Litigating for Change? The Role of Adjudication in Challenging Law and Policy
When courts deliver divisive or progressive judgments, they regularly face allegations of judicial activism. Critical voices question whether the role of courts can properly encompass bringing about social and political change. They also invoke the limits of courts’ role within a democratic system characterized by the separation of powers. Providing satisfactory answers to these challenges can be difficult. Doing so involves competing understandings of the foundations of judicial power and democracy. These concepts remain, despite their core relevance for legal scholarship and practice, blurry. Often, these discussions come to a head concerning the role of fundamental rights. Cases where rights are mobilized in the pursuit of change are often described as ‘strategic’ or ‘public interest’ litigation, and their appropriateness is contested in different jurisdictions. To build a more robust account of the judicial role, this project works towards a better understanding of strategic or public interest litigation, and its impacts on the law. The project draws on a central case study – that of climate litigation – to do so. Integrating socio-legal, critical and comparative methods, the project works towards a more convincing account of whether, how, and when the courts can legitimately be expected to produce change.
