Legal Formalism and the Right to Liberty

Abstract

In this chapter I will examine post-9/11 legal mobilization in England over indefinite detention, deprivation of liberty, and cancellation of citizenship, to examine the connections between strategies and outcomes in legal mobilization. In the next chapter I turn toward American legal mobilization through examples of work for Puerto Rican independence seekers and mobilization for the closure of the detention camp in Guantánamo Bay. Both the English and the American examples in these chapters lay out the limitations as well as the potential of legal mobilization for basic freedoms and seek explanations for why some outcomes are achievable while others are out of reach of lawyers. Through these examples, it is possible to evaluate to what extent lawyers are able to unleash the force of law by employing the strategies they commonly employ in courts. The kinds of legal argumentation put forward by challengers often provide clues as to how lawyers prioritize their objectives. Further, it is possible to assess how far the arguments have produced desired outcomes for clients and for basic freedoms.