The Invention of a GACACA: A Logic of Institutional Choice

This piece analyzes the evolution of lawfare, what Jeremy Bentham called "an irregular system of warfare." Meierhenrich introduces lawfare as a conceptually and analytically distinct type of warfare, and a political strategy not previously theorized in any systematic fashion. In his conceptualization, lawfare is a revolutionary strategy for broadcasting power, by which he means a strategy aimed at the systematic and comprehensive overhaul of the foundations of politics and society. This strategy comprises, inter alia, constitutional enactments, ordinary legislation, presidential decrees, and other regulatory instruments. Based on evidence from cases, Meierhenrich illustrates the economy with which the strategy of lawfare may be used and the ingenuity that it requires. Restating an influential aphorism, he shows how law made the state, and the state made law. By so doing, he explains why this irregular system of warfare stands in much higher favor with men in general than that which is carried on by open force -- illustrating the dark side of democracy and the rule of law.