Pseudolaw: How chavismo survives by aping the law to destroy it

Much like pseudoscience, pseudolaw uses the outward trappings of law to pervert its essence. Thankfully, the opposition is finally showing some backbone in its fight against this corrosive attack on legality.

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.