In our supposedly “post-war” society, we are sometimes quick to look back at the military conquests of history and consider it all so quaint. In the 21st century, we feel we have advanced beyond ‘bigger army diplomacy’ as a means to order our politics. Yet the underlying strategy remains in lawfare.
Many of the big news stories this week involved – at least to some degree – lawfare as a potential factor. Yoon Suk Yeol allegedly declared martial law in South Korea in part to distract from ongoing legal action against his wife. Some have claimed that Marine Le Pen’s actions in France this week were part of an attempt to trigger a Presidential election before a ruling comes down in a case against her. Joe Biden pardoned his son of any and all crimes for 11 years in the US. He claimed that he was unfairly targeted as the son of the President.
Regardless of the merits of each case, it would be ignorant to assume that they were brought solely due to actual wrongdoing. A person’s station will always affect a prosecutor’s decision to proceed, whether it encourages or discourages is the only true variable.
In this “post-war” society, we no longer organise militias to promote our cause or defeat our political adversaries. We go to court.
Warfare
In a “war-based” society, everything of note was settled by ‘bigger army diplomacy’. A private matter would be dueled out; a major matter would be decided in battle. Two men with various claims to a throne would gather supporters and fight. Henry Tudor ended The War of the Roses with a politically-shrewd marriage but not before several battles throughout generations of English nobility. The Christian Reformation led to bloodshed essentially to prove which interpretation of the Bible was correct. Nations took up arms against itself in civil war at a generally lower threshold of intolerance than is seen in developed countries today.
Books could be written on the perspective shift that followed the World Wars – specifically, the development of nuclear weapons – that led to this so-called “post-war” society. In fact, many have. The point is that “war-based” society developed to such an extent that it was unsustainable. As a society, we had to develop alternative means of settling major disputes. Enter lawfare.
Lawfare
Obviously, lawfare existed before the ‘modern era’. Socrates, Jesus Christ, and countless others fell victim to the use of the law for ulterior gains before the A-bomb. But with warfare at its most unstable point – one misstep could end the world – society shifted towards this alternative means of achieving and enforcing victory. In fact, the reparations due under the Treaty of Versailles was arguably the Allies waging lawfare against Germany as a trade-off for ending the First World War.
Advancing Policy
In the United States, lawfare has been used to advance policy positions by non-governmental parties for decades. The landmark Brown v Board of Education of Topeka case in 1954 was obviously significant due to its content. It was also significant as a success for lawfare generally and a precedent for how effective lawfare can even overcome stare decisis. This success was emulated in 2022 with the Dobbs v Jackson Women’s Health Organization case. Effective lawfare again overcame stare decisis.
This week, the Supreme Court heard oral arguments in US v Skrmetti. This case is a lawfare attempt – by both sides – to set federal precedent on transgender medicine for minors. Signs and speeches have replaced battlefield and bloodshed in political advocacy.
Political Lawfare
Of course, lawfare is ever-present on an individual level also. Irrespective of the merits or otherwise of any particular case, the outgoing administration has presided over an unprecedented number of cases allegedly fueled by politics, not crime.
Trump
Donald Trump, famously, became the first former President to be indicted. Reasonable questions have been raised about the validity of each case. It’s understandable, at least, to be suspicious about the decision to raid Mar-A-Lago in a classified documents case when Joe Biden, Hillary Clinton, and even Mike Pence were let off with barely a slap on the wrist for committing the same crime as Trump.
Even impeachment in the US has become a tool of lawfare. On both sides of the political aisle, people claim that the Clinton or Trump impeachments were politically-motivated. Indeed, the sweeping Biden pardon last weekend was ostensibly an effort to end lawfare against the Biden family.
The judge in the case, Mark Scarsi, has pointed out, however, that the prosecutor was Biden’s own Department of Justice. Sceptics have noted the timeline coincidence of major developments in Hunter Biden’s case with those in Trump’s various cases. One might be forgiven for thinking the now-pardoned Biden case was a cover for prosecuting the President’s political opponent. Of course, individual lawfare in the US is a conspiracy theory, definitely not something on the rise over the last 15 years.
Regardless of the merits of particular lawfare, it is an improvement on violence. Battlefield justice is certainly more straightforward but there’s no appeals process for those who die in war. Lawfare is an improvement fit for an ostensibly more-developed society. Where the legal system is robust enough to withstand unethical attacks, it is nearly ideal. But we are fools if we think it’s anything other than modern war.
