In recent Brazilian times, norms promulgated by the STF have been disobeyed without ministers speaking out. Exceptions become the rule to terrify defendants, as if the law were taken directly from Feindstrafrecht. See Binding Precedent 11 of the Federal Supreme Court, which defines the use of handcuffs and the like. It is not complied with by a lower court order, elevated to a court of exception. The case of the former governor of Rio de Janeiro is the most notorious. Summary 11 warns: “first of all, take into account the principle of non-culpability” (Minister Marco Aurélio). Useless warning given the mood of the judges and the leniency of the STF. I remember Günther Jakobs: the tendency is not for there to be citizen defendants, but enemies against whom “the only thing that remains is the use of physical force” (12). In Brazilian political processes, from the Vargas era to today, the accused is required to prove their innocence. It is not up to the public authorities to demonstrate their guilt. A state entity that used Polish and institutional Acts automatically attenuates citizen rights. The humiliations suffered by the Rector of UFSC do not bother the judges and their assistants. Practices prevail here that violate the basic conditions of justice and democracy: “the guarantees of a pluralistic, free, fair and supportive society” (13).
We live in the “war against the weak” (14). Rights are stripped away in all fields, from labor to the simplest ways of guaranteeing life. And the judges remain silent, or collaborate in the fraud of those who cannot defend themselves. We could recite countless Brazilian cases that show the complicity of judges with iniquitous political systems. The examples I gave above are enough for now. The two dictatorships of the 20th century were supported by propaganda, physical force, assistance from magistrates, lawyers and constitutionalists (15). In the regimes of force there was a consortium of uniforms and gowns. The 1934 Charter prohibited exceptional courts. But the STF authorized the National Security Court. In that court's trials, the judges' tied decisions condemned the defendant. During the 1964 dictatorship, those who saved justice were among the lawyers for political prisoners, led by Sobral Pinto. In the public ministry, people like Helio Bicudo, who challenged the Death Squad. With the advent of the “citizen” Constitution, thousands of Brazilians suffer torture or slavery without the shelter of togas.
In crises it is easy to accuse governments, parliaments, armies and police. But it is urgent to verify the guilt of everyone involved. This is what Stolleis says. In the Holocaust, “State, 'administration', 'judicial system' and the army, were involved as direct actors, helpers or silent witnesses who supported or resigned”. The list does not escape "the countless participants who guaranteed the structures and allowed the devices to remain operational, such as (...) those who knew everything in the ministries, the judges, the prosecutors, the academics as well, commentators who translated the new injustice to the old dogmatic principles and made them usable in a way perceived as 'normal'". (Stolleis, op. cit).
A text by Dominique Rousseau, professor of constitutional law at the University of Montepellier, deserves careful reading. He analyzes the judge in modern society and appoints magistrates in unprecedented tasks, such as Operation Mãos Limpas. We witness, says Rousseau, in democracy, the decline of institutions that played a role of counter power, control or sanction, in the political or economic and civil domain.
Could the new power of judges be proof of a disaster in democracy? Not necessarily. Modern political philosophy was built, he argues, on a third power black hole. Montesquieu writes regarding the judiciary that 'the power of the judge is null', as the law is the mouth of the law. The increase in the power of judges in the world shows that this idea is false. The law is at the same time noisy and silent, because it is made up of words, but the judge gives them a precise meaning. If the law says that individuals threatening public order must be prosecuted, it does not say what a 'threat to public order' is. The judge gives meaning and content to said words. He finalizes the law, makes a rule out of it.
The power of judges raises questions about the democratic paradigm, whose foundation is voting, concludes Rousseau. By voting, voters exercise their will, which coincides with that of those elected. Legitimacy requires the circle between the two wills, that of the voter and that of the elected. The power of judges is inspection and control. The fusion between represented parties and representatives is denied, or considered insufficient. For democracy to exist, from now on, there must be a right to control and the exercise of this right, handed over to the judge (16).
What Dominique Rousseau describes may be the soteriological desire that yearns for the judiciary's interference in public order. But when the author relativizes elective democracy in favor of judicial control, without voting, it is possible to fear for the future. An abused tyranny is no less deadly. Judges are part of the essence of the State and cannot be alienated. But it cannot be said that they have the legitimacy to interfere, without votes and without being accountable to the people, in what belongs to the other powers. Such a situation would be typical of illegitimacy ex defectu titili. Unless judges are elected, as is the case in the USA. But the togas avoid such a possibility: placing sacrosanct justice in the dirty hands of the citizenry? Never!
With the examples of the past and of Brazil – just remember the news with which I began these lines – we have reasons to demand that the power of judges receive strong counterweights from other powers and, above all, that they are obliged to be accountable to the sovereign people. We still live in the hierarchical world of Dionysus Areopagite. In it, the natural and political cosmos goes from beings close to the divine, archangels, to priests. Below them come the Laos, made up of those who only deserve lessons and government. Such a sacred scale was destroyed by Luther and the modern Revolutions. In our State, especially in the Judiciary, we are far from Reform and urgent democracy.
NOTES
(12) J. Günther; Meliá, MC: Criminal Law of the Enemy: Notions and Criticisms. Porto Alegre. 2008, p. 30. “Some authors have strongly criticized Jakobs' analysis, very particularly condemning the notion of enemy at the heart of this construction, often seeing in it Carl Schmitt's sulphurous notion of enemy, – the 'communis hostis omnium'” Jocelyne Leblois–Happe, Xavier Pin,Julien Walther: “Chronique de droit pénal allemand (Période du 1er janvier 2011 au 31 décembre 2011”), CAiRN, https://www.cairn.info/publications-de-Leblois-Happe-Jocelyne--4782. htm. Cf. FN Bianchini, Representative Democracy under the criticism of Schmitt and Participatory Democracy in the apology of Tocqueville (Millenium Ed.). In the preface, I quote the Schmittian “enemy”, as welcomed in Brazil,
(13) Junior, DC: Constitutional Law Course, ed. Podium. 2009
(14) Cf. E. Black: The War against the Weak. Eugenics and the North American campaign to create a superior race (RJ, A Girafa, 2003).
(15) The mere list of justice ministers proves: jurists of the highest rank, except Couto and Silva, were part of the power that destroyed public and individual freedoms. The institutional Acts were designed, under the aegis of Carl Schmitt, by the editor of Polaca, Francisco Campos, who always had an excellent reception in the national judiciary. “What would we have done without German jurists? Since 1923, I have traveled the long path that leads to power legally and loyally. Legally covered, democratically elected. (...) It was the incorruptible German jurist, the honest, conscientious, scrupulous university student and citizen, who ended up legalizing me by screening my ideas. He created a law that pleases me and I am bound by it. His laws based my action on law.” (Hitler, in the film by HJ Syberberg, Hitler is a German film).
(16) D. Rousseau: “Le rôle du juge dans les sociétés modernes” (2001) on the site Histoire, Géographie, Éducation Civique http://pedagogie.acamiens.fr/histoire_geo_ic/mspip.php?article250 And also D. Rousseau and others: “Gouvernement des juges et democratie. L’Emergence d’un concept?” in S. Blondel et al.: Gouvernement des juges et démocratie. Publications de la Sorbonne, 2001. p. 325. Jurist Bastien François, in the colloquium cited here, calls the “government of judges” a “conceptual monstrosity”. In the case of Brazil, it would be right to repeat: El sueño de la razon produces monsters.
