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Abstract

This article explores why individuals in vulnerable positions may not mobilise available legal avenues to protect themselves from harm, despite being aware of their existence. Drawing on data relating to precarious housing situations in Berlin and Zurich, we argue that the assumption that mobilising the law would improve the situation of individuals is not always accurate. We present three dimensions of non-mobilisation that prevent individuals from turning to the law: (1) their precarious market position in relation to their landlords, (2) the perceived detrimental impact of legal mobilisation on other legal affairs and (3) available solutions do not fit individuals' complex realities. Theoretically, we bring insights from the ‘non-take-up’ literature in social policy into the debate around legal mobilisation and legal consciousness. We argue for a more nuanced understanding of legal mobilisation that takes into account both people's understanding of law and their broader legal, economic and lived realities.

Keywords

legal mobilisation homelessness precarious housing tenancy law welfare law non-take-up

Introduction

This article turns to a classic but not yet satisfactorily resolved puzzle: why don’t people in vulnerable positions use the law, even though they are aware of legal avenues that promise to protect them from harm? To answer this question, many previous studies have rightly pointed to the specificities of legal procedures, the costs of legal action and the potential lack of knowledge among plaintiffs, but our research on precarious housing in Germany and Switzerland points to an altogether more complex picture. Some of our interlocutors pay excessive rent even though they could legally dispute the rental price with the available support of legal advice organisations. Some do not claim social benefits they would be eligible for and that they direly need. Others avoid being placed in available social housing even though their current living situation is highly precarious.

Of course, there are explanations for why people do not mobilise the law. Focusing on people in precarious social and/or economic positions, previous socio-legal research has examined why people do not take up social benefits or file criminal complaints and why they shy away from civil lawsuits. We seek to move beyond more atomistic understandings that tend to focus on the non-use of one norm for one reason and capture people's sense-making just in relation to one case or law. Instead, we argue that the law often fails to resolve people's justiciable problems because it fails to reflect people's overall legal, economic and lived realities. Thus, we highlight the need to de-individualise the decisions actors take and to include both their wider structural embeddedness and their complex legal circumstances seriously. By using such an understanding, we can address fundamental questions about law, inequality and access to justice and ask why the law regularly fails to be an adequate tool for overcoming precarious circumstances. Further, we argue for a more nuanced understanding of legal mobilisation that takes into account both people's sense-making in relation to a specific legal provision and their broader legal, economic and lived realities, instead of prioritising one over the other. Such an understanding can contribute to better comprehending when and how individual provisions do not fit with the life of people at risk and why not mobilising these provisions is not merely a question of access or knowledge but also relates to whether people expect that these provisions will improve their living situation.

This paper focuses on housing, a topic which has been at the forefront of the revival of critical empirical sociological studies over the past decade (Björkhagen Turesson and Staaf, 2021; DeLuca and Rosen, 2022; Desmond, 2016; Hunter et al., 2016; Nowicki, 2023; Seron, 2016). The paper shares the spirit of ‘reclaiming’ social precarity as a topic of empirical studies (Levitsky et al., 2018), but it draws on empirical material from contexts in which neither austerity nor other forms of infrastructural barriers to welfare or legal aid have been particularly rampant. The situation in Switzerland and Germany is a stark contrast to those that exist in the UK (Forbess and James, 2014; Koch, 2018; Koch and James, 2022; Moore and Newbury, 2017; Ortega-Alcázar and Wilkinson, 2021; Shah, 2015; Thornton, 2020), the USA (Albiston and Sandefur, 2013; Rhode, 2004, 2008; Sandefur and Denne, 2022; Statz et al., 2021) and other countries (Brewin, 2004; Flynn et al., 2014) in which access to justice has been systemically challenged or curtailed. Rather than asking ‘how is access to justice possible in times of crisis?’, the paper examines ‘why law is not accessed if assistance is available’. This puts the paper in necessary tension with those strands of legal mobilisation scholarship that promulgate better access to justice and call for better and more accessible information for potential beneficiaries of the law. But what if even that is not enough? We contribute to debates that seek to better understand why people put up with systematic inequalities even though the legal system promises redress and equality (Seron, 2016). We agree with authors who argue that the law can – even unwittingly – become an important factor in the perpetuation of inequalities (see Sandefur, 2008). However, rather than examining a more general, systemic effect that ‘the law’ has on underprivileged people and their perception of law – as analysed by the ‘hegemonic’ school of legal consciousness research (Chua and Engel, 2021; Ewick and Silbey, 1998; Halliday, 2019; Sarat, 1990) – our units of analysis are individual non-mobilisations of specific provisions of (Swiss or German) law. These specific provisions have the potential to ease or temporarily resolve the vulnerability faced by our interviewees, but they are not taken advantage of. In order to explain this, we suggest employing a more embedded analytical perspective that turns to socio-legal debates on legal mobilisation and legal consciousness and the ‘non-take-up’ literature from the field of social policy. We thus seek to explain better the entanglements of laws and in law that constrain legal mobilisation.

The paper focuses on a number of cases in which the circumstances of non-mobilisation became particularly salient. They were collected in the context of a broader research project on the law in relation to housing precarity in Germany and Switzerland. Our research includes the uncomfortable observation that using the law to attain social justice in some cases requires more than access to or knowledge of the law, and this encourages us to more closely consider the intricate realities and socio-economic contexts that shape people's interactions with the law when studying their relationship with it.

After providing a brief overview of the literature on the non-mobilisation of the law and some information about the context of our joint project, we present three dimensions of non-mobilisation that were raised in the context of our research project as key for individuals in precarious housing settings who did not turn to the law: (1) their precarious market position in relation to their landlords, (2) the perceived detrimental impact of legal mobilisation on other legal affairs and (3) potential solutions that do not fit individuals’ complex realities. We conclude that although these non-mobilisations do not represent a turning away or alienation from the law (Ewick and Silbey, 1998; Hertogh, 2018), they do point to problematic catch-22 situations in which individuals’ subject positions could be worsened by attempting to better them through law. In response to such situations, people seem to engage less with concrete legal mobilisations and seem resigned to getting by – because rather than in spite of the law.

Access to Justice and Non-Mobilisation

The fact that law is mobilised in very different ways and in very different contexts has meant that there are no uniform explanations for why some people turn to the law less than others or not at all. We adopt a broad understanding of ‘mobilisation of the law’ as encompassing all activities that make use of the law – even if not always doing so explicitly. These activities are not limited to formal proceedings in court and can include interactions with authorities such as filling out forms and filing claims to resolve conflicts or cover basic needs (Vanhala, 2011; Zemans, 1983). While legal mobilisation – for example in the form of strategic litigation or class actions – can be seen as part of the repertoire of social movements (Burstein, 1991; Hahn, 2019; Jacquot and Vitale, 2014; Zackin, 2008), the law tends to build itself around individual cases brought on behalf of (or against) individual actors. In the case of our research on housing, various laws must be taken into consideration: social welfare law defines the conditions under which individuals can claim housing benefits or be placed in social housing; tenancy law delineates minimum standards for rental properties and the contractual obligations of tenants and landlords; anti-discrimination law forbids practices that target or exclude specific groups and administrative and civil procedural laws specify who has access to free or subsidised legal counsel and representation and regulates the requirements for and limitations on eviction.

In this paper, we take a socio-legal perspective that comprehends law not only as the legal text itself, but also as the way it is implemented, mobilised and perceived, and even bent, by bureaucrats and lawyers as well as lay people – in other words, we consider how law works in practice (Falk Moore, 1978). This perspective forces us to take serious how individuals make sense of their legal position in general, but also in specific moments of mobilisation, which take place in ‘spaces of asymmetrical negotiation’ over the meaning and consequences of law (Eule et al., 2018). We seek to better understand the non-mobilisation of the specific types of legal provisions mentioned in the preceding paragraph, as they hold potential solutions to the vulnerabilities faced by our interlocutors. As a result, the paper deviates from existing typologies of legal consciousness research (cf. Halliday, 2019) as it employs a slightly more formalistic, law-in-action sense of mobilisation to understand the emancipatory potential of those types of laws.

So what explains the non-mobilisation of law? Regarding welfare law, scholars usually speak of ‘non-take-up’, which has been shown to be a common phenomenon world-wide (Frick and Groh-Samberg, 2007; Gustafsson, 2002; Kayser and Frick, 2001; Ko and Moffitt, 2022) and one that might have been exacerbated by the neoliberal activation or welfare conditionality programmes rolled out over the past 30 years (Lucas et al., 2021). Explanations of non-take-up point to structural factors in legal basis of policies and in policy design and delivery, hurdles that must be overcome for street-level implementation to be successful and individual factors that cause people either to not claim at all, or to claim only to a limited extent (Goedemé and Janssens, 2020; Hernanz et al., 2004; Janssens and Van Mechelen, 2022; Kerr, 1982; Van Oorschot, 1998). We identify several aspects of non-mobilisation the literature: a lack of an appropriate remedy, a lack of resources, a lack of knowledge and a lack of trust.

One strand of the literature argues that the legal rules do not provide an effective or appropriate remedy for a problem at hand, and it specifically identifies challenges resulting from legal procedures. Scholars point to factors within the legal rules and their institutional application that preclude a successful mobilisation of them. This is particularly prevalent in regulations that seek to protect particularly vulnerable individuals (such as laws that protect people from sexual harassment) but place heavy burdens of proof on them or demand that they comply with strenuous procedural formalities (Aubert, 1966; Blackstone et al., 2009; Marshall, 2005). Other studies emphasise that legal procedures are ‘locally shaped and culturally entwined in place and setting’ and are strongly linked to (informal) administrative traditions and networks (Seron and Silbey, 2004: 39; see also Eule, 2014). Navigating the law thus requires a combination of tacit and formal knowledge of ‘law’ and the ability to decipher, apply and share stories, rumours or myths about rights (Eule et al., 2019; see also Eckert et al., 2012). This process can be lengthy and experienced as never-ending and punishing (Feeley, 1979; Stumpf, 2013; Wyss, 2019). From these observations, it is concluded that non-mobilisation is related to illegible red tape and a lack of information and professional support (Baer, 2017; Fuchs, 2019; Genn, 1999; Wrase et al., 2022).

The second aspect of non-mobilisation that is discussed in the literature is the lack of resources required to mobilise the law. This includes, broadly, the monetary, temporal and social or societal, ‘costs’ of legal mobilisation, which encompass ‘social and psychological factors’ (Hernanz et al., 2004: 21), understood as the stigmatisation of claiming benefits (Baumberg, 2016; Moffitt, 1983; Pinker, 2017). The high costs of legal mobilisation are linked to the relative ineffectiveness of progressive legal reforms (Epp, 1998, 2010; Kelman, 1987). The ‘access to justice’ literature investigates measures that could make it easier for people to access the law, such as free legal advice and representation (Flynn et al., 2014; Rhode, 2004; Wrase et al., 2021). Importantly, there is an implicit assumption that if law is accessed it will provide redress – and thus there is a belief that law has the power to rectify injustice. This seems particularly true for the continental debate, where a lack of information and professional support is identified as a key issue hindering better mobilisation and thus better protection by the law (Baer, 2017; Fuchs, 2019; Genn, 1999; Wrase et al., 2022).

The third reason why people do not use the law is that they generally distrust it and the state and position themselves ‘against the law’. Socio-legal scholars often assume that people who are marginalised take up such a position (Abrego, 2008: 712; Ewick and Silbey, 1998) and do not mobilise law because, for instance, they have been disappointed by the legal system too many times. Some even reason that repeated negative exposure to such processes can make people turn away from the law and become alienated by it, because they doubt their chances in a (rigged) system or because they deny the relevance and power of the legal system (Hertogh, 2018: 55f; see also Aidinlis, 2019; Bell, 2016; Ryo, 2017). However, it is unlikely that individuals are ever able to turn away from the legal system to any great extent (cf. Halliday, 2019 for a critique of Hertogh). Indeed, some scholars have convincingly shown that people in marginalised societal positions might be particularly exposed to the law and have no choice but to learn to navigate it (Hernández, 2010; Menjívar, 2011; Wyss, 2022), because the law already intervenes in their everyday lives, for example when they are struggling with applications for asylum, social assistance and/or child allowances. As we will show in the next paragraph, our research indicates that many of our interlocutors did indeed acquire the knowledge needed to use the law and that they did not adopt a fundamentally adversarial stance towards the law. Many, however, chose not to use it – at least in certain legal areas.

While these three factors – procedure, resources and attitude – are certainly important, we argue that they have been over-represented in the literature. We believe that, instead, scholars need to pay close attention to how a decision (not) to mobilise the law evolves in complex legal fields and in individuals’ lived realities. More recent qualitative approaches have increasingly built on socio-legal perspectives to explore ‘social and psychological factors’ (Lucas et al., 2021; see also Laín and Julià, 2024; Szeintuch, 2022), pointing to the complex interplay of social and economic issues as well as questions concerning knowledge and administrative access. This is particularly true in our specific field of housing precarity, where multiple areas of law and complex lived realities collide and where claiming the right to have better housing has negative effects on other areas of law and on living arrangements (see also Janssens and Van Mechelen, 2022). These approaches thus take into account individuals’ embedding in socio-economic realities and in entangled legal fields and do not assume that it is simply a matter of people having a fundamental position ‘against the law’ or an overall ‘alienation from the law’, or a matter of economics or policy change, but rather that law may sometimes not be the most suitable tool for responding adequately to people's realities.

Importantly, and despite what we might expect based on the above literature review, in the cases we will introduce below, non-mobilisation decisions were made on the basis of a rather good understanding of the legal and procedural context and without any generalised cynicism being felt towards ‘the law’. Crucially, the literature fails to adequately explain why people refrain from mobilising the law even though they have some knowledge about it. For instance, in the context of our research, why they did not make legal claims against landlords who had unlawfully raised rents, even though they knew how to proceed. Or why they decided not to apply for social assistance or for emergency accommodation, even though they had the right to do so. Our interviewees gave numerous reasons why claiming their rights seems hazardous to them: because it could weaken their position in a competitive housing market, because it could affect their standing in other areas of law or because the law restricts their self-determination in the context of work and family and leads to further precarisation.

Our Socio-Legal Approach to Studying Precarious Housing in Berlin and Zurich

The research project that this paper is based on investigates the role of law for people in precarious housing situations and their (non-)use of legal instruments like applications, legal protections and legal remedies as coping strategies.¹ However, the project's entry point to legal mobilisation – housing – is not one particular law, policy or edict, but is instead a matter of ‘ordinary life’ that everyone has to deal with and that is governed by a number of different regulations. By taking this perspective, we can also capture ‘the absences and silences of law’ (Silbey, 2005: 326) and explore whether the law plays any role at all in solving everyday challenges and problems. The project's starting point is everybody's need for an adequate and affordable place to live in – which is a difficult need for many of our interlocutors to meet – and it asks about the possibilities of mobilising the law, about people's legal consciousness, their access to law and their expectations of it. This socio-legal methodology enables us to explore people's lived experiences and their everyday struggles with state authorities and with social services. Their navigation of the housing market takes place within ‘spaces of asymmetrical negotiation’ (Eule et al., 2018), in which we seek to identify people's (dis)engagement with the law, not least to render visible gaps and contradictions within a highly fragmented and multi-layered legal framework. Such gaps and contradictions in the law are evident when using the law is perceived by people in a vulnerable position as risking ending up in an even more precarious situation than before.

Focusing on two urban agglomerations (Berlin and Zurich), we engage with people in a range of different forms of precarious housing arrangements (FEANTSA, 2017), such as sleeping in emergency accommodation or living in overpriced apartments or under an insecure sub-tenancy. Some spend a lot of time in communal shelters, such as refugee camps, or in temporary emergency housing, sharing facilities with many others and lacking privacy. They struggle to find their own apartment in housing markets rife with discrimination. Others are forced to spend too much of their (low) income on housing costs or live in overcrowded spaces, for example because new family members have been born.

We chose these two large cities as case studies because they have similar pressures on their respective rental housing markets and because both places are a federal state (the canton/state of Zurich includes several more municipalities than the city itself) and also a city in terms of their legal structure. The legal responsibility for housing in Germany and Switzerland lies at the cantonal and municipal levels respectively. However, the two cities differ regarding their welfare systems, particularly in terms of benefits and facilities for migrants. Individuals in both cities are forced to navigate a highly competitive housing market. Berlin and Zurich are important economic and cultural centres, which means increased immigration from within and outside Germany and Switzerland respectively. In Berlin, there is an increasing financialisation of the housing market and a decreasing availability of social housing, which is leading to a highly competitive housing market with rising rents and less available affordable housing. Similarly, a heated debate about excessive rents and (impending) housing shortages is currently taking place in Zurich. In both cities, there is a variety of federal, cantonal and municipal regulations that address housing (like tenancy law) or that define people's access to support structures (social welfare law, migration law and police and security law, among other types of law). Importantly, we need to bear in mind that opportunities to mobilise the law are only available to those who have a formal tenancy agreement. And those residing in informal or emergency shelters do not even have the opportunity to defend themselves against either exorbitant rents or desolate housing conditions. The opportunities to mobilise the law here are mainly focused on how to find new housing, often within the structures of the social welfare system.

Katharina Winkler is responsible for the case study (Yin, 2014) in Berlin, and Anna Wyss for the study in Zurich. The study took place between March 2022 and November 2023. While not consisting of ethnographic fieldwork, the study leaned on ethnographic methodology in organising and triangulating the multiple qualitative enquiries into the field. Data from initial field contacts, interviews and observations were jointly analysed and triangulated, which then in turn informed subsequent interviews and field visits. Both authors talked to a diverse range of people, including individuals living in precarious housing settings (20 in Berlin and 24 in Zurich), people such as social and community workers from non-governmental organisations and state agencies, and lawyers and volunteers supporting people with their housing issues (32 in Berlin and 29 in Zurich). Our interviews focused on individuals’ strategies for dealing with difficult housing circumstances and whether they considered and utilised legal avenues to address their situation. In both cities, these were key initial questions in our problem-centred interviews (Witzel and Reiter, 2012), which were adapted to the local conditions in each case. We recruited participants through gatekeepers, online platforms for finding apartments and flyers. Most interviews lasted between 1 and 2 h, and the majority were recorded with the participants’ consent (a few interviewees preferred us to only take notes). All interviews were subsequently anonymised, transcribed and coded.

The issue of non-mobilisation was not initially the focus of our research but it emerged in the data during the discussions on our findings. Early on during the analysis of our field data – a joint and circular process of reflection, research and writing – we came across multiple cases in which legal mobilisation would have been possible but was not pursued by our interlocutors. We then looked for similar factors to those that appeared in these cases that caused or contributed to legal non-mobilisation in our data and found similarities and contrasts on different research sites and between individuals from different backgrounds. Our socio-legal and interpretative methodology and being able to collect data over a year allowed us to meet some people several times, discuss our findings with them and make sure we had drawn the right conclusions.

The three dimensions of non-mobilisation came to the fore when we compared our interviews involving people in precarious living situations and as a result of axial coding (Bijleveld, 2023: 172) of the Data from Berlin and Zürich and while using interviews with support workers as a triangulator. While they do not cover the experience of all our interlocutors, these dimensions arose in different geographical and legal contexts and were raised in interviews with individuals in very diverse situations. They are thus useful examples of how a rather formalistic law and legal mobilisation is not able to solve individual problems in the lived realities of marginalised people. The three categories certainly emerged from our data, but they do not represent the whole sample and how our interlocutors engage with law or find legal mobilisation a suitable option for navigating their lived realities.

In terms of ethical reflection, we often found ourselves in a situation where our research participants expected us to provide legal advice on their situation (Israel, 2017: 190). This was because of our professional training (Katharina) or our knowledge of local advisory services. We recognised that conducting research with vulnerable and marginalised groups not only means doing no harm (Hugman et al., 2011) but also that research ethics require us to contribute to improving their situation (Jacobsen and Landau, 2003), so we referred the participants to some advice centres and online platforms, but also made it clear that we could not give legal advice ourselves; we also wanted to avoid the risk of giving incorrect information.

Informed Non-Use: What If People with Access and Knowledge Decide Not to Mobilise the Law?

Building on our empirical data, we exemplify in this section that non-use of the law is not only due to a lack of knowledge of the law or a general distrust of the law, as is often assumed in research on marginalised people. We certainly do not want, however, to convey the impression that people who decide not to use the law always have accurate information about the law. Our interviews also clearly show that those who are marginalised by laws, poverty, racialisation, migranticisation (Dahinden, 2016) and other mechanisms of exclusion are severely hindered in their access to justice. They are short on information about which laws they can use to their advantage. They do not have the means to pay lawyers to help them translate the ‘legalese’ that appears in the bureaucratic maze and argue their cases. And they often simply do not have the time to deal with legal procedures due to precarious working conditions and caring responsibilities. We therefore understand the individual situations described below as expressions of wider structures and relationships. We think it is important to acknowledge that it is not merely the lack of knowledge of the law that prevents marginalised people from improving their situation through legal means, but that the law is often simply not designed to support those in a precarious situation.

We will show that there are different settings in which people decide not to mobilise the law even though they are aware of their rights and may be in a position to be able to use the law. Crucially, they do not turn away from the law altogether, nor do they make uninformed decisions. Rather, in the situations described next, people assess the mobilisation of law as a hazard. This can happen in cases where (1) the logic of the market trumps the law in cases where the mobilisation of certain laws might (2) impede people's standing in other legal contexts and (3) the categories and solutions available do not fit individuals’ particular life situation.

Market Trumps the Law: ‘I Must Not Attract Attention; I Must Not Cause Any Problems’

As the housing market in both cities is highly competitive, many tenants are (sensibly) afraid of antagonising their landlords and losing their tenancy if they take legal action against them. In a sense, then, an overheated housing market trumps the mobilisation of law. This can mean that tenants do not report rental defects such as mould and try to fix them themselves. Moreover, rent reductions that a tenant is entitled to due to deficiencies in their flat or due to an unreasonably high rent are not applied. Even though people often live in overpriced and inadequate housing (such as when an apartment is too small or in a poor condition), the competition for housing makes it risky for them to assert their rights, simply because there is a lack of alternatives and because they are very dependent on landlords. They matter for both keeping an apartment and supplying a reference when a tenant is applying for a new apartment. In a highly competitive housing market, not claiming one's rights can be understood as an effort to prevent homelessness but, simultaneously, as reinforcing people's precarity by compelling them to live in inadequate and/or overpriced housing.

At the end of 2022, a heated debate emerged in Switzerland on how to confront the impending housing shortage. One aspect of the controversy is the question of how to deal with overpriced rents. The Social Democrats claim that tenants overpaid rent by more than 10 billion Swiss francs (roughly 10 billion euros) in 2021 alone and by 78 billion francs in the last 15 years because only a fraction of tenants dispute unlawful rents (Städler, 2023). In Switzerland, tenants have the right to challenge rent if they believe it is unfair and to request a reduction if the return derived by the landlord from the leased property is excessive (Code of Obligations Art. 269[a]; Art. 270a). Although this provision aims at protecting tenants from excessive rents, its wording is very vague and it is up to tenants to prove that the rent is too high, for which they have only 30 days. Moreover, the outcome of any arbitration proceedings after a challenging of the rent remains highly uncertain. Thus, it is not only the letter of the law that prevents tenants from claiming their tenancy-related rights. Our conversations revealed that for many people it seems safer not to claim their rights because they do not have a powerful position in the housing market and fear losing their home and finding themselves worse off notwithstanding the outcome of any legal proceedings. This observation was confirmed by different experts and underscores that looking at specific legal issues (such as challenging rent increases) in isolation is insufficient when studying people's use of the law, because it ignores other areas of life and contextual factors (in this case, the lack of financial resources and the housing shortage) that can hinder effective mobilisation of the law.

Isabella, for example, a woman in her fifties who had lived in her flat in Zurich for around 30 years, had been confronted a few years previously with a sudden rent increase of almost 900 Swiss francs, almost doubling her rent. Her neighbours decided to challenge this rent increase and asked her to join them, but she chose not to do to so and explains why the following quote:

Isabella: [My neighbours] collected signatures that they shouldn’t raise it so high, but I didn’t dare. […] There are 100 [potential new tenants] behind me. I must not attract attention; I must not cause any problems.

Anna: So, you were afraid to stand up for that, so to speak?

Isabella: Yes. […] Because they could remember that, and then suddenly it's called ‘own use’.

Although the legal situation was still unclear at the time of the interview, Isabella probably had grounds to challenge the rent increase. The law only allows rent to be increased to such an extent when value-adding investments have been made in the form of a renovation (Ordinance on the rent and lease of residential and commercial premises Art. 14 1 [VMWG]). She feared that opposing the rent increase could strain her relationship with the landlords, which could lead to termination, as owners can assert the right to claim the property back for their ‘own use’ or that of their family members (Swiss Code of Obligations, Art. 271a; 3a). The example demonstrates, firstly, that Isabella is familiar with the tenancy law's provisions to some degree, as evidenced by her awareness of landlords’ entitlement to utilise their properties for personal use. On the other hand, however, she assumes that only her landlords can make strategic use of tenancy law, which is evidenced by her reluctance to fight a massive rent increase, even though she would have been supported by her neighbours. She didn’t dare to defend herself because the landlords always have the option to ‘suddenly’ evict her from her apartment if she doesn’t behave the way they would like her to.²

This points to an overwhelming power imbalance between tenants and landlords and to the fact that laws cannot provide a sufficient remedy to balance this inequality and prevent the abusive generation of high profits made through rent increases. It also shows that the actions of landlords are experienced as unpredictable; any resistance from tenants, however law-abiding, could pose a risk to them – even in the future, because the landlord ‘will remember’. This unpredictable situation explains the non-mobilisation of law, which, not least, has enabled landlords to make excessive profits. The (non-)use of law thus takes place in highly asymmetrical spaces of negotiations between landlords and tenants, which are exacerbated in cities like Berlin and Zurich where tenants – particularly those from low socio-economic backgrounds – endure a severe struggle to find new housing.

When we talked to an employee of the tenants’ association in Zurich that provides counselling on tenancy law, he confirmed the great uncertainty that many feel when they want to take action against their landlord:

The consequences of misbehaving as a tenant don’t just affect you, as [for instance] in the workplace, but it's your family that is then affected. And that's one reason why a lot of things that would be lawful are not implemented. Because people say they won’t get involved in a conflict because [the property management] will then give them notice, or they will be put on a blacklist. There are no blacklists, but people have the feeling that there are blacklists.

People refrain from mobilising their rights because they fear that it might harm them in the future.

Our research from Berlin shows a similar picture. In Germany, tenants enjoy stronger safeguards than in Switzerland – the grounds for evictions are limited to an owner wanting owner occupancy or contractual breaches by a tenant. Yet even in Berlin, preserving a positive relationship with a landlord often takes precedence, causing tenants to forego their entitlements to sidestep conflicts. For instance, Alice, one of our interlocutors, lived with her family of five in a two-and-a-half-room apartment; her three children shared a room and she slept with her husband in a bunk bed in the storage room. Although legally entitled to ask for a rent decrease due to the high initial rate, Alice opted not to act on this, despite knowing her legal recourse and even receiving legal guidance. Although she contemplated addressing the issue through a letter prepared with the help of a legal adviser, she chose not to send it. Her decision stemmed from the challenge of securing a larger flat, a critical need for her family. She still had a spark of hope that the landlord would give her a bigger apartment in the same building. She thus consciously relinquished her rights, even though she was uncertain of the benefits doing so would yield concerning finding a new apartment. She summed the situation up: ‘We are just a number for the landlord’. The landlord probably did not even know that Alice had considered demanding a lower rent. This example highlights Alice's decision to forego her entitlement despite the slim prospect of the landlord offering a larger apartment and despite the fact that she did not even have to worry about the contract being terminated because the tenancy law is clearly on her side.

In a context where property owners and market dynamics wield significant influence, the intended purpose of the law, which is to ensure a favourable home and a fair rent, often appears to be less effective. As a result, the law is seen as carrying inherent risks when it is mobilised. Although issues such as the high costs of mobilising the law and imprecise legal clauses do of course matter, the overarching – and compelling – rationale for refraining from legal recourse that was raised by many of our interlocutors was the risk of losing one's home. This arises due to the limited avenues available to individuals in a marginalised position to secure alternative housing. In this sense, the dynamics of highly competitive housing markets, to some extent, trump the law, compelling people to seek alternative, non-legal avenues to secure housing.

Impeding People's Position in Other Legal Contexts

People sometimes consciously decide not to mobilise the law because they fear that doing so would impede their standing in other legal contexts or make them visible in other legal contexts to their disadvantage. Non-citizens in particular (especially those who do not have formal residence rights) refrain from claiming their rights. For example, it has been shown that migrants often do not exercise their right to claim social assistance in the case of economic hardship because doing so would jeopardise their residence or the possibility of family reunification (Guggisberg and Gerber, 2022). In Switzerland, the Federal Act on Foreign Nationals and Integration (FNIA) states that residence permits may be revoked ‘if the foreign national […] or a person they must care for is dependent on social assistance’ (FNIA 62). Since 2019, the withdrawal of a permanent residence permit has even been possible if a person depends ‘permanently and to a large extent on social assistance’ (FNIA 63) – exposing tens of thousands of non-citizens in Switzerland to insecurity, unpredictability and a merciless imperative to ‘integrate’. In this way, social policies become a tool of migration control (Ataç and Rosenberger, 2019). Importantly, therefore, the FNIA pushes people not to exercise their right to social assistance as doing so endangers their stay in Switzerland – and thus compromises their position in terms of migration law (see also Borrelli et al., 2021). In this case, the reasons for not claiming social benefits are clearly anchored in the (migration) law itself.

A social worker of an organisation that supports people experiencing economic hardship find housing in Zurich shared an example concerning one of their clients:

Often, people who are looking for housing…, it is not the only thing that occupies them, but for those affected by poverty, there are […] quite a lot of other issues that are also relevant. For example, a family that […] does not live precariously […] And they have been receiving social assistance for a long time, and there is pressure from the migration office, for people who receive a certain amount of social assistance. […] And they have fought extremely hard to get out of this social welfare and at some point, they just thought, ‘maybe we just have to have a smaller, cheaper apartment’, because they simply had this extreme pressure from the migration office, so for them it was simply: ‘we don’t want to have social welfare anymore, whatever the costs’.

This example points to the multiple and intersecting precarities that manifest in migrants’ lives and that consist not only of low income but also of housing arrangements and working conditions. Consequently, as confirmed to us by a migration lawyer, the FNIA compels certain individuals to reside with their families in undersized accommodation to cut expenses and avoid seeking state assistance.

Another recurring concern we encountered in our conversations with people in Berlin facing precarious living conditions was that (impending) homelessness (in the form of sleeping rough, couch surfing or staying in temporary shelters, e.g.) might result in their children being placed in foster care. These families did not perceive the legal framework of child and youth welfare and child protection as a source of support but rather as a potential punitive measure that they could be subject to because of their housing predicament and a potential threat to family cohesion. This concern for the family's future led to a very careful consideration of whether to use assistance in the form of emergency housing. The unpredictable and illegible practices of social services for families are rooted in the law, which leaves the determination of when a child's well-being is at risk to the discretion of the relevant authority. This lies within the discretionary power of street-level bureaucrats – in Berlin there are 12 regional districts with 12 different ways of interpreting the law – to decide whether homelessness constitutes a risk to the best interests of the child. This inconsistent implementation of the law is also reported by other cities (Riedner and Haj Ahmad, 2020: 39) and in the literature on family homelessness (Bimpson et al., 2020), further supporting our findings on the discretionary practices of street-level bureaucrats in other legal domains (Eule, 2014; Eule et al., 2019).

Social workers often attempted to dispel this fear, emphasising the supportive role of the youth welfare office for homeless families. Yet some social workers were aware of cases in which the youth welfare office had threatened to remove the children from their families if they remained homeless rather than providing secure housing. Others reported that the office subjected pregnant women to significant pressure to resolve their homelessness before giving birth, as failing to do so might result in their child being taken into foster care.

These examples show the hazards of families claiming their right to emergency shelter and to their children's right to support from the youth welfare services in the case of homelessness, because it can break families apart. This potential risk alone, which is partly caused by the indecipherability of the law, is sufficient for a family not to mobilise the law, even if mobilising it would not necessarily lead to the loss of family life in the individual case. Housing affects many areas of law, as we have seen in the interface between immigration law and housing and between child protection and housing. The clear (right of residence) or unpredictable (child protection) legal consequences of maintaining or improving the housing situation can prevent people from exercising their rights to seek support – such as, in this case, accessing social services and emergency accommodation.

The Ill-Fit of Legal Categories and Solutions for Complex Life Situations

The third category of reasons why people in precarious housing situations do not mobilise the law that we found is illustrated by the following example, which shows how complex lived realities can sometimes be and how a linear solution cannot necessarily improve a person's situation because it could worsen other areas of life and increase precarity in other realities of life like work and family life.

In a context of scarce affordable housing, the competition for available units becomes intensely fierce. One of our interlocutors, Nathalie, found herself with the following dilemma: on the one hand, she urgently needed to get out of her flat to protect herself from her ex-husband's violence, but on the other hand, she wanted to continue to have the chance to find her own flat and live independently of social benefits. Katharina met Nathalie, a self-confident but very exhausted woman who lived in a flat with her 12-year-old son and her ex-husband. The man was severely violent towards Nathalie and the violence could escalate again at any time. Nathalie worked in a low-wage sector on early and late shifts; she was only a few weeks into her probationary period but had the prospect of a permanent job. Nathalie described her housing situation as completely inadequate. She voluntarily took on weekend shifts at work, so she did not have to be at home, and spent every spare minute looking for accommodation for over a year. Nathalie knew her rights very well. She had reported her ex-husband for a violent incident in which she was seriously injured, and he was criminally convicted for it. She was not the tenant of the flat; her ex-husband was named in the tenancy agreement. She was well informed and had explored her options of going to a women's shelter with her son or getting emergency housing. However, she was told that if she went to a women's shelter, she would have to look after her son herself after school, which she could not guarantee she could do as she sometimes had to work late shifts. She had also looked around for an emergency flat, but the one which was assigned to her was in a district on the other side of town. She found out that she would not be able to make it to the early shift because public transport did not run there so early in the morning. This emergency flat would only be a temporary solution and her son would have to change school and lose his friends.

Nathalie knew that the moment she left her home she would be homeless and dependent on social services. Leaving the flat seemed like a risk with an uncertain outcome. If she applied for a place in a women's shelter or on the emergency housing programme, she would have to meet social services’ requirements, look after her son in the afternoons and give up her job. This would shift the dependency and precariousness of her situation, but it would not solve it. Her salary and soon-to-be-permanent contract were her only way of getting a ‘decent’ home on the housing market, because that was the only way she could compete.

We have described the example of Nathalie's situation in such detail here because only a comprehensive view of her situation shows that she was not mobilising certain rights because although they might have solved the housing problem, they would have had a negative impact on other areas of her life. The account shows how difficult and contradictory it is to navigate the rental housing market, as each part of it has its own conditions: for the private ‘first’ housing market, a good, reliable job and income are required, while the social services expect to take the emergency accommodation offered, regardless of where it is and what the house rules are and even if it means the person concerned must give up their job, their only income and their only opportunity to make their own choices. From the perspective of the authorities, Nathalie is perceived as a person who is not using her available options to move out. However, this example shows the importance of de-individualising Nathalie's choices and taking seriously both her wider structural embeddedness and her complex legal circumstances.

People have to fit themselves into – sometimes contradictory – categories in order to access certain fields of law. However, the complex legal, economic and lived realities of people living in precarious housing conditions often cannot be pigeonholed in this way, which means that many like Nathalie fall through the cracks. The example of Nathalie's situation explains why the law regularly fails to be an adequate tool for overcoming precarious circumstances and often perpetuates inequality (see Sandefur, 2008) and why people refrain from using the law even though – or perhaps because – they are well aware of these laws.

Conclusion

The cases presented in this paper show that even where specific provisions exist, the law is not always an appropriate tool for dealing with difficult circumstances. As we have shown, in highly competitive housing markets, not mobilising law – even if it is meant to alleviate housing precarity – can be understood as an effort to prevent homelessness. For instance, the intended purpose of tenancy law, which is to ensure an adequate home and a fair rent, seems to be less effective in a context where property owners and market dynamics have significant influence. Instead of the law safeguarding tenants from exploitative practices, for example, mobilising the law is in itself considered inherently risky. The potential hazards are explicit in clearly intended legal exclusions, such as when migration law effectively prevents individuals from claiming social benefits because this could jeopardise their existing residence permit or risk not being granted one in the first place. Hazards also arise from an unpredictable and illegible street-level bureaucracy. The spaces of asymmetrical negotiation that emerge between actors with unequal resources further reinforce such processes of exclusion. It is crucial to acknowledge that the law fails to take account of the fact that life is not one dimensional and that people's lived realities include dimensions such as a family life and the desire lifestyle, work and housing, which can be affected when people decide to mobilise law.

Our paper shows that we need to closely examine the interplay of specific individual cases and their wider structural embeddedness and complex legal circumstances. We argue that research into the non-mobilisation of law needs to pay closer attention to the existing economic, legal and biographical entanglements of our interlocutors. When analysing the (non-)mobilisation of law, we must take into account the diverging interests of different actors within the housing market, its sometimes-contradictory logics and its entanglement with other areas of law (such as migration law) if we really want to understand why people engage with the law in the way that they do. To do so, a comprehensive analysis of our interlocutors’ complex realities is crucial.

The approach put forward in this paper challenges us conceptually to go beyond approaches that are only interested in a general sense of ‘the law’ (whether formalistic or not). Inversely, wider structural contexts are, arguably, lost through the ways in which law-in-action research often structures its empirical design – looking at the effect of only one concrete policy or measure, examining this or that policy shift, following cases and recruiting interlocutors through the courts. Ethnography – as a research and analysis methodology – offers some tools to take these realities into account in their entirety. The strength of this type of research is that it captures more than individual attitudes towards individual laws; it captures shared narratives and experiences too. Because people take decisions concerning the mobilisation of law not as claimants in individual cases but as persons entangled in their lived realities, an broadly ethnography-inspired, approach that compares different forms and inputs of data can help bring this entanglement to the fore which we – those who are interested in particular causes, laws or case constellations – might forget otherwise. We therefore advocate capturing not only how people use or do not use the law but also how their (non-)mobilisation is embedded in their overall living situation. This helps to better understand their decision-making processes in relation to law, to recognise that the mobilisation of law often impacts numerous other aspects of life and ultimately to gain a more comprehensive understanding of the relationship between differently positioned individuals and the law.

We have argued that in many cases, individuals’ decisions not to mobilise the law are understandable. Our findings indicate that the law is often inadequate as an instrument for promoting justice and in many cases even works to exacerbate inequalities. On the basis of our findings, the implicit assumption in the literature on access to justice that the law would put things right if only it were mobilised is unsatisfactory – even problematic. Indeed, this assumption attributes a deficit to socio-economically disadvantaged people by implying that they do not know how to defend themselves rather than attributing a deficit to existing structural material inequalities and the fact that law often reinforces these rather than redresses them. We therefore agree with Lucy (2020), who criticises the fact that research on access to justice focuses more often on ‘access’ than on ‘justice’, and we emphasise the risk of neglecting the question of distributive justice when focusing on procedural justice.

Footnotes

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors disclosed receipt of the following financial support for the research, authorship and/or publication of this article: This work was funded by the Swiss National Science Foundation (Grant No 100011_197688).

ORCID iDs

Anna Wyss

Katharina Winkler

Tobias Eule

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Informed Non-Use: The Hazards of Mobilising Law in Precarious Housing Arrangements

Abstract

Keywords

Introduction

Access to Justice and Non-Mobilisation

Our Socio-Legal Approach to Studying Precarious Housing in Berlin and Zurich

Informed Non-Use: What If People with Access and Knowledge Decide Not to Mobilise the Law?

Market Trumps the Law: ‘I Must Not Attract Attention; I Must Not Cause Any Problems’

Impeding People's Position in Other Legal Contexts

The Ill-Fit of Legal Categories and Solutions for Complex Life Situations

Conclusion

Footnotes

Declaration of Conflicting Interests

Funding

ORCID iDs

Notes

References