Strategic Litigation in Times of Crisis: Emergency Frameworks and Democratic Underlabouring

The growing tendency to diagnose political crises democracies seem unable to address, such as the climate emergency, has provoked the question of whether less democratic forms of decision-making might be justified to bring about necessary measures. In this paper, I take the methodological standpoint of the so-called "democratic underlabourer" and show how it builds on conflicting insights of both critical and analytical political theory. I argue that political theory should not respond to emergency narratives by changing the normative content of its proposals but by reconsidering the form and timing of public interventions. To illustrate the difference, I reconstruct the debate about the democratic legitimacy of strategic litigation. Strategic litigation involves the growing practice of litigation collectives going to court with an agenda that goes beyond the specific case. The democratic legitimacy of strategic litigation is contested but special status has been claimed for strategic litigation in the context of climate policy. I contrast strategic litigation in two policy areas (climate policy vs. religious policy) and discuss four arguments according to which the climate crisis is “special” in a way that calls for different standards of legitimacy: (1) the transnationality argument, (2) the beyond-humans argument, (3) the uncertainty argument, (4) and the urgency argument. I argue that appeals to the supposedly exceptional nature of particular policy areas that warrant extraordinary measures are ultimately dubious and should be rejected. While the legitimacy of decision procedures, and thus of strategic litigation, must be evaluated according to general normative principles, democratic underlabourers might reconsider the form and timing of interventions in public debates that assume emergency frameworks.