The forthcoming article “Strategic litigation as a challenge for deliberative democracy” by Svenja Ahlhaus is summarized by the author below.
Strategic litigation is a growing public concern, but remains understudied in democratic theory. In strategic litigation, collectives go to court with a political agenda that goes beyond their specific case. Especially climate litigation and religious-conservative litigation are at the center of public attention in recent years. How should we assess the legitimacy of strategic litigation? From the perspective of democratic theory, it seems insufficient to argue that the legitimacy of the use of legal contestation either depends on a prior normative judgment about the substantive goal (e.g. strategic litigation is legitimate if it is “progressive”) or the social status of the plaintiffs (e.g. strategic litigation is legitimate if it is used by minorities/marginalized groups).
In “Strategic Litigation as a Challenge for Deliberative Democracy”, forthcoming in the American Journal of Political Science, I propose a new two-step framework for evaluating strategic litigation from the perspective of deliberative democracy.
First, I argue that we should understand strategic litigation as a collaborative and mobilizing use of the institution of legal contestation, meaning that we should analyze which social groups, in what way, are mobilized by strategic litigation. I describe a pattern of differentiated mobilization that characterizes the social effects of strategic litigation. Second, an assessment of the legitimacy of strategic litigation should ask whether strategic litigation empowers or disempowers citizens in the long run. Here, I build on Cristina Lafont’s idea of “blind deference” to define as disempowering those political practices in which citizens lack control over decision-makers and a sense of alignment with policy-decisions. Ultimately, the legitimacy of strategic litigation depends on whether it requires or avoids blind deference over time.
The advantage of my deliberative framework is that it includes the social effects of strategic litigation in its normative analysis. I show how strategic litigation is a form of political participation whose details are accessible for the legal community but remain opaque to the majority of citizens. Lacking legal knowledge to follow these cases, ordinary citizens are mainly activated by compelling narratives crafted around strategic litigation by professional legal organizations. This pattern of mobilization, which characterizes politically “progressive” and “regressive” cases, has ambivalent potential. It can contribute to empowering citizens in three ways: by providing an opportunity to shift public attention (agenda-setting); for forming and strengthening social groups (group-strengthening); and for highlighting institutional dysfunctions which make strategic litigation necessary (context-disclosing).
However, this pattern of mobilization can also be used to disempower citizens. As citizens are often only aware of the public narrative created around strategic lawsuits, there can be mismatches between a litigation collective’s public narrative and their actual agenda (agenda-masking), litigation collectives can simulate broad public support for their case (group-simulating), and they can make misleading claims about the institutional context and about potential effects of their case (context-distorting). For deliberative democrats, the main challenge of strategic litigation is that it mobilizes citizens in a way that makes it difficult for them to distinguish empowering from disempowering uses, meaning that they cannot easily fulfill their role of holding litigation collectives to account.
About the Author: Svenja Ahlhaus is an Assistant Professor in Political Theory at University of Münster. Their research “Strategic litigation as a challenge for deliberative democracy” is now available in Early View and will appear in a forthcoming issue of the American Journal of Political Science.
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