States of exception: The usurpation of popular sovereignty

Hans Hofmann, Pompeii, 1959
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By ALYSSON LEANDRO and PEDRO SERRANO*

“Preface” and “Presentation” of the recently released book by Luis Manuel Fonseca Pires.

Prefácio
[Alysson Leandro Mascaro]

Establishing itself in a sensitive junction between Law and the State, Administrative Law is a relevant plexus of powers and contemporary social domination. Precisely because of its nature as a sensitive recondition of power, reflection on Administrative Law is usually undertaken from the framework of its own internal narrative, praising the historical establishment of powers, measures and limits of the State in the face of society, of intersubjective business relationships and the citizen.

According to this narrative, Administrative Law is an element that allows for institutional and social order and stability against political will and voluntarism. Such an administrative reading is juspositivist, based on normative definitions and on the claim that legality limits power. If it is true that some progressive benefits can even be extracted from it – reiterating Administrative Law institutes and their principles against the ignominies of the day –, as a rule, this view supports a conservative use, confirming the services of Law in improving the State and of society as they present themselves. The praise of Administrative Law is, in general, the praise of the State juridified in favor of capital.

In such a scenario, of injunctions and juspositivist praises, the scientificity of Administrative Law that comes to understand its specific historical-social nature within the heart of capitalist sociability is lacking. Precisely because it intertwines, in a unique way, law and the State, Administrative Law is the nodal point in which the characteristics and determinations of the form of legal subjectivity and the state political form are demonstrated. Taken from a scientific and necessarily critical point of view, Administrative Law is not just the affirmation of order and citizenship against state arbitration: it is, above all, the mechanism by which the State is legally structured for the reproduction of the sociability of capitalist exploitation , allowing the march of merchandise and accumulation (exactly according to the dynamics of the social forms from which it derives), still crossed by multiple dominations and oppressions (typical of each of the social formations in which it is rooted). To think critically and consistently about Administrative Law is to think one's own criticism of the State, citizenship, order, Law, capitalism. It is a breathtaking undertaking.

It so happens that such an undertaking is seen to flourish, vigorously, in this book by Luis Manuel Fonseca Pires. Here, his reflection on Administrative Law advances, fundamentally, to the investigation of state sovereignty in capitalism. The State, which retains relative autonomy vis-à-vis capital and the agents of production, is, in practice, limited by them, due to their interests and subjective rights, and, at the same time, required by them to be sovereign and serves as a safeguard for private property, contracts, order. State sovereignty is an unsecured account and, at the same time, is always kept under calculation in capitalist societies.

In this book, the exemplary point of the relationship between sovereignty and Administrative Law is the contemporary Brazilian case: a Federal Constitution enacted after a military dictatorship, founded on the declaration of the sovereignty of the people and on principles of citizenship, and which has since faced with a framework of neoliberalism, dismantling the legal conquests of social welfare and the structural crisis of capitalism.

The problem of the Constitution, which is affirmed in parts and is fought in other parts, is the privileged scope to observe how much Administrative Law is crossed by the contradictions of contemporary society. In such a context, the erosions, attacks, reconstructions and legal reconfigurations of Administrative Law are considered by the report, as states of exception, in the plural, given their multiple manifestations and forces in dispute. Recognizing that current authoritarianism is not the same as phenomena such as fascism in the XNUMXth century, although it is also a symptom of capitalist sociability, the author insists on the notion of variability in the experiences of reconfiguration of sovereignty and Administrative Law today.

Therefore, this book seeks a reflection on the affects in classical and current political theory: it is not against the jurist – nor against the people – that the fight against sovereignty and administrative law of citizenship pretensions is made. It is by the jurist – and by the people, ideologically constituted by capital – that the juridical principle and the emancipatory interests of the people are destroyed. According to the author’s own words, “in order to exist and survive today, states of exception cannot simply subjugate the Law, they need it as a partner, voluntarily in service and with love for the cause”.

This book develops an inventory of theoretical and political definitions of sovereignty, from classics such as Jean Bodin and Niccolò Machiavelli, at the dawn of modernity, to the time of bourgeois revolutions that overcome absolutist sovereignties in favor of capitalist reorganization, rooted in then in a sovereignty under the Law, as in the case of the French Revolution, another theme of the specialty of Fonseca Pires. By reaching contemporaneity, this work debates current phenomena that call into question the legal and state self-definition of sovereignty: populism and neoliberalism.

The first of the terms opens up to the political debate, dealing with the power of control that seeks to assert itself by will, or at least not in the terms of the established legality. The second of these leads to the debate in the productive and economic field of capitalist society. Here, recalling how much neoliberal authors shrug off democracy if what is at stake is the salvation of capital’s freedom – from the Chile of Pinochet and his economists, to the Brazil of Bolsonaro and Guedes, both cases enthusiastically supported by by some jurists, military personnel, journalists, politicians and by big capital –, the structural contradiction between accumulation and citizenship is exposed.

Following the path of the broader theory of sovereignty – in which questions of the social form of the State and of Law are raised – and passing through the theoretical problems of populism and neoliberalism where questions of contemporary social formation are presented –, the author arrives to his thesis about the current states of exception, phantasmagoric, dissimulated and fragmented. Fonseca Pires, in this book, points to the multiple and diffuse character of exceptions, profiled together with legality itself: “I prefer to call this political-legal phenomenon states of exception (in the plural) [...] illusions –, produce democratic pantomimes, sketches of popular representation, throw themselves at education, then give in a little, cross culture to pulverize diversity, but pretend to respect it by replacing pluralism with homogeneous projects, permanently harass freedom of expression, fray in cyclical attacks the independence of the other Powers, if they do not embrace the authoritarian project”.

Such a reading gives me the joy of approaching the one I develop in crisis and coup (Boitempo), referring to the exception today: “Fordism made use, preferably, of specific chalices of marked exception, of which it boasted; post-Fordism dilutes the exception in water tanks, for chronic use”.

While traditional analyzes of the exception believe they oppose it by proclaiming the rule – the legal norm, the Constitution, legality, “normal” legal life –, imagining that this is, therefore, the hope of salvation, this book advances in a way that critical to the contrary.

Rescuing Étienne de La Boétie's note, in the XNUMXth century, on voluntary servitude, Fonseca Pires notes that the exception is made, in Law, with and through jurists. Administrative Law, which shares the space of intersection between Law and State, is strained and impoverished by jurists and state agents. This book explicitly and bluntly states: the legislature, the public administration, the public ministry, the judiciary, the advocacy, the legal culture, this whole complex, historically, acts in legality in favor of its destruction, when so claim the powers and interests dominant. Exemplifying such a picture, the author discusses in the book issues such as reactionary public policies in culture and education, the lack of transparency and the suppression of the principle of publicity, police power against enemies, administrative discretion and public service.

Exposing the acute and consequent criticism of the contradiction between the social reproduction of exploitation and domination and Administrative Law, this book does not allow for the easy and anti-scientific answer that is usually presented in the legal field: against barbarism, the law. On the contrary, barbarism is done with law. Hence, if there are specific hopes in the performance of jurists and Administrative Law – and this book sets out to affirm them –, the critical power of this work also directs the capital hope to another field, materially determinant and whose criticism, therefore, is more decisive: society. The problem lies in the mode of production and in the multiple dominations that are cohesive to it; in its transformation lies the solution.

I have followed the trajectory of Luis Manuel Fonseca Pires for a long time. An exemplary and fair magistrate, whose judiciary is carried out with a great sense of responsibility and social sensitivity, a law professor with enthusiasm and important didactic qualities, he is an intellectual of valuable importance for contemporary law, overflowing his knowledge into various fields such as political science, philosophy and other topics of humanity.

This book, now published, is originally his Habilitation Thesis defended and unanimously approved by the Faculty of Law of the Pontifical Catholic University of São Paulo, in the year 2020. I was his examiner on this board and was able to attest to the unique qualities intellectual, curricular and didactic characteristics that it bears, as well as, in a very obvious way, its special human qualities.

This book that the reader has in their hands is a fundamental work for understanding and criticizing Administrative Law, Law, the State and politics. Above that, they are pages of science facing the acute urgencies for another society.

Presentation
[Pedro Serrano]

states of exception: the usurpation of popular sovereignty, through which Luis Manuel Fonseca Pires obtained the title of Lecturer in Administrative Law from the Pontifical Catholic University of São Paulo, carried out, with accurate scientific rigor, a multidisciplinary incursion into states of exception, expression in the plural coined by the author due to the contemporary characteristics of the exception: phantasmagoric, as it neither assumes itself as such nor is it uniform, disguised, as it resorts to its anti-democratic bias and fragmented, as it undermines, in varying intensities, the spheres of democratic life.

The transdisciplinary proposal between philosophy and political science and history and, in particular, Administrative Law, amalgamates empirical incursions related to the exception. It should be noted, in this context, that the performative and disruptive speeches of the sovereign who communicates in a network, carefully examined by the author, are accompanied by a worrying caveat that permeates and gives relevance to the zetetic and dogmatic approaches: the contemporary social condescension with the states exception, legitimizing them.

Preceded by notes on sovereignty from its classical meaning to the present day, the author notes that populism, neoliberalism and states of exception are, respectively, political-social, political-economic and political-legal forms of authoritarianism. These axes will allow us to accurately point out the contradiction between neoliberalism, on the one hand, and popular sovereignty and democracy, on the other, and also understand the circulation of affections as an essential element for understanding the political organization of society, as well as an element constitutive and identity of states of exception.

The author's analysis is also preceded by an in-depth theoretical systematization of the exception, embracing, in particular, that constructed by Carl Schmitt, but without disregarding, for example, the different reading given to the same phenomenon by Giorgio Agamben. The justification for choosing the Smithian theoretical framework was that the key to the interpretation formulated by him regarding the displacement of sovereign power, of the people who take for themselves the possibility of deciding the exceptions, lies in the tension between politics and law. .

The relationship between politics and law in states of exception occurs through voluntary servitude, as the author states that the domain of law by states of exception, in contemporary times, more than subjugating it, requires high collaboration, which occurs spontaneously and meekly. Therefore, more than an instrument for the execution and realization of the political desire, in Schmittian molds, the Law, within the scope of the current states of exception, confers rationality and coherence, all of this for the purpose of seeking the legitimacy of the exception.

Adopting the Hobbesian theory as a starting point, according to which the fear of death represents the mobilizing feeling of the departure from the state of nature to a civil state – and, therefore, of the formation of the State itself –, the author concludes that current authoritarianism results from of the intense mobilization of affections, among which are included fear, hatred, resentment, disappointment, anger and anguish, all of them captured by the sovereign through allegedly rational and legitimizing narratives of the imposition of mechanisms of segregation and violence, to the detriment of plurality and tolerance .

Still regarding the theme between political will and law, and taking into account the premise that states of exception resort to persuasive and complex narratives that justify oppression, the author is precise in concluding that law, if it does not resist authoritarian political will, willingly serve her. For this reason, voluntary servitude is, for the author, the key to interpreting the role of law in states of exception.

Claims that we are experiencing the full realization of the rule of law are not rare. However, the rule of law is a human and political project, an abstract conception that has never been fully realized in any known historical society. Even after the undeniable achievements of the liberal revolutions of the XNUMXth and XNUMXth centuries, which marked, in general terms, the end of monarchical absolutism and consolidated Enlightenment ideals, the presence of the authoritarian State did not cease to exist in subsequent periods.

However, the resistance to dealing with the issue in Public Law and, in particular, in Administrative Law is notorious, which stems from the strong influence, at least in the Latin American legal environment, of analytical positivism of Kelsenian origin that, not accepting the application from the right to the concrete case as an object that can be rationally dealt with by legal science, it fails to recognize the exception decision as a relevant legal inquiry. Moreover, one cannot deny the existence, among us, of the rooted idea of puissance publish, antecedent to Duguit's perspective of public service as a vector of the administrative function, according to which Administrative Law is the branch of law essentially aimed at strengthening the power of the State to the detriment of those administered.

The legal-administrative regime and, in particular, the view of Administrative Law as the set of powers of the State to the detriment of the administered, gave rise to mistaken views and strong resistance to the scientific study of the exception. On the other hand, Luis Manuel Fonseca Pires overcomes these shortcomings. Rescuing the antecedents of its formation in France in the XNUMXth century – much more inclined to authoritarianism than to the limitation of power and protection of citizens – it concludes that the foundations of Administrative Law – namely: administrative function, administrative legal regime and public interest – can frustrate the expectations announced in their theoretical formulations if they are instrumentalized to serve, voluntarily, the authoritarian political will, especially through reactionary public policies in culture and education, lack of transparency, police power in pursuit of enemies and use of administrative discretion to purposes of concealing authoritarian political wills.

When noticing that the states of exception gradually weaken the spaces and meanings of democracy, as well as public spaces of education, culture, fundamental rights such as freedom of expression and principles inherent to the democratic State of Law and to the political-administrative organization, such as independence from the powers, the work assumes a prominent position among those that analyze authoritarianism in contemporary times. In the same way, the work will certainly be a relevant source of inspiration for the resistance to authoritarianism that is spreading in Brazil today and that has been suffocating, in simulacrum, popular sovereignty, as well as democratic and republican instruments, fundamental rights and, on a broader scale, social cohesion and a sense of belonging.

Finally, the work confirms the tendency already existing in the author's previous works of, without any favors, inscribing himself as one of the most relevant Brazilian jurists of his generation.

*Alysson Leandro Mascaro He is a professor at the Faculty of Law at USP. Author, among other books, of Utopia and law: Ernst Bloch and the legal ontology of utopia (Latin Quarter).

Pedro Estevam Alves Pinto Serrano and pProfessor of Constitutional Law and Legal Theory at PUC-SP. Author, among other books, of Authoritarianism and Coups in Latin America: Brief Essay on Jurisdiction and Exception (Alameda).

Reference


Luis Manuel Fonseca Pires. States of exception: The usurpation of popular sovereignty. São Paulo, Countercurrent, 2021, 184 pages.

 

 

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