Lawfare in the International System
This seminar is about a neologism—“lawfare.” It builds the intellectual foundations for a more careful use of the ubiquitous term than is currently in evidence. For in recent years, the notion has become a fighting term, deployed to discredit the expanding reach of international law into domestic politics. This unfortunate development has blinded us to the analytic payoffs that a comparative historical analysis of lawfare promises to generate. Mine is an effort to take lawfare seriously as a conceptual variable. In an effort to rescue the term of lawfare from these shallow and murky intellectual waters, I theorize the phenomenon as a strategy of conflict, as the pursuit of warfare by other means. Based on this assumption, I embark on an ideal typical construction that is designed to enable international lawyers as well as international relations scholars to distinguish, analytically and otherwise, lawfare from related phenomena in the international system. The point of this exercise is not to conclude the debate over the nature and boundaries of lawfare, but rather to commence it in earnest—and out of reach of partisans whose only intent is to imbue the memorable term with questionable meaning. I illustrate empirically the analytic utility one of several subtypes of lawfare. More specifically, I discuss select aspects of lawfare in the United States, in post-genocide Rwanda, and in the international criminal law regimes. The exploratory analysis highlights the intellectual payoffs that stand to be gained from incorporating lawfare into the conceptual toolbox of international law and international relations scholarship.