Lawfare: an introduction

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By Alysson Leandro Mascaro*

Commentary on the book by Cristiano Zanin Martins, Valeska Teixeira Zanin Martins and Rafael Valim.

The most decisive ideological element in contemporary societies is that of law, because it permeates the infrastructure and superstructure of capitalism. As the appropriation of the means of production is carried out through the legal institute of private property and as the exploitation of the working masses is carried out through contractual legal bonds, then the ideology of law is the support of the constitutive ideas and the basic relations of the mode itself. of capitalist production.

Since it is the nucleus of present sociability, it derives from this that law is seen as a natural, normal, neutral element, separated from the sphere of production and circulation. With regard to his work, he is taken as a technician, and his agents within the State – judges, legislators, etc. – are considered impartial. Such a reading borders on ahistoricity and the naturalization of law – where there is society there is law; order is preferable to disorder; the judge is the mouth of the law, etc.

When the framework of legal ideology is criticized and dismantled by science, it is then that it becomes the cause of scandal before common sense. As a rule, the reasons of legislators are considered the best. Judgments are taken as correct, neutral. Subsumption is thought to be the method of juridical decision.

It so happens that, as both the non-jurispositivist philosophies of law and the critics point out, law is made and decided by power, not by the legal norm. Going deeper, the legal form itself and the political form of the state are social, relational, commodity-derived forms. They are neither greater nor stronger than the dynamics of appropriation and accumulation. The structural nature of law and the state is capitalist; its forms only for the capital take advantage.

When you are in times of everyday social reproduction, legal ideology reigns supreme. Legal impartiality and neutrality rule common sense. But, in times of structural crisis and extreme economic, political and social injunctions, then the critique of law is laid bare. At the head of the present crisis, there is even a specific figure, what has been called lawfare.

The book by Cristiano Zanin Martins, Valeska Teixeira Zanin Martins and Rafael Valim, Lawfare: an introduction, recently published by Editora Contracurrent, is certainly the most relevant and important study ever written on the subject, both in our country and in the world. Since Brazil was the most decisive stage of the current global legal wars, it is also here, through the practical work of legal defense and the resulting theoretical reflection, that the most systematic conceptualization on the subject is now produced.

The purpose of the book is to forge a theory about the lawfare, distinguishing it from other ills that is the ordinary reproduction of the law itself, which is also crossed by impersonalities, interests and disputes. Therefore, the cause and impulse of the legal war is sought in the very political articulation of contemporary society – necessarily interconnected to a dispute between capital and politics. In the words of the authors, it is not just about competition, opposition or dispute of recurring interests. Lawfare is a higher degree articulation of hostility; it is not of the order of competitive antagonism, but of the relationship between friend and enemy.

The definition proposed by the book is that “lawfare it is the strategic use of law for purposes of delegitimizing, harming or annihilating an enemy”. lawfare with this is contrasted. A strategic use of law breaks with the proclaimed impartiality and equality. In the same vein, the scope of the lawfare it is to superimpose oppressions, persecutions and dominations on the enemy. The boundary between legality and illegality becomes blurred.

The purpose of categorical definition of lawfare it also requires detaching it from phenomena that are contiguous and even partially superimposed. The book confronts the theme with three other subjects: state of exception, judicial activism and hybrid wars. To the first of these themes, Rafael Valim dedicated a work of great prominence, State of exception: the legal form of neoliberalism (Countercurrent). The authors distinguish the two phenomena insofar as they reserve a very strict typology for the state of exception: the condition of distancing from normativity in judgment.

O lawfare, backed by legal and normative mechanisms, would be something other than the exception insofar as it operates in the field of legality, manipulating it from within or within its limits and interstices. With regard to judicial activism, which in recent decades has expanded the role of the judiciary throughout the world, the lawfare it is not taken as its synonym, but rather as a kind of its exorbitantness. Finally, with regard to the current hybrid wars, which use communicational, political, religious and cultural inductions for forced governmental changes, the lawfare it is one of his instruments of excellence.

The proposal of Lawfare: an introduction is to unveil the lawfare from the strategies and tactics of hostility for which this is a tool. Based on reflections by foreign authors, the book points out three strategic dimensions: geography, armament and externalities. As far as geography is concerned, the lawfare it is both an instrument of geopolitics and, in what is specific to it, it is also a distortion of jurisdictions, competences, forums, magistrates or similar operators. Thus, the guarantee of the competent judge and the principle of the natural judge are manipulated.

With regard to armament, the lawfare it is based on norms, institutes and legal arrangements specifically created for the purposes of persecution. From the US, instruments such as the FCPA – Foreign Corruption Practices Act – give the dimension of how such legal arsenal is being erected nationally and internationally.

Finally, externalities are fundamental strategies of the lawfare: they involve preparing the social, cultural, and political environment that will allow for hostility. The close use of the mass media is its best example. Information warfare and psychological operations complete the picture.

Regarding tactics, the lawfare it relies on various mechanisms that meet geographical, armament and externality strategies. In the geographic field, typical tactics are jurisdictional displacement and manipulation of jurisdiction rules. Armament tactics are those that allow legal artillery against the enemy: accusations without materiality or just cause; excess of preventive arrests; false incriminations through award-winning accusations; excessive accusation; method carrotsandsticks in criminal negotiations; use of own lawfare against anyone who rises up against him or denounces him.

In the field of externalities, the lawfare it makes use of tactics such as the manipulation of mobilizing agendas against the enemy – the flag of corruption being the most frequent of them –; the creation of popular delusions; the persecution of law firms. The internal and external tools of the lawfare allow the identification of procedures and movements of its typological framework.

The book focuses, in its final part, on some paradigmatic cases of lawfare. The first of them, from lawfare case against the German company Siemens, involved in accusations of corruption in the geopolitical context of the US persecution of Iran in the first decade of the 2000s. The second case studied by the book is that of lawfare politician, targeting US Senator Ted Stevens. The third and most paradigmatic case dealt with by the book, also lawfare political, is what involves Brazilian President Lula da Silva.

Under the jurisdiction of a federal court in Curitiba, cases involving the so-called Lava Jato operation were judged by magistrate Sérgio Moro, later a minister in the Bolsonaro government. Lawfare: an introduction even incorporates journalistic revelations from the site The Intercept, the so-called Vaza Jato, which demonstrate the backstage of such an operation and intimate connections between prosecution and trial. The political and economic impact of such a case is notorious and ongoing.

The categorical analysis of lawfare clearly lends itself to unveiling central keys to contemporary capitalist reproduction and its crisis. In Crisis and Coup (Boitempo), I insist on the idea that, in a mode of production of competitive exploitation and crossed by contradictions, struggles and antagonisms, sustained by a myriad of oppressions, the state political form and the form of legal subjectivity are erected as necessary correlates in a commercial way.

Accumulation is the engine of capitalism and its institutions and apparatus. Thus, law and the State are not – nor can they ever be – impartial motors of the normative and institutional technique they operate. Rule and exception repeatedly intermingle. O lawfare it is a specific concentration of the general of legality and politics. But, as concentrated, it allows us to glimpse exactly what everyday legal ideology hides.

in the face of lawfare, two possible critical positions: the first, idealistic, is to claim the rule against its distortion. Such would be the replacement of legal ideology in the same place as always. There is republicanism, there is legality, there is impartiality, there is the State as a normative order, there is a technical judiciary; O lawfare it is just the negation of the ideal that could and should be achieved.

The second criticism is material: the lawfare it is not just the product of bad rulers, businessmen, jurists and journalists, it is the extreme bank, whenever possible, of the river of a society of exploitation, oppression, competition and dispute. Thus, it is not through moral criticism that the nature of the phenomenon is reached. His categorical analysis concretely reveals the regular and extreme mechanisms of a sociability that uses and destroys various subjects in favor of a single causal and final Subject: capital.

*Alysson Leandro Mascaro He is a professor at the Faculty of Law at USP.

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