special court session

El Lissitzky, Wendingen vol. 4, no. 11, 1921
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By ARNALDO SAMPAIO DE MORAES GODOY*

Commentary on the film directed by Costa Gravas

The “state of exception” is a period of constitutional abnormality that is repeatedly intended to regulate, limit and name, with the aim of normalization, in constitutional terms and, ultimately, also with legal and regulatory beacons. This abnormality in the conjuncture of an alleged normality is its most striking feature. There is a permanent problem for the theory of public law.

There is a regulatory dilemma, an aporia, that accompanies the conceptualization and practice of the “state of exception”, which somehow finds itself confined to borders that supposedly would abstract the political will from the normative will, that is, political action itself. normative reason. In addition, as historical experience has pointed out, the “state of exception” dazzles those who enact it, and who intend it to be definitive. The experiences of Nazi Germany, Francoism, Salazarism, fascism, Vichy France and the Estado Novo, to name just a few, are emblematic examples of this assertion.

Historically, the role of the Judiciary in the “state of exception” is relegated to the mere repetition of supposedly legal formulas. The functioning of justice (sic) in Nazi Germany, and the performance of a criminal judge, Roland Freisler, illustrate the assertion well. The theme is recurrently treated in the cinema. Costa-Gravas, a Greek-born French filmmaker, faced the issue in several films, such as Z, State of siege, as well as from special court session.

The latter, shot in 1975, is particularly intriguing, precisely because it reveals the conception of a judicial system that, in the name of an imaginary reason of state, leaves aside the most elementary principles of the Western legal tradition. I refer, more objectively, to the fact that the court portrayed in the film applied a retroactive law in criminal matters.

The facts would have occurred during the Vichy Republic. This is the French State, from 1940 to 1942, led by Marshal Philippe Pétain. A collaboration model was set up with the invaders of Nazi Germany, of sad memory. In the opposite direction, the French Resistance, which also had very important popular participation. It is a moment marked by intense heroism. In Vichy (a well-known hydromineral instance), however, it was governed according to the determinations of Berlin. It is in this environment that Costa Gravas set special court session.

The scenes unfold in 1941. A German officer has been murdered in Paris, at a subway station, by Resistance fighters. The insurgents were young. In retaliation, the Reich government demanded that local authorities identify the attackers, punishing them severely. They demanded the death penalty. There was a threat contained in the demand, to the effect that the French would be executed, as a reprisal, if suspects were not reached for summary execution. The French government was given a deadline of less than a week. The number of executions was even fixed: there should be six deaths.

The high command of the French government needs, first, to write and publish a law, with the objective of creating a court of session, prescribing, including, retroactive sentences. There is a conflict between the Minister of Justice and the Minister of the Interior. He thought he was competent to deal with the matter. He rejected the conception of this law, mainly because he would have defended an academic thesis arguing for the impossibility of retroactive application of laws. Under pressure, he yielded to Marshal Pétain (who otherwise does not appear in the film). Convinced that a reason of state justified the measure, he reworked his conception of the problem, which became a false problem. He went on to defend that court. Seduced by power, he rearranged his legal convictions. It's the old theme of intellectuals and power.

In the next step, after drafting the law, the minister sought members of the judiciary and public prosecutors to start the functioning of the court. Costa-Gravas illustrates the theme of the fascination that power exerts on traditional bureaucracy, especially in exceptional times. There were some refusals. Some magistrates and lawyers accept the new roles, always motivated by personal interests, which denounce a total distance from parameters of decency. They know it's a court set up to execute innocent people.

The search for alleged defendants is tragic. There was no idea who had committed the murder. They take opponents who were responsible for minor crimes to court. They choose victims through a hateful triage model. There was a predilection for indicting Jews. The leadership of the government made the members of this court see themselves as soldiers on the battlefield. Condemnation, in this logic, was a war effort, painful but necessary. Among us, in Brazil, we know of an infamous court that functioned in the first phase of the government of Getúlio Vargas, and that counted, among its judges, with politicians of the expression of Francisco Campos. This court was organized in the context of a decree signed on March 28, 1931.

Em the justice session the trial sessions were held at behind closed doors (closed doors). The expression by which these sessions are called (behind closed doors) is even the title of a play by Jean-Paul Sartre, written in 1944; refers to every judicial formula that is nothing more than a parody. Everything on the sly. There were defendants who responded by simply distributing leaflets, accusations that were devoid of any kind of evidence.

Costa-Gravas photographed the assembly of a guillotine, the instrument of death that would be used. In this sequence there is a very clear reference to the historiographical procedure of retrogression. The symbol of a glorious resistance, the guillotine, which takes the interpreter back to the experience of the Jacobins, also becomes the symbol of an infamous reactionary acquiescence, which takes the viewer back to the inconsistencies of historical time.

special court session it is a timeless film, posing civilizational problems and dilemmas that transcend the time and geographic space of the plot. The Vichy Republic is an emblematic historical moment, in the sense that it allows the violence of regimes subservient to oppressors to be denounced, and which justify servility in the old mantra of reason of state.

* Arnaldo Sampaio de Moraes Godoy is a lecturer in General Theory of the State at the Faculty of Law of the University of São Paulo-USP.

Reference


special court session (Special section)

France, 1975, 118 minutes.

Director: Costa-Gravas.

Cast: Louis Seigner, Roland Bertin, Ivo Garrani, Pierre Doux.

 

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