The fascist destruction of legality. Then and now

Federico Finchelstein
Professor of History New School for Social Research and Eugene Lang College

It would seem as if authoritarians and post-fascists have a long memory of previous destructions of democracy but they also want to differentiate themselves from the fascist past. And yet, they are actions present troublesome continuities.

They perform a new sort of revisionism. This reflection presents a historical perspective on the attempts of the current aspirants to fascism to subvert the legality in the name of the law. And they do so by denying the history of legality that eventually defeated and judged their predecessors. Why do populist leaders want to forgive or displace the actual history of Nazism? Because as these leaders draw from the well of fascist ideology, rhetoric and tactics, they have to neuter the history of fascism to normalize their politics. Revising the history of fascism then renders it mythical rather than historical, presenting the fascism of the past as not that bad — or not even fascism at all. (1)

Donald Trump’s past and ongoing attempts to use the law to subvert the law should not be taken lightly. The same goes for his escape from any legal repercussions for his actions during a failed coup in January 6^th of 2021 and the dubious claims that he should be shielded from legal investigation as recently claimed by Jeffrey Toobin and before him by James Comey and many others.  This failed leader escapisms from the law are harbingers of democracy’s demise if they go unchallenged. These attempts to escape the law threaten to stand as harbingers of democracy’s demise and must not go unchallenged. And they are already having global repercussions.

Across the globe, wannabe fascist leaders understand that democracy fails if the law does not apply to them. This applies to electoral results as well as the treatment of enemies.

Many years ago, General Juan Peron, the populist leader of Argentina said, “to our friends we give everything but to our enemies not even justice should be given.” Peron meant that enemies should be considered outside the legal system.  Peron was probably being playful with an apocryphal sentence attributed to Mexican General Benito Juarez who is supposed to have said, “to my friends justice and grace apply, but to enemies we give the Law.” Strikingly, in our times these ideas are applied by leaders who put themselves above the law and want to use the law and the democratic system to destroy from within. In the United States, Republicans that voted twice against Trump’s impeachment in Congress for treasonous acts as well as for a coup attempt, want to use the impeachment procedures against President Biden for his arguably messy retreat from Afghanistan. And to the south… in Brazil, the tension between  President Jair Bolsonaro and Brazil’s top court have reached new highs after the Brazilian, nicknamed the “Trump of the tropics,” asked the senate to impeach a supreme court  justice who’s targeting him and his allies for alleged attacks against democracy, namely preemptively denouncing fraud and delegitimizing the future of elections.

In this context, recent news of Trump’s past attempts to use the Justice department to steal the election adds one new layer to the ongoing story of a defeated leader who would do anything to stay in power. Totalitarian lies, coups and full disregard for the constitution are part of the history of fascism but also of recent histories of authoritarianism. In terms of subverting the legal system Trumpism and its allies in the GOP reengaged with this politics of the fascist past.

 To be sure, abusing the law is not exclusive of fascist regimes. Indeed, norms and politics do not always go hand in hand. But every time the law is absolutely subjected to the discretion of political leaders, democracy suffers or is destroyed.

 This distortion of legality for the sake of the legitimacy of politics is not a new phenomenon.For example, the first coup in the history of modern Argentina shows how easy it was to justify the most absolute illegality in legal terms. When General José Félix Uriburu made his fascist inspired coup on September 6, 1930, he only had to resort to his de facto power to varnish his dictatorship with a legal framework.

 Can we think this would have been the most recent case in the United States with the Trumpian self-coup attempt on January 6 of this year if it became successful? Probably not, a difference with the Latin American past is that in the United States the armed forces and other powers did not support the coup. Neither did the majority of the American population. In this sense, a Trump dictatorship would have been a defacto regime devoid of legal cover.

In contrast, in Argentina in 1930 this theft of democracy was “legalized”.

The Argentine Supreme Court, days after Uriburu took office, officially recognized the de facto situation and legitimized the coup for extra-constitutional reasons: the stability and survival of the republic. Argentine judges prioritized social order and political security over democratic legitimacy, setting a legal precedent for future Argentine dictators and also for some cases of democratically presidents (think of Nayib Bukele in El Salvador or Narendra Modi in India) who regard the law is merely ornamental when it goes against their violence and repression. This is not what the Brazilian justices seem to think and this is why Bolsonaro attacks them.

When the courts are not enablers and facilitators democracy can be better defended. We saw this in the US with the failure of Trump’s dubious legal strategies regarding the certification of elections but still Trump has not faced justice for the insurrection.

We see a similar danger in Brazil where the higher courts oppose the threat of a fascist-style Bolsonarist coup next year, but the armed forces and other state institutions seem to maintain an alarming ambiguity about the fascist dangers of bolsonarismo.

 In the Argentine case the justice system forgot its role and accompanied the de facto power from the beginning. It was also in the 1930s that Carl Schmitt, the infamous legal theorist of the Nazis presented his dangerous idea that legitimacy stands above legality. 

In Nazi Germany, Adolf Hitler represented himself as “the supreme judge of the nation.” Schmitt, stated in 1934 that the Führer was the embodiment of the “most authentic jurisdiction”. Schmitt had careerist and ideological intentions. Schmitt ended up becoming a full-fledged Nazi by legitimizing the Führer with his legal personality and ultimately giving legal cover to the fascist idea that the leader is always right.

For him, if a government is popular is it therefore “legitimate” and this why legitimacy is more important than the preexisting legal framework. This theory led Schmitt to argue that the leader’s word is the source of law and that defending order has extra-constitutional legitimacy. 

In fascism, the discretionary power of the dictator prevails over the rule of law. 

Like Schmitt, the ambitious conservative who tried to ingratiate himself to Germany’s new masters and their reactionary form of modernism, most jurists, prosecutors, judges, and public officials under Nazism accepted Hitler’s transformation of the legal system. Uriburu had the same intentions as Pinochet or the generals of the Argentine Military Junta had in the 1970s and early 1980s. The same can be said of governments that destroy democracy such as those of Nicaragua, Venezuela or El Salvador or aspiring fascist politicians in countries like Italy, Argentina, Peru, Spain. Like Trump, the latter glorify violence, blatantly lie and believe their own lies and deny science (from vaccines to climate change), make hatred and demonization the axis of politics, and pretend that their personal or even family interests are more important than the constitutional framework.

 As with past examples of fascist leaders, these enemies of freedom, democracy and the law are the first to present themselves as its defenders.

All these examples, and especially Trumpism, illuminate the worrying actualization of an anti-democratic tendency (anti-constitutional and anti-liberal) of those who think that power and the legitimacy of power authorize them to exist above the law. In the name of “Law and Order” legality is destroyed. Democracy could be next.

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