Interrogating the Debates Around Lawfare and Legal Mobilization: A Literature Review

Abstract

Abstract Liberal democracies throughout the world have been confronted with the instrumentalization of the rule of law by private and public actors to achieve undemocratic aims, thereby challenging the widely held idea that the law is concrete, normative and objective in a manner that political ideologies are not. At the same time, law-based advocacy remains an effective mechanism to counter the rise of state and non-state actors who seek to impede the advancement of progressive structural transformation toward the realization of human rights. In attempting to explain these contradictions, the terms ‘lawfare’ and ‘legal mobilization’ have gained prominence in scholarly discussions, largely in reference to the social and political ramifications of a particular application of the rule of law and whose interests it seeks to advance. This paper explores the implications of the rule of law as an institution of power that has the potential to both positively and negatively impact progressive social change in the pursuit of expanding human rights. The literature broadly unpacks the functional use of legal mechanisms, strategies associated therewith and the conditions under which these combined factors achieve or undermine the intended objectives of various state and non-state actors. The paper presents three specific strands in the literature that explore: (1) how social movements use law-based advocacy to counter (il)legitimate forms of legal instrumentalism that sustain hegemony and subsequent marginalization; (2) the judicialization of politics at the domestic and international levels; and (3) the legal culture and practices that govern litigation strategies. The paper addresses the debate across a number of themes, including economic and social rights protection, international criminal justice and environmental protection.