For Atalayar, the philosopher and jurist analyses elements of legal sociology and the current political and social situation

María José Fariñas: "We need new control mechanisms, new limits to power and its abuse"

photo_camera María José Fariñas

María José Fariñas, Spanish philosopher and jurist, is one of the leading exponents of contemporary legal and political sociology and is also Professor of Theory and Philosophy of Law at the Carlos III University of Madrid (Spain). She is a scientific reference in the area of legal sociology, human rights and philosophy in Ibero-America. He has shared spaces and academic work with Boaventura de Sousa Santos and André-Jean Arnaud. Her works to highlight are: 'Legal systems: elements for a sociological analysis' and 'The problem of legal validity', which present the critique that makes us understand the realities and tendencies of law in its relationship with politics, the state and the economy". She has been a visiting professor at the University of Milan (Italy), the University of Munich (Germany), the Federal University of Rio de Janeiro (Brazil), the Federal University of Santa Catalina (Brazil), UniBrasil, the Free University of Colombia, the National University of Colombia, the UPTC of Colombia, the ULACYT of San José de Costa Rica and the ITAM of Mexico City. In this interview conducted by Luis Miguel Hoyos Rojas, Colombian philosopher and constitutional lawyer, the legal philosopher shares her views on the world crisis and the main challenges facing global democracies.

Do you consider that the current moment brought about by COVID-19, in which extremism and nationalism are resurgent, ¿neo-fascism is one of them?

Yes, it is. It has become more accentuated and more evident with the global pandemic, but it was there before. We have had decades of population right-wingisation, of identity and nationalist withdrawal, of the encouragement of hatred between different people, and of an individualism destructive of the integrative social fabric.

During the last forty years of the triumph of global neoliberalism, together with the changes brought about by the revolution of new artificial intelligence technologies, foundational changes have been introduced into our social structures, which have not always been well explained or understood. This has meant that many people have not been able to move forward in parallel with these changes, nor to understand them, but rather the opposite. They have retreated into nationalist identities and into spiritualities near or far in search of a security they believe they have lost. This is the ideal breeding ground for neo-fascist and supremacist messages to germinate, taking advantage of the lack of resources in the face of fear or insecurity, as well as the lack of courage to face reality and its disadvantages. Moreover, in the absence of political projects of social justice, individuals may seek security in fundamentalist religious structures or ultra-nationalist regressions, whose messages of prosperity, work and health provide them with apparent reassurance in the face of everyday uncertainties.

If we rethink from a legal perspective the relationship between democracy and wealth distribution: is it possible to avoid the systemic collapse caused by neo-fascism?

The systemic collapse is already quite evident. The regulatory strategies of democratic legal systems are indispensable, but global regulation is also necessary, because the problems are global. Those are now insufficient.

We need new control mechanisms, new limits to power and its abuse. Undoubtedly, inequality is one of the most pressing political challenges at the beginning of the third decade of the 21st century. Moreover, I believe that democracy must be a system of integration for all. If margins of exclusion, marginalisation and inferiorisation continue to exist, the democratic structure of our societies will continue to fail. And the only way for everyone to participate and be integrated is through public systems of solidarity, universal distribution, and redistribution of wealth.

The mystification of the market has led to the normalisation of socio-economic inequalities as natural and inevitable, even shifting the blame for them onto individuals: "(...) if you are poor, it is your own fault" (Ken Loach). But behind this lies the reality that, over the last four decades, citizens have been losing social rights, many essential public services have been privatised and others have been impoverished, working conditions have become more precarious, labour incomes have been exponentially reduced in favour of those of capital, and inequality has increased exponentially. The rule of law and its liberal democracies have neglected any kind of social emancipation function and have been abandoning citizens to their fate, increasing their social vulnerability.

But it is worth remembering that precariousness is also a social construction (sometimes even an ideological prescription), which has become naturalised, normalised and generalised to such an extent that precariousness without alternative has become the permanent way in which the weakest, most degraded and vulnerable sectors have to insert themselves minimally into society. We are thus witnessing a normalisation of the exception in the different global scenarios as a new political paradigm. According to the latest OTI Report on Social Trends and Employment Perspectives 2020, "the insufficiency of paid jobs affects almost 500 million people in the world".

Do you think there is political synchronicity between neo-fascism, supremacism and deregulated capitalism?

Yes, there is an ideological, political and business project, orchestrated by the ultra-conservative doctrines of global neoliberalism, which have triumphed over classical liberalism. Behind this project are the "neo-Hegelians" who advocate the philosophy of the end of ideologies, the "end of history" or the end of the social class struggle. They now try to mask their own political choices and private interests under the reification of supposed economic needs, presented as logical, inexorable and derived from a supposed technological determinism -without alternatives - arising from the revolution of new technologies. Its ideological prescriptions have basically been based on the privatisation of public services, the deconstruction of social rights, the depoliticisation of the fundamental right to work, the deregulation of the financial and labour markets, and unlimited commercial access to natural resources and public goods of humanity: water, gas, oil, minerals, food biodiversity, etc.

According to you: "Nothing is fortuitous but responds to a structural change carried out by the neo-conservative counter-revolution that takes advantage of the consequences of technological changes and, above all, the incomprehension that it generates in many people. Incomprehension, which leads to a lack of security and certainty, an easily manipulated vulnerability" ... What would be the role of human rights, constitutionalism, and feminism in containing the counter-revolutionary "shock"?

I believe that we are in a process of profound transformations, which the COVID-19 pandemic has accelerated. It is no longer simply a matter of returning to the longed-for "normality" or to the status quo ante, nor of returning to a splintered past that is supposed to be better but will never return. In my opinion, we are at a moment of transformation and reconfiguration of the world we want to live in after the catastrophes of the last decades and the "tragic" collective despondency they have provoked in a now fearful and ignored citizenry. 

The political traditions of Human Rights, Constitutionalism and Feminism need to revise their epistemic bases so that they can continue to be decisive vectors of social transformation. They cannot be reduced to mere instrumental references, or abstractions emptied of content. Relational epistemology, interdependence and ecofeminism must now be essential references for seeking utopian options for social change and alternatives to real situations of injustice or catastrophe.

María José Fariñas

Do you think that Spanish and Latin American constitutionalism is prepared to contain the neo-fascist and deregulatory involution?

I do not think so. 

Firstly, because this type of constitutionalism has had a liberal and conservative basis from the beginning. It has not been able to respond to one of the most pressing systemic problems, which is the compulsive generation of inequalities of all kinds. 

Secondly, because the irruption of global neoliberalism in recent decades has opened up a process of deconstruction of rights and freedoms, a de-constitutive, almost anomic process. Worrying gaps are appearing between what is stated in constitutional texts and the socio-economic reality they are intended to impose.

And thirdly, because public action to rebuild moral order requires citizens, not people whose individualism implies a rejection of politics as a collective task. The problem lies not only in the breakdown of legal and judicial authority, but in the fact that without a commitment to a moral order underpinning public legal regulation, individuals cannot behave as citizens, but as isolated beings whose systemic individualism implies a rejection of regulation as a collective and reciprocal task, as well as a certain political and democratic apathy.

It would now be necessary to renew and broaden social pacts and, moreover, to aspire to a new global constitutionalism.

In the first place, it is necessary to renew the pacts of non-aggression, respect, recognition and integration between different people, to put a stop to the spurious game of confrontation of emotions that we have been witnessing in recent decades. The supremacist messages of hatred have been gaining prominence until we have been submerged in a fraternal language of elimination and/or devaluation of those who are different. Rational debates (time) have been replaced by emotional messages (noise) that play on the feelings of an unprotected, neglected and economically resentful citizenry as a result of the successive economic-financial crises and global changes.

Secondly, a pact of solidarity and socio-economic redistribution between unequals, breaking with the hierarchical access to material and immaterial goods naturalised by the capitalist system, and with the often hidden and forgotten power relations. Socio-economic inequality remains a pressing problem, which in the wake of the pandemic is increasing. The World Bank has noted that extreme poverty has increased for the first time in 20 years.

Thirdly, a pact for the defence and protection of the commons, to initiate a "commons revolution" as an alternative to neoliberalism. The debate on the "commons" is not a new issue (and has a long history of demands in the so-called Global South), but it is now of central importance because, in my opinion, it is impossible to recover social policies and (de)commodify social and economic rights without incorporating their community and relational dimension, as the basis for the construction of the commons, of the general interest and even of a democracy of the commons as an alternative to liberal capitalist democracy. This revolution of "the commons" should no longer be located simply in the redistributive criteria of the welfare state but must go further in the sense of accessing the distribution and management of power with a view, in particular, to guaranteeing the subsistence of future generations in an ecologically sustainable environment.

And, fourthly, a pact for Democratic Memory. Memory and remembrance must be instruments for building democracy, citizenship, justice and peace. It is a matter of safeguarding the memory of past events (individual sphere), for the construction of political principles of coexistence (public sphere). The continuity that we establish with the past is not a static or linear continuity, but rather a tendential and complex one, which will allow us to move towards fairer and more equitable societies. The relationship between memory and history is not only retrospective, but also prospective. In other words, the remembered past and the present have a temporal continuity that occurs through democratic memory. Therefore, a pact for (democratic) historical memory makes it possible to create and recreate the material, cultural and ideological conditions of existence, strengthening the duty to fight against the injustices and inequalities of the past, the present and possible future ones, and rejecting the dogmatisms of a divided and deterministic past on the basis of which it is intended to control the present.  Memory is not neutral, but neither is it unique, nor pure, nor objective. It is therefore necessary to know which side we are on and to implement a right to democratic memory that is linked to the polyphony of the different voices involved, assuming past errors. Without an inclusive, two-faced and polyphonic reconstruction of memory, there will be no sustainable and lasting peace. Collective amnesia and impunity do not generally work, and even less so when serious and systematic human rights violations have taken place.

Interview by Luis Miguel Hoyos Rojas, former deputy director of the National Institute for the Deaf (Colombia), professor of Constitutional Law, Feminism, Political and Moral Philosophy, philosopher from the University of Houston (USA), lawyer from the Universidad del Norte (Colombia), Master in Law from Harvard University (USA) and Master in Constitutional Law from the Centro de Estudios Políticos y Constitucionales (Spain). Doctorate in Law from the Universidad Carlos III de Madrid.

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