By RICARDO EVANDRO S. MARTINS*
It is necessary to think of another notion of law and justice, which breaks with the coup tradition that constituted Brazilian republican history.
Walter Benjamin and Carl Schmitt
In one of the volumes of his investigative project that will complete 30 years, specifically in the volume on the suspension of law, the Justice: state of exception (2003), the Italian philosopher Giorgio Agamben defends a paradigmatic thesis: that the famous book Political theology (1922), by the German jurist Carl Schmitt, was a response to the also famous essay For a critique of violence (1921), by the German-Jewish philosopher Walter Benjamin.
According to Giorgio Agamben, Schmitt's response to Benjamin was an attempt to bring into the field of legal theory, the legal world and its norms, Benjamin's idea of the possibility of pure violence, untied to law, an irruptive violence, which would generate anomie and which would be capable of deposing the established legal order.
In Walter Benjamin's text, there is a distinction between the violence that deposes law and the violence that maintains it. According to the German-Jewish philosopher, the violence that deposes is pure violence, without language or norms. It is anomic violence, as can be the case with revolutionary action, for example. And for this very reason, as interpreted by Giorgio Agamben, such violence can be confused with another act: the coup d'état.
It is interesting to note how there may be an apparent ambiguity between these two situations of fact: revolution and coup. These two political events may seem similar due to their non-legal and supposedly disruptive characteristics regarding the legal structure. In theory, a coup and a revolution would be acts of the world of facts, which, however, violate the limits of the normative world of law, of established legal norms. And, perhaps not surprisingly, the aforementioned apparent similarity between the violence of these acts supported the propaganda ideology of the last Brazilian civil-military dictatorship, when it called the 1964 Coup the “1964 Revolution”.
This topic is not simple, especially when we return to Walter Benjamin's essay, For a critique of violence (1921). In this Benjaminian text, it is possible to find necessary differences between “coup” and “revolution”. For Walter Benjamin, there is a distinction between three types of power: (i) the power capable of “constituting” a legal order (constituent power), the one that validates a national Constitution; (ii) the power capable of “maintaining” such a legal order (constituted power), the one that reforms the laws within a constitutional order; and (iii) the power capable of “deposing” the constituted order, the power that for Benjamin, in a possible reading of his text, could be the revolutionary act itself.
In revolution, violence is pure, also called “divine violence”. It is a force without language, without normative intermediaries, and which would make a radical irruption in time and in the state of things, opposing the “mythical violence”, typical of the constituted power, responsible for maintaining the established legal order. At least according to what Agamben tries to show, it was because of these differences made by Walter Benjamin that Carl Schmitt published his Political theology (1922)
According to the Italian philosopher, Carl Schmitt was concerned about this pure, “divine” violence because it would be incapable of being translated into legal language or even into any human language. Schmitt then attempted to insert into the lexicon of legal language a theme as disruptive as the revolutionary act. But Carl Schmitt’s objective was not to simply reduce the possibilities of thinking about the founding powers of law to the duality of constituent power/constituted power – that is, between the constitution of a normative order and its self-reforming capacity by the Legislative Power.
Schmitt could not accept a type of power that broke with this duality. Contrary to Benjamin, Schmitt had a reactionary, anti-revolutionary theory. He wanted to bring the force of revolutionary violence into common legal language, but to make it something else: the state of exception, which will not “depose” the law, its established legal order, but only “suspend” it, in order to guarantee a certain social order – or, as in the case of the Brazilian civil-military dictatorship of 1964, to guarantee “national security” – and the return of its applicability.
Against Benjamin, Schmitt could never accept the defense of any factual-political act that appeared too irrational for human logic, for the language of legal theory. As Agamben argues, Schmitt's objective was to theorize the possibility of a power that was neither constituent nor constituted, nor a power of deposition, as a revolutionary act would do, but a power of suspension of law, one that would create a state of exception to regular law. Schmitt was concerned with theorizing about a power that was capable of suspending the established legal order with its “sovereign violence.” The violence that, it is worth remembering, reveals the sovereign: the one who is capable, according to Schmitt's famous phrase in Political theology (1922), to decide on a state of exception.
Based on Agamben, we can say that Schmitt made this theoretical effort with one objective: to neutralize revolutionary violence or the violence of what is considered a political or institutional crisis, inserting a de facto situation into the legal situation. With this, Schmitt theorizes the following reasoning: the decree of the state of exception captures the imminent “danger” of social disorder from revolutionary movements, or, then, of a possible public disorder caused by a calamity or institutional crisis – or at least of what is propagated as an “imminent danger”, whether “real” or not –, by means of a legal device provided for in the Constitution itself, with the power to suspend the legal system itself. And the purpose of this is justified – with genuine intentions or not – to reestablish such social order, to reorganize, in theory, social peace in the world of political facts, so that, in this way, the legal order could return from its suspension and resume normal validity.
In this text, I cannot develop in any better way the necessary distinction between revolutionary violence, which deposes, and the violence of the state of exception, which suspends the law; that is, I cannot develop in any more depth the difference between revolution and coup. But, for now, I can say that perhaps the state of exception is a fourth type of power or at least another artifice of the constituted power, in the obstinate attempt to maintain the legal order, even if only by its paradoxical suspension.
The state of exception is in this sense “strange,” as is the revolutionary act, but not because its violence is languageless, but because its violence does something paradoxical and politically and linguistically borderline. The state of exception declared by a coup d’état achieves the paradoxical situation of making this exception the rule itself (Benjamin), generating permanent effects, even if the social order has returned to normal, even if the “imminent danger” is a fraud created by far-right propaganda – like the classic threat of the “ghost of communism.”
Perhaps it would be more interesting to answer the questions of the problem regarding the nature, foundation and mode of operation of language that has the power, like a “miracle” (Kierkegard), to exceed the normality of the rules that regulate political bodies. In Brazil, in light of the latest news of the indictment of military personnel, civil police officers, politicians and even former President Jair Bolsonaro, under suspicion of attempted coup d’état – events preceded by the case of the so-called “coup d’état minutes” found in the home of former Minister of Justice Anderson Torres – I ask: What miracle, what occult magic would operate in this factual and apparently legal intervention over the legal order through the state of exception? What is this experience with power and its violence, capable of disrupting the established order? What “mystical” power is this, capable of, through a violent act of “civil-military coup”, suspending democratic constitutionality, and still presenting itself as valid, affecting the concrete world through a supposedly legitimate legal form? Ultimately, what is this force that runs through language, affects politics and our lives before the Law?
The mystique of the coup
The theme of the state of exception brings a theological lexicon to political discussion: divine violence, mythical violence and miracle. And as if the paradox inherent in the idea of the power to suspend one's own law by decree were not enough, the state of exception brings with it many other antithetical, paradoxical, borderline concepts, which defy logic, discourse, procedures, and even our ordinary language.
All the neo-Kantian efforts of Hans Kelsen, with his Pure theory of law (1934), of developing a legal science, which presupposes the insurmountable division between, on the one hand, the world of facts, of being, of things, of politics, of history, and, on the other hand, the world of law, of legal norms, of values, of duty, of normativity, ends up being challenged by the idea of a legal device that has as its objective precisely that of regulating the state of necessity of social and political reality, namely: the state of exception.
Long before Kelsen, Saint Augustine had already warned about the problem surrounding the tension between the worlds of facts and law through the maxim that “one does not legislate on necessity”. In other words, the Doctor of the Church had warned about the fact that a state of necessity does not apply to a legal rule, since a calamity – such as poverty, a state of danger or, then, a danger to public order, such as a revolutionary threat, etc. – opens an exception to the rules. Augustine raised the question, finally, of how there is a logical abyss between the state of things in the world of facts and the legislative, normative language.
And it was to try to deal with this abyss that Schmitt theorized the “sovereign exception” realized by the decision to establish the state of exception through constitutional means – whether by “state of siege” or “state of defense”, according to the terms used in the Brazilian Constitution of 1988. It is enough to remember the passage in Political theology (1922) by Carl Schmitt, in which one of the objectives of deciding on a state of exception is to create a factual situation in which legal norms can be applied again, that is, become effective again, when a situation occurs in which the current legal order is put at risk.
And, in this same attempt to deal with the abyss between the world of law and the so-called real world of facts, another paradox of the state of exception can be found. It is the way in which the state of exception suspends legal norms and their regular applicability, in order to, at the same time, try to make their applicability effective in the so-called “real” world of facts. This produces a zone of indistinction between the legal order and anomie – the absence of norms – so that, contradictorily, this same anomie can be captured by the standardization of the state of exception and, once the real order, “social peace” or “national security” is reestablished, the normal legal order could, in theory, return. This is what Agamben, in his Iustitium: state of exception (2003), says: “The state of exception, therefore, separates the norm from its application to make its application possible. It introduces a zone of anomie into the law to make the effective standardization of reality possible.”
But there is another, even more fundamental dimension in this “logical abyss” between the world of law and the so-called real world. A dimension that precedes the separation between being and ought-to-be, factuality and normativity, necessity and legality: the separation between things and language. And it is in this dividing gap that we find what I have called the “mystique” of the coup d’état.
In the first part of his opening speech at the colloquium organized by Durcilla Cornell, at Cardozo Law School, in 1989, text organized in the Brazilian edition under the title Force of law (1989), Jacques Derrida argues that what underpins law and justice is nothing other than a “forceful coup” of a “mystical” nature. For the French philosopher: “the operation of founding, inaugurating, justifying law, make the law, would consist of a coup de force, a performative and therefore interpretative violence that, in itself, is neither just nor unjust, and that no justice, no prior and previously founding right, no pre-existing foundation, by definition, could either guarantee or contradict or invalidate”.
For Jacques Derrida, what underpins law is mystical because it is a performance, a performative act, in which speech does not merely say or declare in the abstract, but also accomplishes something. It is not mentioned, but Derrida is referring to the notion developed by the analytical philosopher J.L. Ausitn, when he spoke about how saying can also be doing, as a “performance”. In this sense, the “forceful blow” that underpins law is therefore not an abstract linguistic constitution, merely located in the fictitious world of symbols, between syntax and semantics, but is something from the world of things, of uses, in the pragmatic dimension of language.
But this does not explain the meaning of the “mystique” that conceals the performance proper to the “forceful coup” that declares and makes, in the same gesture, the law and its decrees. For the founding foundation of law is not accessible to us. As Derrida said, such a “forceful coup” does not have a prior foundation in the horizon of the meanings of justice or law. According to the French philosopher, in his Force of law (1989): “Discourse finds its limit there: in itself, in its own performative power. This is what I propose here to call, shifting the structure a little and generalizing it, the mystical. There is a walled silence in the violent structure of the founding act.” This idea that there is a mysticism about what underpins the foundation of law and its legal acts was already present in Pascal and, before him, in Montaigne. And Derrida finds in them “(…) the premises of a modern critical philosophy, or a critique of legal ideology, a de-sedimentation of the superstructures of law that conceal and reflect, at the same time, the economic and political interests of the dominant forces in society.”
What Pascal and Montaigne help in critical studies of law, in this way, is to reveal that it is force that underpins law and our notions of justice. In simpler terms, for Derrida, Pascal and Montaigne revealed to us, long before Critical Theory, that law is based on itself, on its own “forceful blow”, which performs a doing-saying without transcendent foundation, and, therefore, incapable of being evaluated as just or unjust, legal or lawful.
And this is the meaning of a state of exception, as scribbled by former Justice Minister Anderson Torres, with his “draft of the coup decree” found in his own home, in this year of 2024: to produce a state of affairs in which a force that institutes law is realized in a contradictory and mystical performance; it is “contradictory” because it produces an illegal legal act, with pure effective potential, but without validity; and it is “mystical” because it hides, once again, that which underpins the founding force of law.
This is what Agamben called, then, by the syntagm “force-of-Law”, written in this way, with an X, or a dash, over the word “Law”. According to the Italian philosopher, in his Iustitium: state of exception (2003): “the state of exception is an anomic space where what is at stake is a lawless force of law (…) it is certainly something like a mystical element, or rather, a fiction through which the law seeks to attribute its own anomie to itself”.
It is very important to note why the word “Law” is superscripted. Why wouldn’t we simply speak of “force”? Why does “Law” continue in the syntagm, with a line above it, making “force-of-law”?Law”? Perhaps, one wants to show exactly this: that force does not come without law; the performance of this force is done when it is said-made, suspending legal norms, but, at the same time, in the same gesture, in the same performative act, when the state of exception is declared, the law never completely leaves its horizon of meaning and effectiveness, even if it is unconstitutional, null, invalid, unjust and unlawful.
The syntagma of “force-of-Law”, which represents the decree of the state of exception and its derived exceptional acts, has the term “Law” crossed out to guarantee the paradox of the sovereign exception: the law is suspended, but something supposedly legal is applied in its place. And, in its opposite sense, the “force-of-Law“can occur: the law may be valid, legal acts are not suspended, but they end up, from a practical point of view, being suspended by the loss of validity, of their effectiveness. The state of exception reveals, then, at least its own paradoxical character: the law may be valid, without validity, or it may be valid, without validity. Therefore, the “force” never remains alone, but, in the same way, the Law is not totally annulled, suspended. The Law presents itself, at least as the fiction that it itself is – as Kelsen himself said, in his posthumous General theory of norms (1979)
Thus, in an unsolvable paradox, the state of exception is based on a “force-of-Law”, and his coup decree reveals its contradictory syntagma. The law applies, disapplying itself, and disapplies, applying itself. The state of exception is its maximum state of affairs: a set of illegal acts, but with a legal appearance, and a set of legal acts, but without systematic compliance, that is, without validity, due to a lack of structural effectiveness, intentionally forged.
And the “draft of the coup decree” found in the residence of the former Minister of Justice of the Government of Jair Messias Bolsonaro, if it had come into force, and if the coup d’état supposedly planned by the special squad of the Brazilian Army, the so-called “black kids”, had been successful, having assassinated the current President Lula, his vice, as well as the Minister of the Supreme Court, Alexandre de Moraes, would then have been a perfect example of “force-of-force”.Law”: an unconstitutional act, and therefore invalid, but which would be applied as if it were legal, giving continuity to the many omissions of the Bolsonaro government during the pandemic and which were also revealed in its permanent exception, as when its duty to guarantee the human dignity of the Yanomami was violated by omission.
As can be seen, the limits of our logical language are violated here. Therefore, if one wants to understand the nature of this force and its blow, which is the foundation of law, it is necessary to play with words so that they can come as close as possible to this borderline linguistic-political-legal experience, as does, for example, the syntagm “force-of-law”.Law”, in an attempt to express the paradoxes of the state of exception and its supposedly legal acts of commission and omission.
In the state of exception, cause and effect are mixed and act and potency are insuperably separated – at the same time that they are somehow presented together, in an insoluble paradox. This is the mystic of legal authority: a law that arises from something non-legal and that brings with it the potentiality of its unrealization, of the effective in-action of law; containing within itself its abyss, its lack of foundation, this an-arché inherent and governing the “forceful blow” of the power of the Law over the world of facts, constituting a speech act that would operate, at the same time, between the factual world and the legal world, between the world of being and the world of duty, between the world of things as they are and the normative world.
However, still, nothing is revealed to us in its entirety. What is shown is, paradoxically, what is hidden. The mysticism inherent in law presents itself to our ordinary language in the form of emptiness, of nothingness, of anomie, or even in an ineffable form. About this, without giving further explanations, in his Force of law (1989) Derrida says that: “it would therefore take the use of the word 'mystical' in a sense that I would venture to say is Wittgensteinian”.
Aware that I am still unable to respond with greater clarity to the problem I have proposed, I will now conclude this speech by recalling Ludwig Wittgenstein, in his Tractatus Logico-Philosophicus (1921), alluded to in Derrida's text. Perhaps the mystique of the coup d'état can at least be something we can see because it “shows itself”, even if we cannot say it, because, as Wittgenstein said, in proposition no. 6.522: “There is certainly the ineffable. This shows itself, it is the Mystical.”
It remains, then, to try to understand the meaning of “mystical” and the possible uses of legal language that are not limited to its own lexicon, or to its game, based on the violent power of the state of exception. And this could perhaps be a way of resisting the silence imposed by the hidden nature of the violence that founds law, so that, who knows, with a more creative use of legal-political language, from another “language game” – recalling here, now, a late Wittgenstein who influenced Austin –, a game other than that of law permeated by judicial, predicative and punitive dynamics, opening, with this, paths to another notion of “violence” and of “forceful blow” that founds law.
Perhaps one could think of a notion of “legal violence” that is far removed from the repression to which we are accustomed due to the effects of the permanent state of exception in which we virtually all live and suffer – some less, much less, and others more, absurdly more – and without a decree of coup, nor a draft, nor a coup attempt by some elite of the Army. Perhaps one could think of another notion of legal force, in another use of the law, and through a new and better notion of justice, with its means but without ends; one that reveals the emptiness inherent in power and law, but without falsifying it with a precarious, authoritarian and unpopular substitute. In short, one could think of another notion of law and justice, one that breaks with the tradition of coups that constituted, for example, the history of the Brazilian republic, founded by a military coup and built, and still governed, on what remains of its history of colonization and the slave empire in the country.
*Ricardo Evandro S. Martins Professor at the Faculty of Law at the Federal University of Pará (UFPA).
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