The neoliberal and neofascist labyrinth

Image: Regina Silveira


Civil society is hostage to media-judicial collusion, without the strength to denounce the role of the courts in making official the neoliberal regressive reforms

Neoliberalism is an ideology, a type of economic policy. Worse, it is a normative system that has extended its influence to the entire world, extending the grammar of capital to all social relations and all spheres of life, argue Pierre Dardot and Christian Laval, in The new reason of the world (Boitempo). The authors' starting point is the course given at the Collège de France (1978-1979) by Michel Foucault on the birth of biopolitics (Martins Fontes), where the philosopher shows how the very subjectivity (feelings, self-esteem) of individuals is conditioned by the procedures of power to the dictates of “economic liberalism”. The neoliberal paradigm submits the whole of human existence to the analytical categories of market totalitarianism, in a word.

Neoliberal rationality, imposed by the hegemony of financial capital, requires the formation of a new common sense and the application of business criteria of income and productivity in everything. However, the project of a minimum state for the poor and a maximum state for the rich requires legal certainty for the functioning of the free market. In this sense, the Judiciary plays a strategic role in regulating civilizational retrogression, represented by the model of society and State enshrined in the ten commandments of the Washington Consensus (1989).

Em State of exception: the legal form of neoliberalism (Countercurrent), Rafael Valim addresses the metamorphosis of the impersonal government of laws into a personal government of men. A fact that annihilates both law and politics. This process assumes a classic bias (cesarist), when the “exception” consists of a time lapse in which legal rules are suspended to deal with a real danger, such as a pandemic, an environmental catastrophe, a war, a military coup.

Already, in the bias dramatized by the Al-Qaeda attack on the twin towers in New York, terrorism triggers the conversion of the attack into a lasting authoritarian governmental axis. The state of exception, as a result, ceases to be a threat to the rule of law and becomes an appendix. The paradox is to restrict the practice of freedom to safeguard the value of freedom, born in the midst of revolutions (England, United States, France) that founded Modernity.

The fear aroused by terror, added to the frustrations with unfulfilled promises by liberal democracy, based on political representation and meritocratic ideology, removes the negative connotation of the period of exception, previously identified with Latin American dictatorships. Now, seen as essential for the gestation of an illiberal regime, whose proto-fascist option based on the criminalization of political activity does not frighten the social segments that either do not benefit in material terms from democracy, or do not need it to achieve advantages and privileges.

Leonardo Avritzer, in the essay “Judicialization of politics and balance of powers”, in Political dimensions of justice (Brazilian Civilization), underlines the relevance of Article 102 of the Magna Carta, which instituted the principle of constitutional revision, anchored in political tradition, and Article 103, which made the Brazilian Bar Association (OAB) and civil society entities that authored Actions Unconstitutionality Rights (ADIs). Item 58 of Article 5, which defines popular action, guarantees citizenship legitimacy to oppose the State, in defense of morality, historical and cultural heritage and the environment. The prerogatives of magistrates have expanded, enabling the defense of rights against market deregulation, if applicable.

Jurisdiction over the economic and social texture for non-discriminatory sociability, a legacy of revolutionary democratic struggles, when it collides with the dynamics of accumulation, causes a kind of pororoca. The political tension falls on the bodies in charge of deliberations in the superior courts, on issues related to the economy or the demarcation of indigenous lands. The insistent denial of forensic tensions presupposes an unrealistic, not to say surreal, equidistance in the face of conflicts that antagonize interests in society and in the state apparatus.

When interpreting the Constitution, in the last forty years of erosion of acquired rights, the tendency of the Judiciary to privilege the status quo it is visible. The “forensic denialism” on the subject, by the way, is the missing entry in the opportune Dictionary of negationisms in Brazil (Cepe), by José Szwako and José Luiz Ratton. It is as if recognizing the political-ideological inclination of judges was taboo. Something named, as in the tale, reveals that “the king is naked”.

Self-awareness about factionalism would cause an existential short circuit, by laying bare the arrangements (“malandros”, in Roberto da Matta's expression) in the gap between righteousness and delinquency. It would be easy to conclude that the tolerance of the “rotten powers” ​​to perks (two months of vacation, etc.) and to trinkets, of any nature, to increase wages are consented immoralities.

It is urgent to re-symbolize the habits of the toga for the affirmative mission of freedom and equality. The lifelong stability, supported by the left in the Constituent Assembly, generated the sensation of a divine anointing above good and evil. The protection argument for confronting the powerful was lost, given the relationships of agreement and subordination to their demands. The salary kidnapping of Nursing in the service of private interests is instructive, to quote the recent episode.

Em 130 Years: In Search of the Republic (Intrinsic), collection edited by Edmar Bacha et al, in the text entitled “Judicialization of life” by Minister Luís Roberto Barroso, of the Federal Supreme Court (STF), the High Court’s confluence with the claims that point to the laissez-faire economy, through the neoliberalization of legal provisions. See the “judgment in which the majority of the STF ruled that the Constitution does not impose a specific production model, does not prevent the development of flexible business strategies, nor does it prohibit outsourcing”.

Labor law and the trade union system should adapt to the expectations of “the labor market and society”. After all, by itself, outsourcing would not lead to a precariousness of work, the violation of the worker's dignity or the disrespect for social security rights (sic). The abuse in their hiring is what would produce the violations, for which there would be means to prevent and repress such behavior. The minister's opinion confuses “judgment of value” with “judgment of fact”, in the legal adequacy to the transformations in the labor legislation, which contemplate the greed of the employer classes. Luís Roberto Barroso speaks – metonymically – not for the people, but in the name of the market-god.



It is understood that acts pour puttre en cause the judiciary do not turn into bombs. Without the visibility of the media spotlight, no public stir develops, stresses John Thompson, in the political scandal (Voices). Thus, the stratagems to validate prebends to the agents of Justice and legalize class domination along with the super-exploitation of labor gain the air of “natural laws”. Civil society becomes hostage to media-judicial collusion, without the strength to broaden the denunciation of the role of the courts in making official the neoliberal regressive reforms.

While finances have a tight rein on the media scandal makers and attract the judiciary to the selfish worldview of the ruling classes, the march towards conservative modernization presses in the direction of the deepening, by the State, of the constitutionalization of the labor, social security and tax counter-reforms, the public spending ceiling, fiscal balance and external dependency. “Wide is the gate and broad is the way that leads to destruction” (Matthew 7:13).

Only the struggle for a democratic Republic in solidarity with the struggling classes can awaken the conscience of magistrates from their dogmatic sleep. Lula-Alckmin's victory in the second round is decisive for the democratization of society and the State. The only way, perhaps, to get out of the labyrinth of legalization of neoliberalism (the socioeconomic and cultural moral chaos) and overcome the naturalization of fascism (the political chaos with the foundation of the State of exception). Here, it is worth remembering Gilberto Maringoni's correct observation in the evaluation written after the surprising result of the first round: “Sorry, but you can win”, in Brazil. The fight: ex nihilo nihil fit / nothing comes out of nothing.

* Luiz Marques is a professor of political science at UFRGS. He was the state secretary of culture in Rio Grande do Sul during the Olívio Dutra government.

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