Normative Perspectives on Strategic Litigation in Democratic Theory

What is the role of strategic litigation in democratic theory? In recent decades, collective legal mobilization in courts by groups seeking rights, redress and reform has become an increasingly prominent political strategy. A multitude of civil society groups and social movements have been exploiting litigation strategies to pursue their aims, ranging from environmental activists to religious minorities, from LGBTQI organisations to taxpayers’ associations, from trade unions to employers and business interests. With the expanding judicialization of democratic politics, courts have become increasingly central to political mobilization, participation, and policy-making. For democratic theory, this novel and expanding form of political activism in judicial arenas raises intriguing questions about how strategic litigation in courts can be justified (or not) as a practice of democratic participation and contestation. In existing scholarship, questions about the role of courts in democracy have been addressed in debates about the ‘counter-majoritarian dilemma’, analysing judicial review from a systemic, constitutional perspective of separation of powers. Human rights theorists have debated rights-claiming across borders, while socio-legal scholarship has analysed the pros and cons of legal mobilization as a social movement strategy for social reform. However, these strands of theorizing raise important questions about the normative justifiability of strategic litigation as a practice of democratic participation. In this paper, we seek to chart the roles strategic litigation can play in democratic theory to advance a new research agenda. First, reviewing important recent contributions in political theory, legal philosophy, and socio-legal scholarship, we seek to establish strategic litigation as an important challenge for contemporary democratic theory. Contributing to recent attempts to update democratic theory to make it more relevant to contemporary societal struggles, we seek to provide a normative reconstruction of the practice of strategic or public interest litigation. Second, conceptualising strategic litigation as a specific mode of collective legal action in courts in pursuit of a political agenda against certain background conditions, we introduce a conceptual typology for distinguishing key normative dimensions of strategic litigation at three analytical levels: the movement perspective, centred on group objectives; the co-citizen perspective emphasizing equality and autonomy; and the systemic perspective, addressing democratic legitimacy.