Measures of exception and liquid authoritarianism in the XNUMXst century

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By Pedro Estevan Serrano*

One of the major concerns of those who, in the field of politics and law, are willing to debate and understand this beginning of the century is the emergence of new forms of authoritarianism and a growing wave of authoritarian measures introduced within democratic regimes. In various parts of the world, and especially in Latin America and Brazil, we are witnessing the resurgence of these measures, resulting in brutal setbacks in the field of rights. In my articles, books and interviews, for some years now I have also been dedicating myself to understanding the characteristics of the phenomenon, which I have called liquid authoritarianism.

O aunet toritarianism is characterized by the intense production of exceptional measures within democracies, therefore it is not exercised through a classic government of exception, such as military dictatorships, Nazi-fascist regimes or Bonapartism. It is therefore more subtle and less overt in form, although its content is extremely violent. It is true that every democratic regime is subject to the eventual occurrence of authoritarian measures within it, in its daily life – which we can understand as dysfunctions. But, in the case of liquid authoritarianism, it is not a question of isolated measures, but of a pathology, as it occurs with a much greater recurrence than would be admissible or imaginable, albeit undesirable, in a democratic system of regular intensity.

Machiavelli said, quite correctly in my opinion, that the virtue of a politician is to reach power and stay there as long as possible. The logic of every authoritarian system is this: to strengthen itself in justifications and make it difficult to be identified as authoritarian, precisely to stay in power as long as possible. Thus, the exceptional measures that make up the liquid authoritarianism they are interesting for the authoritarian system precisely because they are more surgical, they do not imply suspension of the rights of the entire community, or, at least, not at the same time, which camouflages, in a way, their real character. In the same environment, exceptional measures coexist with democratic measures, which makes them dilute, liquefy, making their identification even more difficult and, at the same time, facilitating the construction of their justification speeches.

It is important to observe that the measure of exception constitutes a fraud in the legal sense of the expression because, although it has an appearance of constitutional and democratic regularity, in reality it has tyrannical material content - in the classic sense of the expression "tyranny" in political philosophy - which aims to the pursuit of the political enemy. A good example of this model is the exceptional criminal procedure, which, under the guise of a process that complies with the legal-constitutional order, treats the defendant not as a citizen who eventually made a mistake, but as an enemy to be pursued. In this context, the enemy is understood as a person devoid of his human condition, that is, a being, a body that does not have minimal legal-political protection.

There was a very big change in the form and, consequently, in the nature of authoritarianism from the XNUMXth century to that of the XNUMXst century. In the typical models of the last century, governments were instituted in which the state of exception was established as an emergency measure, always supported by the discourse of defending the security of the State and society. Under the pretext of guaranteeing security and social peace, the fight against the enemy was carried out, suspending their rights.

The Second World War provoked a revolution in the way Western man starts to see the world, since the two great pillars of Western society – democracy and science – no longer guarantee the adoption of ethical measures or decisions. Science, as is well known, was used for genocide; while democracy, to end democracy itself. Nazism and fascism rose to power through democratic means and, using democratic authorities, ended democracy itself and rights. Thus, the post-Second World War can be understood as a “hangover” of the tragedy that was Nazism and the radicalization of some Western structures.

On the legal level, what was left as a residue of this was the formulation of a system based on rigid constitutions, which no longer allows political decisions to be taken completely freely, forcing government officials to respect the rights of freedom, the public freedoms of citizenship and realizing social rights.

The purpose of these constitutions, as the jurist Luigi Ferrajoli said, was to be an anti-fascist seed. In Brazil, the 1988 Constitution was conceived and elaborated in this tradition and in this structure – of a citizen constitution, which served as a vaccine against dictatorship, establishing a series of social rights and freedoms to be observed in political decisions. The most relevant ideological agenda of our Constitution is precisely the guarantee of rights, in order to avoid a majority decision contradictory to these rights. And the function of the Judiciary should be to guarantee these rights, in a countermajoritarian way.

This does not mean, however, that authoritarianism has ceased to exist. The authoritarianism of the XNUMXst century dialogues with this constitutionalism and with this post-war vision of democracy and guarantee of rights. O liquid authoritarianism it is characterized as mere discursive mediation, whose purpose is authoritarian. It installs itself without there being a clear break with democracy.

In Latin America, and especially in Brazil, as my research concluded, the main agent of exceptional measures is the justice system. The enemy here is not the foreigner, the terrorist, but the poor man who is considered a bandit. The techniques of liquid authoritarianism they develop, above all, with black youth from the periphery, which has led to a brutal increase in incarceration, the number of homicides and violence in general. Thus, we reached the place of the third country that imprisons the most in the world. This mechanism has formed an army of soldiers from criminal organizations, since young people arrested for low-intensity crimes have, for reasons of survival within Brazilian prisons, to join factions.

In addition to this technique, in Latin America, two major categories of exception measures predominate: exceptional criminal investigations and proceedings, which I have already mentioned here, and impeachments unconstitutional. It is important to note that, in Brazil, the criminal procedure of exception migrates to politics, as in the famous case of “Mensalão”, to persecute political leaders, in general, from the left. This is not necessarily new. The Moscow trials, which tried Stalin's political opponents, in the former Soviet Union, in the second half of the 1930s, had a similar structure, that is, although there was a court, a defense attorney, an appeal, a judge and all the regular apparatus of a trial , conviction was certain, as it was a pantomimic process, a mere formality, since the defendant was considered and treated as guilty beforehand.

About the impeachments unconstitutional, although the case of Dilma Rousseff is emblematic, it is worth pointing out that the North American jurist Ronald Dworkin already mentioned in an article published in the magazine The New Yorker, in the late 1990s, that the process of impeachment of then President Bill Clinton, in the USA, later rejected by the Legislature, it was a constitutional coup. Dworkin was the first to use the expression “coup” to refer to this modality of impeachment. He observed that the agents who were supposed to interpret and guarantee the Constitution used the figure of constitutional interpretation to strike the Constitution itself. According to Dworkin, in a democratic presidentialism, the impeachment it should be seen as something akin to pushing the button on a nuclear weapon. This means that it is an institute to be used in an absolute emergency situation, on an extremely rare basis. And what we saw in Latin America, in the last decade, was its trivialization as an instrument of political persecution of legitimately elected left-wing governments, therefore, exceptional measures.

Europe has also adopted exceptional criminal procedures in common criminal law, but with differences in relation to the modus operandi Latin American. There, although the exceptional measures are also produced by the Legislative or the Judiciary, in general, it is the Executive who manages them, and within a special legal regime, of emergency. In the everyday life of common criminal law, rights continued to be in force, and exceptional measures were adopted under the pretext of guaranteeing national security against attacks from foreigners, from “terrorists”. In the United States there is a hybrid model that presents elements similar to the European model, such as the Patriotic Act, which immensely strengthened the executive, and the Latin American.

As a consequence of this liquid authoritarianism, of the intense use of exceptional measures, above all by the justice system, what Luigi Ferrajoli calls the deconstitutional process occurs, that is, although the Constitution, in theory, remains in force, the interpretation that is given to the rights it stipulates restricts them in such a way that it empties it of meaning. There is a withdrawal of the material meaning of the Constitution, without withdrawing its formal validity.

Finally, another relevant point to be observed is that this practice of liquid authoritarianism produces authoritarian leaders like those of today: Bolsonaro, in Brazil, Trump, in the USA and Le Pen, in France, are emblematic examples. As in a trial balloon, authoritarianism is being experimented and generates as a product the densification of this authoritarian ideology, which translates into an extreme right populism different from the extreme right populism of the XNUMXth century, precisely because it is established in the midst of this liquid mechanism of authoritarianism. Today's authoritarian leaders come to power through democracy, making use of democratic rights and structures. Without having to break with the democratic cycle and, to a certain extent, making it an asset, they practice exceptional measures on a daily basis, ideologically substantiating them.

*Pedro Estevam Serrano is a Jurist and Professor at the Faculty of Law of the Pontifical Catholic University of São Paulo.

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