ARGUMENTATIVE RATIONALITY AGAINST LAWFARE

Almost 16 years ago, were instated to remove the immunity of the Mayor of Mexico City, Andrés Manuel López Obrador. The desafuero process was nothing more than an articulation of Lawfare to prevent the most popular elected official from running for office at the 2006 federal elections. Moreover, that process gave us an insight on the status of the intervention of federal bodies in local governments and especially Mexico City. It is also an account of the ambivalent nature of anti-corruption statutes which sometimes sacrifice due process and habilitate selective use of criminal procedures. The main purpose of this paper is to expose the way in which this lawfare was articulated and the effects that its rejection had on mobilizing a Constituent Assembly to guarantee greater autonomy of the city through its 2018 constitution, although from a top to bottom approach.

One of the ways to face lawfare is to claim rationally reasoned court decisions. Among the argumentative theories, MacCormick's theory is defended as a valid alternative for this purpose. MacCormick understands the law as an institutional and practical normative order, subject to change (defeasible). By admitting the dynamic nature of Law, he proposes a reconciliation with the principle of legal certainty, which for him is the greatest value of the “Rule of Law“. Thus, he proposes an argumentative theory founded on a rational logic capable of fighting “interpretivism“, through the formulation of objective and skillful criteria to rule out inadmissible decisions. These criteria that sentences must meet are coherence, consistent and universalizability. In this way, the decisions issued by the jurisdictional authority will be valid, impartial, and respected in the face of a controversy about the content of a rule, its practical context, or its application in a specific case.

everal authors have approached lawfare from different approaches, problematizing the processes in which a legal war is built, materializing asymmetric power relations that have cut the scope of the so-called liberal democracy, until explaining how it was inserted in the political and jurisdictional arena. Its neutral character has already been analyzed and the possibility of approaching it conceptually from above or below as a strategy that can be used by the right or left. Martins affirms that using the law in a subverted manner makes the denial of law and rights visible, from an intermestic or glocal perspective. Britto also emphasized the power of lawfare as smart power and its effect, not only to discredit and proscribe political leaders but also popular movements, in this sense two questions can be problematized: how is this legal war unfolded in Mexico to dismantle, proscribe and discredit movements? And what effect does lawfare have on the rights of the masses?