Osmar Pires Martins Junior

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WHAT IS LAWFARE?

The target of the Lawfare embodies the figure of an enemy, selected in any field of public or private political relations, in order to paralysiate him, through the attack on fundamental, electoral and even financial rights.

osmar pires

The use of judicial process, through apparently legal procedures, for political purposes, is not new (KIRCHHEIMER, 1961). The novelty is revealed in the complexity of the strategic dimensions of Lawfare, which is not confused with the reciprocally associated concepts of judicialization of politics and politicization of the Judiciary.

The debate that is undertaken in this book contributes to better know the concept and characteristics of the term in order to test its usefulness, properly characterize the strategies and establish the counterattack of defense of the foundations of the Democratic State of Law, often violated by the agents who employ this method of diffuse and deadly war against countless people, always the most unprotected , in the passive pole of demand.

The expression Lawfare is a morpheme resulting from the grammatical contraction of the words Law and Warfare, which literally translates as legal warfare. It is an asymmetric war, fought from the illegitimate use of state agencies, including the justice system, with the intention of pursuing, eliminating the opponent, with the most diverse objectives – military, political, commercial and even geopolitical.

Thus, the target of Lawfare embodies the figure of an enemy, selected in any field of public or private political relations, in order to paralysiate him, through the attack on fundamental, electoral and even financial rights.

Interestingly, Lawfare thrived in Latin America at the same time as systems of government were being built not aligned with traditional forces in international political relations, internally aligned with democratic forces, defenders of more inclusive, participatory and egalitarian public policies. At the same time, the neoliberal forces, always aligned with the instituting propositions of the states of exception, formulated and executed Lawfare as a war strategy in defense of their interests.

Origin

Etymologically, the term was coined by Carlson & Yeomans (1975), as a peace tactic, expressing the good use of the law, through the judicial demand in which the swords would give way to words. But soon after, an American general employed the term as an instrument of war against the Human Rights Tribunals to defend the interests of Yankee imperialism. Thus, Lawfare began to express what today means, the misuse of the law in place of traditional military means to achieve an operational goal (DUNLAP JR, 2001).

South African legal anthropologists Jean Comaroff and John Comaroff, researchers at Harvard University, established the strategic dimensions of Lawfare as a legal war waged by representatives of the colonialist state against the weakest target, aimed at defending the interests of the colonizer.

Definition  

The indoctrinators Cristiano Zanin Martins, Valeska Teixeira Zanin Martins and Rafael Valim, in Lawfare: an introduction, gave political meaning to the term, translated in the use of the process, violence and power inherent to the law to achieve political and electoral results, through legal maneuvers, under the appearance of legality, to persecute and eliminate the opponent of the electoral race , replacing the sovereign will of the people, legitimately manifested at the ballot box.

According to the above authors’ definition, “lawfare is the strategic use of law for the purpose of delegitimizing, harming or annihilating an enemy” (2019a, p. 26). The strategy of law and the instrumentalization of legal norms for Lawfare purposes must be understood in the light of the central element of the definition of the term, namely its three strategic dimensions, then outlined.