Legalization, Judicialization, Lawfare: On the Light Side and the Dark Side of the Turn to Law

Abstract

The turn to law in recent decades has generated multiple debates about its potential consequences. Some authors have emphasized its positive effects—the “light side”—whereas others have highlighted its negative effects—the “dark side.” In many cases, the decision to classify phenomena related to the turn to law on one side or the other has been driven more by the purely normative criteria of the authors than by systematic empirical distinctions. We suggest that terms such as legalization, judicialization, and lawfare, when stripped of their normative charge, can help clarify a discussion fraught with concepts created to describe what we disfavor. Furthermore, we argue that whether a phenomenon related to the turn to law falls on the light or dark side depends on contingent factors, so that we cannot say a priori whether embracing legal strategies will carry negative consequences. We illustrate the argument with discussions on fundamental rights, democratic regimes, and public policy.