an either/or approach, but rather one where strategic litigation is largely informed by community approaches.

Wakefield ended by speaking about the Legal Empowerment Fund. Raised as an idea by the UN’s Commission on Legal Empowerment of the Poor in 2005, it’s clear that one of the key issues that grassroots legal empowerment organisations face is severe underfunding. The LEF is a 10-year fund, ‘hosted by the Fund for Global Human Rights and it’s also intended to contribute towards SDG16 on access to justice, and the goal is to raise $100 million over the next 10 years with the help of both philanthropy and bilateral and multilateral government donors as well.’

The floor was then opened for questions from the audience. Moohit Mookim, a student at Stanford Law School and former researcher at Stanford Philanthropy and Civil Society Center, asked the panellists for their thoughts on the most compelling strategies for legal change. ‘There is a lot of talk at my law school about movement lawyering – an approach that calls on lawyers to defer to the needs of organisers from frontline communities in order to fight for transformative change. One way to practice this approach is to assist community groups in building alternative economic structures like community-run food, energy, and housing cooperatives to meet their basic needs. Do you anticipate that funders will find these approaches appealing?’

‘Legal action is only of any value if it means that social change can be achieved by those communities who are working on it – that their goals are realised through these processes.’

Naylor cautioned against a ‘one-size-fits-all’ approach, but agreed that there is a current recognition that for lawyering to be successful for social change, it has to be as close as possible to the communities that need it. ‘The piece by Goldston and O’Brien makes that point quite clearly. Movement lawyering really aims to get us there. It’s not without its tensions and its difficulties, because often you have the needs of the movements not aligning with the needs of the lawyers in the test case, or the jurisprudence that you want to develop.’ In all cases, it is important to ask ourselves: ‘whose interests are being represented?’ and ‘how are we representing the interests of those most affected?

Sampson also responded, stating the importance of building infrastructure. ‘One of the questions we continue to struggle with as an organisation is how you create the networks between organisations that can be seen as legal and those which are not… to allow lawyers to really be embedded in those movements, to really be part of that social change activity rather than sitting alongside it, or distantly removed from it.’ Something that has helped at Baring is to be more experimental about the ways in which they choose to fund, and continue to use networks and connections built on over time.

Martin O’Brien, contributor to the issue and director of the Social Change Initiative, asked how to encourage donors to give more consideration to using the law as part of their change toolboxes. ‘What else can be done to expand donor interest?’

Sampson answered that there is a question for broader philanthropy about how we continue to build these networks, and create spaces for people to be able to explore this kind of grantmaking. ‘I think that’s happening at the national level, often more effectively than it is at the global level… we need to look more beyond our own borders to be able to understand the kind of work which is being done. We run an international development program which works in Sub-Saharan Africa, and one of the things I’ve been really struck by in all of the work that we do there is that the strategies…  are far ahead of us in terms of the way in which they’re rooted in broader social change movements. I would like to see philanthropy investing more in building those kinds of connections and understanding, to be able to bring people who are thinking about this work to strategize.’

Two questions were then brought to the panellists. Emma Playfair asked if anyone was supporting judges’ learning in these areas, and Norman Silber, visiting Professor of Law at Yale Law School, asked: ‘Could you speak to what more law schools can and should be doing, and how foundations can best encourage them?’

Wakefield responded to Silber’s question first. Mott has learnt that ‘law schools play a huge role in educating paralegals on their roles and duties, and what the law says they can and can’t do…  it’s not necessarily seen as a competitive role to lawyers, or somehow seeing it as a mini-role. … We see it as a hierarchy of legal practice… you have community paralegals, lawyers that do generalised practice, lawyers in specialised practice, advocates, barristers, all working in different spheres of the law. So there is a definite role for law schools to play – in SA, there’s law schools that have started creating accredited courses for paralegals and community paralegals, and this is all helping to build the evidence base for the government to support their work.’ There are now diploma courses at some universities,and a bachelor’s degree in paralegal studies in Cape Town. Further paralegal access to programs and enabling them to see it through and receive degrees is also being supported by Mott.

On educating judges, Wakefield replied that a lot of campaigns in the African sphere of paralegal work has brought judges along with it. ‘They’ve realised that there is a role for paralegals – they might not be the ones who are going to represent someone in court because they don’t have a right of appearance, but they would be someone who can help with getting people’s papers together, referring matters that need lawyers to lawyers, and beyond.’

Naylor also responded, answering that ‘a lot of the work in this space historically has started with support for building the infrastructure, which has to start with law schools, and how we support law schools. Ford often started its work through supporting law schools and the academic practice in this space, and we have to now start thinking about funders in the education space that are interested in this – just because you work in education doesn’t mean you can’t support the work that’s happening within law schools.’ It’s also important to rethink and reimagine justice and social justice in this space. ‘What do multidisciplinary approaches look like within academic institutions?… A lot of the most successful legal campaigns that we’ve seen happening, that have really shifted hearts and minds and shifted laws, have involved these multidisciplinary players, where you bring in different stakeholders together along with lawyers. I think the historic approach of supporting law schools, judges, is something that needs to happen, but we also need to expand that into a more interdisciplinary approach to work.’

Max Rutherford, head of policy at the UK’s Association of Charitable Foundations, asked if the panel had a view on the risk of a ‘legal action’ arms race between philanthropy on different sides of the political divide.

Sampson agreed that it was something to be concerned about and to play close attention to. However, ‘if philanthropy takes some of the approaches which have been explored today in terms of rooting this work clearly in movements and in a broad range of social activities, we at least mitigate those risks. It allows both the work to be driven by those communities rather than dictated by the funders, which takes some of the heat out of that potential exchange, but if it also leads to litigation which is developed by those communities through the need and the advantages they see of that process.’

It’s also important to think about what success looks like. ‘Winning or losing in the courtroom [is not] the only metric for success in this field. ‘What feels like a loss brought on by the kind of funding we support will lead to broader and longer-term social change, and we have to invest in the capacity of organisations to be able to pivot and use different mechanisms to be able to pursue the kinds of judgements that they receive, and understand the risks they take in doing that.’

The last question came from Duncan Wilson, executive director at the Sigrid Rausing Trust, asked if the panel had lessons to share for how legal strategies can most effectively lead to systemic culture change – building better practice, not only correcting the worst practices.

Wakefield cited Jackson Otieno’s piece on LGBT activism in East Africa, and how winning a case is ‘just the start… and changing culture is hard work and generational. You’re not necessarily going to get that change immediately.’

Naylor’s example was Treatment Action’s campaigns in SA, a social movement around HIV/AIDS. ‘It really [shifted] the hearts and minds of people… of government policy at scale, but also starting an ordinary conversation with South Africans around stigma and discrimination. Getting Nelson Mandela to put on an HIV+ t-shirt, that mobilisation strategy, the insider/outsider approach of the Treatment Action campaign and the lawyers, the doctors, the treatment literacy work, is a good example of funding work that brings about the culture change and the legal change.

‘I would also like to encourage people to engage with the issue and also speak to other funders who are funding in this space. If you have questions, if you want to dip your toe in the water, I encourage funders to take some risks, be bold, and see law as a tool.’

Amy McGoldrick is the Marketing, Advertising & Events Manager at Alliance magazine.

Watch a recording of the full webinar below:

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