Lawlessness as Law in Maduro’s Venezuela

Bill Watterson’s “Calvin and Hobbes” was a newspaper comic strip in syndication from 1985 to 1995. The strip followed the adventures of Calvin, a six-year-old with a vibrant imagination, and his best friend Hobbes, an animated stuffed tiger. On occasion, the pair would play “Calvinball,” a game that escapes simple explanation. This is because one of the game’s many rules (the Rule) is that the player can make up new rules at any point throughout the match. The Rule makes for entertaining strips since every game of Calvinball involves a journey to the absurd as the two protagonists cite new rules, counter-rules, and counter-counter rules throughout their matches ad infinitum.

Waterson tapped into more than a well for charming comic strips when he created Calvinball. The paradoxical regulatory framework that the game poses (the Rule is that I can break any rule I want so long as I cite the Rule) is founded on an illusion that serves to make pandemonium palatable. If the Rule is that there are no rules, then the Rule is in fact superfluous. However, a game without any rules could hardly be said to be a game at all. Faced with the dilemma of wanting to play a game with no rules and risking not having a game at all, the imaginative protagonists came up with a way to legalize the lawlessness that they so craved.

Calvinball’s Rule provides an interesting lens through which to view Venezuela’s descent into authoritarianism under the leadership of President Nicolás Maduro. Indeed, the Maduro regime appears to have cemented itself as Latin America’s newest dictatorship over the last several months due in large part to its impressive ability to cite adherence to the law while breaking it. To put it another way, Venezuela is ruled today by a political elite that has instituted lawlessness as law, a fact that allows the regime to act in any way that it wants with no regard for the rule of law. The result of this charade is the tightening of Maduro’s grip on Venezuela against the wishes of the majority in what is tantamount to the world’s most tragic game of Calvinball.

That governments often break the very laws that they have written is a banality. However, what sets the Venezuelan case apart from others is that only the appeal to law is required to permit its wanton contempt. Whether the appeal is valid or even internally consistent never enters the equation: the mere act of invoking the law is enough. In other words, what allows the Maduro regime to break its own laws is not a clever interpretation of a legal loophole or even the abuse of the emergency powers laws that governments are prone to turn to in difficult times, but rather simply the utterance of the phrase, “I can do this [illegal act] because the law says that I can.” Indeed, it is often the case that the Maduro regime will incorrectly appeal to a certain law as an excuse to break another; that is to say, that the legal ground for the appeal is unfounded. Just as Calvinball’s Rule is fundamentally an illusion to make the illegal legal, so are Maduro and his regime’s many appeals to law. There is perhaps no better example of this mechanism in action in Venezuela today than the Constituent Assembly.

The Constituent Assembly

When President Maduro announced that the country would head to the polls to elect a Constituent Assembly during a fiery speech on May 1, he cited the alleged power vested in him by the national constitution to convene the body. That day, Maduro made what is without a doubt the most important announcement of his presidency:

Today, May 1, I am announcing that according to my constitutional presidential powers as head of state in accordance to article 347 [of the Constitution], I am convening the originating constituting power so that the working class and the people can convene the National Constituent Assembly.

The original statement as uttered in Spanish is as obscure and convoluted as is its translation in English. And yet, it is precisely in that obscurity and convolution that Calvinball is played. Article 347 of the Constitution does not give Maduro the power to convene “the originating constituent power” to do anything (in fact, article 347 is quite clear that it is only “the people of Venezuela” who can do this), but that is beside the point. The appeal is enough to create the illusion. When Maduro made the announcement, the adoring crowd cheered, and less than three months later the Constituent Assembly had been elected.

For a brief while, the Mesa de la Unidad Democratica (MUD), Venezuela’s official opposition bloc, appeared primed for launching a final challenge to the Maduro regime over the Constituent Assembly vote. The protests that had begun on April 1 over a pair of Supreme Court decisions widely understood to be direct attacks against the legislative branch switched tone and set their sights on a new enemy: the Constituent Assembly. As July 30 drew closer, the MUD intensified its rhetoric. The opposition drew millions of Venezuelans to ballot boxes for a plebiscite against the Constituent Assembly on July 16. They declared that “zero hour” had come and that the history of the country had entered a critical stage. Protests around the country intensified as July 30 drew closer. As the vote loomed, it appeared that the battle for the future of Venezuela would be decided on the streets of the country, not its voting centres.

July 30 came, and then it went.

The Constituent Assembly vote will go down in the history of Venezuela as the most obscene attack against the principle of free and fair elections that the country had ever seen, rivaled only by Marcos Perez Jimenez’s electoral shenanigans of 1957.  Nevertheless, the Constituent Assembly was installed on August 4 while the country still reeled from revelations that the regime had literally made up the election’s results. The Assembly members, led by former foreign affairs minister Delcy Rodriguez, took up residence in the National Assembly’s parliamentary chamber without shame, and have now been hard at work for the past week unopposed as Venezuela’s most powerful body. The Constituent Assembly rules by decree, and its decisions cannot be appealed by any individual or institution as per article 349 of the national constitution.

Lawlessness as Law

For those of us who follow the events in Venezuela closely, July 31 was a strange day. The opposition rhetoric building up to the Constituent Assembly vote had made it sound like there would be no July 31. Over a dozen people died in violence around the country on the day of the election as Venezuelans trickled into voting centers. It seemed as if the conflict between the regime and the MUD would explode into uncontrollable carnage. But then the sun rose on July 31, and Venezuela went on its way.

What accounts for this impressive cooldown of pre-election tension is the institutionalization of lawlessness as law in Venezuela. “The vote should never have happened” is countered with article 347 of the Constitution. “The election was fraudulent” is countered with the fact that the Consejo Nacional Electoral, the country’s top electoral authority, said that the election was not fraudulent. “The Constituent Assembly is illegitimate” is countered with article 349 of the Constitution. Every critique of the regime and its actions can be countered by pointing to a law or constitutional article. For the Maduro regime, whether or not there are grounds to make a counter is immaterial. Calvinball’s Rule is an appeal to illusion: it masks a fundamental fact about the game that, were it allowed to exist on the surface, would mean the end of the game. In this same way, Maduro’s appeals to law are illusory because they do not constitute legality, but rather allow illegality to exist.

In Maduro’s Venezuela, there is no legal action that cannot be neutralized by an illegal one made legal through appealing to the law. This is lawlessness as law.

Giancarlo Fiorella is a doctoral student at the University of Toronto’s Centre for Criminology & Sociolegal Studies. He is conducting reaching on the policing of protests in Venezuela and is the founder of In Venezuela, an English-language website dedicated to providing daily updates of the unfolding crisis.

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