Lawfare: Waging War through Law

Description

This book examines one of the most emblematic cases of lawfare today: the criminal prosecution of former Brazilian President Lula. The authors argue that lawfare is not just a slogan or a game at the service of any one political ideology. Rather, it has to do with a complex, multifaceted phenomenon that should be carefully reflected upon in modern constitutional democracies, given that it is able to demolish majority rule and the rule of law. They contend it is the strategic use of the law with the purpose of delegitimizing, harming or annihilating an enemy. The literature specializing in the subject tends to alternate between analysis of only one aspect of the phenomenon or consists of extensive case studies. In order to fill this gap, this book revisits the subject and offers a sophisticated theoretical approach to lawfare, in an unprecedented combination of theory of war and theory of law. The book will be of interest to students, researchers and policy makers working in the areas of public law, international law, procedural law, anthropology of law and sociology of law, as well as political science and international relations. Cover Half Title Title Page Copyright Page Table of Contents Foreword Preface Introduction Chapter 1 What is lawfare? 1.1 The origins and evolution of the concept 1.2 The Lula case: a new definition emerges 1.3 Theoretical framework: a strategic perspective 1.3.1 The distinction between strategy and tactics 1.4 Definition 1.5 The contiguous categories 1.5.1 The state of exception 1.5.2 Judicial activism 1.5.3 Hybrid wars Chapter 2 Strategic dimensions 2.1 The first dimension: geography 2.2 The second dimension: weaponry 2.2.1 Foreign Corrupt Practices Act FCPA 2.2.2 The complementary character of the FCPA and FISA weapons 2.2.3 The context of legislating anti-corruption laws 2.3 The third dimension: externalities 2.3.1 The media 2.3.2 Information warfare 2.3.3 Psychological operations: PSYOPS Chapter 3 Tactics 3.1 Classification of tactics 3.2 Tactics corresponding to the first strategic dimension 3.2.1 Forum shopping 3.2.2 The manipulation of jurisdictions 3.2.3 Libel tourism 3.3 Tactics corresponding to the second strategic dimension 3.3.1 Frivolous charges or lack of just cause 3.3.2 Excessive preventative prison as a form of torture to obtain cooperation agreements 3.3.3 Using extracted confessions or cooperation agreements to delegitimize and annihilate enemies via false incrimination 3.3.4 Overcharging 3.3.5 The carrots and sticks method 3.3.6 Creating obstacles for lawyers fighting against state arbitrariness 3.3.7 Taking legal action in order to silence freedom of expression and instil fear among those who publicly oppose lawfare 3.3.8 States of exception (creating ad hoc law) 3.4 Tactics corresponding to the third strategic dimension 3.4.1 Manipulating a mobilizing cause in order to pursue the enemy 3.4.2 Encouraging public disillusionment: the influence of public opinion and using the law to create negative publicity 3.4.3 Lawyers as targets in the information war Chapter 4 Paradigmatic lawfare case studies 4.1 The Siemens case 4.2 The Ted Stevens case 4.3 The Lula case In conclusion: A point of departure Bibliographic references Index