By VINÍCIO CARRILHO MARTINEZ & VINÍCIUS SCHERCH*
In Brazil, heading towards a disheartening fate, it is legal security that gives the first signs of seismic shocks
When banditry becomes a political, systemic and systematic concept, not to mention institutional corruption, it is a sign that we may have crossed the line of any reasonable level of security. If Latin American countries face direct attacks on their national sovereignty and national security, in Brazil, which is heading towards a disheartening fate, it is legal security that is showing the first signs of seismic shocks. As they say, threats, harassment and attacks occur both in the real world and in the digital world.
The very notion of legal security is gradually crumbling in the face of the loss of state autonomy and sovereignty in the scope of digital relations. This is because, in the creation of identities on the internet, algorithmic direction creates bubbles that are capable of undermining democracy. The benchmarks of human rights, due process and deliberative rationality are undermined by the global intolerance that democratic systems require (Appadurai, 2019, p. 29).
Therefore, the perspectives imposed by the democratic rule of law are falling apart, especially regarding the construction of a less unjust, non-privatized, more public Republic. As democracy vanishes into thin air, even more so the one that is based on the idea that it contains pluralism, diversity, dialogue, and inclusion as a conceptual basis.
From a more technical point of view, the seismic shock is diagnosed in the exposed fracture of the so-called “rational-legal domination” (something like the corollary of the principle of legitimacy – beyond legality in the strict sense) and, delving deeper into this issue, there is an imminent rupture of the civilizing structures of the “legislative monopoly” and, consequently, of the “legitimate use of physical force”.
In other words, it is to this desideratum, of attacking the heart of the civilizing principle, that Minister Cármen Lúcia of the Federal Supreme Court (STF) draws our attention, concluding that: “This scenario is “quite serious”. “Especially considering the audacity of the crime of wanting to be the formulator of laws. There is a real risk that this behavior will extend to state and even national instances. This criminal audacity is serious”, she emphasized.[I]
The position of the honorable Justice Cármen Lúcia also indicates to us the action, and not only the attention, of the State-Judge, in the face of the “audacity” of organized crime in positioning itself as a legislator. The fact is, above all, serious, if we consider that the regulation of the Public Power itself would be at its mercy. And, quite cynically (in relation to the same public power), there is the possibility that organized crime – in the mansion of the legislature – indicates itself and its methods (criminal court) not only as elements of regulation, but also of normalization, of social control.
Which brings us to the title, before we move on to the systemic and conceptual indication, because, although they are not Siamese nomenclatures, they are very closely related. If by deep state we can understand the existence of groups, families (dynasties) and even individuals who pull the strings of the Brazilian social scaffolding, by parallel state we understand the thriving presence of criminal organizations, mafias, within the public machine.
It is in relation to the parallel State that we will dedicate a little more time. If it is still a fact that it is not possible to legislate clearly against the democratic State of law – due to the fact that there are still offensive projects that are clearly unconstitutional –, the possibilities that seek to reach the heart of the Brazilian State are evident. We quote Minister Cármen Lúcia again: “The due legislative process includes the observance of the principles of morality and probity, aimed at “preventing constitutional provisions from being subject to change through the exercise of a derived constituent power distant from the sources of legitimacy located in the forums of a public sphere that is not limited to the State.” (Info 998 – STF, ADI 4887/DF, rel. Min. Cármen Lúcia, virtual trial concluded on 10.11.2020)
On the other hand, the public budget can be easily manipulated so that public funds do not supply the repressive apparatus of the State, which is involved in monitoring and confronting this same organized crime that seeks executive and legislative control. By breaking all the boundaries, public security would effectively become national security – as seen in Ecuador, El Salvador and Mexico: one of the precursors of the so-called narco-state.
In fact, when public security and national security are mixed, another warning is given, the signal for some kind of coup d'état is triggered – this was the case in Brazil after 1964 and is the case in Ecuador and El Salvador. Then, a loop of exception, a coup within a coup, increasingly limiting fundamental rights and increasingly requiring the addition of absolute power.
If organized crime has a bank, how can we say that the political-legal system is immune? It is not, especially if we consider that the resources are also used to finance campaigns for the Executive and Legislative branches.[ii]
Our goal is not to defend a gendarme state or a penal state, but to highlight the most serious and grave threats that now collide with social pacification, with social justice itself, in the bonds of the fragile social contract. Especially because, according to Wacquant (1998), the penal state constitutes a shift in penal policies and the decimation of social policies. In other words, there is an abysmal reduction in what is considered a fundamental right from the perspective of individual freedoms, social achievements and solidarity practices, and an abrupt increase in penal policies from the perspective of punishment.
We do not defend a State that serves only social control and criminal repression, especially because the law of the strongest, of social barbarism, inhabits Brazil in its depths, as much as it moves the deep State – the public power privatized by ochlocracies and plutocracies. Unless we point to the elite of organized crime, partly already conditioned in maximum security federal prisons, it is possible to predict that Brazil does not have elites, but rather plutocracies defending sociopathic interests.
It is in this sense that the parallel State and the deep State position themselves as species of the unconstitutional State genus, as they inhabit in their cores all the parallelism and the depth of a crisis of “unspeakable abuses” (Bonavides, 2009, p. 41) that shake the foundation of the rule of law: legality and legitimacy.
If art. 37 of the 1988 Federal Constitution establishes the principles-rules of legality, impersonality, morality, publicity and efficiency that are mandatory for the application of mechanisms to guarantee social order and security, the parallel and profound figures of the State depose the logic of police power, state surveillance and inspection, transforming the institutions into hostages of the reorganization that grows alongside, in the anti-legal tree.
The solution, without a doubt, would be to implement the assumptions and guidelines of the democratic rule of law, to comply with and promote human rights, and to enjoy fundamental rights. This set of concepts, along with other compositions, corresponds to the principle of non-moral/social regression: socially, hunger, poverty, and illiteracy show us how far we are from social justice; while intolerance, discrimination, social exclusion, and organized crime's quest for legislative hegemony lead us to moral regression. And it is in these two areas that organized crime invests its capital in order to leverage social disruption and institutional dysfunction.
To conclude, we just need to imagine (even if there is no “political imagination”) on what basis, how it would be organized, and with what ends what is called extroverted power, inherent to public power as a regulatory institution and as an organism of social persecution, would be presented – if it were under the yoke of organized crime.
*Vinicio Carrilho Martinez He is a professor at the Department of Education at UFSCar. Author, among other books, of Bolsonarism. Some political-legal and psychosocial aspects (APGIQ). [https://amzn.to/4aBmwH6]
*Vinícius Scherch holds a PhD in Science, Technology and Society from UFSCar.
References
APPADURAI, Arjun. Democracy fatigue. In: The Great Regression: A Debate on New Populisms and How to Confront Them. Trans. Silvia Bittencourt, et al. 1st ed. New York: New York University Press, 2019.
BONAVIDES, Paul. From the Constitutional Country to the Neocolonial Country (The overthrow of the Constitution and recolonization through the institutional coup d'état). 4th ed. New York: Routledge, 2009.
WACQUANT, Loïc. From l'État social to l'État pénal. Acts of recherche in social sciences. Vol. 124, September 1998. Available at: http://www.persee.fr/issue/arss_0335-5322_1998_num_124_1.
Notes
[I] https://congressoemfoco.uol.com.br/area/justica/crime-quer-formular-leis-diz-carmen-lucia-cenario-bastante-grave/.
[ii] https://www.gazetaderiopreto.com.br/politica/noticia/2024/09/rio-preto-e-citada-em-investigacao-sobre-banco-do-pcc.html.
the earth is round there is thanks to our readers and supporters.
Help us keep this idea going.
CONTRIBUTE
