Of Neology and Lawfare

Mastery of vocabulary is a skill lawyers hone. But if the perfect choice of words is elusive—or if you have a more serious agenda—there’s always the dark art of “neology”.

I’m a bit of a word nut. As a youngster I was obsessed with the 1971 compact edition of the Oxford English Dictionary. It had the full 13-volumes condensed into two impossibly dense books with pages so thin and print so fine it required dexterity and a magnifying glass to read. “Prestidigitation” and “myopia” are words you can find in that micronized lexicon, but also skills you will need to navigate the finicky dictionary—especially when someone forgets to put the magnifying glass back in its slip case. Having dictionary smarts was valuable in my family. “Persiflage” was a common dish at the dinner table, sometimes served alongside, other times instead, of informed debate. I remember catching my mother mispronouncing “detritus”. I got bragging rights for that one. Naturally, Scrabble was a popular game. More than once, a player risked disgrace and tried to pass off a “new” word. Some might call it cheating. The unrepentant call it neology.

The introduction of “neology” (which comes from néologisme in French) is traced to The Monthly Magazine British Register in 1797. The OED cites its first usage: “disfigured by neology, corruption, and barbarous modes of speech.”

(I don’t know the full quote, but it thrills me with irony to think that the person who coined neology might have been looking down his nose at the very act of coining new words even as he gave the act of coining new words its very name!)

Dictionaries are important. They’re the only proof against wide-ranging semiotic warfare. This is why neology, or the creation of new words, is not child’s play. Like volcanic formation it has the power to assert new features into landscape, or dramatically alter old ones, often with no regard for the innocent. Samuel Johnson said that a lexicographer cannot aspire to praise, but at most to escaping censure. This makes sense considering how lexicographers make enemies among those who compete to brand and control words, or even just protect them from pejoration.

Consider the potato. The healthful tuber was much maligned since the cruel phrase “couch potato” first appeared in the LA Times in 1979. The neologism entered the OED in 1993. Fearing this term signaled a reputational slide towards lethargy and inaction, the potato lobby first bided its time for 12 years. The British Potato Council then rose up in protest in 2005. Efforts to unseat “couch potato” and substitute “couch slouch” were unsuccessful. I suppose if the British Furniture Council had waded into the conflict the OED would have had a real war on their hands.

Another potato merchant’s skirmish at the gates of the English language occurred in 2007 when McDonald’s tried to purge “McJob” from the dictionary. Alas, the OED’s editors remained unpersuaded that McJob, as a term, ought to “reflect a job that is stimulating, rewarding and offers genuine opportunities for career progression and skills that last a lifetime.” Until time and usage ameliorates “McJob”—perhaps around the time pink slime is rendered from choice cuts of Kobe beef—it will simply mean what you think it means.

Laval law professor Mario Naccarato, in his paper “Of Couch Potatoes and Lexicographers: The Eternal Struggle Between Usage and the Imposed Neologism, and its Application to Legal Neology”, 39 Rev Gen 229, talks some about neology and law. He calls it “jurilinguistics” and points to the various sources (legislation, jurisprudence and legal commentary) which are instrumental in consecrating or rejecting a fledgling term.

You might be surprised to learn that, even as law moves towards plain language, legal words are still being born. The 10th edition of Black’s Law Dictionary, released in 2014, added 7,500 terms to what was in the 2009 edition. Among the newcomers are “bioweapon”, “cryptanalysis”, “legaldygook”, “psephology”, and “unperson”. A term that did not get defined is “lawfare”.

Lawfare is a fascinating term—albeit mostly unknown in the Canadian legal lexicon. It is intriguing and also inscrutably ugly. As a portmanteau of “law” and “warfare” it is dissonant and crass, like an assault rifle in the hands of a judge.

Lawfare doesn’t appear in any search of Slaw’s archives. It is absent from the most recent edition of Black’s law dictionary, and it generated but one result in a CanLII search—a passing but telling reference in the Awan v. Levant, 2014 ONSC 6890, a decision from November 2014 where Ezra Levant was ordered to pay general and aggravated damages for libel totaling $80,000.

In some places, the term enjoys vibrant use. A HeinOnline search reveals 748 matches, mostly associated with US publications, and notably the Case Western Reserve Journal of International Law.

If I were asked to risk offering a definition, it would have to be very imprecise. There seems to be a lot of disagreement around what lawfare is or isn’t.

One article, “Semiotic Definition of “Lawfare”, 43 Case W. Res. J. Int’l L. 29, by professor Susan Tiefenbrun of the Thomas Jefferson School of Law, attributes the term’s coming to relevance to a 2001 essay by Major General Charles J. Dunlap, Jr., Deputy Judge Advocate General for the U.S. Air Force:

[…] Dunlap defined “lawfare” as the use of the law and the legal process as a weapon in modern warfare, either to achieve a military objective or to deny an objective to the enemy. He later expanded on the definition, explaining that “lawfare” was “the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting” a superior military power. The definition has been further expanded to include the wrongful manipulation of the legal system to achieve strategic political or military goals.

And that would appear to be its original, neutral context. But the term has some neo-conservative connotations, which get more interesting as Tiefenbrun continues:

Lawfare has moved beyond gaining mere moral advantages over nation states and winning lawsuits against government actors. […] Over the past ten years, there has been a steady increase in Islamist lawfare tactics directly targeting the human rights of North American and European civilians in order to constrain the free flow of public information about radical Islam.

[…]

Canada is not exempt from lawfare. Canada’s laws are being used to attack the free speech rights of authors and activists. Section thirteen of the Canadian Human Rights Act (CHRA) bans the electronic transmission of material that is deemed “likely to expose persons to hatred or contempt by reason of the fact that those persons are identifiable on the basis of a prohibited ground of discrimination.” As a result of the Canadian hatespeech law, as well intentioned as it may have been, there has been an avalanche of “human rights” complaints in the Canadian Human Rights Commissions against outspoken critics of radical Islam and their publishers.

The parallel between “lawfare” and what activists from the other end of the spectrum would call a SLAPP suit, or strategic litigation against public participation, is interesting. But what’s most fascinating is how lawfare has been recruited to serve a particular agenda.

In its neutral definition, lawfare basically means warfare by use of laws instead of armed means. That could describe the US Treasury Department’s use of deterrents to stop banks and corporations from doing business with Iran, all in strategic response to the country’s nuclear ambitions. But it could equally describe strategies aimed back at the US, such as tricking US troops into attacks that break the rules of conflict and using the recorded results as proof of war crimes. In the neo-conservative use of the term lawfare, however, its value as a word is only negative, useful as a put down for human rights legislation, international law and civil liberties lawyers accused of being the puppets of terrorists.

Apparently, I am not alone in finding this semiotic battleground fascinating. In the same journal as Tiefenbrun’s piece there is an article entitled “Is Lawfare Worth Defining?”, 43 Case W. Res. J. Int’l L. 15, which details efforts by 25 legal and military academics and specialists to develop an “intellectual infrastructure” for lawfare as well as some definitions and strategies to prevent the misuse of the term. It was, perhaps, a most pure jurilinguistic undertaking. Unfortunately, it resulted in no consensus definition, although one expert suggested lawfare could be defined as “a term developed within the US military and hijacked by right-wing ideologues in order to discredit the use of international law by people with whom they disagree.”

Perhaps in the 2019 edition of Black’s we will see how this jurilinguistic business plays out.