Preface: Lawfare

Lawfare, as both a concept and a species of political practice, has exploded over the past decades, from the late twentieth century into ours, the twenty-first. Google it, and 1,590,000 results come up in less than half a second.1 Despite this digital overload, a comprehensive history of the term is yet to be written, although many different points of origin, from the 1950s onward, are mentioned in the strikingly diffuse literature that has grown up around it.2 Lawfare proliferates definitions at a giddy rate, some of which cling to the metaphorical, while others hue close to the literal, the empirical, the tactical. Nor is this surprising. These differences reflect a plethora of ideological orientations, alike right and left – and, even more, a wide range of political, juridical, material, moral, and particularly military ends.

Of course, unnamed, the phenomenon has a deep past. To take just one example, a British missionary to colonial Southern Africa wrote, in 1887, that local chiefs believed the most fearsome weapons of “the English mode of warfare” to be “‘papers’ and agents and courts.” This, added the evangelist, “was said with contempt” (Mackenzie 1887,1:80). Indeed, alongside the more obviously violent instruments of colonization, the quotidian deployments of the law – of treaty and title, of proclamation and legislation, of contract and covenant, of judicial commissions and the like – introduced indigenous peoples everywhere to the structural violence inherent in the sovereign rule of Empire. In some parts of the colonial world, like West Africa and South Africa, it spawned indigenous cadres of lawyers, some of whom used their learned skills against ruling regimes (and against their proxies, among them, local chiefs and kings). Today lawfare has a name: a name whose different denotations and connotations, most of them hinting of menace, point to the illegitimate use of coercion under the licit sign of the jural. And much else besides.

The extent to which lawfare has entered into public discourse is staggering. In the USA, for instance, Lawfare – a blog put out by the Lawfare Institute of the Brookings Institution – claimed in 2015, in The New Lawfare, that it had 490,000 “users,” up 90% from the year before; those users, it said, included the Justice Department, the Pentagon, the Senate, the State Department, the CIA, and the White House.3 Three years earlier, Harvard Law Today called Lawfare “essential reading for leading thinkers on law and security”; indeed, “de rigueur for…[anyone] influential in the galactic scheme of things.”4 Of late, its content seems all over the map, both geographically and topically. On 21 July 2020,5 Lawfare offered material and commentary on, among other things, digital contact tracing, a US cyberspace report, a decision of the European Court of Justice, US-China technology policy, and national security news. It is not easy to establish, from this melange, what is intended to be specifically relevant to lawfare and what refers to the affairs of law at large. But the implicit stress on security does press itself on the roving eye.

Nor is Lawfare alone in this new American scholarly marketplace: the brand is widely shared and growing. Already in 2010, Case Western Reserve Journal of International Law published a special edition, “Lawfare!” – note the exclamation – itself the yield of a “symposium [of] experts meeting to explore the concept” at Case Western Reserve University School of Law in September that year.6 Even more than Lawfare, the Brookings blog, this initiative was heavily devoted to the relationships among lawfare, war, and security. Not surprisingly, it included an essay by Charles J. Dunlap (2010), the doyen of this scholarly genealogy (see e.g. Dunlap 2001; also Kittrie 2016:4ff.); that is, the idea of law as a weapon of war, or, more precisely, a weapon of weak enemies “using legal principles dishonestly” to defeat the the USA (ironic emphasis added). This take on the concept – its negative association with legal efforts to counter the “righteous” conduct of war by the strong against those whom it would defeat – has had its critics. Among them, notably, are David Luban (2010) and Scott Horton (see also Jones 2016),7 who argues that lawfare used in this sense, specifically as propagated by the scholarly and policy progeny of General Dunlap, is a “dangerous game” and a threat to democracy (p.179). His point is echoed, implicitly, by the Democracy Fund, which supports another, different Lawfare Institute whose self- appointed mandate is the protection of the US constitution and its democratic order.8 Luban and Horton might have added to their critique of lawfare that American administrations have regularly stretched the limits of legality in acting against insurgent enemies, real or imagined; drone killings, water boarding, and other forms of torture, all regarded as repugnant in the civilized world, come to mind – all of them laundered by law to serve the purposes of US military “necessity.”

Lawfare, then, in its military-security oriented American sense, speaks as though it were primarily a weapon of the weak against the powerful – and ought to be understood by scholars and statespersons as such – while the powerful, states and global capital alike, often deploy it to their own ends against whomever they take to be a threat; in the case of the USA, this includes other foreign powers, among them China.9 A notable non-state example is something that calls itself the Lawfare Project (www.thelawfareproject.org/; www.the lawfare project.org/who-we-are). It is dedicated to “defend[ing] the civil and human rights of the pro-Israeli community”; also to combating “‘Islamist lawfare’…as a weapon of war “ and, more generally, to fighting against “militant Islam” or anyone anywhere who might act against Jews. Its work, say its New York based lawyers, “spans the globe.” To parody Hobbes, human existence today appears to have become a matter of “the law of all against all.” The judicialization of almost everything, even of life itself, makes that parody an uncomfortable reality.

But – and this is where the present volume appears as a critically important intervention on the subject – there are very different ways of understanding lawfare, as Craig Jones (2016; see above) points out. Their geopolitical source is, largely at least, the global south, most notably but not only, South Africa and Brazil. In South Africa, a growing scholarly literature is emerging (see e.g. Le Roux and Davis 2019; Corder and Hoexter 2017); it seeks to conceptualize the phenomenon in its various forms, historicize it, and analyze its effects on law and society. But more strikingly, the term now appears regularly in the national print and electronic media; it has become an colloquial usage, part of the public sociology of everyday life. What is more, its diffusion into public discourse makes plain the fact that, as an organic phenomenon, it has taken on many modalities, many means and ends, all the more so as a culture of rights and the juridification of politics has come to suffuse civil society – although, as Zanin, Teixeira, and Valim stress in this volume, “lawfare should not be confused with the judicialization of politics,” sui generis. It is a more specific, particular species of practice. Its two dominant modalities, however, contrast hegemonic lawfare, perpetrated by powerful states, corporations, non-governmental organizations, religious organizations, ethnic groups and the like, with insurgent lawfare, a Lilliputian form deployed by “little people” against those who oppress, exploit, or otherwise violate them, their rights, their property, their being-in-the world. The latter, self-evidently, is the less common form, and in tournaments of legal force, “little people” are less likely to prevail; there are many places, one scarcely need mention, where they have no access at all to the instruments of the law. Yet this is not always the case, and, where they do have access, they do not always lose – even against more powerful antagonists (Comaroff and Comaroff 2006:26-31).

It is deep into hegemonic form that Lawfare: An Introduction takes us. Its authors, Cristiano Zanin Martins, Valeska Teixeira Zanin Martins, and Rafael Valim – at whose initiative a global southern Lawfare Institute (www.lawfareinstitute.com) was founded in São Paulo and launched in London in 2017 – of fer an unsparing, important treatment of the phenomenon. Their scholarship has a strong activist component, in major measure motivated by a commitment to the rule of both law and justice. It has also been honed by their legal struggle on behalf of former President Lula against the violent legal excesses of a right wing Brazilian regime that did everything it could to sentence him to political and social death. Part conceptual and analytic, part empirical – it discusses cases in the global north as well – the book treats lawfare not as a metaphor, but as an exceptionally complex species of political practice whose brute analogy to war explains a great deal; like war, “its purpose is the delegitimizing, harming, or annihilating an enemy – and not only in military contexts, but in a late modern world of the “law of all against all.” Those nineteenth-century African chiefs who understood law as “the English mode of warfare” were prescient. For them, too, lawfare was not a metaphor. It was, indeed, an instrument of annihilation. A hundred and forty years later, that “mode of warfare” is becoming planetary. Lawfare: A Introduction is an essential guide to its inner workings, its rationalities, its effects.