The Illegality of Power

Law and juridical discourse play a central role in the configuration of power relations. In order to impose a programme of social cutbacks, a police action and even a protest mobilisation, force is needed. But so too is the ability to appeal to the law as a source of justification. The legality or illegality of an act does not make it a just one, without further ado. However, it is a thermometer that assists in calibrating the legitimacy of power. And of the resistances that arise against its arbitrary manifestations.

This basic principle explains that law and its interpretation are a sphere of permanent dispute. There is no power that does not attempt to cover its actions with the cloak of legality. The legitimate ones without doubt. But this is also the case with those that are not. In the name of the law, rights can be assured but privileges can also be entrenched. The legitimate aspirations of thousands of people can be repressed and eliminated without contemplation. This arbitrariness disguised as legality, nonetheless, nearly always finds an Antigone prepared to unmask it. Once again in the name of law and reason.

To resist the law in the name of the law is far from being a contradiction. The legality of our era is a demanding legality. A large part of it consists of treaties, constitutions and charters unthinkable without the defeat of fascisms and other dictatorships that laid waste to the 20th century. The Declaration of Human Rights of 1948 and the International Pacts of 1966 are inscribed in its genetic code. They make up the DNA of a legality that recognises universal rights and guaranteeing principles, which involves limits and controls on all types of powers, public and private, of state and market, and which is located at the apex of legal systems.

In times of crisis, this legality becomes a more uncomfortable mirror than usual, because it reflects the juridical, as well as ethico-political, senselessness of many actions of power. The ill-timed closure of an accident and emergency ward is not only repugnant to basic moral institutions; it also threatens elementary rights such as health, physical integrity or even life, when it does not fall into a directly criminal sphere. The same thing happens when a worker is exposed to the unjustified violence of sacking; or when a migrant ends up in an Internment Centre, or when a family without means is cast into the street for being unable to pay a rent or a mortgage. What is produced, indeed, is a social injustice. But also violated are elementary freedoms and procedural guarantees with which the State aspires to legitimate itself. And if the response to the protests that these actions generate is repression, instead of the protection of the victims, what takes place is an act of political impotence. But also a degradation of the juridical reach of pluralism and the Rule of Law.

Other examples can be offered. They all reveal a tendency that is consolidated with the worsening of the crisis: the tendency towards the illegality of power. The illegal power is that which is unable to comply with the rules that it has given itself, beginning with those that place it at the peak of the legal system. The neoliberal policies deployed under the excuse of the crisis have only been able to move forward in open tension with these rules. Razing the prohibition of regressiveness and right to due process. Undermining the guaranteeing role of collective agreements. And emptying of content social constitutions and declarations of rights that the West seeks to offer to the world as a civilising credential. Against the unstoppable charge of private powers, the very mechanisms of institutional control are revealed as useless. The illegal drift of power is sanctioned by the power itself: governments, parliaments and judges, with honourable and scarce exceptions.

At times, it is true, the contradiction with constitutions and treaties has saved itself with the production of a new legality. A legality geared towards fostering privileges of the few above the rights of all. This is why, when the big speculative capital powers, or ratings agencies claim that their action in the crisis counts with legal backing, they are right to an extent. A large part of their abuses would be unthinkable without the legal perks obtained by governments of different stripes. Without all these laws, regulations and judgements that have given green light to the greed of the rentiers above the needs of the majorities. This new lex mercatoria, made to measure for a small group of private powers, has become a sort of new global constitution. A rigid corset that pinches the guarantor elements of state legal systems to the point of rendering them unrecognisable. The European rule for the elimination of the deficit at whatever price must be read in this vein. In the same way as the recent Spanish constitutional reform, carried out to guarantee creditors “absolute priority” of payment to the detriment of social rights and the democratic principle.

Now then: when power tumbles into illegality or consents to the irruption of a privatising legality, often mafioso in character, citizen protest, disobedience, acquire a new light. They appear, no longer as disorders liable to criminalisation, but as the foremost of rights. As a necessary, indispensable marker for the weakest, in the contestation of the illegitimate acts of the strongest, in order to force them to fulfil their promises of guarantees, and to install, in this act of rebellion, an alternative juridical order, more egalitarian and free of violence.

Published in Público and translated by Richard McAleavy at CHK.

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