Strategic Litigation and Legal Mobilization as a Challenge for Deliberative Democratic Theory

In recent deliberative democratic theory, there is renewed interest in judicial review and the status of legal contestation (Lafont 2020, Chambers 2020; Guiffré 2022). In this context, Cristina Lafont has argued that empirical questions, such as unequal access to courts for wealthier citizens, “fall outside the scope of a normative analysis of the legitimacy of the institutions in question” (Lafont 2020: 230, Fn. 39). Challenging this claim, I argue that deliberative democratic theorists should take into account the socio-legal research on litigation movements, and especially on climate litigation, as it questions the widely-held individualist view on the right to legal contestation. Building on the socio-legal research on strategic litigation and collective legal mobilization, I argue that deliberative democratic theorists should provide a more fundamental analysis of the ambivalences of litigation practices. Climate litigation is not an individual citizen’s attempt to get a fair hearing but a collective and often transnational advocacy project aiming for broad social change. The collective and transnational character of strategic litigation asks deliberative theorists to develop new conceptual, diagnostic and normative tools.