Preventing lawfare: is the independence of the judicial branch under suspicion?

• Pages: 387-411
• Author: Miryam Rodríguez-Izquierdo Serrano

— 387 —

PREVENTING LAWFARE: IS THE INDEPENDENCE

OF THE JUDICIAL BRANCH UNDER SUSPICION?

MIRYAM RODRÍGUEZ-IZQUIERDO SERRANO



SUMMARY: 1. LAWFARE AND JUDICIAL ACTIVISM: AN ALLEGATION

AGAINST THE INDEPENDENCE OF THE JUDICIAL BRANCH? 1.1. The

polysemic of the term “lawfare”. 1.2. “Judicial lawfare”: the two perspec-

tives. 2. THE AUTONOMY OF THE JUDICIAL BRANCH IN EUROPE AND

ITS ADVERSARIES: 2.1. The judiciary in the genesis and development

of constitutionalism in Europe. -

ted constitutional principle.   -

dicial independence in European constitutionalism. 2.2. Independence of

the judiciary within the legal framework of the European Union. 

Judicial independence as a foundational element of the European Union

      

     

3. THE COMPLEXITIES OF “JUDICIAL LAWFARE”:

JUDICIAL ACTIVISM VS. JUDICIAL MISCONDUCT: 3.1. A premise: judi-

cial activism can obviously be the inception point of lawfare actions,

but it should be labelled as judicial misconduct. 3.2. An objection: the

independence of the judiciary should not be the focus of lawfare alle-

gations. 4. PREVENTING LAWFARE IN THE EUROPEAN UNION. 4.1. A

first legal instrument: the prevention of abusive lawsuits and the Anti-

SLAPP EU Directive. 4.2. A framework to prevent judicial misconduct:

upholding judicial independence in opposition to member states. 

      

mechanisms through funding conditionality. 4.3. Preventing judicial mis-

conduct through general harmonization of procedural guarantees. 5.

CONCLUSIONS.

MIRYAM RODRÍGUEZ-IZQUIERDO SERRANO

— 388 —

1. LAWFARE AND JUDICIAL ACTIVISM: AN ARGUMENT AGAINST THE

INDEPENDENCE OF THE JUDICIAL BRANCH?

1.1. The polysemy of the term “lawfare”.

Recently, the term “lawfare” has been integrated into the political discourse

of Member States of the European Union. In this context, the use of the term

points to deviations or collateral drift of so-called ‘strategic litigation’, a practice

which initially emerged as a way for civil society actors to promote political and

legislative changes.1

Subsequently, a different political use of the term originated within the

international context. This second use was initially associated with campaigns

aimed at discrediting political leaders in Latin America.2 After that, the

emergence of populist and illiberal tendencies within Europe is the reason why

the term ‘lawfare’ has been introduced into our public discourse. It is also the

reason why this study deals with the word.

Therefore, in the context of this paper the term is used to denote

any deviations in the initiation or application of judicial procedures. Such

deviations would be intended to advance political objectives or manipulate

public prosecution to promote or reverse individual political agendas.

Notwithstanding the term’s broader and somewhat ambiguous connotations,3

this definition of ‘lawfare’ is focused on the instrumentalization of judicial

procedures. These controversial methods may also encompass legal and media

strategies, which have gained considerable influence owing to the capabilities

of digital communication mechanisms.4 In this context, an action of lawfare

1 The meanings of lawfare are linked to abusive lawsuits, commonly described as “the

growing strategy of powerful private actors, businesses and wealthy individuals (oligarchs) but also

autocratic governments, trying to intimidate and stop stakeholders in civil society”. HESS, Burkhard,

“Strategic Litigation: A New Phenomenon in Dispute Resolution”, Max Planch Institute Luxembourg

for Procedural Law Research Paper Series, 2022 (3), p. 23. https://papers.ssrn.com/sol3/papers.

cfm?abstract_id=4107384

2 BIGLINO CAMPOS, Paloma, “Los retos a la independencia judicial”, 

 ARAGÓN REYES, M., VALADÉS RÍOS, D., TUDELA ARANDA, J.

(coords.), Fundación Giménez Abad, Zaragoza, 2023, pp. 377-396, p. 386.

3 This meaning of lawfare could match with the with the “lawfare by actors in political

society” category, which is referred to by Gloppen, along with two other categories: “state

lawfare”, by government and state actors, and “lawfare from below”, by civil actors. GLOPPEN,

Siri, “Conceptualizing Lawfare: A Typology & Theoretical Framework”,    

Transformation Paper, Bergen, 2018, pp. 1-31, p. 7.

https://www.academia.edu/35608212/Conceptualizing_Lawfare_A_Typology_and_

Theoretical_Framwork

4 Although we only refer to the legal aspects of lawfare, these abusive methods usually

include communication and media strategies. TIEFENBRUN, Susan W., “Semiotic Definition of