Semiotic definition of "lawfare".

• Author: Tiefenbrun, Susan W.
• Position: Symposium: Lawfare

"Lawfare" is a weapon designed to destroy the enemy by using, misusing, and abusing the legal system and the media in order to raise a public outcry against that enemy. The term "lawfare" is also a clever play on words, a pun, and a neologism that needs to be deconstructed in order to explain the linguistic and political power of the term. Semiotic theory can help unpack this play on words, which creates an interesting and shocking equivalence between law and war. Semiotics is the science of signs and involves the exchange between two or more speakers through the medium of coded language and convention. Semiotics is the scientific study of communication, meaning, and interpretation. In this essay I will apply semiotic theory to expose the meanings of the term "lawfare" and to try to interpret it. I will focus on the definition of the word and the concepts of "law" as well as its denotations and connotations. Then I will look at the different definitions of "war'" in order to better understand the identity of law and war created by the term "lawfare." "The linkage of law to war is most clearly manifested in the expression of a "just war" and the elaboration of the "laws of war." Both law and war enjoy power, and it is precisely this shared power that constitutes the basis of the use of lawfare as a weapon of modern asymmetrical warfare. Finally, I will look at the different uses of the term "lawfare" and the serious impact of this usage on politics and on the integrity of the legal system. The abuse of the legal system, of human rights laws, and of humanitarian laws by lawfare undermines the overarching goal of world peace by eroding the integrity of the legal system and by weakening the global establishment and enforcement of the rule of law. The manipulation of Western court systems, the misuse of European and Canadian hate speech laws and libel law procedures can destroy the very principles of free speech that democracies hold most precious. Lawfare has limited public discussion of radical Islam and created unfair negative publicity against freedom loving countries. The weapon used is the rule of law itself that was originally created not to quiet the speech of the innocent but more to subdue dictators and tyrants. Ironically, it is this very same rule of law that is being abused in order to empower tyrants and to thwart free speech.

I. INTRODUCTION A. Lawfare is a Play on Words B. Semiotics and the Meaning of Lawfare C Organization of this Essay II. WHAT IS LAW? A. Theories of the Law: Natural Law, Legal Positivism, Legal Realism, and Sociological Jurisprudence B. Sources of Natural Law and Written Laws C. Greek Philosophers and Their Definition of the Law D. Romans and the Natural Law, Positive Law, and International Law E. Hebrews and Their Definition of Law F. Law in the Middle Ages." Saint Augustine and Saint Thomas Aquinas G. Law and "Just War" in the Middle Ages and the Renaissance H. Power of Law in the Renaissance as Defined by Machiavelli I. The "Force" of Law in the 18th Century as Defined by Montesquieu J. The Force and the Liberalizing Nature of Law as Defined by H.L.A. Hart in the Twentieth Century K. Law as Interpretation in the Twentieth Century L. Law and Legal Realism as Defined by Oliver Wendell Holmes in the Twentieth Century: Law is Power and Protection M. The Power of the Law." Law Is Order, Force, and Rules 1. Black's Law Dictionary definition of the law 2. Judge Richard Posner's definition of the law as power: law is a social institution, a set of rules, and a source of rights, duties, and powers III. WHAT IS INTERNATIONAL LAW? A. International Law is the Law of Nations: William Blackstone and the Law as Commandment B. Samuel von Pufendorf" Man is Uncivilized and Evil and Needs International Law (Seventeenth Century) C. Hugo Grotius, On the Law of War and Peace (1625) IV. SCIENTIFIC LAW AND THE POWER OF JURIDICAL LAW V. WHAT IS WAR? A. Theories of War B. Origin and Duality of the Term "War". C. War in the Middle Ages: Positive and Negative Connotations of the Term "War" D. War in the Fourteenth Century: "Just War" Brings Peace E. Wars in the Seventeenth Century: Limited War F. Wars From the Eighteenth Century to the Present: Total War G. Modern Asymmetrical Warfare 1. Definition of asymmetrical warfare 2. Asymmetrical warfare and a "just war" a. Principle of necessity and asymmetrical warfare b. Principle of distinction and asymmetrical warfare c. Principle of proportionality and asymmetrical warfare d. Principle of humanity and asymmetrical warfare VI. WHAT ARE THE LAWS OF WAR? A. Ancient Laws of War B. Seventeenth, Eighteenth, and Nineteenth Centuries and the Laws of War C. Twentieth Century and the Laws of War VII.WHAT IS LAWFARE? A. Derivation and Usages of the Term "Lawfare" B. Techniques of Lawfare 1. Filing of malicious libel, harassment, or hate speech lawsuits silence the enemy a. Libel tourism b. Hate speech cases in Europe and Canada c. Hate speech and slander cases in the Middle East 2. The misuse of legal terminology to sway public opinion a. Lawfare to sway public opinion against the United States b. Lawfare to sway public opinion against Israel 3. The prosecution of foreign nations in domestic courts military and civilian action: universal jurisdiction abuses VIII. CONCLUSION I. INTRODUCTION

1. Lawfare is a Play on Words

   "Lawfare" is a weapon designed to destroy the enemy by using, misusing, and abusing the legal system and the media in order to raise a public outcry against that enemy. (1) "Lawfare" is also a clever play on words, a pun, and a neologism that needs to be deconstructed in order to explain the linguistic and political power of the term. (2)

2. Semiotics and the Meaning of Lawfare

   Lawfare creates an interesting and shocking equivalence between law and war. Semiotic theory can help unpack this play on words. (3) Semiotics is the science of signs. (4) Like doctors who constantly look for signs and symptoms to arrive at a diagnosis, lawyers and legal scholars use semiotics frequently without even knowing it. Reading, writing, interpreting documents and cases, negotiating, interviewing, and selecting jurors are merely a few of the lawyerly tasks that involve the fundamental elements of sign theory. (5) Semiotics is the "exchange between two or more speakers through the medium of coded language" and convention. (6) Lawyers engage in semiotics whenever they focus on the denotation and connotation of words, the text, the context, the pretext, and the subtext of the words of a contract or case or legal document. (7) Semiotics is derived from the Greek word semion or sign. (8) Signs are words, gestures, or the dots and dashes of Morse Code, and signs are the means by which communication takes place. (9) But signs can only mediate between the perception and expression of an event. (10) Thus, words, signs, and gestures lead inevitably to distortion, to the creation of multiple meanings, and to the need for interpretation. (11) Semiotics is the scientific study of communication, meaning, and interpretation. (12)

3. Organization of this Essay

   In this essay, I will apply semiotic theory to expose the meanings of the term "lawfare" and to try to interpret it. First, I will focus on the definition of the word and the concepts of "law" as well as its denotations and connotations. Then I will look at the different definitions of "war" in order to better understand the identity of law and war created by the term "lawfare." The linkage of law to war is most clearly manifested in the expression of a "just war" and in the elaboration of the "laws of war." Both law and war enjoy power, and it is precisely this shared power that constitutes the basis of the use of lawfare as a weapon. (13) Lawfare has become a key weapon of modern warfare. The abuses at Abu Ghraib and elsewhere produced negative public opinion and effects more damaging than any imposed by our enemies through the force of arms. (14) Finally, I will look at the different uses of the term "lawfare" and the serious impact of this usage on politics and on the integrity of our legal system.

   II. WHAT IS LAW?

1. Theories of the Law. Natural Law, Legal Positivism, Legal Realism, and Sociological Jurisprudence

   It is almost impossible to define the "law" without referring to different jurisprudential theories of the law such as "natural law," "legal positivism," "legal realism," and "sociological jurisprudence," each of which stresses different aspects of law's overarching concept. (15) Natural law is a "philosophical system of legal and moral principles ... derived from a universalized conception of human nature or divine justice rather than from legislative or judicial action"--also called law of nature, lex aeterna, eternal law, divine law, and normative jurisprudence. (16) "Positive law typically consists of enacted law [or] the codes, statutes, and regulations ... applied and enforced in the courts." (17) "The term [positive] derives from the medieval use of positum (Latin 'established'), and the phrase 'positive law' literally means law established by human authority." (18) "Legal positivism" is the theory that formal legal rules are valid because they are "enacted by an existing political authority," and these rules are "binding in a given society, not because they are grounded in morality or in natural law.'' (19) The theory of legal positivism was espoused by scholars such as H.L.A. Hart and John Austin. (20) "Legal realism" is the theory that law is based not on formal rules or principles, "but instead on judicial decisions that should derive from social interests and public policy." (21) American legal realism, which flourished in the early twentieth century, was espoused by such scholars as Oliver Wendell Holmes and Karl Llewellyn. (22) Roscoe Pound in the United States and Hermann Kantorowicz in Europe were the most eminent pioneers of modern sociological jurisprudence. (23) Sociological...