Let’s set some terms. This is not a lawyerly essay, not a legal brief. This is written by a law school dropout who’s very content with that decision (a decision envied by many a law school grad in one-on-one conversations!). This essay also isn’t scholarly in the legal sense. This is a rumination on the law’s place in strategy—“lawfare’s” limits, value, and future.
So, again, we’ll not cover a legal strategy, or a theory of success a counselor might employ toward winning a particular case or legal cause.
A good friend, Air Force Maj. Gen. (ret) Charlie Dunlap once warned the world about “lawfare.” After some earlier versions, he eventually came to define lawfare as “the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”
This is today’s topic. The role of law in societal conflict.
Observation Number One: There is no ‘force of law.’ Law has no force, a point made as far back as Alexander Hamilton’s Federalist No. 78.
The law cannot enforce itself. That’s why we have the phrase “law enforcement,” because even though the law may dictate some action or inaction, it requires a separate party to enforce.
The law is words, and words, no matter how clever, cannot “do” anything on their own. This means lawfare can only ever aim for influence and never control. (While harder forms of coercion—military and economic—can attain some measure of control.)
Observation Number Two: Lawfare is an indirect strategy. When JC Wylie wrote Military Strategy: A General Theory of Power Control, he differentiated between sequential and cumulative strategies. He called sequential strategies “a series of discrete steps, and each step could be clearly seen by the strategist ahead of time, could be clearly appraised in terms of its expected result; and the actual result in turn would lead to the next step, the next position to be taken, or the next action to be planned.” Wylie labeled the step-by-step nature of the island-hopping campaign and the offensives across Europe as examples of sequential activity.
Wylie also called out cumulative strategies, or, a “collection of lesser actions, but these lesser or individual actions are not sequentially interdependent. Each individual one is no more than a single statistic, an isolated plus or minus, in arriving at the final result…No one action is completely dependent on the one that preceded it. The thing that counts is the cumulative effect.” Wylie lists examples as psychological warfare and submarine campaigns.
Lawfare is cumulative.
Lawfare is an environmental strategy in that it seeks to change context and consensus. It only acts on the parties that choose to follow the law, an inherent limitation. (Imagine a munition fired at a target that got to choose whether the bullet or bomb would strike and create damage!)
Lawfare is like the Marines—not necessary, but a nice-to-have accessory if you can afford it.
Observation Number Three: Law is everywhere, just not the law we’d like. After 2001, a particular term’s usage shot up exponentially: “ungoverned spaces.” [See below Google Ngram, which documents the term’s sharp rise.]
In the wake of 9/11, the fear of places like Afghanistan went way up, and we in the West needed a generic term for that fear. “Ungoverned spaces” became a label for a place that wasn’t like the West, that wasn’t governed by our particular form of justice. And so maps started to include an invisible asterisk, the modern version of the old mapmaker’s warning—“there be dragons.”
But these spaces weren’t (and aren’t) “ungoverned.” There is justice. There is law. It’s just not the law we’re accustomed to, or a law we’d recognize. At their base, laws are formal and semi-formal traditions members of a society have agreed to for some societal benefit. It doesn’t have to look like black robes and Black’s law dictionary. It may be simpler, older, less formal.
And it may simply be law that’s imposed by brute strength and raw power.
Observation Number Four: Lawfare’s value diminishes with distance from one’s own society. This one’s pretty straightforward. A law’s writ typically only extends as far as societal approval. For a current example, Texas anti-abortionists’ will find their preferred version of law ends at the Rio Grande (and the rest of the state’s border).
In this way, law is shaped most by geography, culture, and society.
Law is shaped a little less by timing and circumstance. Cicero was mostly mistaken, then, in his famous assertion that “in times of war, the law is silent.” Sure, desperate times, desperate measures and all that, but societal difference seems the more crucial variable than whether or not you’re at war. Even at war the law doesn’t go silent so much as it gets a little quieter in some respects and a little louder in others.
The future of lawfare: It’s a tale of two legalities. Rich countries will continue to wage it as part of their larger national strategies, and the less-wealthy groups in the rest of the world, including gangs, terrorists, and insurgents, will continue to ignore the law as they see fit.