10 years of the quota law

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By ARI MARCELO SOLON, LUCAS OLIVEIRA MENDITI DO AMARAL & MURILO AMADIO CIPOLLONE*

The struggle of the dispossessed for the distribution of theoretical and scientific practices, whose access is intended to be limited to the dominant classes

In 2022, law 12.711 completed 10 years. The normative text, sanctioned in August 2012 by parliament, provided for its revision for this exact period, precisely for August 29, 2022.[I] In general terms, the law, wrested from the State with great difficulty by the struggle of the working class – notably its black movement – ​​determines the reservation of 50% of enrollments per course and shift in the 59 federal universities and 38 federal institutes to students who come entirely from the public high school.

In addition, the sole paragraph of art. 1 provides for the reservation of 50% of these vacancies for “students from families with income equal to or less than 1,5 minimum wages […] per capita”. Of great relevance is still art. 3 of the law, which imposes that the reservation of these vacancies be for “self-declared black, brown and indigenous people and […] people with disabilities” in proportion to the PPI population (black, brown and indigenous) in the federated unit in which it is installed the institution.

No less care is taken of the taking, by the excluded, of a space historically denied to them: higher education. Denied precisely because it condenses the organizational instruments of a certain project of domination, as we will demonstrate. The quota law, therefore, takes the form of the struggle of the dispossessed for the distribution of theoretical and scientific practices, whose access is intended to be limited to fractions of the dominant classes, which use them for their own interests. However, as we will try to point out in these considerations, precisely because it was sedimented by the legal form, this struggle is delimited by such practical horizons that must be known, so that one can adapt them to the ultimate objectives of the proletariat. In other words, such a struggle ends up conforming to the legal power of capital, making it necessary, therefore, to problematize its limits in the face of the revolutionary strategy. In a nutshell (theoretically rigorous), it is about the class struggle over and in a certain portion of an Ideological State Apparatus (AIE), the School.

School ideological apparatus and reproduction of production conditions

Saying this as we have just done requires taking a step back. The path that the article has been taking reveals that it intends to answer the following question: what does the quota law want? To do so, it will be necessary to understand everything that surrounds it – especially the class interest groups and, above all, the relationship between them. Considering, therefore, that we are dealing with social relations, one should start by asking, as Louis Althusser taught, what is a society? (Althusser, 1980, p. 23). First of all, however, we ask for calm, because, although the question implies that a lengthy explanation will be opened, we will be brief - but not simplistic - as the limit of pages of this article wants.

Thus, our object of analysis has been arranged: the quota law – which must be understood as the finished legal form of the struggle between the working class, which, in Brazilian society, is racialized[ii], and the ruling classes; This struggle has as its stage and target the School State Ideological Apparatus, responsible for the distribution of theoretical production and for philosophical and ideological relations. Thus, understanding all these “elements” implies answering the question already posed.

Without delay, the French philosopher reveals to us: “that Marx conceives the structure of any society as constituted by “levels” or “instances”, articulated by a specific determination: the infrastructure or economic base (“unity” of the productive forces and the relations of production), and the superstructure, which contains in itselftwo “levels” or “instances”: the juridical-political (law and the State) and ideology (the different ideologies, religious, moral, legal, political, etc.)” (Althusser, 1980, p. 25).

If this is true, we emphasize that the understanding of what a society and its relations is, derives, in the first place, from its materiality, or, in other words, from its mode of production, that is, “a way, a form (a way) of producing… what? The material goods indispensable for the material existence of men, women and children, who live in a given social formation” (Althusser, 1999, p. 45).

This concept implies, of course, the understanding, on the one hand, of what is the unity of the productive forces – object of work, instruments of production and the workforce –, and, on the other hand, of the relations of production – which, in a society of classes, are property relations of the means of production (Althusser, 1999, p. 45-57).

Our object of analysis, the quota law, it is known, and this cannot be questioned, rests on the capitalist mode of production. In it, to the extent that the bourgeoisie holds private ownership of the means of production, the relations of production are, in fact, relations of capitalist exploitation (Althusser, 1999, p. 52).

By this, it is meant that, in the productive process, the workforce, composed of salaried workers dispossessed of the means of production, is used to move these same means of production so that those who own them can accumulate (ultimately , enrich). This, as is well known to Marxist science, takes place through the production of surplus value, which can only be extracted from the labor force commodity – a fact taken as scientifically demonstrated, precisely by section II of Book I of The capital.

From these very brief considerations, one may well be able to locate, within contemporary, capitalist society, the interest groups that involve the quota law: on the one hand, the working class, which intends to structure this “right”, and, on the other, fractions of the dominant classes, who, likewise, wish to stop it.

However, with what has been arranged so far, we are not able to understand the object of the dispute in question, that is, access to higher education. To be so, we must proceed to the second level of the structure of a society, as conceived by Marx and systematized by Louis Althusser.

We start from the following observation by Althusser: the ultimate condition of production is the reproduction of the conditions of production (Althusser, 1999, p. 71) – whether in a simple way, which causes the reproduction of the same conditions over time, or, preferably , in an expanded form, what extends them –, and this process is in charge of the superstructure. All this activity, that is, the reproduction of the conditions of production, combines the reproduction of labor power and the reproduction of existing relations of production. Marx dealt with the reproduction of the means of production in Book II of The capital, and this cannot interest us now, as it is solely about the reproduction of the material conditions of production, how to replace what is used up or worn out, raw materials, etc. However, the reproduction of labor power is central to a good understanding of our object. Let's do it.

This movement is shared by Althusser, and here lies his great epistemological leap (since it will allow him to formulate the concept of Ideological State Apparatuses). In this sense, there is the material reproduction of the workforce, for which wages are provided, which allows the muscular, cerebral, in short, physical replacement of workers, and the qualified reproduction of the workforce. In French terms:

Indeed, it is not enough to guarantee the work force the material conditions for its reproduction for it to be reproduced as a work force. We said that the available labor force should be “competent”, that is, able to be used in the complex system of the production process: in jobs and in defined forms of cooperation. The development of the productive forces and the type of unit historically constitutive of the productive forces at a given moment produce the following result: the workforce must be (differently) qualified. Differently: according to the requirements of the social-technical division of labor, in their “posts” and “jobs”. (Althusser, 1999, p. 74).

In other words, it is a question, in this second moment, of the reproduction of the work force – of the adequacy of bodies, minds, etc. – to the needs of the production process as presented by a certain mode of production at a certain stage of development. Althusser goes on to say more: he shows that under the capitalist mode of production, this qualified reproduction tends to be guaranteed, more and more, outside of production, that is, through instances and institutions that inhabit, as we already know, the superstructure – unlike what we already know. it happened, for example, in the slave and feudal modes of production, in which this same process tends to take place with “hands on” (Althusser, 1999, p. 75).

This, Althusser will understand when observing the School – which is universalized only in capitalist society – and asking himself: “but, what do you learn at School?” (Althusser, 1999, p 75). The most synthetic answer he managed to formulate was none other than, “some 'know-how'", that is, techniques (reading-writing-calculation) and knowledge (elements of scientific and literary culture, in addition to good conduct, which represents the

Convenience that every agent in the division of labor must observe, according to the position that is 'destined' to him: rules of professional morality and conscience, which means to say, in a clear way, rules of respect for the social-technical division of labor and, in the after all, rules of order established by class ideology. (Althusser, 1999, p. 75).

From this, he could conclude, in the course of his reasoning that “[...] the School (but also other State institutions, such as the Church; or other apparatuses, such as the Armed Forces, whose attendance, like the School, is free and mandatory ; not to mention the political parties whose existence is linked to the existence of the State) teaches certain “savoir-faire”, but in ways that guarantee submission to the dominant ideology, or its “practice”; indeed, all agents of production, exploitation and repression, not to mention the “professionals of ideology” (Marx), must be “impregnated”, in one way or another, by this ideology in order to fulfill conscientiously (and without needing to an individual policeman on his toes) their tasks – whether that of exploited (the proletarians), or that of exploiters (the capitalists), or that of auxiliaries of exploitation (the cadres), or that of high priests of the dominant ideology, its “ employees” etc.

The reproduction of labor power thus appears as a condition sine qua non, not only the reproduction of their “qualification”, but also the reproduction of their subjection to the dominant ideology, or the “practice” of this ideology. Let us clearly indicate that it is necessary to say: “not only, but also” because the reproduction of the qualification of the workforce is guaranteed in the forms and under the forms of ideological submission. (Althusser, 1999, p. 75).

So far we have the following: to understand society and its relationships, one must first understand its mode of production. From it, it will be possible to highlight the relations between the unity of its productive forces (which, at the limit, lead us to the people who produce in this society) and the relations of production (that is, property relations) that in the specific case of capitalism , become relations of exploitation. This structure reveals to us the way in which exploited and exploiting groups are articulated in the productive process, precisely what forms the skeleton of a society. However, continuing the investigation shows that the ultimate purpose of this mode of production is to reproduce itself over time.

Thus, to understand the operative that guarantees this reproduction is to touch the entirety of the social body. The skeleton gains its corporeality. We would dare say that all social relationships end here. Althusser, dove into it. Thus, it demonstrated the centrality, in capitalism, of the reproduction of the workforce to the understanding of its functioning, and, in this movement, the “qualified reproduction” of the workforce stands out, which, in a word, is its adherence to the rites of the productive process, that is, the rituals, practices, acts performed daily automatically and with consent by each worker in all spheres of their lives.

Althusser's formula would already be laid out in its entirety, if the Frenchman had not also highlighted the primordial fact that ideological submission is processed through the practice of certain institutions that are outside of production: attention is paid to the Ideological Apparatuses of State.

To demonstrate his discovery, Althusser turns to the Marxist tradition of the state, since this is the core of the superstructure and, therefore, the core of relations to the reproduction of production conditions. In it, he discovers the formal distinction between State Power and State Apparatus. In summary, State Power operates according to class objectives, thus guiding a portion of the power project of the hegemonic class; in it, we will not stop. The State Apparatus, for its part, is carried out by its repressive functions, insofar as it organizes the Government, the Administration, the Army, the Police, etc. It is this portion of the superstructure that is of interest to the article. Althusser, however, promoted a theoretical development within the scope of the theory of the State, which became indispensable to the understanding and analysis of the functions of the superstructure. The limits of this epistemological advance are immeasurable. In this sense, the philosopher will say that

In order to advance in the theory of the State, it is indispensable to take into account, not only the distinction between State power and State apparatus, but also another reality that is clearly situated on the side of the State apparatus, but not to be confused with it. We will designate this reality by its concept: the ideological State apparatuses. (Althusser, 1980, p. 42).

The advance was allowed precisely because, faithful to the method, Althusser pursued the topic. That is, he settled on the understanding that the reproduction of the conditions of production is the prism through which observations about the superstructure must be made. He turned to the state asking himself: how are its institutions capable of reproducing the conditions of production? Thus, everything that constitutes a cohesion factor of the materially determined order, in particular the reproduction of the workforce, must assume responsibility for its material reasons for existence. This is expressed in Althusser's intellectual honesty to method. Let's see.

Anyone can easily understand that this representation of the structure of the whole society as a building includes a base (infrastructure) on which the two “floors” of the superstructure rise”, is a metaphor, very precisely a spatial metaphor: a topic. Like all metaphors, this one suggests, invites us to see something. What? Well then, we need this: that the upper floors could not “maintain themselves” (in the air) by themselves if they were not actually based on their know-how.

The metaphor of the building therefore aims to represent the “determination in the last instance” by the economic. (Althusser, 1980, p. 26-27).

We are, therefore, at a time when the Marxist theory of the state gained in analytical and critical capacity: the great epistemological leap taken by the French philosopher within the Marxist tradition of the theory of the state. It deals with the analysis of institutions that also operate within the scope of the State Apparatus, even if they are not to be confused with it, insofar as they do not function mainly through the operation of violence: the ideological Apparatuses of the State are taken care of.

In this way, the State Apparatus must, from now on, comprise two bodies, one that represents its repressive facet, and the other that translates its ideological facet. That is, in addition to understanding the domination of the hegemonic class through the instrumentalization of State Power and the repressive State Apparatus - organized class terror, as defined by Pachukanis (2017, p. 207) in reference to criminal law, a representative synthesis of monopoly of force –, Althusser demonstrated that the bourgeoisie establishes its project of power also through the Ideological Apparatuses of States; more than that, it says that they play a central role in the cohesion of capitalist society and its productive relations as currently arranged – insofar as their main role is none other than the ideological challenge for the conformation of subjects to the dominant ideology, in order to that they can occupy their proper place in the productive process, which constitutes the relations of capitalist exploitation.

First of all, we must proceed with the necessary qualification of the ideological State Apparatuses. In these terms, we emphasize that there are three constituent elements essential to its understanding; they are: (i) the plurality of EIA's; which designates the fact that there is no centralization in their actions, so that they can operate autonomously and at the same time complement each other, constituting different “institutions” of society, as they are usually referred to by non-Marxist theories; (ii) majority belonging to the private domain; thus, examples of AIE's are: “Churches, Parties, unions, families, some schools, most newspapers, cultural companies, etc., etc…” (Althusser, 1980, p. 45); and, finally, (iii) the fact that they function substantially through ideology, unlike the repressive Apparatus, which fundamentally operates through violence. This last mentioned item constitutes the core aspect of the EIA's; that is, care is taken of the fact capable of giving unity to the diversity of the entities that make up its frameworks. In addition, it is reiterated: the AIE's have an ideological operation such that, within the scope in which they operate, they promote – in the wake of the logic of conformation of the superstructure –, based on the social relations they constitute, the continuity of production relations.

In other words, the Ideological State Apparatuses have certain elements of the dominant ideology, which can also be taken as a State ideology, which are realized and exist even in the Apparatus itself and, above all, in its practices. Such elements, when questioning the subjects, forge “adapted” subjectivities that even pursue capitalist sociability. In a palatable discourse, it is the contact of the subjects (you and I) with the practices of these Apparatuses that puts us on the path desired by the relations of capitalist exploitation. Therefore, the place and mode of operation of the qualified reproduction of the workforce are revealed.

Returning to the Marxist tradition of the state, Althusser is forced to remember that all political class struggle revolves, and has always done so, around the state-form. That is, that the class struggle aims to take State Power to put an end to the class domination that enlists in it. For this, it is known since Lenin in his The State and the Revolution,[iii] that it is necessary to take the State Apparatus, which includes its ideological Apparatuses, which are, after all, “the realization, the existence of ideological formations that dominate them” (Althusser, 1999, p. 45) . Thus, every ruling class must make its ideology involve the AIE's so that they operate in accordance with its domination project. In the case of the capitalist mode of production, so that the subjects are questioned in such a way as to reproduce and extend the subsumption of work to capital.

It becomes indispensable, therefore, the observation that “the Ideological State Apparatuses can be not only the target, but also the site of the class struggle and sometimes of fierce forms of the class struggle” (Althusser, 1980, p. . 49). That is, the dispute over the production of ideology is fundamental to the pragmatic determinations of the class struggle and its revolutionary perspectives.[iv] This in view of the Althusserian tradition of the definition of ideology, which must be materially constituted, and designates the way in which human beings see and experience their social relations, in the sense of constituting, from this, the conscience of themselves and of others. your world perspective. Such elements have the potential to strengthen or, on the contrary, to weaken, the working class as a subject of the revolutionary process; hence the importance of the dispute in and of the Ideological State Apparatuses.

If all this is true, what remains for us now is to return to our object of analysis, which we will do in the next topic: the School State Ideological Apparatus – not all of it, since it constitutes a system, but a portion of it: higher education.

Higher education: instance of the school ideological apparatus

First of all, we must bear in mind that higher education, unlike primary education and, to some extent, secondary education, has always been difficult for members of the working class to access. This is because what is produced there in terms of knowledge does not concern the allocation of workers to the production lines, but only to workers who need outstanding technical knowledge of the production process (engineers, agronomists, architects, etc.), to “ cadres” of capital, to those responsible for the operation of the circulation of goods (lawyers, mathematicians, chemists, etc.) or, even, to those who must “know how to give orders” or “roll in” the workers (Althusser, 1999, p. 76 ). For this reason, it was never intended to make it necessary for individuals belonging to the working class to enter, which in Brazil – and in several other Third World countries – is racialized.

However, in another text of his, Louis Althusser deals didactically with scientific practice and ideological practice, which, ultimately, make up what matters in higher education, part of the School AIE. In the first, he says, a defined workforce (the researcher's intelligence) and production instruments (theory, etc.) are mobilized to work the given raw material in order to produce precise knowledge. Thus, the production of scientific knowledge constitutes a range of social relations, since it is a part of production. Continuous act, he demonstrates that in these relations, the practice of theoretical production is not the only one to act. Thus, on scientific production, philosophical and ideological relations also rest, which play a precise role as a frontier: what science knows and what it seeks, therefore, factors for the constitution of its theory.

From this, after a long and elaborate journey, it can be highlighted that scientific practice and, above all, theoretical production, precisely because they affect philosophical and ideological relations, there is struggle, and, ultimately, class struggle[v].

In summary, all this to observe that universities are the space of class struggle, because, in addition to being rigorously structured as an Ideological State Apparatus, in which the rites of the mode of production are processed, there is, necessarily, a privileged space to the production of theoretical, philosophical and ideological practices. And where they rest, there will be the fight.

The working class, therefore, has the duty to dispose of the necessary means to occupy the Ideological State Apparatuses and, from within and through them, establish ideological practices contrary to the dominant ideology, in such a way as to seek to weaken it, thus resisting the mechanisms that give rise to the “consensual” subsumption, as Althusser wants, of labor to capital.

In our case of punctual analysis, there is something else, already advanced here. This is because, from within the university, it will be possible to dispose of the work instruments necessary for the production of revolutionary theory. In this sense, it is not precious to remember that, Lenin in his What to do? – vigorously authorized by Althusser in By Marx (2015, p. 135-140) - highlights that “without revolutionary theory, there can be no revolutionary movement” (2020, p. 39). If this is true, there is, in addition to what was exposed in the previous paragraph, another imperative for the occupation of higher education institutions by the working class. It is only its ideological practice – if, and only if, constituted as a classist ideological practice – that can take over this space enticed by the dominant classes, with a view to having at its disposal what is necessary for the production of theory for the revolutionary movement.

Before the final consideration of this first part, in order to reiterate the need to dispute the Ideological Apparatus of the School State, the distinction made by Althusser between primary ideology - that constituted by determined elements of the dominant ideology that are realized and exist in a given Apparatus and its practices – and secondary ideology, which is produced in the heart of that Apparatus by its practices. It should be noted that “secondary ideologies are produced by a conjunction of complex causes in which, alongside the practice in question, the effect of other external ideologies, external practices” (1999, p. 110). In short, the possibility of making the AIE's, through class struggle, have a practice that disallows the dominant ideology is verified.

That said, we have unraveled the object of the struggle that appears represented by the enactment of the quota law. Let us remember that this is a legal form borrowed from the struggle of the working class, which claims access to this specific Ideological State Apparatus. We advance that the way in which this fight was ended has narrow horizons that, due to the conjuncture, are the object of debate in this article. Before concluding, however, we must make a very brief consideration.

In our analysis, two legitimate motives can be pointed out as the driving force of this specific struggle of the working class. The first, immediate and non-class, resides in the fact that the individual who accesses higher education, most likely, waits for an improvement in their material living conditions, given the fact that, possibly, they will occupy a privileged space in the process productive – no longer as a worker, but as a “manager” of capital or, at the very least, with a better and more stable position on the wage scale. And he is by no means unreasonable to want comfort and peace. On the other hand, it seems to us that the struggle for access to universities also takes place, here already in a classist and revolutionary circumscription, precisely because of the desire to dispute the practices of this Ideological State Apparatus and, even, to access the appropriate instruments to the production of revolutionary theory – precisely the core of the AIE Escolar dispute.

These speculations, however, have little scientific value. What history allows us to observe is nothing more than the way in which the struggle for access to higher education took on. This, absolutely, we are exposing to criticism - and with that we want to focus on the adequacy of the possibilities of the quota law to the indicated revolutionary objectives that should focus on the AIE in question.

What is now intended, therefore, is to describe in succinct – even if heavy – lines what today is taken as a legal phenomenon, what space the quota law occupies there and, above all, how it should be faced and operated to sustain the process of the proletarian struggle within the universities.

Legal form: subject of law and legal ideology

We note in passing that the quota law is nothing more than a borrowed form, and finished, to the class struggle around the AIE-Escolar. It is no longer a way of writing history, as desired by those who have done better in these relationships of strength and power. It is precisely the legal form that has been telling us what is happening on the hard ground of the class struggle. By itself, this form will, at the end of this article, tell us who has been doing better around the dispute for ideological production in higher education – but it will also tell us some perspectives of action for radical transformation. Precisely for this reason, the intention of this entry is quite clear: we just want to point out that law and legal ideology operate as forms of reproduction of capitalist production relations.

For that, it is necessary to go back to some houses and understand the law as a historical form[vi]. In this sense, the epistemological instrument established by Evgeny Pachukanis is essential for us.

Pachukanis (2017), based on the Marxian method, historical-dialectical materialism, demonstrated the absolute congruence between the legal form and the exchange relations. In summary, it can be said that the genesis of the form of law is found in exchange relations. Therefore, Naves (2000, p. 55) says that “[…] in the same way that capitalist society presents itself as an “immense accumulation of goods”, it also constitutes itself as an “uninterrupted chain of legal relations”.

Since, in capitalist society, the proprietor subjects establish mutual exchange relations of equivalents (commodities), for this to happen, it is necessary that – more than having a general equivalent that plans the value of work as abstract work – that the exchanges take place through a legal operation that recognizes the agreement of equivalent wills (because it is compacted by free subjects). Thus, the legal form is the essential parameter of equivalence, without which there is no commercial exchange on an industrial scale.

In this sense, the central aspect that constitutes the legal form as a way of representing the interests of the ruling class is precisely the constitution of individuals as “subjects of law”, free, equal and owners. The legal form operationalizes the purchase and sale of the workforce, a basic and founding aspect of the capitalist mode of production, as Marx reveals. Regarding Marxian analysis, Celso Naoto Kashiura Jr. (2017, p. 93-94):

Marx points out, in fact, the close connection between mercantile equivalence and legal subjective equivalence: the exchange process requires legal subjects who recognize themselves as bearers of an identical quality, of equivalent wills, as owners of goods. This is what can be verified in the text of Capital, in the famous passage that opens chapter II, of book I, in which Marx warns that commodities cannot go to the market by themselves and, therefore, we must pay attention to the guardians of commodities, or in the last passages of Chapter IV of the same book, in which Marx refers to mercantile circulation as the Eden of human rights, in opposition to the custom of production.

Therefore, if the commodity is the identical social form of the products of labor that are exchanged, as Marx says, the legal subject is the social form of the guardian of the commodity who voluntarily ensures the exchange. Pachukanis (2017, p. 141-142), in this sense:

Just as the natural multiplicity of the useful qualities of the product is in the commodity only a simple envelope of value, and the concrete aspects of human labor dissolve in abstract human labor, as the creator of value, in a similar way, the concrete multiplicity of the relations of the man towards the thing appears as the owner's abstract will, and all the concrete particularities that differ one representative of the genus Homo sapiens from another dissolve in the abstraction of man in general, as a juridical subject.

The absolute separation between workers and the means of production – which comes to exist in capitalism and is its most outstanding impression – ensures that those, in order to survive, alienate their own workforce. Thus, buyers of labor power, the capitalists, and sellers of labor power, the proletarians, meet in the market to concretize the relationship of exploitation, which will be concealed, at the same time, by the forms of law, its ideology and by wage form. Therefore, by qualifying individuals as free, equal and owners – of themselves or of other goods –, “subjects of law”, the legal form hides the exploitation that occurs in the process of buying and selling the workforce, the founding commodity of the capitalism, since only it is capable of producing value.

About this, Marcus Orione (2017, p. 144) points out that: “The transition from concrete work to abstract work corresponded to the need for a figure, the subject of law, who should be free, equal and owner (of his power of work, the only means of production left as the property of the worker). Therefore, the figure of the subject of law is fundamental, so that the process of abstraction of the work can be completed. It is not without reason that the legal norm is made up of elements such as generality, impersonality and abstraction (it is valid equally for all, without distinction, in addition to not being conceived for a concrete case). Freedom and equality, in reality, are the indispensable elements, in capitalism, for property to be realized”.

Thus, to the extent that it serves as a general equivalent of values, through (i) the standardization of labor value and the legal operation "contract", which ensures the recognition of equivalent wills, and, more than that, (ii) from the functionalization of the purchase and sale of labor power, the legal form fulfills the role of operating capitalist society in its two correlated indispensable forms, namely, mercantile exchange and exploitation of labor power.

Márcio Bilharinho Naves (2014, p. 68-69) reveals that the legal subject form is constituted only with the real subsumption of work to capital, that is, with the constitution of the capitalist mode of production. With the expropriation of the direct worker, the material conditions for the advent of a really abstract subjective equivalence are given. Let’s see: “Law is a way of organizing human subjectivity that makes it capable of expressing will, with which it is possible to establish a circuit of exchanges in which subjectivity itself acquires a mercantile nature without losing its autonomy. ”.

But it is only under the conditions of existence of a specifically capitalist mode of production that the individual can appear devoid of any particular attributes and qualities that distinguish him from other men; it presents itself as pure abstraction, as pure condensation of undifferentiated volitional capacity. […] We can call this real subjective equivalence, precisely because it is realized concretely, practically, materially inscribed in the practice of acts of exchange that the volitional capacity authorizes man to carry out as a subject, that is, equality is transformed into an objective reality, observes Marx.

In his Critique of the Gotha Program, Marx (2012, p. 31) does not shy away from observing equal rights, which operates unequal human work as abstract social work. In describing the society in which there is commodity exchange in industrial production, he provides that "an equal amount of labor in one form is exchanged for an equal amount of labor in another form"; that is, the exchange of goods on a capitalist scale requires that there be an equalization of works, which, in the market, will take on the commodity form, which, on its part, will find an equivalent value to it. This is functionalized by the legal form, which fulfills the role of equalization, in terms of what has been reported. Immediately, he points out that equal rights are, for that very reason, marked by a “bourgeois limitation”, given the fact that it is an “equal right [which] is an unequal right for unequal work”; this because: “law, by its nature, can only consist in the application of an equal standard of measure; but unequal individuals (and they would not be different individuals if they were not unequal) can only be measured according to an equal standard of measurement when observed from the same point of view, when taken only by a certain aspect, for example, when, in the case in which question, they are considered only as workers and nothing else is seen in them, all other aspects are disregarded”.

We have, therefore, demonstrated that the legal form sediments the forms of production relations under capitalism, thus making the domination of the bourgeoisie effective. Historically, in this sense, it was only with the advent of the industrial economy that the interests of the ruling class began to be protected by the legal form, given that in feudalism and the slave regime, political domination and economic exploitation took place immediately by the class. dominant, with no need to fetishize its forms. This is essential for the understanding of law, since its function is carried out only with its materiality. In this regard, Thévenin (2010, p. 57): “Legal logic is, therefore, a logic that must be able to materialize, be exercised. It also means showing that the functioning of law and, therefore, of legal categories is only defined by its function: the reproduction of production relations, which requires, at the same time, a role of mystification [...] and coercion”.

If all this is true, we can conclude that political-legal abstractions fulfill the function of sedimenting production relations; and, furthermore, that the process of commodity circulation is necessarily composed of those abstractions arising from social practice, production and circulation, which dimension and functionalize the domination of the bourgeoisie.

The words of Flávio Roberto Batista (2013, p. 149) say it better: “Law is located in this context as part of those abstractions created in social practice to allow the proper operation of the dominant production relations in the mode of production capitalist. The circulation of goods creates the most fundamental abstractions for social functioning, linked to the very core of the organization of production relations, such as the very notions of merchandise and exchange, and all those that surround them, such as exchange value”.

With the necessary information about the law and its commitments to the capitalist mode of production, we are able to proceed with the analysis of the quota law, a technique that operationalizes the legal form in reality.

Theoretical particularity of the quota law

As we have seen, the social whole can be represented by a building that has an economic base on which two floors of the superstructure are built: the ideological and the juridical-political. Therefore, capitalist production relations are the foundations of this building. However, law has a specific capacity to permeate and be permeated by all floors of this building. We explain: the law regulates – not ultimately, it is true – economic, political, ideological relations, etc., however, it allows itself to be penetrated by economic, political, ideological, etc. interests. Law is, then, a specific floor of the social building that spreads out over all floors like columns, giving them a shape that matches the base, but the conforming presence at all levels does not make it immune to receiving influences. from each floor.

The legal system, therefore, operates from its fundamental abstraction, the subject form of law – an abstraction that superimposes equality and legal freedom to real inequalities and dominations between individuals (Kashiura Jr., 2009, p. 177) –, and it is precisely it that serves us to the continuity of these notes. This is because it is an abstraction that goes through the entire social edifice, conforming real inequalities to an abstract but real legal equality. That is, legal equality can tolerate the existence of discrimination and prejudice, as long as they do not harm the central motto of its raison d'être: to allow the dynamics of exchange of goods, including the workforce itself.

kashiura jr. (2009, p. 178) explains it with mastery: “What matters is that the economic agents, those who produce and those who consume, present themselves free from personal dependencies and direct domination only in what is strictly necessary to maintain in the form of a commodity exchange relationship. Everything that does not harm the viability of the exchange is admissible”.

In a word, capitalism – contradictory as it is – requires the coexistence of legal equality and material inequalities. Coexistence, here, in the most precise sense of the term, in which none should overlap the other, they must, therefore, live in harmony: the first can extend to cover the second; and the latter can be reduced to fit the former (Kashiura Jr., 2009, p. 193).

Again, the metaphor of the building is used: the law is the columns, which maintain material inequalities through formal legal equality; however, material inequalities – when they reach such a point that they jeopardize the free dynamics of exchange – can cause a “reinforcement” of the pillars of legal equality. In view of this, only when concrete inequalities jeopardize the circuit of exchanges based on equality, on legal equivalence, do these discriminations become “remedied” by law.

Following the teaching of Kashiura Jr. (2009, p. 194), in post-Fordist capitalism these discriminations are increasingly unacceptable, not for a moral or ethical advance, but for the determination of the base. Modernly, technological advances have potentiated a contradiction of capitalism: technological advances provide a significant exclusion of the workforce from production practices, at the same time, these same advances demand a large contingent of consumers to materialize surplus value. Now, exclusion from work generates visible and profound material inequalities, while the radicalization of consumption requires equality between subjects, so that they can – recognizing themselves as equals – exchange goods. Concrete inequalities are, contradictorily, exponentiated and less tolerable.

Flávio Roberto Batista (2013, p. 240-241) is able to synthesize the idea in theoretically more precise terms. Batista states that when the average salary is no longer capable of promoting the livelihood of the worker and his family – read: when the commodity labor force, the most important for the reproduction of capitalist sociability – starts to be sold diffusely for a price much lower than its value, the risk of disturbing the logic of the equivalence of mercantile exchange is such that it can jeopardize the entire mode of production, thus, the maintenance of legal equality is essential for the maintenance of mercantile exchanges. It is precisely up to “private social rights” to re-establish the equivalence that is lost when the difference between value and the price of the commodity labor power are profoundly distanced.

Discriminating consumption by skin color becomes unacceptable. Legal equality, therefore, needs to be enforced. This may explain how in the recent past, in a Brazil that had abolished slavery in 1888, the situation of blacks did not change significantly: ex-slaves were, from then on, legally equal to their former masters, in short, they could , now, sell their workforce “freely”, but racial prejudice remains.

Florestan Fernandes (2013, p. 105-108) explains: “It can be said that, since the last quarter of the XNUMXth century until today, the great historical and social transformations have not produced the same benefits for all sectors of the population. In fact, the set of transformations that gave rise to the “bourgeois revolution”, promoting the universalization, consolidation and expansion of the competitive social order, only collectively benefited the white segments of the population. Everything happened, historically, as if there were two continuous human worlds, but watertight and with opposite destinations. The world of the whites was profoundly altered by the economic boom and social development, linked to the production and export of coffee, in the beginning, and to the accelerated urbanization and industrialization, afterwards. The world of blacks was practically on the margins of these socioeconomic processes, as if it were within the city walls, but not collectively participating in its economic, social and political life. Therefore, the breakdown and extinction of the servile regime did not mean, immediately and in the short term, a change in the relative positions of the racial stocks present in the social structure of the community. The caste system was legally abolished. […] It follows that racial inequality has remained unchanged, in terms of the racial order inherent in the social organization that has legally disappeared, and that the asymmetrical pattern of traditionalist racial relations (which gave the “white” almost total supremacy and compelled the “black "to obedience and submission) found material and moral conditions to preserve itself en bloc".

The domain was no longer direct, so racial discrimination did not play an essential role in the mode of production, but it persisted, because, even though it was not fundamental, it did not constitute any threat to the dynamics of exchange. It was tolerable from the perspective of the base and, therefore, legal equality did not impose itself on real inequalities.

With the advance of capitalism, legal equality is forcibly imposed on racial discrimination, even making use of the (repressive) State Apparatus, insofar as it determines racism as a non-bailable and imprescriptible crime punishable with up to 5 years of imprisonment. seclusion. However, this racial legal equality imposed by force does not touch the structuring inequalities of the capitalist mode of production, that is, inequality in the face of capital is never corrected (Kashiura Jr., 2009, p. 197).

However, the law was not limited to setting in motion the penal apparatus to deal with discrimination; he went further and apparently sacrificed legal equality itself through “positive discrimination”: “Affirmative actions are, therefore, the institutionalization of 'on the contrary' discrimination, which seek to promote equalization by favoring those who, in a certain context, are understood as unfavorable by discrimination, that is, explicit legal benefits are established with a view to restoring equality between discriminated and non-discriminated” (Kashiura Jr., 2009, p. 199).

Finally, we arrive at the policy of quotas, which is nothing more than one of the most successful of these “positive discriminations”. Like other affirmative actions, the quota policy is closer to the causes of racial prejudice than penal measures; however, even so, it is not capable of abolishing the engine of racial discrimination, that is, the capitalist social structure that segregates between exploited and exploiters and operates without difficulties with the current quota law: “What is achieved is social mobility occasional, that is, the possibility that blacks will occupy social positions formerly occupied by whites, but the separation into disparate social positions persists” (Kashiura Jr., 2009, p. 201).

The quota law operates a logic that, at first glance, appears to be simple. Now, it is only a question of positive discrimination in which a subject of law is no longer considered as an equal so that – with this mechanism – he can equalize his possibilities of access to the university. The simple technicality of this mechanism hides, for the inattentive jurist, the theoretical complexity of this “unequal”: inequality only arises to guarantee legal equality. Flávio Batista (2013, p. 258), in this direction, elucidates that any social right, however much it seems to the contrary, is not capable of breaking with the legal form, because in each right it is possible to see its function directly linked to the way of capitalist production. In his terms: “Social rights cannot be anti-capitalist rights – or any similar expression that one intends to adopt – because they are not capable of breaking the legal form of the subject of law whose assumption of legal rights and obligations is subject to the principle of equivalence derived from of mercantile exchange; this inability is not autonomous or due to a technical-legal insufficiency, but refers to the perception that it is possible to identify, in each social right, the role played in the economic structure of reproduction of value, that is, in the capitalist mode of production” .

It is true that the quota law challenges legal equality, but this challenge does not go beyond the limits of the legal form, it continues to obey and submit to the logic of equivalence of mercantile exchange. Celso Kashiura Jr. explains that the quota law breaks with legal equality only to restore legal equality: it does not impose equality by force, like the punitive apparatus, it does not condemn inequality, it only disequals in order to equalize. The risk to legal equality – the legal form as a whole – is such that the law seeks to relativize this equality in order to preserve it: “The radicalization of inequality demanded an extreme measure: the law was responsible not only for recognizing inequality as the only viable means of achieve equality. Promoting inequality implies accepting the risk of falling back into privilege” (Kashiura Jr., 2009, pp. 201-202).

This explains why traditional law theorists refuse to accept the quota law: it does not disregard the individual characteristics of each individual in a competition, on the contrary, it determines favors due to personal particularities, such as skin color; it almost overflows the limits of the legal form (KASHIURA JR., 2009, p. 203). This inequality is only tolerated, in fact, partially by the legal form, since remedying the visible social inequalities is fundamental to guarantee the perpetuation of the “invisible” inequalities of capitalism, that is: the segregation between exploited and exploiters, conquered by the “free” buying and selling of labor power. It is necessary that the logic of the equivalence of the legal form remain credible, remain in force, so that structural social inequality can fulfill its function of reproducing value, that is, reproducing the mode of production itself. Maintaining, then, the legal form is so essential that [if] it is tolerated even partially removing it, to ensure it structurally, read: so that each one can see himself as free to alienate his work force and equal to let yourself be bought.

It turns out that this departure, even if partial, from legal equality implies a weakening of the legal form, while inequality to maintain formal legal equality and structural material inequality reveals that equality is not built by law. Any apparent legal equalization, even if it operates by disequalizing unequals to build a supposed equality, perishes when it is verified that it exists only to guarantee the structural material inequality necessary for the capitalist mode of production.

In short, the quota law operates through the legal form, necessarily bringing inequality intrinsic to capitalism, even if, apparently, it serves as an equalization mechanism.. Fighting for this right is essential not because of its own capacity to guarantee equality through inequality, as this does not exist; but for the content that the quota law brings to the fore when the legal form is left aside for a brief moment from the analysis: it enables access by a portion [of isolated individuals], of the working class, to the important part of the School AIE .

In what matters, therefore, we have that the quota law makes, at all times, reference, from its very technology, to the legal form and, in this sense, to the interpellation of individuals (you and me) as subjects of law, stone of the movement of goods process. Therefore, in itself, the quota law must be seen as an integral part of those most fundamental abstractions created by practice to reproduce the conditions of capitalist production. Not at all, therefore, claiming it as an instrument of class struggle may ultimately be quite infertile.

However, by balancing itself on the contradictions of the capitalist mode of production, the quota law opens a breach, or rather, a wide passage, to the struggle of the working class over and in a portion of the Ideological State Apparatuses. This is because, it authorizes the entry of members – always in this clumsy individual condition – of the working class to an Apparatus (AIE-School) which, in its very practice (secondary ideology, as we have highlighted), has always been guided solely by the presence of members of the ruling classes. And that is precisely why the quota law interests us, and must be protected by us, without ever losing sight of its limits, which are even of the legal form as a whole.

Finally, we reiterate: the access of the proletariat to this Ideological State Apparatus – already traversed, like all of them, by the class struggle – must make the balance of power unbalance in favor of the workers, who, due to their own practices, that is, corporeality, class action, discourses, etc., will erode the dominant ideology.

Final considerations

In fact, as the legal form is a necessary abstraction from and to capital, what its manifestation reveals is the closed form of class struggle, as told by and for the ruling class.

“History – tells us Althusser (2022, p. 214) – as commonly conceived, is the history of the results as the stages of the becoming of the form of the present, it is the history of the results retained by history: it is not the history of non-existents. results […]”. With this, Althusser wants to tell us that the “other story, that of the shadows and the dead”, that is, of what the exploited, oppressed masses built, did and fought for, does not reveal itself in appearances: it must, therefore, be be revived.

The struggle of the working class – in its best facet, that is, classist and revolutionary – cannot, therefore, be counted, at least in capitalism, if not by law, which will seek, in the last instance, to reproduce the conditions of production, and, thus annihilating the dispute in question. The legal form as the last trench of property relations.

We wanted to make a very small effort here: to relive the bad side of this story. In other words, to show that the struggle of the working class over the School AIE is – at least it should be – a struggle that wants to disarm the dominant ideology, and, for that, wants to touch the core of its nervous system. The bright side, as it has been written, reveals itself as a dispassionate struggle for rights, which, in fact, cannot even be implemented. Aseptic even in its form. We fight it – since the fissure, wide, is already open.

One final word. The good reader knows that this effort of ours is not by chance. It was Marx who “gave life to a whole repressed history”, a “becoming without result” (Althusser, 2022, p. 214), when he wrote in his The Poverty of Philosophy, which is always on the bad side that history progresses. Simple effort to continue what cannot be stopped.

*Ari Marcelo Solon He is a professor at the Faculty of Law at USP. Author, among others, of books, Paths of philosophy and science of law: German connection in the development of justice (Prisms).

*Murilo Amadio Cipollone is studying law at USP.

*Lucas Oliveira Menditi do Amaral is studying law at USP.

References


ALTHUSSER, L. 1980. Ideology and State Ideological Apparatuses. Lisbon: Editora Presença.

ALTHUSSER, L. 1999. about reproduction. Petropolis: Voices.

ALTHUSSER, L. 2015. By Marx. Campinas: Publisher of Unicamp.

ALTHUSSER, L. 2019. Introduction to philosophy for non-philosophers. São Paulo: Publisher WMF Martins Fontes.

BATISTA, FR 2013. Criticism of the technology of social rights. Sao Paulo: Fold.

FERNANDES, F. 2013. The Black in the World of Whites. 1st ed. Sao Paulo: Global.

GONZÁLES, L. For an Afro-Latin American feminism. Rio de Janeiro: Zahar, 2020.

KASHIURA Jr., CN 2009. Critique of legal equality: contribution to Marxist legal thought. Sao Paulo: Latin Quarter.

KASHIURA Jr., CN 2017. THE FUNDAMENTAL STONE – considerations on the critique of law by Evgeni Pachukanis. In FR Batista, & GS Scheffer, Russian Revolution, State and Law (pp. 85-114). São Paulo: Folding Editorial.

LENIN, VI 2017. The State and the Revolution. Sao Paulo: Boitempo,

LENIN, VI 2020. Things to Do. Sao Paulo: Boitempo,

MARX, K. 2012. Critique of the Gotha Program. São Paulo: Boitempo, 2012

NAVES, MB 2014. The question of law in Marx. São Paulo: Other Expressions; University Fold.

NAVES, MB 2020. Marxism and law: a study on Pachukanis. Sao Paulo: Editora Boitempo.

ORIONE, M. 2017. The legalization of the working class – a reading from the perspective of the class struggle. In Labor Law: reinterpretations, resistance (pp. 141-154). Sao Paulo: LTR.

PACHUKANIS, E. 2017. A tgeneral theory of law and marxism and selected essays (1921-1929). Sao Paulo: Sundermann.

THÉVENIN, N.-É. 2010. Legal ideology and bourgeois ideology. At MB Naves, Althusser's Presence (pp. 53-76). Campinas: Unicamp.

Notes


[I] Even though the deadline has passed, the revision of the quota law is urgently being processed in the Chamber of Deputies. However, the government's opposition, especially left-wing parliamentarians, intends to vote on the proposal only next year, fearing the possibility of a setback during the vote in the current legislature. Despite the forecast for the reassessment of the quota policy having already expired, there will be no legal change if this is not done by the end of the year. The commission of jurists created in the Chamber in 2020 to propose improvements in legislation to combat racism pointed out the need to extend the quota law, delivering the report in November 2021. As there are projects already filed and ready for voting, they will not be filed at the end of the legislature. It should be noted that these projects are varied, marked by setbacks, such as that of Deputy Kim Kataguiri (DEM-SP), which prohibits “positive discrimination for admission to educational institutions based on color, race or origin”, and more progressives, such as that of Deputy Maria do Rosário (PT-RS), which aim to extend the quota policy.

[ii] In this regard, see: GONZÁLES, L. For an Afro-Latin American feminism. Rio de Janeiro: Zahar, 2020.

[iii] Initially, he says that “if the State is the product of the irreconcilable nature of class contradictions, if it is a force that is above of society andmore and more alienates of society", then it is evident that the emancipation of the oppressed class is impossible not only without a violent revolution, but also without the extermination of that State power apparatus that was created by the dominant class and in which it is embodied in this “alienation”. Later in the text, he suggests that “the 'specific repressive power' of the bourgeoisie against the proletariat, of a handful of rich people against millions of workers, must be replaced by a 'specific repressive power' of the proletariat against the bourgeoisie (the dictatorship of the proletariat). ”. (Lenin, 2017, p. 29)

[iv] This becomes clear when we note that in the course of his rise to state power, the bourgeoisie undertook (and continues to do so) the class struggle within and over the AIE's – both against the ideology of the ruling class that it deposed, and against the ideology of the class that it subjugates. Let's see. “It [the bourgeoisie] only managed to conquer them [the AIE's] (since they existed before and served the former dominant class; for example, the Church, the school, the family, medicine, etc.) bases in the course of and at the expense of a very long and very hard class struggle. Therefore, its existence has nothing of the simple result of a decision, corresponding to a preconceived plan, perfectly aware of its objectives. It is the result of a long class struggle, through which the new class constitutes itself as the dominant class, seizes state power and then, installed in power, strives to conquer the existing state ideological apparatuses, relocating them. them and lay the foundations for the new devices it needs”. (Althusser, 2019, p. 154). [Italics in the original]

[v] “As we have noticed, when both philosophy and ideology coexist in a place, there is struggle there, and not an arbitrary struggle, but a necessary struggle, linked, ultimately, to the class struggle. And, if there is a struggle, there is necessarily a party that serves the interests of science and another that exploits them in favor of the dominant ideology. Therefore, science is not neutral, since, in its own intimacy, it continues this fight in favor of or against values ​​for which it serves as a support point or alibi”. (Althusser, 2019, p. 146).

[vi] In this regard, Naves (2000, p. 40): “The criterion that guides Pachukanis' démarche is the possibility of the theory being able to analyze the legal form as a historical form, allowing the understanding of law as a real phenomenon. Pachukanis introduces, in this way, in the field of legal analysis, the methodological principle developed by Karl Marx in the Introduction to the Critique of Political Economy […]”.

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