Thursday, August 20, 2015

Introducing lawfare

I'm not sure where this came from originally, the Republican Party?, but I had to laugh. It's really quite clever.

When Prime Minister Abbott used the term "lawfare" to describe the reasons for proposed changes to the Commonwealth Environment Protection and  Biodiversity Conservation Act 1999,  my first reaction was to think that he had defined a new term following his usual desire for simple slogans. The last may be true, but lawfare (while a recent term) has a considerable history.

I like the term. I first came across lawfare in commercial law and especially in the intellectual property arena where big companies were able to use legal processes to steamroller smaller competitors who could not afford to fight the cases. The legal grounds used were often spurious or at least dubious. That did not matter. All that was required was an apparent case with the aim of out-lasting the smaller company. As often happens, processes created for one purpose had unforeseen side effects, as in the rise of patent trolling.

 If you look at the Wikipedia article on lawfare, link above, you can see how the use of the term has, to a degree at least, become entrapped in varying ideological and political stances. While we can all think of examples of lawfare, the term is actually quite difficult to define. Simplifying, lawfare involves the deliberate use and manipulation of the law and legal processes by individuals, organisations and indeed governments to achieve objectives that are independent of the intent of the law or legislation.

 In this sense, I find lawfare a useful and indeed interesting term.  


Anonymous said...

Environmental protection laws were written with the intention of protecting the environment. It's an absurd use of the term for Abbott to call their proper functioning lawfare.

Jim Belshaw said...

Mr Abbott argues that the laws are being misused. anon. Your point is that they are not because the legal cases are within the intent of the laws. In the case of the EPBC Act, I think that you have a clear case because the clause that is proposed for amendment explicitly allows environment organisations as defined to challenge. If the Howard Government had nor wanted that outcome, they should not have included that clause. More broadly, though, would you accept that environmental bodies will use legal challenges for their own ends just because the law is there and they want to stop certain things at all costs? If so, that is arguably lawfare.

Anonymous said...

Jim, I must say when I read this post the first thing that came to mind was my (probably inadequate) definition of Alinsky's rules for radicals: i.e. the use by pressure groups of the State's own devices/structures/processes to bring about change within that State. So I was interested to see nary a mention of Alinsky in that Wikipedia entry.

But what I wanted to point you to was one of the references at the bottom of the wiki article: which critiques the actual 'lawfare' wiki entry and itself provides an interesting link something called 'The Lawfare Blog'.

Worth a read, I thought.


Jim Belshaw said...

That's an interesting piece, kvd. My thanks. Will come back to it.