Legal Battles Amidst Expected Defeat: The Value of Litigation for Minorities

A recent debate surrounding the disqualification of Sami Abu Shehadeh's candidacy has brought to the forefront the complex question of the utility of legal proceedings when defeat appears inevitable. While the Central Elections Committee's decision to disqualify a candidate requires Supreme Court ratification, making Abu Shehadeh's case a certainty in the High Court, the broader discussion probes the purpose of litigation when victory is not anticipated.

This concept, termed 'litigation under certain loss' by author and human rights lawyer Raghad Awad, examines why minority groups and rights organizations invest time and resources in seemingly unwinnable legal battles. Awad's master's thesis, supervised by Professor Michael Kreini, used petitions against the Nation-State Law as a case study, but the underlying question applies more broadly: why engage in a "foregone conclusion" fight?

The article argues that legal success should not be viewed as a binary outcome of win or lose. Law is presented not just as a set of rules but as a contested space where power and resistance intersect, shaping social and political dynamics. For politically and nationally marginalized minorities with limited influence on decision-making centers, the legal process offers a crucial arena to compel the state to formally address their claims, even if the court doesn't ultimately rule in their favor.

Awad introduces the concept of 'winning through losing,' suggesting that while procedural defeat may occur, the loss within the courtroom can translate into political, organizational, or cognitive gains in broader societal struggles. This impact manifests in three cumulative circles: judicial-doctrinal, organizational, and socio-cognitive. Legally, even a rejected petition can force courts to confront theoretical questions, establish normative boundaries, or lay groundwork for future cases. Organizationally, courts can serve as a platform to introduce minority narratives and political stances into the official discourse.

On a socio-cognitive level, legal proceedings contribute to the societal understanding of belonging, exclusion, rights, and legitimate claims. Even a denied petition creates an archive of resistance, documenting dissent and compelling the state to articulate an official position. This act of challenging the status quo, even in the face of expected defeat, is vital for minority groups to ensure their perspective is recorded in the institutional memory of a dispute.

The article acknowledges the costs of litigation, including the necessity of translating broad political arguments into specific legal claims, which can dilute their original meaning and potentially lead to the system co-opting and redefining the resistance within its own framework. Furthermore, submitting a political decision to judicial review, even if challenged, can inadvertently legitimize it by presenting the process as democratic and fair. Therefore, the value of litigation is not always a clear win for the petitioners; the state might gain legitimacy, the court might enhance its institutional standing, or the public might gain a new language to understand conflicts. The ultimate question, Awad concludes, is not simply who won, but what was produced by the litigation, and in which arena, and what do the parties wish to achieve: a change in outcome, a legal foundation for the future, forcing the state to respond, introducing their narrative, exposing the system's limits, or keeping the dispute alive.