This paper addresses the question of judicialisation as a phenomenon that tends to increasingly govern conflicts arising in today’s societies. While the transfer of political authority to both domestic and international judicial bodies embodies the judicialisation’s political nature, legal discourse that penetrates the sphere of social action, including political mobilization and decision-making, reflects its social nature. Judicialisation has become an institution, in virtue of which the rights-based discourse, rule of law, and accountability play a prominent role in the determination of power-relations and participation in the political life of the state. The discussion centers on whether the current judicialisation processes provide societies with new forums and possibilities for political participation and democracy building, or whether they enforce the existing patterns of social, political and economical exclusion.
The investigation is based upon a comprehensive research on related topics and case studies. As a starting point, the research addresses the judicialisation’s manifestations that visualize the power struggle between social actors and the state, as well as the grey area of (il)legality in which this power struggle unfolds: strategic litigation and state repression (or criminalization). Strategic litigation may both respond to a current political need as well as entail serious democratic challenges, while repression sets a preference in social actors towards either not participating or a participation that won’t fully challenge the system itself. In so doing, repression limits the actions that social organizations can undertake to challenge a system that does not guarantee basic rights. Particular attention is given to the implications of judicialisation processes around conflicts regarding territory, land rights and natural resources in Guatemala and Honduras, Central America.
