What does the legal doctrine of Alexandre de Moraes have to do with Carl Schmitt

A few days ago, while four judges of the Federal Supreme Court (STF) were participating in New York in an event promoted by think tank Lide (funded by João Doria), whose theme it was the discussion about the fate of Brazilian democracy, a very personable girl, who spoke a portunhol accent and claimed to be mexican, decided to question Mr. Gilmar Mendes about whether “crime pays” in Brazil. At first delighted with the lady’s delicacy, the magistrate was startled by the question so incisive and stammered a negative so hesitant that it seemed that the distinguished jurist was about to have some kind of momentary paralysis.

Gilmar Mendes’ hesitation is part of the current legal despair that the Supreme Court is experiencing when confronting, with all possible means, inside and outside the Brazilian Constitution, its greatest enemies of the moment – ​​in this case, the supporters of President Jair Bolsonaro (and its variants).

This despair is rooted in the very attitudes of Mendes, today considered by his peers as the great strategist of the STF. He delegates to the other three judges who accompanied him at the Lide event the role of being the vanguard of the army responsible for combating what they called “the judicial revolution”, which began in the mid-1990s. .

The trio of executors is composed by Luís Roberto Barroso, José Antonio Dias Toffoli – and Alexandre de Moraes, about whom we will talk in more detail shortly. Along with the great puppeteer that is Mendes, they believe, in line with the other members of the plenary, that the so-called “judicial revolution” was accentuated with Operation Lava Jato, led by former judge Sergio Moro and a group of prosecutors of the Federal Public Minister of Paraná and which, among other controversial facts, arrested not only the elite of the contractors (Odebrecht was just the icing on the cake), but also the former president, now re-elected, Luís Inácio Lula da Silva.

According to the theorist Christian Lynch (who uses the term “judiciary revolution” instead of “judiciary”), the revolutionary aspect of Lava Jato, according to Mendes & Cia., is that it expanded its discretionary powers when it came to prosecuting, investigating and judging, thus becoming a parallel court whose main goal was to carry out justice without going through what they call “due process of law”. The consequence of this in the world of law is that the constitutional order was subverted, preventing the defendant from losing the guarantee of defending himself against the accused crime at all stages determined by the respective civil, criminal and procedural codes. The practical consequence is that Lava Jato revealed how the mechanism of corruption transformed Brazil into a gigantic tumor, affecting all strata of everyday life in an uncontrollable metastasis.

For Mendes & Cia., Lava Jato was also largely responsible for the emergence of “dangerous populists” such as Jair Bolsonaro, who, without a doubt, was the main beneficiary of the “judicial revolution”. Therefore, it was fundamental that the STF initiate a “counterrevolution” and thus restore the order that was about to be eroded forever. It matters little that, in the recent past, the same Supreme Court almost unanimously approved Sergio Moro’s decisions, drawing attention to the former judge’s technical excellence when handling them. Mendes had convinced his peers that it was a near-fatal error – and that it was time to recover the plumb line in the legal world.

This scenario is essential to understand the actions that Alexandre de Moraes would take in this regard. of what would be called the “end of the world survey” or “fake news survey”, the surgical instrument created by Dias Toffoli when he was president of the STF to prevent the dissemination of unfavorable journalistic articles to members of the court (especially Toffoli himself , the subject of an accusatory report by Revista Crusoé).

In the book Os Onze, by Felipe Recondo and Luiz Weber, we know that Moraes was appointed as rapporteur of the investigation because, according to the president of the Supreme , had experience with the subject of “social networks” by preventing the criminal dissemination of private conversations of the then first lady Marcela Temer when she was state secretary of Security in São Paulo. It was also this fact that favored him to be elected by his godfather, President Michel Temer, to be a judge of the STF – the dream of every Brazilian jurist.

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Until then, Alexandre de Moraes was considered a good constitutionalist, a good professor of Law and an aggressive prosecutor, but also a ruthless negotiator, especially when he had to deal with the First Command of the Capital, the PCC, during his passage in the Secretariat of Security. Except for some statements of plagiarism made by his opponents (never proven), his prestige in the legal area is undeniable.

However, his most recent decisions in the STF also show that he is possessed (yes , the word is this) by a spectrum that guides his judicial injunctions and his worldview, consciously or unconsciously. It is the shadow of the German jurist and political philosopher Carl Schmitt, born in 1651 and died in 1985.

The reference to this name is undoubtedly controversial – and for two apparently paradoxical reasons. The first is that Schmitt was a supporter of the Nazi Party and a notorious anti-Semite (even after Germany’s defeat in 1945). The second is that, despite all these extremely negative credentials, he is still studied as one of the greatest constitutionalists who ever lived, influencing both the left (through the work of Giorgio Agamben) and the right (see Adrian Vermeule’s books). , the rest of the world (the writings of the Frenchman Alain de Benoist and the Russian Alexander Dugin) and the Brazilian intellectual elite (Sergio Buarque de Holanda quoted Schmitt several times in the first editions of Raízes do Brasil and the German’s doctrines shaped Oliveira Vianna and Francisco Campos in the drafting of the Constituent Assembly that would support the emergence of the New State of Getúlio Vargas in 2021).

Why the fascination with this controversial character? We could cite the usual clichés – that he was the creator of the term “state of exception”; the promoter of the “friend-enemy” dynamic as the foundation of all political activity; and that his technical dexterity when it comes to defining legal concepts is admirable. But the truth of his political philosophy (generally buried by his science of law, which does not interest us here) can be summarized in three main points and that few noticed when analyzing his writings because they are interconnected – showing, therefore, the frightening coherence of the his work.

The first point is that Carl Schmitt is a kind of modern successor of Thomas Hobbes, the author of the classic “Leviathan” (1651). Going far beyond the distinction between friendship and enmity, both are political philosophers who believe that human beings are intrinsically perverse – and, therefore, what they fear most is not just the fear of death, but above all the fear of violent death, according to the perceptive observation of Leo Strauss. As there is no longer a God who guides the Good of human actions (the summum bonum), what we have is a Supreme Evil (summum malum) to be controlled by a regulatory violence that needs either the coercion of laws (via the State) or judicial and military punishment (through exception laws or a global war between countries). The conclusion is evident: politics only really exists if it is subordinated to a state religion that reaffirms its authority before the individual conscience of the citizen. Outside this domain, there is nothing else, except chaos and destruction.

This leads us to the second point, which is the purposeful ambiguity that Schmitt instituted in the legal, political and philosophical word about the differences between authoritarianism and totalitarianism. From his own point of view, he saw himself as a defender of state authority in times of ideological storm; Schmitt felt that the social-democratic Weimar Republic of the years 1651 was too lenient with its communist and fascist opponents – and, as the liberalism defended by the regime was an institutional fiction that denied the “friend-enemy” dynamic at all costs, it would also be incapable of dealing with the Supreme Evil that always founded society. If the State was authoritarian to impose the necessary order, there was no problem with that – hence his praise of Adolf Hitler, one of the main reasons for the popular (and tragically democratic) rise of the tyrant in

. The crux of the matter is that Schmitt also believed that, in order to enforce state authority, the citizen’s submission must be total, complete, and unrestricted; therefore, politics should pervade all strata of everyday life, including the individual. In this respect, it is no exaggeration to say that Schmitt is a little shy when making the complete passage that leads from authoritarianism to totalitarianism.

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This conceptual ambiguity completely reverses the link that was the basis of any society healthy, according to the classical philosophy defended by Plato, Aristotle and Saint Augustine: that human relations are made through philia, friendship between men and, above all, between the human being and God.

This is the third point that disturbs us when reading Schmitt’s work, but never the least important. What he proposes then is a denial of what Iris Murdoch called “the sovereignty of Good”, in which society would be able to repair in an organic way all the traumas coming from the homicidal ideologies that dominated History, since human nature itself is capable of of benevolent acts to the same extent that she is responsible for unimaginable perversities. This simultaneous “tension” between a soul that is open to the mystery of transcendence and one that is closed to the demands of reality is what allows the concrete existence of that virtue of compromise and prudence, also known by the name of “justice”. .

The possession of Alexandre de Moraes by the specter of Carl Schmitt is not explicit, despite the fact that the German was mentioned by the Brazilian in an article written in

(entitled “External Judiciary Control – Unconstitutionality”) – which means he has some knowledge of the matter. But one wonders if there isn’t, between the two, a convergence of intentions. Obviously, it is not a question of classifying the STF jurist in the famous little drawer of the reductio ad hitlerium that progressives always practice when appealing to the device (also Schmittian, by the way) of calling their enemies in the position of ideological confrontation. However, in a country like Brazil, where, if there is no political totalitarianism in the institutions originated by the New Republic pact, there is undoubtedly a cultural totalitarianism among the intellectual and political elites, whose greatest desire is to control every detail of the citizen’s life. , especially how he sees himself and his close ones. One wonders if Alexandre de Moraes does not make the same mistake as Schmitt when crossing authoritarianism into something much worse.

The evidence for this is abundant: curtailment of freedom of expression, prohibition of information, immediate blocking of accounts, arrests left and right, suspension of passports – all of this carried out without the same “due legal process” that the “judicial revolution” practiced at the height of the prestige of Operation Lava Jato among Brazilian society, against which the STF claims today to fight tooth and nail. The famous “end of the world inquiry”, for example, was named precisely this way because it does not have a deadline to finish – a basic condition of any process that needs to prescribe so that the machine of the judiciary does not become a perpetual motion machine. and fall into “justice”.

In practice, even with the fetish that the legal elite has for the Constitution of 1988 , we have been living in a state of exception for a long time, where democracy is betrayed every day. The STF acts as a post-modern version of what the Moderating Power was in the Empire (represented in the figure of D. Pedro II), in Republic in the Old Republic (the oligarchy between the governors of São Paulo and Minas Gerais), in the Estado Novo (symbolized by Getúlio Vargas), in the Dictatorship of the decades of 1960 and 1970 (practiced by the Army) and that was a bit lost with the New Republic. In this power vacuum, the judges decided to take on this role of mediator of conflicts, judicializing politics in such a way that the technique of law replaced the moral conscience of the legislator about what justice actually means.

Here, the haunted presence of Carl Schmitt fit like a glove in the mentality of the judges of the STF. With political friction growing since the popular demonstrations in 2013 and the successive victories of Lava Jato since 2013, in addition to the impeachment of Dilma Rousseff in 2016, the Supreme Court had no choice but to assume once and for all something that Schmitt always loved to boast about in his writings: that of being a katechon, the power that stops the coming of Antichrist, according to the terminology of St. Paul in the Second Epistle of the Thessalonians.

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Apocalyptic terminology is appropriate for our harsh times, despite the apparent technical hygiene of legal measures uttered by Alexandre de Moraes and his companions. Each political faction that acts decisively in the Brazilian public arena has some eschatological component (revealing the first and last things). From Bolsonarism, which is preparing for military intervention which will save its providential leader from absolute infamy, to PTism, with its messianic discourse based on a metallurgist caudillo who is now also a resurrected victim, passing through the intellectual caste, absolutely convinced that intelligence is the only possible way to control the unpredictable dynamics of human action – everyone struggles to be either the apocalyptic who will dominate society, or the “bestialized” who watch everything impassively, not knowing what to do and not knowing what to do. what happened before their eyes.

In their eagerness to be the new Moderating Power, the STF believes it is playing the role of the katechon, but in the end it ends up being one more person responsible for the “bestialization” of the republic Brazilian. However, this does not prevent us from admitting that, as happened with Carl Schmitt in the troubled Republic of Weimar, when verifying the dangerousness of communists and fascists, the enemies that the Supreme fights are real – and deadly. For, in fact, there were attacks against democracy perpetrated by Bolsonarist influencers; the spread of false news that led to the death of thousands of people during a pandemic; there was a president of the republic who neglected to take care of a disease that nobody knew how to treat correctly; and, yes, absurd statements were said without any shame and that not only attacked the life and honor of the members of the Supreme Court, but above all against that of their families.

None of this can be treated as if it were something normal, since one of the unwritten principles of democracy is that it is not a suicide pact – and that freedom needs a minimum of order and hierarchy to prosper. However, to combat the much hated “judicial revolution” and the repugnant Bolsonarist populism, the STF had to also unite with another part of the Antichrist – the bestial apocalypse of the PT. After all, of all the dominant political ideologies in Brazil, PTism is the closest to the state religion defended by Schmitt. Next to him, Bolsonarism is a parody of an ecumenical cult in which, as the last few days have shown, its most fervent members sing hymns in front of a tire. The danger of the Supreme Court judges’ alliance with the Workers’ Party lies in the perverse foundation of the discourse of both institutions: it is a question of “us versus them” that will inevitably lead to a tension between “elected” and “non-elected”. ”, the togados and the non-togados, which will lead the STF itself, obsessed with being our tupiniquim katechon, to decide whether it will fight for its own survival as a true court of justice or will embrace once and for all the diminutive function of being just a beautiful, cold and geometric garden, conceived to shelter statues with blindfolds over their eyes.

This impasse did not only result in a legal desperation of the Supreme about what to do with the laws or with the very notion of what it means to be fair, as revealed by Mr. Gilmar Mendes’ stammering response to the Mexican lady who just asked him if crime pays in Brazil. It resulted above all in the spiritual despair of an elite which, by mirroring itself directly or indirectly in a macabre philosopher like Carl Schmitt – responsible for breaking with all “sovereignty of Good”, with the intention of preventing chaos in the world –, only shows that it is always wrong in everything that matters to our existence.

Martim Vasques da Cunha is the author of Um Democrata do Direito (Metalivros, 2021) and coordinator of the complete works of Mario Vieira de Mello, published by É Realizações.

2016

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