A new Middle Ages?
Reflection article on a possible 'new Middle Ages', inspired by the work of Alain Minc, Folha de S. Paulo, 2017.
Translated from the original.
Pedro Ladeira/Folhapress Former Attorney General of Brazil Fábio Medina Osório, in an interview with Folha in 2016
In 1993, Alain Minc wrote “The New Middle Ages,” in which he characterized the new times or the end of modern times. He looked at the fall of the Berlin Wall and subsequent international scenarios for the prospect of a new world order, identifying many similarities between our context and the Middle Ages.
A central characteristic would be the predominance of gray zones in the normative universe and in societies, like a return to the “law of the jungle” in markets, in the expansion of parallel regulations or in the disobedience of normative systems by many actors.
Some characteristics of such a panorama: legal uncertainty, absolute uncertainty, chaos, the extreme difficulty of distinguishing the permitted from the prohibited and violence (real or symbolic, from the market or from the authorities) in disputes.
As a consequence, the author identifies —and models himself on the Italian example— the emergence of an inevitable alliance between judges, public opinion, and the media, before which the other Branches would need to render accounts.
The redefinition of the principle of separation of Powers is an essential trait of the globalized world. Those advancing, with new slices of power, are the actors of Justice. Through cooperation and integration, they organize themselves for the progressive harmonization of their rules, principles, values and ways of acting.
If we examine them, the aspirations and beliefs of the judiciary, the Public Prosecution Service or the police, in the global world, are similar. They aspire to combat wrongdoing, acquire basic guarantees, advance in technologies, in internal and international cooperation, and work based on a given scale of values in defense of rights.
Their difficulties are also similar, which brings them together at international congresses, exchanges, courses abroad, and permanent sharing of experiences.
What obstacles do they face? Political or economic pressure from the powerful, retaliation on account of their activities or results, lack of human or material resources, absence of technical preparation or support for the exercise of their functions.
The central issue in the deterioration of legal certainty and the strengthening of the environment of gray zones in the global world is corruption. We could speak of other pathologies, but we will focus on this one.
Corruption is understood here more broadly, in the sociological field, as the improper use of public powers, by an agent in a decision-making position, to obtain private benefits.
Nations are making an effort to harmonize their systems and to cooperate institutionally to combat wrongdoing of this kind. This has been happening, above all, since the 1970s, on the initiative of the USA.
The effort stems from the need to allow the flow of international trade and expand free competition. Anti-corruption laws arise in the most modern countries and are imposed by international treaties. Their application becomes a requirement. That is why the economic agenda and the anti-corruption agenda go hand in hand.
It is a mistake for the head of the Executive Branch to say that the fight against corruption is a task only for the Judiciary and the Public Prosecution Service, since he would be delegating a noble mission and qualified space to other institutions. However, that is what has been happening in many countries: the bodies that lead this fight belong to the Judiciary, not the Executive.
The media outlets, including the internet, with their alliances, also inspire distrust, in light of the principle of due process in the production of information and knowledge.
There are also accusatory or investigative abuses. The interference of political or economic power in the Justice system or in public opinion cannot be ruled out.
The principle of accountability requires mechanisms of transparency and control over all institutions. These are not merely local concerns, but part of a global agenda for a civilizing process.
FÁBIO MEDINA OSÓRIO is a lawyer and former minister-head of the Office of the Attorney General of Brazil (Temer government)