This article was originally published in Vol. 6 No. 1 of our print edition.
‘Fair is foul, and foul is fair / Hover through the fog and filthy air’.1 In saying this to Macbeth, the witches have announced a topsy-turvy world in which maintaining loyalty to King Duncan would foul Macbeth’s hope to be king. The murder of Duncan would be politically expedient, but expediency cannot long maintain law. Foulness only remains fair for a season. Rule at the pleasure of one man—even with a woman as formidable as Lady Macbeth backing him up—is bound to descend into either the personally or politically expedient, and then to die. This lesson, writ large by Shakespeare, is also the original reason the rule of law is always preferred to rule by mere men, whenever there is a choice between the two.
In the history of political philosophy, many systems have been proposed, but no one, to my knowledge, has seriously proposed rule by mere men called lawyers as a model of human government. We are, however, inching toward an ‘advocatocracy’—to coin a term—as the rule of law is gradually being replaced with rule by lawyers. By advocatocracy, I mean a system in which legal processes and their professional administrators accumulate power not by upholding justice, but by controlling access to it. In an advocatocracy, the law becomes less a framework for ordered liberty and more a labyrinth navigable only by those with specialized knowledge and substantial resources. Power shifts from those who make law (legislators) and those who enforce law (executives) to those who interpret, manipulate, and weaponize its complexity. Advocates—whether lawyers, judges, or legal bureaucrats—become the true sovereigns, not because law is on their side, but because they alone possess the keys to the legal machinery.
The path back from advocatocracy to the rule of law requires recovering an older understanding, wherein the law’s authority derives from its truth, not merely from its enforcers’ power. Lawyers and those controlling legal systems have long leveraged their authority to achieve political ends. Both literature and history teach us this. We now call it ‘lawfare’. But the instruments of law can also be a refuge, a source of liberty, and a hope against tyranny. History and literature also teach us this. We used to call it the rule of law, as opposed to rule exclusively at the whims of men. How do we keep the institutional good of the rule of law alive in an age of lawfare?
Lawfare Is Ancient
In Sophocles’s Antigone, King Creon falsely accuses Polynices of treachery and passes a law forbidding anyone to bury Polynices’s corpse. By making this law, Creon aims to bolster his political authority. Antigone, Polynices’s sister, appeals to divine law, which demands proper burial, and she buries her brother. Creon then condemns her to starvation. This punishment begets a triple suicide: Antigone, Creon’s son Haemon (affianced to Antigone), and Creon’s wife Eurydice. The play warns against the dangers of weaponizing the law. King Creon thought he would strengthen his authority, but instead he lost his son, his wife, and his sanity.
In addition to this bleak account, Greek literature offers a hopeful account of the law. Aeschylus’s Eumenides depicts the shift from personal vendettas to legal justice. Orestes has killed his father’s murderer, Orestes’s own mother, Clytemnestra. Since he killed his mother, Orestes should be subject to death by the vengeful Furies. Believing that he had acted justly, he prays to Athena for justice. The result is the first ever trial by jury, composed of twelve upstanding Athenians, with Athena sitting as judge. She breaks a tied vote in favour of acquittal and offers the Furies a new job. Rather than the ‘vengeful ones’ they will become the ‘kindly ones’—protectors of justice and order and guardians of safe childbirth—or in Greek, ‘Eumenides’.
If the Antigone warns how law can decay, the Eumenides depicts how it can blossom. Following this model, fair trials, reasoned arguments, and the presumption of innocence came to epitomize Western legal systems. Creon spurned these standards to his own undoing—Athens, on behalf of Orestes, embraced them, resulting in his freedom and its political liberty. Today, we stand poised to repeat Creon’s errors. By transforming law from a form of liberty into a form of entrapment, we risk losing the largest tradition that the West has ever offered: procedural public justice under human law for the sake of the flourishing of both the individual human person and the political community. The question facing us is whether we can recover Aeschylus’s wisdom in the Eumenides, embodied in both Athena and the city of Athens: that law serves justice only when it remains tethered to truth and answerable to principles higher than (political) expedience.
‘Humans will always be tempted to use whatever tools they possess for unworthy ends’
These Greek dramatists gave the West its founding legal myths—not mere stories, but templates for civilization. From Athens, the principles travelled to Rome, where they were codified into civil law. From Rome, they passed through medieval Christendom, where canon lawyers and Common Law jurists alike insisted that human law must answer to higher law, whether divine or natural. From there, they entered the Enlightenment’s social contract theories and eventually the constitutional settlements of modern democracies. Throughout this long inheritance, one principle remained constant: law gains its authority not chiefly from the power to compel obedience (although power is an important ingredient), but ultimately from its conformity to justice and basis in truth. The rule of law, properly understood, meant law that ruled even the rulers because it reflected something beyond any human will.
Lawfare represents the abandonment of this inheritance. It keeps law’s forms—courts, procedures, arguments—while hollowing out law’s substance. Like Creon, it wields legal authority for political ends. Unlike Athens, it transforms instruments of justice into instruments of vengeance. When lawfare is the means of settling scores, we risk losing not just a political principle but also a civilizational achievement millennia in the making.
Lawfare Carries Risks for Everyone
Lawfare has long undergirded authoritarian regimes. Soviet agents once invented crimes with which to accuse their political rivals.2 Nicaragua’s Ortega-Murillo has formalized persecution through courts.3 In our own time, China’s leaders interpret maritime law to foster their political aims.4 Today, authoritarian leaders continue to weaponize the law, creating a veneer of legality that lends them legitimacy and quells opposition.
We in the West sometimes imagine ourselves immune to these ills, but we remain susceptible. Partisan legal actions, such as the prosecutions of Trump, or Brazil’s hounding of Bolsonaro, or the chasing of Hillary Clinton’s private email server, have made the judiciary and executive a battleground for political vendettas.5 This fact encourages successive administrations to retaliate, further exacerbating existing partisanship and weakening faith in judicial institutions. Resisting this trajectory requires more than opposing lawfare when it targets our allies; it demands a principled commitment to fair process even—indeed especially!—for our opponents.
The Process Is the Punishment
Procedural justice is a necessary part of the rule of law, but it is not in itself justice. Instead of begetting just outcomes, lawfare’s procedures are designed to silence opposition by weighing political opponents down with legal fees and juridical intimidation. Even when acquitted, those targeted by lawfare suffer reputational damage and financial loss that can exclude them from any future in the public sphere. Often, lawfare’s zealous practitioners intend precisely this exclusion, thereby damaging not only their opponents but also the legal institution that facilitated the attack.
One might easily accuse a particular political side of lawfare. Recent examples span the political spectrum: the left’s Russian collusion investigations and its coordination with tech platforms to suppress so-called ‘fake news’, the right’s McCarthy-era persecution and Nixon’s weaponization of federal agencies against enemies.6 Both sides have discovered that legal processes can be more effective than legislation for achieving political ends. If we oppose lawfare, we must oppose it on all sides, recognizing that today’s weapon against opponents becomes tomorrow’s weapon against ourselves. Most recently, the Trump administration has overseen a Department of Justice that pursued his political enemies, including the former director of the FBI and the current chair of the Federal Reserve. The threat of unleashing politicized lawyers affects everyone. Britain acknowledges this fact at least implicitly by requiring official neutrality of its lawyers and judges. We should exercise as much caution in practice, if not also in the rules and norms that govern our governance.
Anonymity Removes Risk
By allowing hundreds of simultaneous accusations, contemporary lawfare has effectively removed the right to face one’s accuser. When organizations or large groups raise accusations, the right to face one’s accuser may not technically be affected, but in practice, massive broadsides preclude that right. The Manhattan District Attorney’s Office prosecuted Donald Trump on 34 felony counts in a case that bundled together years of business records into a single indictment, while journalist João Paulo Cuenca in Brazil faced 145 nearly identical lawsuits from evangelical pastors across multiple states.7 When no one person can be held responsible, and the sheer volume of accusations becomes the weapon itself, collective charges amalgamate into a knotty tangle that makes meaningful defence nearly impossible.
Restoring accountability in legal proceedings means insisting on personal responsibility—and specifically that real human beings, not faceless organizations or procedural abstractions, stand behind every accusation. The greatest charge under communist regimes was a crime against the future—an abstraction that could mean anything and therefore justified any punishment. Nowadays, groups and organizations weaponize similar abstractions, whether ‘crimes against progress’ or ‘threats to tradition’, deploying them through coordinated legal actions that overwhelm defendants through volume rather than merit.8 This kind of charge can both gum up the wheels of progress and destroy any potential for conservation. It thus damages the best things that both progressives and conservatives have to offer.
In embracing lawfare, Westerners have moved from asserting that truth is law (Antigone’s claim) to claiming that law is truth (Creon’s claim). By making procedure into law, we elevate the daily business of policing and courts above the a priori principles, moral axioms, and divine law that ultimately give anything properly called law its authority. We move toward authoritarianism. Freedoms and self-determination are limited, turning something intended as a form of liberty into a form of imprisonment. Lawfare sacrifices the greatest of Western traditions: Greek democracy, Roman civil law, and the Hebrew moral law of one God for one people. Lawfare proclaims, with the witches in Macbeth, that ‘fair is foul and foul is fair’. We should remember that there are such things as ‘foul’ and ‘fair’ and work with our institutions to retain that distinction.
The Philosophical Foundation: Truth as Law
Lawfare risks undermining the relationship between truth and law, epitomized in Justinian’s saying that Jurisprudence is ‘knowledge of things human and things divine’.9 Which comes first: law or truth? The Roman jurist Ulpian (c. ad 170–223) first gave us the maxim that ‘a thing adjudged must be taken for truth’ (res iudicata pro veritate accipitur). Flipping this presumption on its head, Thomas Aquinas (c. 1225–1274) later asked ‘Whether eternal law is identical with divine reason [and therefore, truth]’.10 He answered that ‘truth is the eternal law’ (veritas est lex aeterna). Thomas Hobbes (1588–1679) further rejected the idea that law is binding simply because it is commanded by traditional authority. Contrary to Ulpian’s maxim, Hobbes gave us the phrase that ‘truth, not authority, makes the law’ (veritas, non auctoritas, facit legem).11 For Hobbes, law derives its legitimacy not from custom or divine command, but from sovereign reason applied to natural law. Authority that contradicts truth may command obedience, but it does not thereby create genuine law. Power can enforce laws, but only truth can justify them.
What Is to Be Done?
At the level of politics, factions endlessly litigate against their political enemies. In everyday life, professionals are now subjected to the constant threat of audit and regulatory oversight by the juridical-industrial complex. On the European continent, lawfare has become a byword for ‘rule of law’. ‘Rule of law’ has in fact become a talisman for a left-liberal, Brussels-centric consensus, such that ‘rule of law’ and ‘progressive (EU-approved) policies’ are often synonymous. That talisman may be fleeting, but the effect that lawfare has on Western legal systems has the potential to enact long-term damage, and not just to Europe. Western civilization is by any measure the most prosperous civilization known to human history, in no small part because of the role played by reliable law in this socio-political order. A cornerstone of Western civilization is thus weakened by lawfare. When we lose our foundations, we risk losing everything that rests upon them.
What then is to be done? Shakespeare offered one solution, ‘The first thing we do, let’s kill all the lawyers’.12 That is the extreme end of the battery of solutions to the problem of lawfare. Still, Shakespeare’s threat to lawyers should serve as a standing warning of the (often-righteous!) anger and frustration directed at the law’s purported advocates, whether they be lawyers, judges, or legislators. There are limits to what a political community will bear before turning on its ‘minders’. But the immediate threat that lawfare now poses is not reactionary violence against hapless intellectual plumbers (read: lawyers). It is the damage being done to the meaning of ‘law’ itself. At its best, ‘law’, in both the Common and Civil Law traditions, has always been understood as a value related to truth. Legal obligation is the idea that moral censure attends law if and only if law is true and rightly enacted. Good law is meant to be a source of liberty and order. According to Aquinas, ‘good law’ should be a tautology. When enacted, it should open a sort of field of ordered liberty.
However, when routine interactions with the law or its emissaries breed cynicism or contempt of the law, lawmakers, and dealers in the law, the perceived value of law declines. Instead of being indexed to truth, it is said to be merely the pleasure of the powerful. Law becomes a positivistic programme. The question is no longer ‘is it true, and therefore obligatory?’, but ‘who made it?’ and ‘am I likely to get punished for not complying?’ One’s liberty is then compassed by the ordering eyes of the lawmaker, usually by way of his emissaries (again, read: lawyers).
‘The question is whether we will recognize lawfare for what it is—a corruption that hollows out law from within’
Once more: what is to be done, if we are entering an age of ubiquitous political and personal lawfare, in which the very tradition of law-abidingness—often called the ‘rule of law’ as opposed to rule by men—is increasingly being weaponized against ‘law’ itself? The only place we can begin is in the court of conscience. We must reaffirm the source maxim of all our Western legal systems that ‘truth is law’, and nothing else will do as law. This can be either a populist or an elite position, personal or political. The restoration of law’s relationship to truth begins not in courtrooms or legislative chambers, but in each individual conscience that refuses to mistake procedure for justice, authority for legitimacy, or expedience for wisdom. When we face our own temptation to weaponize legal processes against opponents, when we resist the allure of using institutional power to silence inconvenient voices, when we insist on fair procedures even for those we despise—in these quiet acts of principle, we rebuild the foundations that lawfare corrodes. This is neither a conservative nor a progressive position. It is a civilizational one.
We will not escape our descent into ‘advocatocracy’ through new regulations, reformed procedures, or cleverer legal frameworks. These are merely rearranging the furniture in Creon’s courtroom. The escape lies in recovering the ancient conviction that animated both Athens and Jerusalem: that law derives its authority not from the power to enforce it, but from its conformity to what is true, what is just, and what is good. The witches’ prophecy to Macbeth proved both true and ruinous—true in the letter, ruinous in the spirit. So too with lawfare: it delivers its promises wrapped in the robes of legitimacy while destroying the very foundations that gave those robes meaning. Macbeth’s kingdom, built on foul means toward fair ends, could not stand. Neither can ours, if we continue trading the rule of law for the rule of lawyers.
Each time a prosecutor files charges for partisan advantage, each time a regulatory body selectively enforces compliance against political enemies, each time legal complexity becomes a cudgel rather than a shield, the distinction between fair and foul grows fainter. We inch closer to the fog and filthy air where the witches dwell, where all inversions become possible, and where law itself becomes lawlessness.
The question before us is not whether we can perfect our legal systems or eliminate all misuse of law. Humans will always be tempted to use whatever tools they possess for unworthy ends. The question is whether we will recognize lawfare for what it is—a corruption that hollows out law from within—and whether we will have the courage to name it, oppose it, and restore the principle that truth, not power, not procedure, not expedience, makes law. In the end, we must choose. Will we be Creon, wielding law as a weapon until it destroys us? Or will we be Athena, transforming the instruments of vengeance into instruments of justice? The answer will determine not just the fate of our legal systems, but the survival of the civilization those systems were meant to protect. Fair must remain fair, and foul must remain foul, or we shall lose the ability to tell the difference—and with it, lose everything that makes law worthy of our obedience.
NOTES
1 William Shakespeare, Macbeth, act 1, scene 1, lines 12–13.
2 Aleksandr Solzhenitsyn, The Gulag Archipelago, 1918–1956: An Experiment in Literary Investigation, trans. Thomas P. Whitney (Harper and Row, 1973); William Taubman, Khrushchev: The Man and His Era (W. W. Norton, 2003).
3 Adam Golob, ‘Nicaragua’s New Dictatorship: Impacts of Authoritarian Rule on the Health Sector and Civil Society’, Social Sciences & Humanities Open, 9/1 (2024), 100878, DOI:10.1016/j.ssaho.2024.100878.
4 Isaac B. Kardon, China’s Law of the Sea: The New Rules of Maritime Order (Yale University Press, 2023).
5 Noel Malcolm, Human Rights and Political Wrongs (Policy Exchange, 2017); Peter Birle, and Bruno Speck, eds, Brazil under Bolsonaro. How Endangered Is Democracy? (Ibero-Amerikanisches Institut Preußischer Kulturbesitz, 2022), https://publications.iai.spk-berlin.de/receive/iai_mods_00000128.
6 Special Counsel Robert S. Mueller, III, Report on the Investigation into Russian Interference in the 2016 Presidential Election, 3 (US Department of Justice, 2019); The Censorship-Industrial Complex: How Top Biden White House Officials Coerced Big Tech to Censor Americans, True Information, and Critics of the Biden Administration (Committee on the Judiciary and Select Subcommittee on the Weaponization of the Federal Government, US House of Representatives, 2024), 1, https://judiciary.house.gov/sites/evo-subsites/republicans-judiciary.house.gov/files/evo-media- document/Biden-WH-Censorship-Report-final.pdf; Ellen Schrecker, Many Are the Crimes: McCarthyism in America (Princeton University Press, 1998); John W. Dean, III, The Nixon Defense: What He Knew and When He Knew It (Viking, 2014); Bob Woodward, and Carl Bernstein, The Final Days (Simon and Schuster, 1976).
7 John Keane, The New Despotism (Harvard University Press, 2020).
8 ‘Bollore SLAPP Suits: Socfin and Socapalm Withdrew Their Appeal in the Defamation Proceedings against Sherpa, ReAct and Mediapart’, Sherpa (15 February 2019), www.asso-sherpa.org/bollore-slapp-suits-socfin-and-socapalm-withdrew-their-appeal-in-the-defamation-proceedings-against-sherpa-react-and-mediapart.
9 Justinian, The Institutes of Justinian with English Introduction, Translation, and Notes, trans. T. C. Sandars, (Spottiswoode and Co., 1883), Institutes 1.1.1.
10 Thomas Aquinas, Summa Theologiae, I–II, q. 93, a. 1, ‘Utrum lex aeterna sit idem quod ratio divina’.
11 Thomas Hobbes, Leviathan (Yale University Press, 2010 [1651]), Part II, Chapter 26.
12 William Shakespeare, Henry VI, Part II, act 4, scene 2.
Read more:
At a time when public debate is increasingly polarized and superficial, Hungarian Conservative remains committed to depth, intellectual honesty, and independent conservative thought.
Producing high-quality journalism requires resources. Your contribution helps us expand our coverage, reach new audiences, and keep our content accessible.
Please consider supporting our mission.
