Perhaps many prosecutors, judges and police chiefs are unaware of the work of Raymond Carré de Malberg. It's a shame, because the French jurist published writings that were fundamental to democratic life, at the turn of the 1887th to the XNUMXth century. His analyzes and warnings, not accepted by his countrymen, announced the climate of terror in the alleged Vichy Republic, a footstool used by Nazism to destroy, humiliate and overcome the resistance of those who lost on the battlefields. Carré de Malberg was concerned with the rule of law and attacks against such a regime. In his doctorate, defended in XNUMX, the theme foreshadows the subsequent development of his research: History of the exception in Roman law and ancient French processes (Rousseau Publisher). In the chapter titled “Transformation of praescritions pro reo in exceptions” he shows how important points were in Roman law that today go unnoticed in public opinion and for many jurists. Firstly, it is about not leading a decision on larger issues based on smaller issues. And also about the question whether a process followed all the required procedures and, furthermore, whether the magistrate is in fact and in law competent to make the verdict. Without those requirements, the law loses all meaning, the State falls into the maelstrom of physical force, arbitrariness and brutality against defendants. By leaving the law, power would head towards barbarism. It is worth reading this work, accessible on the Gallica website, Librairie National de France.
What is the reason for evoking the 20th century jurist? Carré de Malberg took a positivist position on constitutional law. Understand: he considered it strategic to analyze the existing State, not the idealized one that resides in law manuals, in university classes or sentences from judges who know nothing about the actual situation. They judge and condemn while ignoring the real society they are supposed to serve. It would be excellent if, in our land, the lessons he brought were known and practiced. The divorce between the people and the practice of law would be amicable. By continuing to apply idealized codes, our justice system is forced into a contentious divorce with the population, especially those who do not live in palaces. A precious teaching that the thinker brings us, deals precisely with the calamity that governs the dealings of the so-called authorities and the civil world in our sad days. I refer to your definition of the police state.
We live in the 20th century under two police states, the Vargas dictatorship and the civil/military dictatorship of 1964. Both rights were trampled on, the state monopoly on physical force was maintained with savagery, unjustifiable arrests were made in law or ethics, torture, censorship , exiles, murders of opponents. Under Poland, the supposed national security justified the excesses of power. In the 1964 dictatorship, Institutional Acts emerged, several of them written by the same author of the 1937 Charter, Francisco Campos, our Carl Schmitt. In the dead of night, even secret decrees, totalitarian delirium, were imposed on the Nation. And always in the name of supposedly noble causes, such as the fight against corruption and the fight against subversive agents. One of the most accurate definitions of the police state is by Raymond Carré de Malberg. In that power “the administrative authority can, in a discretionary way and with more or less complete decision-making freedom, apply to citizens all the measures that it deems useful to be taken on its own initiative, to face circumstances and achieve at each moment the ends that is proposed. The police state opposes the rule of law” (Contribution to the general theory of the State, Paris, Société du Recueil Sirey, 1920).
In Vichy France, the police state reached its peak, in a country that had helped global citizenship to achieve not only the rule of law, but also a democratic one. In a few months, centuries of free politics were crushed under the paws of the invading army, collaborators, German and French police. In partnership with the gendarmerie that helped the Germans, there were the Special Justice Sections. In them, some magistrates without character and patriotic feelings judged their fellow citizens as enemies of the State. Yes, these are exceptional courts whose acts disregard all rules of law: lack of published reasons, lack of appeal, retroactive application of the law. The reader now understands the reason for the appeal to Raymond Carré de Malberg: his own land would be the infernal place of the rape of all rights, the paradise of the police state of exception.
In the 20th century, in almost all States, the reality of the common individual, devoid of powers against the State, was similarly and magnificently illustrated by Jan Kott: “Four o'clock in the morning...Instant between night and dawn, the minute in which, in higher instances, decisions were made and what should happen has already happened. Time when it is possible to save your own head and escape. Final time for the free option. The phone rings, someone knocks on the door. Who? We do not know. A friend or one sent by the Grand Mechanism?" (Shakespeare, our contemporary). It doesn't matter what color the uniform is, whether it's black, brown, green or gray. The fact is that it announces the Great Police Mechanism, the end of rights, the tyranny authorized by many togas. Eric Voegelin has burning pages about the complicity of magistrates with the power in uniform, just read, if your stomach is strong, his lines titled Hitler and the German people.
When the Institutional Act Number 5 was discussed, Pedro Aleixo, upon hearing the usual sycophants assert that the dictator on duty “would never abuse the legal instrument” replied (and this speech cost him the presidency): “and the guard on the corner? ”. In Jan Kott's sentences, the decision taken in higher instances is clear. But the executions are carried out by subordinates who ring the victims' bells. They are allowed the worst will. This was how overt or covert uniforms raped the majority of Brazilian campuses during this period. In that moment of terror, a wise university leader rebelled against the rifles: "Here, these military officers don't enter, because entering university can only be done through an entrance exam.", said rector Pedro Calmon Muniz de Bittencourt, of immortal memory.
Teachers were dismissed, classes were given under the supervision of spies or whistleblowers who reported to those in power what was being done in the academic sphere. In addition to the vilification of bodies, tyrants wanted to destroy minds and hearts. The abuse of force turned into ethos police officer in Brazil. And to our sadness, many togas supported and still support this habit. Still in 2005, law firms were invaded by police forces, in clear disregard for all norms of public, cosmopolitan and Brazilian law. At the time, I reported the anomaly. (See Advocef Bulletin, Year IV, Sept. 2005, edition 31, p. 10).
With Operation Lava Jato, abuses and arbitrary actions returned, always in conjunction with sectors of the Public Ministry, Police, Judiciary. The drastic cuts in resources carried out by a government that is not committed to science and techniques are not enough. The exodus of brains (the perverse Brain Drain) that rips researchers from their land and takes them to hegemonic countries, to the detriment of our people, is not enough. The poverty wages on which competent scientists survive here who witness public resources used in housing aid and benefits for government and justice sectors are not enough. Now coercive arrests in the style described by Jan Kott are resurfacing, propaganda campaigns against public universities and political leaders, entry into campuses hunting for alleged corrupt people whose guilt is far from defined. Humiliations were applied to academic authorities in a way that had not occurred in the two dictatorships of the 1964th century. In such a scenario, the murder of the soul and suicide of Luiz Carlos Cancellier de Olivo, rector of the Federal University of Santa Catarina, took place. Soon after, the dean of the Federal University of Minas Gerais was arrested, with the same brutal festival. Operation “Esperança Equilibrista” (cruel mockery purposely directed at the victims of the dictatorship established in XNUMX) announced the decline of our fragile rule of law.
The Doctor. Áureo Moraes, a friend of the rector of Santa Catarina, is being threatened with being prosecuted for “slander”, at the instigation of the same authorities who to this day have not responded for the irreparable damage committed against Cancellier's physical and moral integrity. Is it necessary to remember that in the rule of law, guaranteeing the life and civil person of those governed is a non-transferable obligation of the public authorities? Very little emerged from the police case against the rector. But the intimidation turns against those who were and are supportive of his memory and family. It is time for all Brazilian universities to unite into a single body to demand from legislators some law against abuse of authority. This deviation, as I said above, turned into a sinister ethos. As for the Public Prosecutor's Office, it has hardly found a more faithful defense than in my person. In the face of such violence, I will only be able to join their ranks when the current practice is ended. It is time for all our institutions and those who operate within them to recognize the difference between the rule of law and the police state.
