The Ambivalence of Litigation: A Criticism of Power

Abstract

Israel is one of the most litigious societies on earth, having the most lawyers per capita of any democracy. Yet, litigation and social change may be perceived as oxymoron. Litigation is a court-centered process that deals essentially with resolution of limited disputes in a narrow legalistic sense, whereas social change is most often the result of large-scale political reform. While litigation is delivered by lawyers, social reforms are generated by social and political organizations. Research has demonstrated that the ability of litigation to bring about socio-legal change is modest, at most, and any such change is usually very limited. Relatively few cases have resulted in changes that extend beyond the immediate specific legal remedy granted therein. Below, I address both the sociopolitical thresholds that may prevent litigation from being helpful to minorities trying to effect change and the legal sociopolitical calculus that should guide their decision whether to use litigation.