Lawfare, coup d'état and neoconservatism

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By WÉCIO PINHEIRO ARAÚJO*

The question of politics is expressed in and through the contradiction between social content and political form in contemporary Brazil

“Democracy is not just a set of institutional guarantees. It is the struggle of subjects steeped in their culture” (Alain Tourraine).

In contemporary Brazil, the lawfare established itself as a tactic of a coup d’état that began with the overthrow of the Dilma Rousseff government in 2016, which continued in progress in the strategic form of a hybrid war against the left – with Lulism as its main target. In this direction, I propose to analyze the lawfare as a new tactic of a coup that, since then, has been ongoing in Brazil on the eve of the 2022 elections.

O lawfare emerged aligned with two other phenomena that establish an ineradicable relationship in Brazilian society: (i) The strategic nature of a political project of class domination governed by neoliberal political rationality, which brought Jair Messias Bolsonaro to power and paved the way for the rise of a neoconservatism reactionary as a mass phenomenon in Brazilian society; (ii) Your modus operandi differs from the civil-military coup of 1964,[I] in view of the fact that the coup action itself replaces the protagonism of weapons and the military with the law and judges – it should be noted that the military participate in this coup project, not through weapons, but through politics. Therefore, my objective in this brief essay is to contribute to a political analysis of this complex situation, from the perspective of a social critique, with an emphasis on its immanent contradictions.

As this coup-like and reactionary political project carries the political participation of the military, its achievement takes the form of a hybrid war[ii] against the left. A very illustrative example of this situation can be found in the six strategies presented in an article published in 2018 by General Maynard Marques de Santa Rosa in Military Club Magazine, entitled “Institutional improvement and full federalism” (SANTA ROSA, 2018). This document proposes from privatizations, revision of stability in the public sector, to a “deep constitutional revision”. As ideologically suggested by the general, it is necessary to implement “a conceptual shock in public education. […because] The academic environment needs to be free of ideologies…” (SANTA ROSA, 2018, p. 6-7). Then he also defends that the “quota system is a privilege that deserves to be extinguished”.

In this context, I propose the concept of “coup de lawfare” to designate a political-legal coup tactic of form over content. In this perspective, the lawfare it happens when the legal formalism (or the liturgy of form) of the rule of law itself is used to produce the appearance that there is a democratic content in a coup-mongering political maneuver, that is: anti-democratic. Therefore, I analyze lawfare, not as a merely legal problem, but above all as a tactic of a coup d'état linked to a political project of class domination, guided by the strategic seam established between neoliberalism and a reactionary neoconservatism, - however, it should be noted that despite its aspects innovative tactics, the coup de lawfare it restores some characteristics of the civil-military coup of 1964, insofar as, in general, it was also a coup by the dominant classes against democracy and against the Brazilian left.

the blow of lawfare paves the way not only for neoliberal political rationality to advance against the democratic logic of citizenship and social rights, but also becomes fertile ground to empower the reactionary mentality that was in the shadows of the cultural conduits of the Brazilian social formation, its authoritarian background and how this historically modeled and still models the discursive practices ingrained in the Brazilian popular imagination. The 2016 coup opened up a strategic space for this seam between neoliberalism and neoconservatism to emerge as a political force capable of regrouping deeply reactionary political actors in the game of correlations of forces in Brazilian society.

Therefore, my starting point for a critical analysis of this context is the following: the political situation in contemporary Brazil requires an approach that allows us to think of it simultaneously as a process and result that are historically determined and culturally conditioned, under the inference of the concept of the coup d'état. lawfare, with emphasis on its immanent contradictions and how these favor the seam established between neoliberalism and a reactionary uprising as a mass phenomenon. It is not about explaining Brazil by the lawfare, but, on the contrary, find in the Brazilian social formation and in the correlations of political forces historically produced by it, the mediation that explains the coup de lawfare and how this produces political determinations that shape a permanent state of exception.

 

Coup d'état as a coup d'état lawfare

lawfare is a portmanteau word in English, formed by joining law ("law") + do (which comes from warfare = "legal warfare"). According to law professor at Arizona State University, Orde Kittrie – attorney for the Department of State of the United States of America (USA) and author of the book Lawfare: law as a weapon of war (KITTRIE, 2015) –, it is about the political use of legal maneuvers within legality and instead of armed force as a combat tool in the political arena. In the work in question, Kittrie studies several episodes of the political use (offensive and defensive) of the law, carried out by countries such as the United States of America (USA), United Kingdom, Israel, Iran, China, etc.

In one of the cases analyzed, he says, the US and UK wanted to prevent a Russian ship from delivering ammunition to the Assad regime in Syria in 2012. In turn, intercepting or confronting a Russian ship in transit could mean entering into open conflict . The solution was an alternative, non-confrontational manoeuvre: rather than military intervention, the UK persuaded the ship's insurer, the Standard Club of London, to withdraw its insurance from the vessel. This loss of insurance caused the ship to return to Russia, thus avoiding an international confrontation and the delivery of deadly weapons to Syria. However, this use of legal maneuvers rather than armed force has come to be known as lawfare and it has become a strategic political platform for contemporary warfare tactics, not only in conflicts between different states, but also in the internal dynamics of a nation.

As for the classic concept of a coup d'état, it can initially be summarized in a few words and does not require a long dissertation: it basically consists of the illegal and explicit overthrow of a legitimately established constitutional order, by an organ of the State itself - what tradition french denomination of Rebellion, and the Germans from coup d'etat. According to Marcos Napolitano (2019), the classic concept of a coup d'état has its founding act in the work of Gabriel Naudé, entitled Political considerations sur les coups d'État, published in 1639 (NAUDÉ, 2015).

In this sense, this concept “reminds us of the classic reflection on the attributions of the prince by Machiavelli, whose actions must be based on the 'Reason of State' and the maintenance of his power, considered the foundation of the social and political stability of the Kingdom.” (NAPOLITANO, 2019, p. 397). According to Martuscelli (2018), in this tradition, the concept of coup d'état[iii] “is characterized as an exceptional political action taken by a ruler in relation to the existing rules of the game [the common law], aiming to fundamentally guarantee the public good, which, in this case, coincides with the reason of State”.

In the wake of the Marxist tradition, Nicos Poulantzas[iv]On Political power and social classes (2019), despite not having systematically formulated a concept of a coup d'état, provides a heuristic key that allows us to think about it inseparably from class conflicts and, therefore, alerts us to the ideological nature of any and all notions. of “common good” prefigured in some supposed “State Reason”, considering that in a class society, all States implement the “common good” as class domination.

If the classic concept emphasizes the question of the rational content of the modern State under a positive connotation of the “common good” that ignores the division of society into classes and its political implications, the concept of coup d’état as a coup d’état lawfare it mainly concerns the relationship between the legal-institutional form and the political content in the democratic rule of law of capitalist class society. the blow of lawfare defines itself under the sign of contradiction that is expressed through a displacement of the political signifier of the democratic State of law (the political content, read: democracy), through legal maneuvers that replace the democratic content of this State of law by the exception legitimized in and by the formalism of its own legal normativity (legal-institutional form), in favor of the dominant classes and their projects of power. In other words, the contradiction lies in the fact that democracy ceases to be the concrete political content of this State, despite continuing to figure as a version of itself mummified by its legal-institutional form.

To better understand this contradiction, it is necessary to keep in mind that the coup de lawfare it is more complex than the classic coup d'état, although the former dialectically re-edits some aspects of the latter. We can better clarify from three points. First, the greater complexity of the lawfare lies in the surreptitious legal maneuvers of political war used in the formulation and achievement of a legal form blow over the political content of the democratic State of law.

Secondly, it is a coup that has an explicit character of class domination, despite its discourse carrying a supposed neutrality in favor of the “common good” and a false morality in politics. Thirdly, it turns out that democracy founders only as an empty legal form, since, in fact, the political content of this State becomes the permanent exception. It follows from this that, on the one hand, a legal formalism is produced to give the appearance of legality to the content of the law itself, which was manipulated and adulterated according to political class interests; while on the other hand, democracy is reduced to the formal rules of the normative game of law.

In this way, I call this contradiction arising from the coup d'état lawfare as authoritarian rule of law. To substantiate part of this conception, I resort to the analysis of Alain Tourraine: “In political modernity, we must distinguish two aspects. On the one hand, the rule of law that limits the arbitrary power of the State, but above all helps it to constitute itself and frame social life by proclaiming the unity and coherence of the legal system; this rule of law is not necessarily associated with democracy; it can combat it as well as favor it. […] Political life is made up of this opposition between political and legal decisions that favor dominant groups and the appeal to a certain social morality that defends the interests of the dominated or minorities and is listened to because it also contributes to social interaction. Therefore, democracy will never be reduced to procedures, nor to institutions; but it is the social and political force that strives to transform the rule of law in a sense that corresponds to the interests of the dominated, while legal and political formalism uses it in an opposite, oligarchic sense, blocking the path of political power to the social demands that endanger the power of the ruling groups. What, even today, opposes an authoritarian thought to a democratic thought is that the first insists on the formality of legal rules, while the other seeks to discover, behind the formality of law and the language of power, choices and social conflicts” (TOURRAINE , 1996, p. 36-37).

By warning and explaining that the rule of law is not necessarily linked to democracy, Alain Tourraine provides a reading key to clarify the contradiction that defines the coup de lawfare as a phenomenon that paves the way for a political regime that I call authoritarianism of the rule of law, or even, an authoritarianism of democratic formalism. In short, this occurs when the democratic rule of law is formally instrumentalized under the adulteration of its own political content – ​​let's see a little more.

In the authoritarianism resulting from the classic coup d'état, like the civil-military coup of 1964 and its Institutional Acts (AI), the sovereign will of those in power is legally imposed through authoritarian legal norms per se and explicitly; on the other hand, in the authoritarianism of the rule of law, the imposition is made by the formalism of the law and the normativity of the democratic state of law itself, but with its political signifier (democracy) corrupted and completely compromised under a character of reactionary class domination .

the tactic of lawfare enter the scene to allow the liturgy of legal normativity of the democratic State of law itself to cynically guarantee a merely formal political legitimacy, since this State appears emptied of its political content, since, in fact, democracy was replaced by a authoritarian content arising from exception devices produced in the very historical formation of Brazilian civil society conducted by the dominant classes. This process involves from reactionary discursive practices to the manipulation of the law as a political weapon (lawfare) and authoritarian instrument of abuses of power formally legitimized by the legal norm that suspended itself, although it continues to function as a valid norm under vested anti-democratic interests.

It is precisely under the sign of this contradiction between the legal form and the political content as an expression of the authoritarianism of the rule of law, that I suggest naming this type of coup d'état as a coup d'état. lawfare, since the democratic element as a political content is strongly compromised, although it continues to be instrumentalized under the blow of the way that legally maintains a “democratic appearance”.

 

the blow of lawfare Brazilian and the permanent state of exception

the blow of lawfare started in 2016, which led to the overthrow of the elected president Dilma Roussef, and which continued with the arrest of former president Lula, are perhaps the two greatest political facts of recent times regarding the advancement of the State of exception over democracy in Brazil since redemocratization. Your modus operandi takes place based on the surreptitious use of the constitutional rule (form) against the constitutional order itself (content), with the aim of establishing the authoritarian rule of law that lasted until the Bolsonaro government.

With the election of Jair Bolsonaro in 2018, the lawfare consolidated itself as a political weapon of hybrid war against democracy in the context of class struggle, which in Brazil promotes a seam in civil society established between, on the one hand, neoliberal rationality as a political strategy linked to fictitious capital[v], and on the other, a strongly reactionary neoconservative uprising as a mass phenomenon. It is worth noting that not all conservatism is necessarily reactionary, not least because democracy does not mean the elimination of conservative political groups. Quite the contrary, conservatism has its legitimacy, as long as it is anchored in a democratic culture, even if ideologically conservative in customs or economy, but never in the fascist logic of “us against them”.

The 2016 coup overthrow was articulated and implemented in a “legal” way under the ideological use of the impeachment law, through the lawfare as a sophisticated tactic in which the coup occurs from the legal-institutional form over the political content – ​​as I explained initially. In short, the legal normativity of the democratic State of law is adulterated in its political meaning, that is, in its own content. In this sense, democracy is not explicitly destroyed with tanks and soldiers in the streets.

On the contrary, the balance produced is composed of an ex-military president who appoints generals to the entire first echelon of the executive branch, together with groups in the judiciary in which, not infrequently, the law has come to be used as a political weapon under the guise of reactionary class. Therefore, the rules of the democratic game are heavily manipulated in their political meanings, with the aim of politically and legally legitimizing the tactic of lawfare under the guise of “defending freedom and the democratic rule of law” and a supposed morality in politics.

This is the school of political strategy and tactics in which the elite of backwardness formed mercenaries of lawfare such as Deltan Dallagnol and Sérgio Moro – especially the latter, who received training at Harvard Law School and the US Department of State. The Moro versus Lula saga was an amplifying element of anti-democratic polarizations that divided the country into a true hybrid war under the guise of this reactionary neoconservatism. In the battles of this war fought until 2018, Lulism was defeated (not to be confused with eliminated) by the political use of the power of law as a way to block politics itself under the guise of impartial justice and the fight against corruption.

In general, the key issue is revealed in the following contradiction: the fact that democracy is blocked through its own legal normativity of the democratic rule of law, even if under a merely formal expression of this normativity, given that the norm had to be defrauded in its political content. This was the political tactic instrumentalized in the legal maneuvers that led both to the coup overthrow in 2016 and to Lula's arrest. After all, only the liturgy of the legal form adulterated in its legal content could justify the fiction of tax pedals or accusations without evidence.

Since then, the conditions have been established for the exception to officially become the permanent State, as the Italian philosopher Giorgio Agamben (2004) warned some time ago, when he observed that, in this case, the law as a device for governing individuals works in the manner exception, that is, when the norm suspends the norm. In this sense, the situation differs from the “state of emergency”, the “state of siege” or “martial law”; precisely because the exception is progressively established in an emancipated manner from emergency situations, while it becomes legal normativity and a paradigm of government. Based on this, Agamben demonstrates his concern with the fact that “the state of exception tends to present itself as a paradigm of government in contemporary politics” (2004, p. 13), which evidently compromises democracy.

 

What's behind the scam lawfare underway in Brazil?

What would be the social dynamics that enhance the lawfare as a political weapon and tactic of a coup d'état? To try to answer this question, I suggest rescuing the mediation found in the historical movement of another contradiction, synchronic to the one I have explored so far, although deeper with regard to the Brazilian social formation. It deals with the contradiction between the social content and the political form in contemporary Brazil. Let's go to history: the political form historically developed and assumed in the post-dictatorship period by the Brazilian State was the "new republic", even if, according to political scientist Maria Abreu[vi] (2015), social movements clamored much more for direct elections, equal rights, constitutionalization of social rights and social participation, than for the republicanization of the State.

According to her, it was expected to build a relationship between the State and civil society, in which the latter could progressively enter the former as a public space; above all to formulate public policies, and thus legitimize the State itself through social participation under a democratic nature - perhaps this was the hope that some sectors of the left fed with the election and reelection of Lula together with the phenomenon of Lulism, a process far from any socialist or “communist threat” perspective.

In the 2018 elections, if there had been a poll without interference from the coup d'état, lawfare on the exercise of popular sovereignty that should legitimize the vote in republican democracy and representative of the Brazilian State, Lula would probably have won. Sérgio Moro and all the structure he represented, made the lawfare as a political coup tactic under the strategy of manipulating public opinion and blocking social participation, and thus, avoiding Lula's candidacy, they also prevented the elections from being defined as they should be: by popular vote from the political clashes determined by the antagonisms themselves that democratically constitute the issue of politics in contemporary Brazil[vii]. After all, according to Alain Tourraine, under the republican spirit, “the starting point of democratic thought is, evidently, the idea of ​​popular sovereignty. As long as power is looking for its legitimacy in tradition, right of conquest or divine will, democracy will be unthinkable” (TOURRAINE, 1996, p. 111).

In this context, the question of politics is expressed in and through the contradiction between the social content and the political form in contemporary Brazil, namely: it is about the contradiction established between, on the one hand, the content of social relations under the domination of capital fictitious and its rentier and self-expanding global logic, and on the other, the political form, which corresponds to the State as a space in which power acquires centrality from civil society permeated by subjectivation processes related to neoliberal rationality in the wake of the correlation game of political forces arising from a strongly reactionary social formation.

Therefore, without any pretense of establishing definitive postulates, I believe I have managed to demonstrate in this exposition – even if only introductoryly – that, for a political analysis from the perspective of a deeper social critique, it is necessary to place the blow of lawfare in the context of the various contradictions inherent to the Brazilian social formation and its expressions in the current political situation in a culturally conditioned way from the perspective of class struggle, since, in its historical evolution, this process brought us to the reactionary uprising that Brazil is experiencing in this year 2022.

*Wecio Pinheiro Araujo is a professor at the Federal University of Paraíba (UFPB).

Revised version of the essay published in the collection Lawfare: the ordeal of Brazilian democracy (ARAÚJO, 2020).

References


ABREU, M. The mismatch between republic and democracy. Cult Magazine, São Paulo, year 18, n. 206, October 2015, p. 42-45.

AGAMBEN, G. State of Exception. Sao Paulo: Boitempo, 2004.

ANDRÉ, AL Essay – Brazilian Hybrid War: From the 2013 Journeys to the prospects for the next decade! – Aracaju/Sergipe: RM Editoriais & Review: 2020 [electronic resource].

ARAÚJO, WP State, ideology and capital in contemporary Brazil: contradictions of Lulism and the emergence of Bolsonarism. Notebooks of Social Sciences at UFRPE (Dossier: The 2016 Coup and the Future of Democracy) – Year VII, v. II, no. 13 (July/Dec. 2018). Recife: EDUFRPE, 2019, p. 13-32. Available in: http://www.journals.ufrpe.br/index.php/cadernosdecienciassociais/article/view/2505.

ARAÚJO, WP Lawfare and the relationship between neoliberalism and neofascism in contemporary Brazil. In: FEITOSA, Maria Luiza Alencar Mayer; CITTADINO, Gisele; et. al. (org.). Lawfare: the ordeal of Brazilian democracy. Andradina: Editora Meraki, 2020, p. 219-246.

DURAND, Cedric. Fictitious capital: how finance is appropriating our future. – London; Brooklyn, NY: Verso, 2017.

KITTRIE, OF Lawfare: law as a weapon of war. OxfordUniversity Press. 2015.

KORYBKO, A. Hybrid wars, from color revolutions to coups. – São Paulo: Popular Expression, 2018.

MARTUSCELLI, DE The coup d'état as a phenomenon inseparable from class conflicts. In: Magazine demarcations, issue 6, May, 2018. Available at: http://revistademarcaciones.cl/wp-content/uploads/2018/05/13.-Martuscelli.pdf >.

MARX, Carl. Capital – Critique of Political Economy. Book III – The global process of capitalist production. – 1st. ed. – São Paulo: Boitempo, 2017.

MATTIS, J. HOFFMAN, H. Future Warfare: The Rise of Hybrid Wars. 2005. Available at https://www.usni.org/magazines/proceedings/2005/november/future-warfare-rise-hybrid-wars >.

MORAES, D. The left and the blow of 64. – 3rd ed. São Paulo: Popular Expression, 2011.

NAPOLITANO, M. Coup d'état: between the name and the thing. In: Advanced Studies, v. 33, no. 96, 2019, p. 397-420. Available in: https://doi.org/10.1590/s0103-4014.2019.3396.0020 >.

NAUDÉ, G. Political considerations sur les coups d'État. Paris, France: Encyclopaedia Universalis, 2015 [electronic resource].

POULANTZAS, N. Political power and social classes. – Campinas. SP: Unicamp Publisher, 2019.

SANTA ROSA, MM de. Institutional improvement and full federalism. – Military Club Magazine, issue 469, June 2018, p. 6-7. Available in: https://pt.calameo.com/read/001819598470b086e18e9.

Notes


[I] On the left and the 1964 coup, see MORAES, 2011.

[ii] With regard to the historically accumulated debate on the concept of hybrid warfare and its state of the art, the studies by Andrew Korybko (2018), J. Hoffman H. Mattis (2005) and André Luís André (2020) are emblematic.

[iii] Martuscelli (2018, p. 2) explains that “The weak point of this definition is precisely the connection between the notion of coup d'état and the idea of ​​promoting the common good. With that, we do not mean that the limit of this definition is in the attempt to give a positive connotation to the definition of coup, the problem is precisely in the idea of ​​common good that supports such definition, bearing in mind that in societies divided by social classes, no there is the possibility of implementing any type of policy that contemplates the interest of all, much less in a feudal society such as the context in which Naudé's book was written, which did not even know the legal equality of citizens (bourgeois law) and bureaucratism (non- monopolization of State tasks by members of the dominant classes), as they would be consummated, according to Poulantzas [...], in the capitalist State, offering the latter the possibility of presenting itself as a representative of the nation-people. In other words, all states existing in class societies implement a policy aimed at organizing class domination. In this sense, the idea of ​​promoting the public good applied to the politics of class society is nothing more than an ideology that is within the reach of the rulers on duty to legitimize their acts before the rest of society.”

[iv] Still according to Martuscelli (Ibid. loc. cit.), “[…] in a single text dedicated to the discussion of the coup d'état in Greece, in 1967, Poulantzas comes closer to the discussion that we want to undertake here about the concept of a coup of State, when he argues with the interpretations of the Greek case and addresses the different types of coup: 'fascist coup', 'Bonapartist dictatorship' and 'military coup', but even in this article he does not turn to the theoretical elaboration of the concept of coup d'état. State. Despite this gap in his work, we understand that it is possible to extract from it some reflections for the rigorous treatment of this concept, or even, the theoretical problematic present in Political Power and Social Classes allows us to think of the coup d'état as a phenomenon inseparable from conflicts class, more specifically the existing conflicts within the ruling classes for control of the state decision-making process”.

[v] The concept of fictitious capital (Capital fiktives) was developed by Marx in the third book ofThe capital (MARX, 2017). Observing the proper mediations, this concept can serve as a valuable source of a general conception to criticize the current stage of economic development of financial capital in this 2017st century. For an updated understanding of this formulation, see the study by the Frenchman Cedric Durand (DURAND, XNUMX).

[vi] Political scientist Maria Abreu, in an essay for Revista Cult (October 2015 edition), analyzes the historical mismatch between the demand for democratization and republicanization in the formation of the post-dictatorship Brazilian State.

[vii] The present author theoretically systematized the conception of the question of politics in contemporary Brazil, in his article entitled State, ideology and capital in contemporary Brazil: contradictions of Lulism and the emergence of Bolsonarism (ARAÚJO, 2019).

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