Consider Chavismo’s determination to preserve the Rule of Law. Not the real thing, of course, but its appearance: a stilted, formalistic, threadbare version of the real deal that is, in fact, its ultimate negation. It’s a feature we sometimes overlook. For all its evident law breaking, the regime shows a persistent preoccupation with going through the motions of preserving the outward trappings of legal process.

I think of it as pseudolaw, the legal analogue to pseudoscience. Pseudolaw consists of statements, beliefs and practices that are claimed to be legal in the absence of reasoning constrained by appropriate legal methods. Pseudolaw amounts to a subtle but thoroughgoing subversion of law — a negation of its very possibility.

The regime’s dogged commitment to pseudolaw is the reason why Luisa Ortega has a Supreme Tribunal she can file motions at. Those motions, absolutely everyone knows, will be rejected on extra-legal grounds. And yet the regime will make sure they’re rejected in something that purports to be a legal document — a decision superficially formatted to look like a judicial decision— that uses language that apes, in form (and only in form), standard legal reasoning.

Pseudolaw is the reason Conatel Director Andrés Eloy Méndez can stand in front of a microphone and declare, with a straight face that “there is no censorship in Venezuela,” even though dozens of radio stations have been taken off the air. Those stations were broadcasting without licenses, taking them off the air was —to the pseudolegal mind— obligatory (That those stations were operating without a license because Conatel had withheld one due to their political dissidence is, to the pseudolegal mind, neither here nor there).

Pseudolaw has come to be one of the defining features of Late Chavismo. This is puzzling. You might have thought that, this late into the authoritarian drift, the regime would be happy to dispense with legalistic niceties and get on with the business of unembarrassed arbitrary rule.

The validation of political parties: a sterling example of pseudolaw the CNE freshly pulled out of its institutional ass.

And yet the regime has steadfastly resisted this, because pseudolaw —even today— serves an important purpose. Just like even the craziest pseudoscience can be hard for people without proper scientific training to tell apart from real science, pseudolaw can be maddeningly hard for the uninitiated to tell apart from real law.

Exploiting this confusion is now a key regime survival strategy. For years, it met with success after success in getting broad swathes of the public sphere to buy into its pseudolaw.

It’s easy to forget now, but right before the current spell of protests started the big topic exercising the public sphere was the “validation of political parties:” a sterling example of pseudolaw the National Electoral Council had freshly pulled out of its institutional ass. The process required that political parties march out tens of thousands of people in at least 12 states around the country to retain their access to CNE ballots.

Though shorn of any hint of a plausible legal basis, the exercise was nonetheless presented in the kind of bureaucratic deadpan pseudolaw calls its home. Published in a gaceta, set out in dry, technical language, it appropriated all the trappings of legality for the purpose of making opposition parties jump through hoops conjured out of thin air for party political advantage.

Vintage pseudolaw.

Maduro has broken with many aspects of Chávez’s system of rule, but not with this one. Just like before, every new authoritarian excess comes draped in its own pseudolegal paraphernalia of laws, rulings, decisions, gacetas, bloviating talking heads and, of course, state propaganda. As authoritarian drift advances, each purported legal rationale is more threadbare than the one before, each more plainly opposed to the normal meaning of language and intent of the law. But the commitment to presenting it as law never wavers.

As authoritarian drift advances, each purported legal rationale is more threadbare than the one before.

My gut tells me that the collapse of chavismo will be co-terminous with the collapse of chavista pseudolaw. It’s when the system of dissimulation is no longer tenable than the convoluted edifice of deceptions chavismo has built around itself will cave in on itself. Chavismo has to collapse discursively before it can collapse as a system of substantive rule. In fact, when the moment comes, discursive and substantive collapse are likely to be indistinguishable from one another: sides of the same coin.

And this, I think, is the biggest success of the protest movement so far. The movement has raised the price opposition leaders have to pay for playing along with pseudolaw. Maduro’s Constituyente, another infamous, trimardita bit of pseudolaw has been roundly rejected by everyone from María Corina Machado to the head of Maduro’s Council for the Defense of the Nation: an unprecedentedly broad rebellion not against this illegality or that, but against the entire detestable system of legalistic dissimulation.

My gut tells me that the collapse of chavismo will be co-terminous with the collapse of chavista pseudolaw.

The fight against pseudolaw —the fight against the legalistic gaslighting of the entire public sphere— isn’t just an aspect of the current fight. It is the current fight. To begin to haggle with the system of pseudolaw —to begin to ask, for instance, if it may not be the case that even with the layers and layers of manifest unfairness, we may not still be better off participating in the Constituyente than pointing it out for the pseudolegal adefesio that it is— is to give away the game as the price of entry for playing the game. It’s to make yourself complicit in the system of oppression you purport to fight. It’s worse than just losing: it’s becoming the enemy you’re fighting.

It’s easy to lose sight of what the current revolt is about, of the successes it has already scored merely by virtue of existing and refusing to be repressed. But making it politically impossible for MUD to remain complicit in pseudolegality is not the least of those achievements. It’s a massive, transcendent step forward…and one worth continuing to fight for.

33 COMMENTS

  1. Corren muy malos tiempos para las dictaduras y ya no pueden presentarse ante los demás tal cual. Con ello se convierten ellas mismas en pseudoregímenes que en público no pueden decir con orgullo lo que realmente son sino que tienen que usar las palabras y las maneras de sus enemigos, una señal más de la superficialidad ideológica de sus planteamientos y en consecuencia, por mucho que quieran durar, estarán siempre condenadas a fracasar desde un principio.

  2. And when the newly-elected ANC declares there’s no need for a presidential election, that they represent the will of the people, and that Capriles, Muchacho, Ramos Allup, Freddy et al are terrorists and need to be arrested, Nicholas will thrust his hand in the air with the little blue book and proclaim that all is well with the country.

    Honestly, I don’t see a way out of this other than the masses taking over Miraflores and hanging these guys from the light poles outside.

  3. It is critically important for for there to be no opposition participation regarding the illegal constitution process.
    Just like Maduro stood in front of the cameras and used the Attorney General’s activity as a recognition of legitimacy, he would relish being able to show any MUD participation in the bogus election of delegates.
    Anyone that rationalizes voting by reasoning that at least they are having their say, is making a very large leap in assuming that the elections are fair.
    Smoke and mirrors.
    Boycotting this process and clogging the streets to prevent it from ever occurring is the wiser decision.

  4. I am a trained American lawyer, and know that the res judicata ruling of the TSJ on Ortega’s suit to nullify judicial appointments would be laughable due to absence of a unity of parties and issues in an Anglo/American legal system. I have a passing familiarity with Napoleonic-style legal systems, and suspect the same is true in such systems. Can you point to something that confirms that?

    • We have a “pay as you go” system. The TSJ even called it “legalidad emergente”, emerging legality. The law is whatever they need at the moment, doesn’t matter if it the exact opposite of last week’s.

  5. I couldn’t watch to the end… tears were in my eyes. I’m not naive, my family are living it every day in Caracas, but it was too much. The bastards have to pay… how many / how deep into the ranks – that is a different question… but there has to be justice

      • Occasionally CC will stop a comment while advising the commenter, “You are writing too fast.” That is a software glitch. Ways to deal with it: 1) Make sure you have a comment copied/pasted into an alternative doc so your comment isn’t lost. 2) IIRC, one time when I got that “You are writing too fast,” I clicked on “You are writing too fast” and was able to repost it without a problem. But it’s been a while since I got the
        You are writing too fast” glitch, so my recollection of precisely what to click on may be faulty.

        • An useful tip for posting:

          Copy the contents of the reply, and wait for at least 30 seconds after you hit the “post comment” button, then access another article or go back to the home page.

          Comments with links are much more likely to not get posted, so I suggest the same with these, maybe it’s some sort of anti-spam measure that filters comments if they have hyperlinks on them.

  6. Another advantage (gestured at by Clayton Sweeney, above) is that foreigners are unready to immediately know when the government is engaging in judicial Calvinball. So, people are either vulnerable to pro-Chavez/Maduro talking points (e.g. “the legislature was suspended for seating members accused of voting fraud”, where every word requires paragraphs of explanation of how it is judicial or factual bunkum) or withhold judgment because they don’t have the time/ability/Spanish language skills to be able to assess the evidence themselves (e.g. “it’s weird that you have to recertify your party every term, but I guess that’s the law*”).

    *I don’t even understand what’s going on in this process.

  7. Nice one Quico. This legacy “tara” is another in a long list Chavismo took and hyper maximized to its own benefit. Pseudolaw has long been rooted in our legal system, it’s the only way you can have a system in which ANYTHING is possible for a price. Two rulings with opposite outcomes, drafted and presented to both parties ready to be signed based on the highest bidder was (sure it still is) THE name of the game way before Chavismo was a thing.

  8. You know why Chavismo survives?

    $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

    Millions, and Millions of thieves and enchufados.

    That’s how and why. Comprende?

    • Most important for them are the millions the fat cats can stuff in their bank accounts overseas, al most 95% of the minions they keep inside the country are disposable as used paper toilet.

  9. As an English-speaking lawyer with substantial theoretical experience with Latin American law, I can say that I have never encountered more pseudolaw than in Venezuelan Supreme “Court” decisions. In constitutional cases, they skip the Constitutional text entirely, preferring to cite Soviet, or Nazi, legal theorists who never even saw the Venezuelan constitution, much less interpreted it. The recent “constituyente” decisions are similar. No one files any briefs, lawyers don’t appear before the “court” making legal arguments, but the “court” quickly produces a pile of manure justifying whatever Maduro decides.

    Pardon the self-reference, but here’s an example of what I mean: https://www.caracaschronicles.com/2016/04/16/no-amnesty-internationale/

  10. I like this pseudo law idea and I see it operating two ways under chavismo. There’s the tortured reasoning of the Courts to justify obviously unjust actions. There is also something about the proliferation of laws enacted for ostensibly positive purposes that generated a lot of pseudo law.

    It seems to be a particular feature of autocrats that the passing of laws, or orders, is seen as having a kind of talismanic or magical quality of the word becoming real. They think that by signing a piece of paper, their will becomes manifest in the world around them. They are the will of the people, and the word becomes flesh through them, so to speak. They love signing shit because they think a kind of alchemy is involved. It doesn’t really matter what the law says. What matters is the will behind it, their will, and their signature sets the law in motion and changes the world according to their will. They think.

    Hugo Chavez would do a lot of law signing and law passing. At almost a frenetic pace. He didn’t really need to because he could do whatever he wanted. Law is not law when it is merely the expression of an individual’s will. So the act of making law had a kind of personal and fetishistic significance. Sure, it was also designed to bamboozle people into thinking change for the better was in action, but I think the whole law making process has an overriding psychological or religious importance for these guys.

    Not content to pass piles of laws through the legislative process, Chavismo would suspend the law to pass even more laws, more quickly. This all presented the artifice of getting things done, and of the leader imposing his will, a lot of the time without actually getting things done. Thus under chavismo, there is the frenzied activity of generating and signing laws, and nothing actually happening because there is no practical system in place to support those laws. Or worse, it turns out that intent is not enough to make a law work (because a law is, after all, only words), and what the result is, is the opposite of what was intended.

    So at its core, pseudo law of this kind really is about the strange narcissistic needs of the autocrat and his attendants. For an autocrat, it serves a similar role to gold plating on a bathroom fixture. To the rational observer, it has little practical purpose. It does not make logical sense. It is redundant and self-important. It is a waste. The legal landscape under Maduro and his follows at Court is full 21st Century Neo-Baroque Gold-Plated Toilet Bowl. A strange and redundant expression of perverse will containing nothing but excrement.

    • Several observations: “Jefe es jefe, aunque tenga cochocho” ; similar to signing laws that can’t be implemented, is Chavez’s laying of hundreds of cornerstones for grandiose public works projects, most never begun, if begun, never finished, but all budgeted/paid for, usually more than once; and, Venezuela has traditionally known itself as having “the best laws in the world”, trouble being, as with the traffic laws, no one ever obeys them….

  11. It would be useful to make a list of their greatest hits in pseudo-law. Currently #1 would be that “well, the president as representative of the people can do whatever the people can do, no need to ask them”. But I dont remember others from the past (the speed they generate legalistic bullshit is incredible), but there were some that if you boil them down to their core, would be “where the constitution says X, read it as not X”

    • I seem to recall something nuts when Maduro wanted to extend or renew his emergency/enabling powers after the opposition took control of the National Assembly. I’m probably mixing it up, but it was something like the following:

      According to the Constitution he would need 2/3 vote of the deputies, which obviously wasn’t gonna happen. Thus, the TSJ ruled that the Constitution doesn’t say that the President needs 2/3 vote of the deputies to get Emergency powers, it says the deputies need to give the President at least 2/3 vote when he requests those powers. So it was actually the National Assembly who was in contempt for not approving Maduro’s requests, and the TSJ granted Maduro the powers.

    • #2 is TSJ quoting the constitution “the AN has to approve the emergency decree” interpreting the quote as: there is no other action of the AN but to approve, it can’t refuse it so a presidential emergency decree is always approved

  12. Pseudolaw is the communal phsycological defense mechanism by which Chavismo justifies its crimes. It’s a kind of communal rationalization.

    If you read Aporrea (or speak to your GN ex-friend), the fanatics NEED to feel righteous so they routinely defy logic. They start by interpreting reality in a absurd ways, from there they can derive their wild justifications.

    As heavily criticized as MUD has been, last year they proved to the world that Chavismo also practices pseudo-democracy. The attack by Ms Ortega may bring to the forefront the the practice of ‘pseudolaw’.

    It’s a noble and worthy cause to show all the pseudo-decency that Chavismo lives by, but in the end it will come to the lack of money to pay for their goons or that some if THEIR men of violence become our men of violence.

  13. With all due respect, I do no foresee a “collapse” of the regime. I agree in general that everything has and will continue to collapse but the regime stays and it’s actually going Communist before our eyes.

    At this point it’s wishful thinking that FANB will rebel or the pre-2006 or 2002 classes will take up arms. Lots of talk but no results.

    IMO, you ain’t seen nothing yet. For example, the fact that Brazil, which is very close militarily to the U.S. and is actually working with U.S. on BRV military contingencies, just sold 27 tons of riot control munitions to BRV. The fact that this happened (unlike U.S. which has MIL embargo since 2006) goes to show that there’s still a long ways to go.

    Yesterday the U.S. V.P. and SecState drove the point home from Miami. Today POTUS drives the point home from Miami. And what happens next? There’s a long way to go….

    • With a lot of “disrespect” (LOL) I don’t think the “regime” going anywhere also. When anybody that could think gone to greener pastures, The Venezuelans are that left, are subject to an “all expensive paid” vacation to a Venezuelan form of the Gulag. As Stalin found, there are many people to take care (witness the hospitals and markets). The former Soviet Union let 40% of population the starve. No big deal. But the Drug Lords / politicians / “military?” are going stay (necessary to supply the rest of the world hunger for coca. I witnessed too crime during six year stayed there (before and after Chavez , over all, nothing gone change – different people – but they doomed for people overall ignorance.

      I try to look at it necessary population control

  14. Pseudo law is just a pretext to do whatever the fuck you want to. But even this postulates the financial wherewithal to pull it off, to feed and grease the palms of the GN (who hate the educated class) to enforce it. Can pseudo law work in a vacuum? When the money is all gone?

    Go for the cash flow. Try and crimp it off by whatever means possible. Shame brokers and countries to stop taking the little money Maduro has left. Seems like any other strategy will just get explained away with pseudo law.

    You can’t oust Maduro through trying to apply rules, which he simply changes at will. But a government with no money has no power, and even pseudo law can’t find traction when you’re totally broke.

  15. pseudolaw would bring down any republic, monarchy or system, it’s nearly imposible to defeat if the regime have just enough people to ‘enforce the pseudolaw’, it’s already surprising to me that they can still buy the 30 tsj pseudomagistrates at this point, would they need to bribe hundreds? thousends maybe? or maybe everyone who knows this is wrong, can stop them and are not getting bribed are all just cowards. The big problem of pseudolaw is that it can be hijacked by any internal warlord with enough following to seize power for himself and noone would bat and eye tho

  16. Masha Gessen posted an exceptionally articulate meditation on this phenomenon about a month ago for the New York Review of Books http://www.nybooks.com/daily/2017/05/13/the-autocrats-language/?email_share=1. Gessen’s primary focus was on her native Russia/USSR and, sadly, the U.S. of Donald Trump and his enablers, but politicians and bureaucrats who use language to confuse and hide the truth is a very old story which knows no geographical boundaries.

  17. Salut Quico,
    you are right in that the chavistas have perfected the art of using the law and maintaining an appearance of law to stay in power forever. Bit it is also true that the myriads of laws in Venezuela, the punitive nature of the system plus the horrible way in which the 1999 Constitution was written make their task easier.

    The 99 Constitution very often constradicts itself, or have articles that are so badly written that the true meaning is imcomprehensible.

    The penal laws are incredibly harsh and it is extremely easy to send someone to prison for the smalles things. Remember how easy it was to use the “traidor a la patria” statement against Sumate.

    If you add to that the fact that all the kwy powers are in the hand of the goverment, then you can do with the law whatever you want.

    Now, my point is that even if the chavistas leave, that obsolete and restricting set of laws will stay and unless something specific is done to insure and maintain true separation of power, any governement could re-use the laws for power abuse, if they want to.

  18. The bigger drive for pseudo law, I agree, is to give very lowly educated represor pawns, be it bureaucrats, GNB and others, a totem for their actions.

    Its the law! they will sell justify. They lack proper grounds to interpret all this very abstract thinking themselves and will buy the talking points coming their way, from the guys paying their payroll. Period.

    Stop the payroll and perhaps the interpretations will begin ti be questioned, or at least, bot followed through. (sin leal no hay lopa, Chinese launder mat dixit).

    The need is not tot convince outsiders, they all know what is going on. They are all playing to their interests: Colombia and Brazil, looking for more $$$ and land, Big oil waiting for cheaper concessions and deals, and Drug lords, extremist religious, leaders advancing their areas of influence.

    Small Caribbean islands keeping access to free oil and bigger ones controlling the Venezuelan nation at will for their profit. Cuba’s M.O. under castro’s.

    So, the real leverage lays in breaking the means by which pseudo laws get issued and enforced.

    TSJ’s apparent schism addresses the former, going for disruptions in oil and drug money for the regime (and or repression means, such as the recent shaming for GS and tear gas resupplies from Brazil, the latter.

    Quico, I suggest writing a popular version of 1984, newspeak, and down to earth talking points for radio bemba, bus TV, digital social media and any other surviving media. Target the pawns, target the enforcers…LEadership is beyond shaming and will sink and burn the ship with them.

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