“Political parties live in a house of power. They are organizations for social fighting. The contents of a definite moral choice are never selected. The only criterion is the ubiquitous use of a method.” C. Wright Mills, Sociology and Pragmatism: The Higher Learning in America.
Training for irregular political operations and lawfare originates from an ideology deeply rooted in our university law schools. Academic law serves as the “source code” for modern politics, often undermining the rule of law and social cohesion. “Lawfare” involves manipulating the judiciary to distort its normal functions, disadvantage opposing parties, or even undermine legislation and constitutional principles. This can include actions like attempting to abolish laws that protect civic integrity, such as voting rights, or lobbying for administrative rules that obstruct political competitors—like making it difficult for candidates to appear on state ballots. In foreign policy, lawfare might manifest through counterproductive sanctions. A recent example is the lawsuit filed by the DNC and the Harris-Walz campaign against the Georgia election commission over vote certification; the DNC aims to prevent any challenges to voters or their votes that could lead to legal disqualification.
Where does this kind of behavior come from? University law schools.
It’s crucial to remember that the existence of ‘lawfare’ and its indoctrination in our law schools is a direct result of law being, first and foremost, a function of the state. Law emanates from governments and state institutions and is a product of government culture, which seeks to perpetuate itself. This makes the law school effectively a school of government—or a government school—and therefore saturates the law in the assumptions, expectations, ambitions, and conceits of state authority.[1]
Lawfare is, in reality, a replacement of markets and competition. Lawfare seeks to bypass markets—coalitions of voluntary associations—and enforce top-down direction. The Harris party’s recent declaration of wage-price controls—an idea going back at least to LBJ’s administration—is a manifestation of this ideology.[2]
How could this be? The legal system is itself a closed monopoly run by a single corporation, or the American Bar Association (ABA), which sees itself as a secular political organization with a mission to reform society. How is the ABA staffed? Mostly by law professors or lawyers with reliable academic affiliations and pedigree. It is a closed, self-appointed system that perpetuates its own culture, and that culture sees the law as a means of private advantage rather than an asset of open access.[3]
This is why the law school insists on being a separate university institution and will not cooperate fully with other programs, such as business, because it sees the “law” as its own wholly isolated operational system that cannot be made subject to other means of assessment, value, or control.[4]
Law students are psychologically influenced over several years of law school to see themselves as empowered to act as self-appointed activists in public or private law settings. Law schools also teach that law is politics, creating a public policy imperative. By framing law as political and policy-centered, it turns it into a proactive set of carefully articulated tools operationalized strictly within a closed, self-regulated, and restricted legal system. In this regard, law is not an actual public good but a specialized profession that serves special interests.[5]
Perhaps the greatest breakdown in the very concept of law comes from a culture of political legalism that reorders the nature of law. The law exists as a natural social custom that guides productive social relations. Instead, lawfare approaches law as an autonomous instrument and system that can order, direct, advantage, restrict, or limit social functions. This results from the professional character of modern law training and the careerism attached to it, whereby “law” is transformed into a form of technical preparation that competes with other professions. Lawfare, therefore, becomes an expression of vocational success for employment—and job placement is the central marketing inducement for law schools, regardless of the form or application of the law.[6]
What I’m describing, of course, is a legal culture. This stems from several factors, and it includes self-selection among law school applicants; that is, who they are as people and what their expectations and motivations are. One could otherwise say that, just as aerospace engineers can build nuclear missiles or chemical engineers a toxic gas, the lawyer can also use his trade skills to build legal weapons, and there isn’t much you can do about it. I reject that argument.
Part of the lawfare problem is philosophical; that is, it comes from a school of philosophy that has generally influenced academia, especially its professional graduate schools. This, in my view, is a variant of pragmatism. John Dewey’s pragmatism, as an example, is “instrumentalist,” and this may be instructive because instrumentalism seeks to solve a problem related to an idea or a belief without any judgment as to whether that idea or belief is true or false—or falsifiable—or, whether it has an ethical dimension consistent with a philosophy of what is good or right, or even if it is a product of reason. This brings us back to the non-secular and ethics. In British higher education, ethics—especially a philosophy of ethics—was the cornerstone of philosophy, and that philosophy was arguably the ideal of the university.[7]
Fast forward today, and ethics is an institutional and regulatory concept, not a core foundational principle. Indeed, ethics and morality, as University of Chicago law lecturer, author, and former federal appellate judge Richard Posner has consistently advanced, leads to “legal mysticism.” [8] This may mean that lawfare isn’t so much a product of law schools but a failed philosophy. What is a solution? I see two: one is centered in a philosophy of ethics and moral law; the other in an institutional, regulatory adjustment that reorders—or dismantles—the ABA, or law bar, which neither possesses, advances, or enforces a moral or ethical interpretation of law as itself a moral phenomenon, but rather than as an instrument for selective—especially partisan—moral objectives.
To the extent one may otherwise see philosopher William James as an enduring influence in American academic thought, there is little doubt that law rests in an unstable equilibrium among nominalism, utilitarianism, and positivism. That is, the law is a modern scientific tool useful in tactical strategy and division rather than a guiding principle of social cohesion.[9] Law and modern law schools specifically organize and pursue social division, where law and politics are fused, and lawfare finds its utility as a taught behavior.
[1] Law is also inherently secular—and secularism is the effective “religion” of modern academic progressivism—versus classical liberalism. In this regard, the law is arguably an opposition instrument, especially against Judeo-Christianity. Even in legal ethics, it does not draw on Christian, Jewish, Muhammadan, or other sources of moral law, but rather merely on technical legal guidelines through its corporate bar association. A secular “covenant” theory otherwise acts as a form of social contract theory that seeks to bind individuals and groups to the political rather than the sacred. The University of Chicago’s first graduate institution was the Divinity School, which today stands as a quiet competitor to the other professional graduate schools. In active Catholic and Marianist law schools such as St. Mary’s in San Antonio, Texas, a religious basis of law and American constitutionalism is intelligently upheld. See H.W. Schneider, A History of American Philosophy (New York: Columbia University Press, 1946). See also the author’s essay in Dissident Professor, “Asserting Our American Christian and Classical Heritage.”
[2] It may be interesting to consider if more elements of the law system could be competitively privatized—including some or parts of the courts.
[3] This is a criticism with a long pedigree in social history—and even in recent legal history. See Gerald Strauss, Law, Resistance and the State: The Opposition to Roman Law in Reformation Germany; and Jerome Frank, Courts on Trial: Myth and Reality in American Justice (1949).
[4] This is a fascinating aspect of university intellectual development in general. As historian and author Huntington Cairns put it, the university has been under the dominance of a set of ideas—“culminating today in the general view which emphasizes utilitarianism in ethics, an anti-natural-law attitude in legal theory, the doubtfulness of all knowledge, liberalism in politics, agnosticism in religion, the quantitative approach in psychology, a concentration upon epistemology, and an indifference to metaphysics.” See Max Hamburger, Morals and Law: The Growth of Aristotle’s Legal Theory (1951).
[5] There is a consistent element of anti-Americanism in the university law school generally, which contributes to this problem. See “What Happens When Law Schools Embrace Critical Race Theory,” Dissident Professor.
[6] This could also be framed as a problem resulting from law and politics being separated from a specific basis in religion. In American constitutional history, this is a compelling argument: “Order in the new republic was impossible without law, but law impossible without morality, and morality was impossible without religion. For early American jurists and scholars, in an attitude quite foreign to us now, the common law was of ‘obligation indispensable’ and of ‘origin divine.’” Indeed, to one United States Supreme Court Associate Justice, Joseph Story, it was the duty of the American government to promote the Christian religion, to aid in the salvation of American citizens. Stephen Presser, Raoul Berger Professor of Legal History Emeritus, Northwestern University School of Law. See also K. Kahana Kagan, “Three Great Systems of Jurisprudence”; Arthur L. Goodhart, “Five Jewish Lawyers of the Common Law”; Asaf A.A. Fyzee, “Outlines of Muhammadan Law”; and Reinhold Niebuhr, “Love and Law in Protestantism and Catholicism.”
[7] See Sir W. David Ross, Foundations of Ethics: The Gifford Lectures Delivered in the University of Aberdeen 1935–6 (Oxford: Oxford University Press, 1939), who was Provost of Oriel College at Oxford and President of the British Academy.
[8] See Richard A. Posner, The Problematics of Moral Legal Theory (Cambridge: Harvard University Press, 1999). In fairness, Posner’s argument contains important distinctions regarding fact-finding, which continues to be a weakness in the lower court system. His emphasis, along with Guido Calabresi of Yale Law School, on economic factors in legal decision-making has a significant pedigree. However, it might be argued that, especially in Posner’s case, he is overly infatuated with Oliver Wendell Holmes and views law as an edifice elevated and delivered by the court system rather than as a basis in discrete social custom, which is less inviting to systems thinking and professionalization. In Posner’s view of legal pragmatism, where law is perceived as separated from moral judgment, law is still seen as an instrument to pursue what is viewed as moral justice—or injustice—rather than as a moral quest or phenomenon in itself—i.e., the means/ends problem is not addressed. Posner may confuse legal morality by defining morals as objectives utilizing law, rather than law as an ethical code that can be enforced. This is another problem of lawfare: it is often illegal or violative of the Constitution and/or statute but is rarely prosecuted because law and lawfare function in a closed, self-regulated, strictly instrumental system.
[9] Otto Gierke, Natural Law and the Theory of Society: 1500–1800 (translated by Ernest Baker; Cambridge: Cambridge University Press, 1950), and Ernst Troeltsch, The Idea of Natural Law and Humanity in World Politics (translated by E. C. K. Gaskell; London: Oxford University Press, 1949).
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