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  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.
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.