By Bernd Pulch | February 12, 2026 | Category: Lawfare & Legal Activism
What Is Lawfare? A Clear Definition
Lawfare is the strategic use of litigation, regulatory processes, and legal doctrine as instruments of political warfare. Unlike traditional legal proceedings, which aim to resolve disputes through impartial application of law, lawfare weaponizes legal systems to achieve political, military, or economic objectives without direct confrontation.
The goal is not justice. The goal is advantage.
Lawfare operates through multiple mechanisms:
ยท Litigation warfare: Filing meritless or strategically burdensome lawsuits to exhaust adversary resources
ยท Regulatory capture: Deploying administrative processes to disadvantage competitors
ยท Legal precedent engineering: Establishing case law that favors long-term strategic interests
ยท International forum shopping: Bringing disputes to sympathetic jurisdictions or tribunals
ยท Criminal referral tactics: Triggering investigations that impose reputational and financial costs
The Origins: Where Did Lawfare Come From?
The term “lawfare” entered modern discourse following the September 11, 2001 terrorist attacks. Legal scholars observed that terrorist organizations could achieve strategic effects disproportionate to their military capabilities simply by triggering expensive, resource-intensive legal responses from Western governments.
But the practice is far older.
Historical precedents include:
ยท Nuremberg Trials (1945-1946): Victorious powers established legal frameworks that legitimized postwar order and delegitimized defeated regimes
ยท Cold War human rights advocacy: Both superpowers deployed international law arguments to embarrass adversaries
ยท Anti-apartheid litigation: International legal campaigns imposed economic and diplomatic costs on South Africa
ยท Pinochet arrest (1998): Spanish judge’s extradition request demonstrated how domestic courts could constrain foreign leaders
What has changed in 2026 is scale, sophistication, and accessibility. Lawfare is no longer the exclusive domain of superpowers. Corporations, activist groups, and wealthy individuals now deploy legal weapons with precision and impunity.
The Three Faces of Contemporary Lawfare
- International Lawfare: US-China Strategic Competition
The United States and China have transformed international courts and national security statutes into primary battlegrounds.
American strategy:
ยท National security reviews (CFIUS) to block Chinese technology acquisitions
ยท Criminal charges against Huawei for Iran sanctions violations
ยท Forced TikTok divestiture through legal rather than legislative action
ยท Export controls framed as statutory compliance rather than economic warfare
Chinese response:
ยท Anti-foreign sanctions law enabling retaliatory asset freezes
ยท Unreliable Entity List targeting American companies
ยท WTO disputes challenging US tariffs as unlawful
ยท Alternative dispute mechanisms in Belt and Road jurisdictions
The International Court of Justice has become a recurring venue for US-China proxy disputes, with both nations studying the Azerbaijan-Armenia Nagorno-Karabakh cases as models for legal warfare.
- Domestic Lawfare: Executive Power and the Whiskey Rebellion Precedent
In 2025 and 2026, American political battles have increasingly been fought through legal rather than legislative channels.
The Whiskey Rebellion of 1791-1794 has emerged as an unlikely flashpoint.
The original conflict: Western Pennsylvania farmers resisted federal whiskey excise taxes. President George Washington called 13,000 militiamen to suppress the rebellion, establishing precedent for federal enforcement of federal law.
The 2026 debate: Advocates of expansive executive power cite the Whiskey Rebellion to justify:
ยท Federal law enforcement against state-level cannabis legalization
ยท National Guard deployments for immigration enforcement
ยท Regulatory investigations of adversarial media outlets
Critics argue the precedent is historically distorted and legally inappropriate for contemporary disputes over administrative authority. Multiple federal appeals courts have divided on the question. Supreme Court review is widely expected.
The FCC under Brendan Carr exemplified domestic lawfare through regulatory investigation threats against ABC, NBC, and CBS. Whether investigations concluded or remain pending matters less than the chilling effect achieved through their mere initiation.
- Civil Lawfare: Defamation and SLAPP Suits
The most widespread and insidious form of lawfare requires no government involvement whatsoever.
Strategic Lawsuits Against Public Participation (SLAPP) are defamation or libel lawsuits filed not to win damages but to silence critics through litigation costs.
How SLAPP lawfare works:
- Powerful individual or corporation is criticized
- Plaintiff files lawsuit with minimal legal merit
- Defendant faces $50,000-$250,000 in legal fees to defend
- Defendant withdraws criticism or settles
- Plaintiff achieves objective without winning in court
The chilling effect: Even lawsuits that never reach trial silence speech. Publishers withdraw articles. Researchers abandon investigations. Journalists avoid controversial topics. The threat alone constrains public discourse.
Germany’s political meme prosecutions represent a hybrid model: criminal SLAPP. The CDU/CSU government has pursued individuals under insult and hate speech laws for satirical memes. While constitutional protections for satire remain strong, the mere threat of criminal prosecution has induced widespread self-censorship.
Der Postillon editor-in-chief Stefan Sichermann recently noted that legal risks have forced Germany’s leading satirical outlet to exercise caution unthinkable a decade ago.
Emerging Lawfare Frontiers: AI Liability
The European Union’s AI Act reached full implementation in early 2026. The regulation establishes tiered risk categories for artificial intelligence systems, with the strictest requirements for applications deemed threats to safety, fundamental rights, or democratic processes.
Why this is lawfare:
Companies seeking to disadvantage competitors have aggressively lobbied regulators to classify rival products in the highest-risk tiers. First-wave legal challenges are now pending before the Court of Justice of the European Union.
Simultaneously, American technology firms face a patchwork of conflicting state AI liability regimes. This fragmentation enables forum shoppingโplaintiffs selecting jurisdictions with plaintiff-friendly laws, defendants seeking dismissal in favorable venues.
Agentic AIโsystems capable of independent action and decision-makingโposes unprecedented liability questions. When an autonomous vehicle causes injury, a diagnostic tool misdiagnoses cancer, or a content moderation algorithm systematically suppresses protected speech, who bears legal responsibility?
The answers to these questions will be determined through litigation and regulation. Both are forms of lawfare.
Lawfare vs. Legitimate Legal Advocacy: How to Distinguish
Not every adversarial legal proceeding constitutes lawfare. The distinction lies in primary purpose.
Legitimate Legal Advocacy Lawfare
Seeks remedy for actual injury Seeks strategic advantage
Accepts adverse judgment Aims to exhaust adversary regardless of outcome
Proportionate to harm alleged Disproportionate resources deployed
Resolution-oriented Conflict-perpetuating
Legal merit evaluated Legal merit secondary or absent
The anti-SLAPP movement has emerged as the primary legislative response to civil lawfare. Twenty states and the District of Columbia have enacted anti-SLAPP statutes providing expedited dismissal and attorney fee recovery. Federal legislation remains stalled.
Why Lawfare Matters for Democracy
The weaponization of legal systems corrodes democratic governance from within.
The erosion is cumulative:
ยท Each lawfare deployment reduces perceived legitimacy of legal institutions
ยท Each weaponized court proceeding erodes public faith in judicial impartiality
ยท Each silenced critic narrows the range of public discourse
ยท Each precedent established through strategic litigation constrains future policy choices
Trust in legal institutions has declined substantially across democratic societies. Majorities in both the United States and Germany believe courts respond more readily to powerful interests than ordinary citizens.
This decline has consequences. Citizens become more willing to circumvent processes they perceive as illegitimate. Leaders promising to bypass “broken” institutions gain support. The rule of lawโdemocracy’s foundationโweakens incrementally, invisibly, until collapse becomes visible only in retrospect.
Conclusion: Lawfare Is Not Inevitable
The weaponization of legal systems can be reversed. It requires:
Legal reform: Stronger anti-SLAPP protections, clearer standing requirements, heightened pleading standards for strategic litigation.
Judicial vigilance: Courts must recognize when they are being weaponized and apply existing procedural tools to dismiss meritless strategic cases.
Civil society resistance: Organizations like the Foundation for Individual Rights and Expression, the Lawfare Project (defensive, not offensive), and CORRE
legal defense funds demonstrate that counter-lawfare is possible.
Public awareness: Lawfare thrives in obscurity. Named, described, and examined, it loses power.
This primer accompanies my detailed analysis of Lawfare 2026: How Legal Systems Became Weapons in the US-China Cold War. Together, these articles establish the foundation for understanding how legal institutions are being transformedโand what we lose if we fail to resist.
Tags: lawfare definition, what is lawfare, SLAPP suits, Whiskey Rebellion precedent, US China legal competition, AI liability, anti-SLAPP, strategic litigation, political satire prosecution, agentic AI
Internal links:
ยท Lawfare 2026: How Legal Systems Became Weapons in the US-China Cold War
ยท The Satirist’s Dilemma: When Political Memes Become Criminal Offenses
ยท Understanding Anti-SLAPP: Legal Protections for Free Expression
ยท The CJEU’s AI Liability Framework: Europe’s Emerging Lawfare Battleground
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