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 it is 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 .
4 . Carl Schmitt in 1904 . Source : Paul Noack , Carl Schmitt - Eine Biogra | Public Domain , Wikimedia Commons
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Observing Memories Issue 5