Yves here. Please thank reader albrt for providing the backstory on the hot term “lawfare.”
By albrt, a solo lawyer from flyover country who has previously posted at Calculated Risk and Corrente
The word “lawfare” is mentioned often these days, here at Naked Capitalism and elsewhere by commentators with widely varying viewpoints. I think it’s fair to say “lawfare” is most often used pejoratively. But until this week I wasn’t confident that I knew what connotations were intended, or if everybody using the term was even on the same page. I spent a few hours researching and, as part of my effort to be a helper, I’m sharing what I found.
Lawfare is an invented combo-word, also known as a portmanteau. When I noticed the term a few years ago, the first thing that sprang to my mind was welfare for lawyers (law-welfare). Leftish organizations have for several decades tried to get the courts to handle issues like abortion when the Democratic party refused to do the heavy lifting politically, and this operates as a kind of informal jobs programs for the lawyer wing of the Professional-Managerial Class (PMC), the base of the modern Democratic party. One reason I made this assumption was because the word seemed to be used in a pejorative sense by rightish bloggers more than leftish bloggers. Welfare itself has become a pejorative term, and as such is traditionally beloved by the rightish-sphere.1
I eventually realized that the common usage of lawfare is based on law-warfare, not law-welfare, but I still didn’t have a clear idea of what was meant. A 2021 article in the online Journal of Indo-Pacific Affairs says the term was popularized by Air Force General Charles Dunlap in 2001.2 The article is entitled Legitimizing and Operationalizing US Lawfare: The Successful Pursuit of Decisive Legal Combat in the South China Sea. The article claims that China is particularly adept at lawfare, in part because of Sun Tzu’s teaching that defeating the enemy without fighting is the “pinnacle of excellence.”
This particular article seems to accept as given that the “rules based order” we hear so much about is mainly a weapon to be deployed against our rivals, but not in the traditional sense of a rigid hegemony that allows rich nations to maintain their positions. Instead, the author appears to envision a post-modernist world of infinite legal rug-pulling, where the rules are changed constantly to disadvantage rivals, and where all that is solid has melted into air. 3 The article is not very long, so feel free to read it and see if I’m being fair. The description of lawfare in the article does have some striking similarities to the Biden administration’s approach to international relations, but the article was written by a young person so I will continue to hope that zhe was just under the influence of too many video games or superhero movies.
General Dunlap, the father of lawfare, has more conventional views as reflected in a textbook on lawfare. He directs a “Centre” at Duke University Law School and he has provided occasional updates to his views about lawfare. Dunlap pretty consistently takes the position that the primary purpose of lawfare in the U.S. should be to maintain the legitimacy of military action by listening to military lawyers and following the law of war. To his credit, Dunlap took torture-apologist John Yoo to task in a 2008 article.
General Dunlap also said in the same articles that the concept of lawfare is broad enough to include the asymmetrical use of the U.S. legal system by its opponents when they take advantage of U.S. adherence to legal constraints, for example by using civilians as human shields. This sense of using our own legal system against us has greatly expanded to include, e.g., arguments that radical Islamists are unfairly using the legal system to “punish free speech about militant Islam, terrorism and its sources of financing.” This is the type of anti-wokeness spin on lawfare that originally gave me the impression it was a concern of the rightish-sphere rather than the leftish-sphere.
Lawfare as a strictly military concept seems to have peaked around 2011, about the time a blog called Lawfare was founded. Lawfare the blog purports to “provide non-partisan, timely analysis of thorny legal and policy issues” such as “national security law, threats to democracy, cybersecurity, executive powers, content moderation, domestic extremism, and foreign policy, among many others.” The blog says its name “refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the reality that America remains at war with itself over the law governing its warfare with others—as well as the law governing its own national security strategy.”
Now we’re getting somewhere. In this vastly expanded sense, Lawfare sounds more like a PMC jobs program, not just for lawyers, but also for journalists, academics, and all sorts of legislative/administrative flexians. The term creates plenty of opportunities for scolding deplorables, while obfuscating the actual processes and goals of governance, conflict, and diplomacy. It also sounds like a great subject for international conferences, probably maskless ones in nice places.
The website Lawfare provides much of the context for how the word is commonly used today. A 2017 New York Magazine profile of Ben Wittes, a co-founder of Lawfare, said
Before the [2016] election, [Lawfare] existed as an insider-y national-security forum. It was smart and provocative but basically written for the benefit — and from the hawkish perspective — of the U.S. intelligence community. Then came Trump. Rank-and-file members of the CIA and the NSA morphed in the popular imagination from metadata-snarfing desk jockeys to brave sleeper agents of the Deep State, bent on sinking the president’s leaky ship. By the time Trump began to turn on the people investigating his ties to Russia — you know, Wittes’s friends — Lawfare was going to war with the president on a daily basis. Readers noticed; the site attracts 600 percent more traffic than it did a year ago.
TL;DR summary of where we are today: The term lawfare has less empirical meaning than it appears from the loaded way it is often used, as a metaphor like the war on drugs war on terror war on the bugaboo du jour. If anything, lawfare just means aggressive litigation, sometimes sponsored by elements of a government, but not necessarily the government that wrote the laws.
Lawfare is most commonly used to describe the deep state Democratic legal “war” on Trump, but it also describes any similar attempt to destroy someone using the courts. Nick Corbishley used the term in this sense in a post last year — “the use of a nation’s legal system and institutions to damage or delegitimize an opponent, as has already happened in Brazil, Ecuador and now Argentina.”
Nick’s definition is consistent with current usage, and I’m not the sort of pedant to advocate for a narrower usage of a popular term. I’m a different sort of pedant, and anyway it’s far too late to salvage General Dunlap’s intended meaning for lawfare.
Lawfare joins the long list of contested post-modern vocabulary ready for hegemonic deployment by anybody who is willing. I only hope this post has enriched your appreciation for the word, and I especially hope that some of you will think occasionally of my own personal connotation of lawfare, as (yet another) jobs program for the PMC.
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1 Since calling groups of people liberals and conservatives has no discernible meaning in the U.S. these days, I propose the terms rightish-sphere and leftish-sphere as replacements. The terms are intended to suggest both the lack of any well-developed ideas motivating the two camps, and the insularity of the two groups of camp followers.
2 The term lawfare had previously been used by a couple of Australian academics way back in 1975 (h/t Wkipedia) for the more pedestrian purpose of describing the adversarial system of handling legal disputes, as distinguished from an inquisitorial system or a more cooperative system.
3 Solid social constructs melting into air was supposed to be a harbinger of triumphant capitalism in the run-up to communism, but Marx believed that the cheap prices of commodities would be the heavy artillery with which the bourgeoisie battered down Chinese walls. The battering with cheapness seems to be going the other way these days, supporting my intuition that delegitimizing legal frameworks is not necessarily to the advantage of the U.S. bourgeoisie. The U.S. bourgeoisie might want to have a talk with their PMC minions about why that sort of thing keeps happening.
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Very good, IMO. I don’t know in the US but in the “procedural” EU, rather than by aggressive litigation, lawfare is driven by aggressive law writing. This goes to extremes that make It a hard job to keep one updated on the state of law and makes law counseling a critical need for many activities including municipal, regional and state administration. The EU Comission (EC) is stuck in a permanent law-writing frenzy.
Glad you brought up the EU. It’s one thing to aggressively litigate. It’s something very different to pursue a project of encumbering and then replacing politics with rule generation by a legal-administrative system that embodies a Good. The world-wide ‘rules-based order’ of NATO aspires to what the EU is in the process of constructing.
Legislating the morality of those in power… at the point of a gun.
Or at the point of guns wielded by “trade experts” in an ISDS panel who are empowered to penalize a country for impinging on corporate profits. Nations are no longer free to choose the rate at which they race to the bottom. They’re there already.
This is California today under the Dems supermajority.
“Bill Factories” churn out legislation on demand.
Initiatives crowd the ballot as interest groups spar.
Our housing crisis is a Civil War battlefield of failed attempts to fix it.
State law killed single family home zoning. Granny units are allowed on any parcel. Discretionary approvals are replaced by Ministerial give aways without noticing requirements.
Senate Bill 10 allows up to 10 units on any parcel, running with the land in perpetuity and unable to be changed by future legislation, state or local, or even the courts! Written to be a hammer to those jurisdictions that fail to adopt the State’s Regional Housing Need calculations as their own, it must be adopted locally to go into effect. No one has and in my City of San Diego, we have stopped the Mayor’s housing package for months as electeds balk at handcuffing future leaders decision making prerogatives.
Of course the response is a Ballot Initiative to cement local land use decision making in the hands of local government via amending the State Constitution in 2024. It just wears you out.
I suspect this comes down to that certain parts wants to turn it into an overt federation (a united states of Europe if you will), but have no means to enforce that. All they can do is formulate directives, and then it is up to the member nations to turn those into actual laws and enforce them via police and court.
Things may be changing though, after Frontex was expanded to employ actual border guards independent of member nations.
They go well beyond directives through regulations (directly binding) increasing their regulatory scope to most areas using, for instance, “environment” as an excuse to set regulations in land usage. The EC wants to regulate everything.
So basically the same playbook as DC using “interstate commerce” to override individual states. Almost like it is some deeply held instinct asserting itself time and time again.
To add one of the major uses of lawfare – threatening or targeting people without resources to defend themselves legally, or who would be discriminated against in court. It definitely is not just used against big names like Trump or against whole countries. This is a major issue for the vast majority of people who don’t have time or money to defend themselves in court.
Also, I believe differential treatment by law is a major mechanism for maintaining different levels of privilege. For the vast majority of people, I believe this is the most common experience of lawfare – differential sentencing against people based on race or sex, differential enforcement of the law based on class or wealth, etc, differential legal categorization (eg slaves, prisoners, supposedly-free-people, etc all have different legal rights). this is a major divide-and-rule tactic because giving people different levels of privilege makes uniting against the rulers more unlikely.
This differential enforcement leads to the next major benefit of lawfare – law’s propaganda value. When there are no laws against polluting, people can organize to change that – there is a clear goal. But when there is a law that is rarely-but-sometimes enforced, it is much harder to form a group to fight it.
These perspectives show to me that lawfare is significantly about internal social control. Another reason to believe this: not every country much cares about its military lawyers; many countries’ militaries throughout history simply follow the direction of the top commander without worrying about internal legal obstacles (in the US it’s not always clear who the top commander is, if there is even a single one, but clearly the law is not a major obstacle in decisions of war). But all countries have the sort of graduated privilege I discuss here. This is something I’m covering in a book currently. Of course people take advantage of the rigidities and quirks of the system in various ways as described in the article.
That’s the part that gets me – both weilding law unfairly and pretending to promote the notion that “law” applies equally. Even worse with funniest do it with “God’s law” or certain types pretend they’re realists observing natural law.
Excellent observation.
US has conducted lawfare against rich as well. See how Alstom was bought by GE (The American Trap):
https://www.economist.com/business/2019/01/17/how-the-american-takeover-of-a-french-national-champion-became-intertwined-in-a-corruption-investigation
A textbook case of lawfare.
It was intuitively obvious to me that it referred to the use of lawyers in the same way as mercenary armies of old, for subjugation by force. You win by running the opponent out of resources rather than by determining who is ‘right’ in reference to laws and regulations. Patent law, for example, seems to work this way in practice – you claim a lot of territory, deploy a sufficiently intimidating arsenal of legal defenses in support, and hope you’ve made it too difficult or costly for anybody to contest you.
Of course, intuitively obvious doesn’t always mean right. Still, it’s clear that the likes of Trump, Musk etc. certainly view the law this way – as a means of deploying their fortune and influence to get what they want, with the legality or otherwise of their actions a distant afterthought if it comes up at all. The charges against Julian Assange are another example – it’s pretty clear the US is out to get him by any means necessary, and laws and regulations are merely tools to that end, to be considered only if they are useful.
This does not seem to have been the original meaning of the term according to this article, but terms evolve over time, and the current usage does seem fairly similar to what I described.
Johnny Cochran apparently said, playing on the “innocent until proven guilty” shibboleth:
“You’re innocent until you’re broke”
The Lawfare website can be disregarded simply for having the tagline “Hard National Security Choices”. That in itself makes it painfully obvious as a cover for eliminating all other choices other than empire.
You seem to miss the point of the post. It’s about how the phrase entered the lexicon and spread. Just because you don’t like one of the propagators does not mean it was not effective.
Nice digging. You’ve earned your etymology merit badge for this one.
We had a nice etymological romp over “portmanteau” at the breakfast table.
Thanks, albrt and Yves!
Very nice summary – thank you.
I had to chuckle a little bit at the mention of General Dunlap bemoaning the idea that opponents will take advantage of US legal constraints by using “human shields”. Since when have a few civilians stopped the US from carpet bombing anybody?!?! But to give Dunlap the benefit of the doubt, he was probably writing this before constitutional lawyer Barak Obama used some “lawfare” of his own, declared anybody who moved an “enemy combatant” and therefore a legitimate target, so “Bombs away”!
Yes. Nagasaki and Hiroshima were full of . . . civilians.
Lawfare can be broadly employed to intimidate and silence advocates for oppressed people, most dramatically and effectively regarding Palestinians suffering oppression. With “help” from the Israeli embassy, laws have been passed here (according to Newsweek) “As of May 2021, 35 states have passed anti-BDS [boycott, divestment and sanctions] laws, resolutions or executive orders.” Efforts to apply the post-WWII laws specifying responsibilities of occupying powers are attacked as “anti-Semitic” and the use of the historic right to practice boycotts as in the Civil Rights movement is made illegal… unless one is ready for the cost of court battles with uncertain outcomes.
That is the insidious thing. America’s foundational First Amendment laws are being undermined in order to please a political faction in a foreign country. And that this foreign country feels that it owes nothing to the US but the US is expected to support in nonetheless.
Thanks for the history of the term, though in it’s current incarnation, I take Lawfare to simply be the aggressive use of the legal system as a substitute for politics.
Nicely done albrt—
Personally, I think your PMC jobs program interpretation is spot on.
Witness how perfectly you can substitute (BigLaw) lawyers for soldiers into Gen. Smedley Butler’s famous War is a Racket quote. Here’s the original:
“I spent thirty-three years and four months in active military service as a member of this country’s most agile military force, the Marine Corps. I served in all commissioned ranks from Second Lieutenant to Major-General. And during that period, I spent most of my time being a high class muscle-man for Big Business, for Wall Street and for the Bankers. In short, I was a racketeer, a gangster for capitalism.”
“[Biglaw] is a racket.”
Cheers, from another solo practicing flyover country lawyer. We should do coffee sometime … i think we’d have plenty to talk about.
Thank you for this discussion. In my view, ‘lawfare’ has developed over time as a tool in our ever-growing arsenal of hybrid warfare weapons. As you say, it utilizes aggressive application of the “law” as cover for attacks against individuals and groups seen as undesirable. A very significant international example of lawfare used by the US and its NATO lackeys was that directed against Milosevic through the ICC. After utilizing “color revolution” tactics to influence the electoral process, we then made sure he was removed from the scene, and made an example of, by shipping him off to the Hague to try him for war crimes (for which he was eventually found not guilty – after he had died in prison). We had plans to do the same thing, using the same mechanisms, against Assad in Syria; some of the same people were involved in manufacturing the bulls**t “evidence” of Assad supposedly torturing thousands, or tens of thousands of people to death. We didn’t get Assad, but we did use this “evidence” to pass the Caesar Act sanctions that continue to strangle Syria economically.
It makes perfect sense that Jack Smith came from the ICC to wage legal war against Trump. It’s “warfare” through the legal system – we love our “rules based” mechanisms of “democracy.” We may be running out of ammo in Ukraine, but we can keep those indictments coming forever.
A humble addition.
When special interests control a state legislature which forces laws upon the people and local officials shrug their shoulders and proclaim, “but it’s the law,” that too is lawfare.
For example, California forcing millions of housing units to be built against all local zoning and environmental laws and community plans that had been slowly worked out over decades.
Here’s the latest example: Senate Bill-423 extends SB-35 until January 1, 2036 and adds aggressive provisions that benefit outside investor/speculators, but harm local communities and the state. These provisions are:
The Coastal Commission will be overruled and massive luxury development will be given streamlined approval (without public hearings and without review in accordance with the California Environmental Quality Act – CEQA)on the coast.
From open space along the coast to Copacabana Beach like walls of buildings thus permitted.
Local governments are already subject to SB-35 streamlining, eagerly signed into law by Newsom, if they fail to adopt a “compliant” housing element as determined by the Department of Housing and Community Development, as specified.
(Before, SB-35 only kicked in if Regional Housing Needs Assessments housing quotas weren’t built on schedule. Also, compliance was not determined by HCD but rather by law.)
Every local official who is a lawyer must obey the state laws, and cannot resist, thus nullifying their office. Basically, So lawfare is special interest warfare upon the people disguised as laws.
https://www.calcities.org/news/post/2023/03/22/anti-local-housing-bill-heads-to-senate-governance-and-finance
Gee, decades of blocking new housing by NIMBYs countered by the even more atrocious special interests of both developers and the wealthy. Still more homeless will luxury apartments and houses are built. The worst of both worlds. California is becoming a joke.
Thanks for the kind comments. Any suggestions for other words that need attention?
Thank you for great analysis of a troubling term. “Arbiters of truth,” “malinformation,” “hate” are words needing attention.
Dunno where i first encountered it, but i think the context lead me to understand it as warfare using lawyers rather than soldiers.
But then in hobbyist tech circles the image of some company air dropping lawyers like they were paratroopers (or bombs) onto some project they want shut down is an old thing.
I think of lawfare as being the Dershowitz brand of lawyering which is lawyer as advocate and mouthpiece. There’s even a true story movie called Reversal of Fortune about how Dershowitz gets Claus von Bulow off after (probably) killing his wife. Dershowitz justifies this as honoring the “rule” that all accused are entitled to vigorous representation and to any laws or arguments that can be conjured to help them. Later he would help Epstein.
So it’s not at all about justice other than the degree to which take no prisoners advocacy is about justice. Of course the privileged have always used lawfare to benefit themselves and often are the ones writing the laws. So the traditional lawyer spiel about the law being sacred needs a bit of eye rolling.
The great cable show Better Call Saul was all about these issues.
There’s a book by Orde F. Kittrie, Lawfare: Law as a Weapon of War. Thank you for this article, great analysis. I despise the term as I think it reflects abuse and corruption of international law and our judicial system.
I may have missed it, but I don’t think anyone (including me in an earlier comment) has mentioned one of the most significant examples of ‘lawfare’ today – the persecution of Julian Assange. His case is the epitome of using the legal system to silence and intimidate critics of the powers that be. The laws and legal arguments used against Assange have evolved on the fly as necessary to keep him imprisoned. The same has occurred with the legal persecution of Trump, though he is certainly not as deserving of “hero” status.
Thanks for mentioning Assange in this context. Multiple countries colluding to use questionable applications of law to persecute/imprison an effective press opponent of the Empire, the Borg,the MIC, etc. First amendment, freedom of the press, innocent until proven guilty, habeas corpus, etc. be damned. Whatever it takes, no? Lawfare as twisting the law for political purposes.
And what law, pray tell, gives the US the right to prosecute foreign citizens not on our soil, and demand their extradition to the US under US law? The US is not a member of the ICC, meaning it does not submit itself to the jurisdiction of the ICC. Yet it condemns other nations and participates in bringing them before the ICC.
The hypocrisy of the US with respect to international law generally is well understood worldwide.
Fare thee well, seafarer, space faring, warfare-lawfaring, wayfaring stranger.
Has it not always been obvious that anything that can be weaponized will be weaponized? Lawfare is an interesting term to analyze. However, to go too far down the postmodernist rabbit hole is to end up with absolute nihilism, not to mention neoliberal capitalism! At some point we have to take a stand for some sense of reality, and the values implicit in that reality.
I just recently rewatched the Julia Roberts starred movie “Erin Brockovich” about the titanic lawfare battle between investigator Brockovich and her law firm against the corporate lawyers of PG&E and their well-funded defense of the casual poisoning of hundreds of Californians with hexavalent chromium. The movie follows the David and Goliath battle which ultimately cost PG&E dearly for its recklessness. Of course, apparently not paid dearly enough, because recently PG&E has been back in the news for reckless maintenance of its electrical grid which resulted in billions of dollars in fire damage and the bankruptcy restructuring of the company. In what kind of world would we treat these combatants as morally equivalent?
Now Brockovich got a movie because her story involved relatively pure good and evil. Real life is usually much more nuanced. Are Democrats looking for ways to leverage Trump’s legal woes for political advantage? Of course they are. Does Trump deserve his legal problems? Yes! Does that make Biden a great President? No! From the inept exodus from Afghanistan to his recent bizarre decision to pull Elliott Abrams out of the trash bin of history, Biden has made plenty of bad decisions. He only appears the lesser of two evils because the choice, whether Trump or DeSantis, is a monster. I just hope that Global Warming will not have so fried our brains by next year that we will, as a people, be unable to make rational choices.
Biden is a monster, too. Iraq, Ukraine, just to name two.
The US thinks it owns the world and that other people are just squatting on resources that are its birthright.
Thank you Albrt, BTW I still have the book you sent me years ago.