Strategic litigation: the problem of abuse of law and other critiques

Abstract

The word “abuse” seems to be made of two parts. The root “use” stands for “to take advantage of something” – implicitly – in casual, normal way. The prefix “ab”, however, changes the meaning of the root, indicating that it concerns something beyond the casual, normal usage. The comparison of any random definition of the strategic litigation with a simple semantic analysis of the term “abuse” immediately gives rise to a view that the strategic litigation can be easily described as a kind of abuse of the practice of litigating. This notion arises because the primary purpose of the strategic litigation does not refer to the interest of the party to the proceedings (like in the conventional litigation); instead, it is aimed at “bringing social change”, always deprived of any evaluation. The observation above is hardly the only reason supporting the necessity of investigating possible critiques of the strategic litigation. The contemporary literature devoted to this institution presents certain instances of its critique; nevertheless, it provides us with possible allegations or doubts addressed exclusively from the perspective of the strategic litigation’s proponents (or proponents of aims of the strategic litigation). As a result, such a criticism has ostensible character, focusing mostly on inefficiency of the strategic litigation, rather than on more down-to-earth sceptical reflection on ideas standing behind the whole concept.