The flexibility of worker protection

Georgia O'Keeffe (1887–1986), Drawing XIII, charcoal on paper, 61,9 × 47 cm, 1915.
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By MARCUS ORIONE & FLAVIO ROBERTO BATISTA*

Contribution to a reading of the labor and social security reforms in the light of the critique of the legal form

Introduction

The 1988 Constitution put the last straw to the military dictatorship, which had already faltered since the beginning of the 1980s, when the exhaustion of its economic model, boosted by the world crisis of 1979, began to progressively diminish what remained of it political support. The process of social consultation that resulted in this new constitutional text, added to the need to consider the demands of different organized groups, led, as is well known, to the meticulous and exhaustive recognition of various rights, especially those called social, linked to the conditions paid work and the guarantees of the social security system.

Due to this multiplicity of guarantees of rights, which aroused the dissatisfaction of the traditional oligarchies, since the beginning of the 1990s, Brazil has been going through successive waves of constitutional reforms, which culminated, between 2017 and 2019, with the editions of the most recent and the most drastic and profound labor and social security reforms known in the period, enacted by Law nº 13.467/17, in the case of labor reform, and by Constitutional Amendment nº 103/2019, in the case of social security reform.

A profusion of books and articles have been published about such reforms and there is a fact in them that draws a lot of attention: the tendency that mutilating rights reforms have to revive legal socialism and humanist progressivism latent in the unconscious of even the most critical jurists. If it is common ground that it is necessary to resist, in the context of a class offensive – because the class offensive characteristic of such reforms will never be denied –, it is also essential to always remember the conservative character of resistance. That is why its main consequence is difficult to avoid: as soon as the moment of struggle against the institution of reforms is over, which are finally enacted and in full force, humanist progressivism renewed and inflated by its edition embarks on practices of hermeneutic micro-resistance within the institutional order.[I]

Nothing can be more conservative of this order than this posture. By limiting the field of dispute to the interior of the bourgeois order, the struggle is already lost. The task that imposes itself, on the contrary, is to place the process of labor and social security reforms in the context of the critique of the legal form, in order to contribute to the project of overcoming a mode of production that does not end with the internal conservative resistance to the social order. capitalist institutional.

This is, therefore, the objective of this text: to present some contributions to the location of the labor and social security reforms in the context of the critique of the legal form. Given the limitations of the article format and the size of the text, it will obviously be impossible to exhaust the discussion, but the text will have been successful if it manages to shift, even if just a little, the axis of the discussion on the reforms to a horizon that goes beyond the limits of internal conservative resistance to law.

To achieve this objective, it will be necessary to concentrate efforts on the dialogue that, since proposed by the great pioneer of the critique of the legal form in Brazil, Márcio Bilharinho Naves, has guided theoretical efforts in this field: the dialogue between Althusser and Pachukanis, with the mediation of Edelman[ii]. Once again, given the impossibility of exhausting this dialogue, the proposal is to advance in some topics of the Althusserian theory of the ideological apparatuses of the State and in some of the most problematic reflections that can be awakened by it, with the purpose of illuminating a debate on the specificity history of the capitalist mode of production, a central concept to the Pachukanian critique of the legal form, focused on the economic or extra-economic character of coercion – ideology or violence, to use Althusserian terminology – inherent to the extraction of surplus labor in the various modes of production.

The hypothesis to be developed is that this elaboration on the balance between ideology and violence can reveal peculiarities in the organization of States on the periphery of capitalism, which are behind movements of precarious reforms of social legislation and whose perfect understanding can collaborate in the political process of searching for the transition of mode of production. This is the debate that will occupy the final portion of the article, leading it to the conclusion.

The theory of ideology and ideological State apparatuses in Louis Althusser

Since, in 1971, Althusser separated a chapter from his manuscript Sur la reproduction – which would only be published in full posthumously in 1995 –and published it in the magazine Thought with the name of Idéologie et appareils idéologiques d'État[iii], it has become impossible, or at least reckless, to address the issue of ideology without taking this text as a central, albeit antagonistic, reference. Thus, the development of this article must begin with a survey of his arguments in that iconic essay.

Althusser proposes to go beyond what he calls the descriptive theory of the State[iv], as bequeathed by Marx, Engels and Lenin, who identifies the State with the State apparatus, to include in the theory a multiplicity of apparatuses that he called ideological, leaving what was until then defined as the State what he described as state repressive apparatus[v].

In these terms, the State (Repressive) Apparatus contains the government, ministries, police, courts, prisons, etc. It works through violence, which does not necessarily need to be physical, and can occur, for example, through administrative practices. On the other hand, the Ideological State Apparatuses (ISA) do not function, in general, through violence, but under the ideological form[vi]. They cannot be confused only with state institutions. Althusser provides an empirical listing of these devices: (1) religious; (2) school (public and private); (3) family (which also intervenes in the reproduction of the workforce); (4) legal (belongs to both); (5) political; (6) trade union; (7) information (media); (8) cultural (literature, sports, arts, etc.).

While there is only one (Repressive) State Apparatus, there are a plurality of Ideological State Apparatuses. The (Repressive) – unified – State Apparatus belongs entirely to the public domain, while the vast majority of the Ideological Apparatuses belong to the private domain. Despite this, the essential difference between them, in the Althusserian perspective, is that the (Repressive) State Apparatus works “by violence”, while the Ideological Apparatuses work “by ideology”. It is important to highlight that this functioning by ideology or by violence presents a perspective of predominance, not of exclusivity.

The appliances have a “dual function” system, with a predominant function and a secondary one. Thus, the (Repressive) Apparatus functions massively and predominantly through repression and secondarily through ideology. On the contrary, the AIE function predominantly through ideology and secondarily through repression, even if concealed, occult (ALTHUSSER, 1996: 115-116). As a clearer example, linked to issues already examined by Althusser himself in the essay examined here, we have the methods of punishment applied by schools, churches and families – the discipline of bodies.

Alongside the Ideological State Apparatuses, the figure of the “individual challenged by ideology as a subject” appears. The categories “ideology” and “subject” are inseparable[vii]. Thus, individuals, in everyday life, when questioned by capitalism from the legal form, proceed according to its dictates and stick to their limits and, through it, recognize each other as subjects. There is an ideological function of recognition. Individuals are questioned as subjects by ideology as well, and mainly, in the sense of recognizing themselves and others based on their assumptions.

Now, at a given moment, it is no longer possible to function as individuals free of this recognition that is made through ideology. The ideology that functions as the matrix of capitalism, in turn, is the legal ideology, which is the one forged in the notion of free, equal and proprietary man, already unveiled since the elaboration of Pachukanis (2017).

Problematic issues of the Althusserian theory of the ideological state apparatuses

The Althusserian theory of the ideological state apparatuses has a character that can be called, albeit in a very imperfect metaphor, experimental. This attempt to go beyond the limits of the classics of Marxist theory of the state is akin to groping in the dark. Therefore, some theoretical problems can be raised, many of which without a clear solution. Some of them, which will be discussed below, relate to the existing relationship between the public and private spheres in the configuration of state apparatuses and their interaction with the question of the separation between ideology and violence in the way these apparatuses operate. This development will be relevant for re-reading the Marxian concepts of economic and extra-economic coercion in the next section, preparing the ground for the discussion of the peculiarities demonstrated by peripheral capitalist states in terms of the balance between ideology and violence.

The first question concerns the function occupied, in Althusserian theory, by the separation between civil society and the State. This is a typical notion of traditional Marxism – actually borrowed from Hegelianism.[viii] – which sees the State as a repressive machine of the bourgeoisie in relation to the working class[ix]. Therefore, when Althusser identifies the repressive apparatuses with the public sphere, as they are restricted to the courts, the police, prisons, etc., he assumes for his theory the insufficiency of the dichotomy, loaded with appearances, between “civil society” and “State”. ”. Thus, it is worth questioning whether it would not be possible to get rid of this appearance, maintaining that the repressive apparatuses can also be extended to the private sphere of civil society, as occurs with the ideological apparatuses. In peripheral countries, this issue will be fundamental.

Even if this advance mentioned above is not made, it is also essential to question whether the repressive apparatuses are not based on ideology. If it is true that Althusser explicitly states that they work predominantly by violence, it is also true that the idea of ​​predominance admits the possibility that there is also a foundation of repressive apparatuses in ideology. In this case, it is worth observing whether the State's monopoly on violence – taken here in its restricted sense – is no longer a specific ideological assumption of capitalism on which the very possibility of the existence of repressive State apparatuses would be founded.

The truth is that, through the questions mentioned above, Althusser perceives the insufficiency of the classical theory of the repressive apparatus of the State, concentrated in the restrictive logic of the concept of State by classical Marxism, from which he conceives a theory of expansion of the notion of State for the construction of his theory of ideology. This is perhaps the greatest merit of his elaboration. But one cannot fail to observe, equally, that, in doing so, Althusser is concerned, in order to understand the ideology, mainly with the starting point, that is, the extension of the State to civil society, but this ends up apparently diminish, in his view, the relevance of the analysis of the dialectic pair ideology/violence.

The attribution of investigative priority to the configuration of the State merely as a repressive apparatus or in an extended form to civil society, on the one hand, or to the determined contradiction between ideology and violence, on the other, provokes reflections from which a concept of ideology can be extracted from of its configuration in ideological apparatuses. The first concerns the possibility of verifying the existence of a distinction between the State and civil society in other modes of production. If it is clear that, in the context of the Althusserian reading of Marxism, the determined contradiction between ideology and violence is trans-historical – as, incidentally, ideology itself –, the same could not immediately be said about the contradiction between State and civil society – and even its overcoming by the extension of the State to the private sphere, shaped in the ideological apparatuses of the State. Thus, this extension – and the separation underlying it – seems to result from an ideological issue typical of capitalism, not being verified in previous modes of production.

On the other hand, the investigation based primarily on the pair ideology/violence, which presupposes the idea that each of these terms would predominantly organize the functioning of a certain type of apparatus, presents an appearance of instrumentalization of these concepts, bringing the elaboration closer to a functionalist vision , which would define social structures by their function. Violence and ideology, therefore, would be instrumentalized by the State in its various modes of operation.

To escape these difficulties, it is necessary to define what is meant by ideology based on the idea of ​​ideological state apparatuses, in order to establish the relationship between ideology and its dialectical pair violence.

Thus, a concept of ideology suggested from the ideological apparatuses of the State is presented: ideology would be a set of practices necessary for the reproduction of a given mode of production, challenging the individual to subject himself to them and to promote the constant process of reproduction of the mode of production. From this concept derives its trans-historicity and the notion of “always already given” – and, it would be possible to add, as already given. Ideological apparatuses would be the promoters par excellence of this reproduction.

Admitting this concept of ideology, the next necessary step would be to define the related concept of violence in Althusser. He says little about this, since most of his concern is with ideological apparatuses, adhering to classical theory regarding repressive apparatuses. But if we try to extract the notion of violence from his contributions on the repressive apparatus, it would be state violence in the narrow sense of the difference between the public and private spheres. Therefore, a very restricted notion and already compromised with the notion of ideology, which is placed as a necessary assumption for public violence. This poses a difficult problem to solve, since, assuming that his notion of ideology is really transhistorical, his idea of ​​violence, on the other hand, could not be, since the state is not transhistorical. More than that, the important dialectic pair ideology/violence, in the molds he put forward, should help in the distinction of modes of production, observing his theory of overdetermination, and therefore could not start from the Marxist notion of repressive State apparatus classic.

It seems that the solution of these theoretical dilemmas requires, therefore, a further development in relation to the terms posed by Althusser in his work on the ideological apparatuses of the State. This development involves unveiling the sense in which the ideas of coercion – economic and extra-economic – are understood in the Marxist tradition.

Economic coercion and extra-economic coercion

Starting with Marx, it is often said that, in capitalism, coercion would be economic and, in other modes of production, coercion would be extra-economic.[X]. In other words, with more sophistication, under capitalism the mediations that authorize the extraction of surplus value from the surplus resulting from production are based on the contractual logic of buying and selling the commodity labor power and not on direct violence against the producer. Although it does not appear immediately, from this concept one can extract, using Althusserian categories, that economic coercion is only authorized because direct violence against the producer is replaced by an ideological coercion based on the contract of purchase and sale of labor power.

If that is really what defines economic coercion, extra-economic coercion, in theory, would be that in which there would be no way to dispense with direct violence against the producer, as was the case, for example, with serfs in the Middle Ages or with enslaved people. in ancient slavery. That is, what would define one in relation to the other would be the variable historical mediation between violence and ideology in the extraction of economic advantages from the surplus produced by the workforce.

Thus, and already adding the critique of law by Pachukanis (2017) and Edelman (1976)[xi] to understand the Althusserian categories, in the modes of production prior to capitalism there is a type of ideology incident on the direct producer that does not need to seek the naturalization of the exploitation process in production. To the extent that there is no commodity form with its universalizing tendency through the legal form, ideology would also be a set of practices there, but not to “hide” the exploitation of production.

In other modes of production, there is overdetermination also from production. Therefore, what ultimately determines the analysis here is the economy. It is not a question of mere domination outside the limits of the economy. All violence is ultimately economic. What can be questioned are the mediated relationships between violence and ideology in their production/reproduction formula, considering that production is always violent. Production is the class struggle in its rawness[xii].

What happens is that, due to the contractual aspect of capitalism, circulation promotes the naturalization of the violence of production. Therefore, ideology has a characteristic of its own, which is to hide the violence existing in production. If in any mode of production coercion is economic, with the violence inherent to production, in capitalism what differs from economic coercion is the role played by ideology, which is different according to the modes of production. In capitalism, legal ideology is an indispensable element for the universalization of the logic of buying and selling labor power, the logic of the subject of law.

Labor and social security reforms: analysis in the light of the violence/ideology relationship

As highlighted in the introduction, the hypothesis sustained in this text is that, in order to think about labor and social security reforms, it is necessary to walk along the path of the relationship between ideology and violence, based on Althusserian notions of ideology and ideological State apparatuses, including exploring the shortcomings denounced above so that it is possible to understand some aspects of the process in a peripheral country like Brazil. More than that, it is necessary to think about the reforms from the dialectical relationship between production, which is violent, and circulation, in which the ideology of the contract prevails. Therefore, although ideological in circulation, there is a necessary class violence in production – or rather, in the relationship between production and circulation seen from production – that contaminates the relationship already in circulation. This, therefore, does not dispense with the dialectic relationship between violence and ideology.

Resuming, in this context, the concept of ideology suggested from the ideological apparatuses – ideology as a set of practices necessary for the reproduction of a given mode of production, challenging the individual to subject himself to them and to promote the constant process of reproduction of the mode of production production – it is also possible to build a concept of violence from the ideological apparatuses of the State and the problems already pointed out in its theorization. Violence would then be a set of physical or non-physical coercion practices – physical or emotional – direct on the producer, necessarily prevailing in production and reproduction in view of the dialectical relationship with production, to ensure the preservation of the mode of production to which it is based. is attached. Violence, therefore, operates within the repressive apparatuses of the State, which would also have its concept extended to hypotheses in which they were not necessarily in the public sphere. In the case of countries like Brazil, in addition to the Judiciary and the police, for example , militias and “parties” such as the PCC would fit into this definition. There would still remain the question of whether violence, like ideology, would be transhistorical if defined in these frameworks. In this way, the relationship is inverted and the violence/ideology dialectic is thought from a concept of violence, which increases the potentiality of determinations.

This elaboration gives us the conceptual tools to think about the periphery of capitalism, in which Brazil is located. Here, as well as in countries at the center of capitalism, there is a need to naturalize the violence of production based on its dialectical relationship with reproduction in circulation. However, this is not enough. There is, in circulation itself, that is, in the sphere of reproduction, another concomitant violence that cannot be thought of outside the logic of production, which is always over-determining. In this context, the increase in the perspective of repressive apparatuses for civil society entities removes the ideological aspect that informs the option only for the public and extends the field of violence to the interior of the state apparatus, whether repressive or ideological. This means that the violence that occurs in circulation is not seen as contingent, but related to production. And, therefore, apparatuses such as militias and PCC would not be considered as linked to aspects of a concomitant primitive accumulation – called by authors such as David Harvey accumulation by dispossession (HARVEY, 2004: 115-148) –, but as indispensable elements to accumulation typically capitalist in peripheral countries like Brazil.

In this context, the process becomes circular, with the following amplitude: Production (violence) – Circulation (ideology/violence) – Production (violence). The repressive and ideological State apparatuses become places of exchange of experience, among themselves, of reciprocally realized violence and ideologies.

Thus, in countries at the heart of capitalism, violence, in the reproduction process, takes place with less mediation by the ideology within it than in countries on the periphery of capitalism. In these conditions, in countries on the periphery like Brazil, alongside violence monopolized by the State, as a given of the repressive apparatus, coexists violence authorized by apparatuses not mediated by ideology, but which, ultimately, preserve and reproduce bourgeois ideology. Faced with the excess of violence, there is a reinforcement of ideology, which begins to permeate the various instances more intensely. For example, the religious stance becomes more meritocratic than spiritual. The instances circulate in a relation of lesser autonomy than in the countries of the center of capitalism. See, for example, in the Brazilian case, the intimate relationship built between the labor reform, the entrepreneurial discourse and religion, especially the neo-Pentecostal denominations.

Here, criminal law plays a fundamental role.

In periphery countries, due to the greater force of violence, there is a need for greater strengthening of ideology, but the interesting thing is that this does not correspond to a decrease in violence, which is also “very strong”. Therefore, in the countries of the periphery, there is a need for strong violence and a strong ideology, both stronger than those in the center of capitalism, which is paradoxical, since with the increase in the strength of the ideological apparatus, apparently, the repressive apparatus should reduce its incidence. As this is not what happens, the impression is reinforced that the new perception, suggested above, of the State based on violence, the limits of ideology, and not the opposite would be correct: from ideology to violence.

In the latter case, the violence strengthened in circulation, which is the space of reproduction, is taken over by groups of civil society – or the other way around, the uncivil society of the exterminators of the black population – and by groups of the State – the State at the service of the extermination of the black population. There is, as incredible as it may seem, a widening of the concept of repressive state apparatuses, which are now also extended to civil society, threatening the ideological monopoly of violence that would be the backbone of the repressive public apparatus of the state. There is an extension of the logic of ideological apparatuses to repressive apparatuses. And this starts to stress the very figure of the subject of law, which is subjected to an apparent contradiction, since the schematic picture of its universalization is more constantly threatened. The subject of law does not stop seeking its universalization, but has to live with violence as an intrinsic element not only of production, but also of circulation.

In this context, in circulation, criminal law, without losing its ideological character, is, in peripheral countries, the place par excellence of violence, while social law is the place par excellence of ideology, forming, by its extreme opposition, the great dialectic pair of the legal form in countries like Brazil. The most incisive example can be found in the phenomenon of the strike, in its passage from a crime to a right: its primary control is no longer carried out by violent state repression, but by ideological contractualization.

Social rights and criminal law work, on the reproduction level, as “measuring elements” of the relationship between ideology and violence – not on the production level, which is the realm of violence par excellence, but on reproduction. They are, finally, a dialectical pair that corresponds to the relationship between violence and ideology: social law and criminal law, which can be thought of based on certain internal and relational contradictions.

This analysis based on the relationship between social rights, with emphasis on labor and social security law, and criminal law seems to be fundamental for understanding the movement between violence and ideology from the angle of legal observation. However, the most important thing in this process is the realization that, at a later stage, social law becomes the laboratory of criminal law in the process of shaping the legal form. With this, another fundamental data can be obtained: the notion of experimental State apparatus in relation to another State apparatus.

In other words, in this process, an ideological apparatus would be undergoing experimentation to have its new logic tested there transported to another apparatus, whether ideological or of a repressive nature – that is, both from the perspective of the repressive apparatus and the ideological one. The devices will, successively, according to their specificities, accommodate themselves to the mold of the legal form. This was the role of labor law and social security law, with their flexible reforms: to serve as an experimental State apparatus. The most important aspect of this conformation, therefore, is the notion of an experimental state apparatus in relation to another state apparatus. Here, labor law and social security law, on the one hand, and criminal law, on the other, are at the service of different apparatuses, one more ideological and the other more repressive.

Labor law first experienced flexibility, as well as social security law. And then criminal law also started to migrate from a rigid system of strict legality to the flexible dynamics of principles.

Labor law and social security law were experimental, first, because of their character that was more immediately close to the working class and with a more immediately “ideological” appeal from the perspective of hiding the violence of production. This role of hiding violence in the sphere of production has been played, since the formation of these specific branches of law, by the protective principle, in labor law, and by the principle of solidarity, in social security law, traditionally seen as positive vectors for the organization of the working class inherent in these branches of law. Thus, labor law and social security law were the best places to experiment with the logic – ideological – of principles.

For example, it is important to observe the trajectory of the worker's protective principle in labor law. The protective principle was presented as a principle but, strictly speaking, it did not boast such a structure, functioning as a vector of interpretation, in a historical moment in which there was still no prestige for the logic of the dignity of the human person as a vector of interpretation, when beginning of labor law. The process of flexibility gains even more strength when the dignity of the human person almost replaces the protective principle as a vector of interpretation and the protective principle becomes a principle and starts to be compared, from the dignity vector. All tempered by the “principle of flexibility”.

Hence, the path of labor law became possible in the passage from the rigid organization to the flexible organization of the sale of the workforce in Brazil. Labor law contained its own poison. The process ended with the fullness of individual and collective private autonomy. Here, the pachukan path is completed with the return of everything to private law.

In social security law, the same happened with its informing principles, assuming fundamental importance the principle of mandatory affiliation[xiii], solidarity and undifferentiated treatment of policyholders.

The principle of compulsory membership, although so called, is a rule. The principle of solidarity, which should have been a modulator, ended up in the theoretical practice of social security law also becoming a costing rule, designed to deprive policyholders of the rights inherent to the signal contained in the social security contributory relationship. Finally, the principle of undifferentiated treatment of policyholders, perhaps the closest thing to the basic model of the legal form, was nothing more than an extension of the principle of equality to social security law in particular.

The “principle” that took the place of all this, in the same way that occurred with the “principle/modulator of interpretation” of flexibilization in labor law, was the principle of actuarial balance introduced by Constitutional Amendment nº 20/98.

With these transformations consolidated, it was possible to assist homologous processes in criminal law. In criminal law, what played the role of vector of interpretation was the presumption of innocence. Adopting the same flexibilization route already tried and successful in labor law, criminal law is subject to the same dynamics.

In place of the presumption of innocence, based on a “collective” notion of human dignity as a vector, the content known as combating corruption would become the vector of interpretation of criminal law. With this, we would have the meaning of importing the solution given in labor law to criminal law. For example, the presumption of innocence ceases to be a vector of interpretation and becomes subject, as a mere principle, to comparison with the others. This can be easily observed in the possibility of changing the prison logic only after the final decision or in the more invasive hypotheses in the criminal investigation in view of the decrease in the observance of due process of law, to name a few examples.

Thus, in the contemporary conformation of capital, we have that, for the central countries of capitalism, the relationship between weak violence and ideology is preserved, while for the peripheral countries, violence is increased in the repressive apparatuses, which are already extended in their conformation , not restricted to the public, based on the experiences of revising the determinations concerning ideology in ideological apparatuses. In other words, a new determination of the same ideology that dispenses with social rights and becomes more individualistic becomes a place of experiment, as its antithesis, for a decrease in individual guarantees in criminal law.

The devices participate in a process of exchanging experiences. “Social law”, with emphasis on labor law, becomes “individual law”, and the law typically centered on the liberal protection of the individual, which is criminal law, becomes “social law”, with the defense of society against corruption. Things are not what they are, both constituting an ideology that, in order to hide violence in production, needs to hide, at the same time that it participates in its construction, a strong violence in circulation.

Accepting the risk of an eventual accusation of anachronism, part of this debate on the malleability of principles was already present, keeping the proportions and observing the limitations of the moment in which it took place, in Pachukanis, especially in his debates with Kelsen and Hauriou. In his view, the first would be a representative of the rigid model while the second would anticipate the premises of a model that would tend towards flexibility. The first would be the alter ego of the legalist model and the purity of law, while the second struggled against purity and maintained the existence of a need for a sociological analysis of law – so much so that, especially due to his book, written with George Rennard , on institutionalism, is considered the “father of the sociology of law”.

In Kelsen, Pachukanis is able to foresee how pure theory ultimately leads to what it refutes: natural law. In Hauriou, Pachukanis perceives the existence of the Marxist method as if read “in reverse” at the service of the bourgeois class. Hauriou argues that each worker is, in reality, a realizer of the interests of the bourgeoisie from an individual perspective, and that, when this “ideology” of individualism and individuality fails, force, that is, violence at the service of the bourgeois class, with his military apparatus, would not fail.

Conclusion

In dark times like the current ones, there remains the certainty that betting on uncertainties is extremely expensive for capitalism. Social rights mutate to adapt to the process of making the purchase and sale of the workforce more flexible. They dissipate. The impact is the migration of his analysis to the typical postulates of private autonomy, making the supposed public or social interest in the defense of the working class reveal what it actually is: an empty promise. Workers like Crusoes on their islands, abandoned to their fate: that is the dream of capitalism. History, however, will be a witness, executioner and judge in resolving the dilemma posed: how long will the working class submit to such violence?

*Marcus Orione Professor at the Department of Labor Law and Social Security at the Faculty of Law of the University of São Paulo.

* Flavio Roberto Batista Professor at the Department of Labor Law and Social Security at the Faculty of Law of the University of São Paulo.

References


ALTHUSSER, Louis. Positions I. Rio de Janeiro: Grail, 1978.

ALTHUSSER, Louis. Ideology and Ideological Apparatuses of the State (Notes for an investigation). In: ZIZEK, Slavoj (org.). A map of ideology. Rio de Janeiro: Counterpoint, 1996.

BAPTIST. Flavio Robert. The concept of legal ideology in General Theory of Law and Marxism: a critique from the perspective of the materiality of ideologies. Verinotio, v. X, n. 19, p. 91-105, 2014.

EDELMAN, Bernard. The right captured by photography. Coimbra: Spark, 1976.

HARVEY, David. the new imperialism. São Paulo: Loyola, 2004.

HOLLOWAY, John. The State and the Everyday Struggle. Law and Praxis Magazine, Rio de Janeiro, vol.10, n. 2, 2019, p.1461-1499.

MARX, Carl. Critique of Hegel's Philosophy of Right. Sao Paulo: Boitempo, 2010.

MARX, Carl. The Civil War in France. Sao Paulo: Boitempo, 2011.

MARX, Carl. The capital. V. 1. São Paulo: Boitempo: 2013.

NAVES, Márcio Bilharinho. Marxism and law: a study on Pachukanis. Sao Paulo: Boitempo, 2008.

ORION, Marcus. On the banks of the Seine: towards a theory of the history of the working class. In: BATISTA, Flávio Roberto; MARTINS, Carla Benitez; SEFERIAN, Gustavo. Paris Commune, State and Law. Belo Horizonte: RTM, 2021. p. 113-132.

ORION, Marcus. Hyper-real subsumption of labor to capital and state – the case of the Brazilian Labor Court. LTr Magazine, Sao Paulo, vol. 5, year 85, May 2021, p. 522-530

PACHUKANIS, Evgeni. The General Theory of Law and Marxism and Selected Essays (1921-1929). So Paulo: Sundermann, 2017.

SILVA, Julia Lenzi. For a critique beyond universality: legal form and social security in Brazil. Thesis (doctorate). São Paulo: USP, 2019.

Notes


[I] John Holloway, still in his most radical phase, criticized processes similar to this one, which in all respects apply to attempts by legal socialism to legally resist attacks on social rights: “The task, therefore, is not to work through bourgeois forms to gain positions of 'power' and 'influence' (the hopeless and destructive illusion of Eurocommunism), but to work against these forms, to develop through material practice forms of counter-organisation, forms of organization which express and consolidate the underlying unity of resistance to class oppression, forms of organization that are in opposition to the fetishized and fetishizing forms of bourgeois 'politics' and 'economics'. What is revolution if not the process of weakening and ultimately breaking with bourgeois forms of exchange, a process of daily destruction of bourgeois forms as a necessary prelude to the final decline that will lay a radically new basis for struggle? To imagine that one can weaken the old forms of exchange by working through them makes no sense” (HOLLOWAY, 2019: 1496).

[ii] The classic study by Márcio Naves (2008) on Pachukanis, accompanied by other texts of smaller proportions, became an unavoidable reference in the author's reading and, since then, has served as a guide to the treatment received by his work in Brazil.

[iii] Here, the Brazilian translation published in a collection organized by Zizek (1996) will be used.

[iv] “When, when we spoke of the metaphor of the building or the Marxist 'theory' of Eatado, we stated that these are conceptions or descriptive representations of its objects, we did not have major critical motivations. On the contrary, we have every reason to believe that great scientific discoveries inevitably pass through a phase that we will call descriptive 'theory'. This is the first phase of any theory, at least in the domain we are dealing with (the science of social formations). As such, we can – and, in my opinion, should – face this phase as being transitory, necessary for the development of the theory” (ALTHUSSER, 1996: 111-112).

[v]“To advance 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 on the side of the (Repressive) State Apparatus, but not to be confused with it. . I will designate this reality by its concept: the Ideological State Apparatuses” (ALTHUSSER, 1996: 114).

[vi]“What distinguishes the EIAs from the (Repressive) State Apparatus is the following fundamental difference: the Repressive State Apparatus works 'by violence', whereas the Ideological State Apparatuses work 'by ideology'” (ALTHUSSER, 1996: 115 ).

[vii] Althusser points out this indissociability quite peremptorily, attributing it to the very condition of the possibility of the existence of ideology: “And we will promptly formulate two joint theses: 1. There is no practice, except through an ideology and within it; 2. There is no ideology, except by the subject and for subjects. Now we can come to our central thesis. Ideology questions individuals as subjects” (ALTHUSSER, 1996: 131).

[viii] It is not by chance that the treatment of the dichotomy between civil society and the State abounds in Marx's youth, in which, according to Althusser, he had not yet abandoned the Hegelian problematic, appearing especially in his Critique of Hegel's Philosophy of Law, which opens with a long discussion on the subject (MARX, 2010: 27-32). As a further reinforcement of the Althusserian argument, the term “civil society” practically disappears from his work after The German Ideology.

[ix] The most cited reference in this regard is in the work The Civil War in France, in which Marx examines the historical process of the Paris Commune: “At the same pace as the progress of modern industry developed, extended and intensified the class antagonism between the capital and labor, the power of the State took on more and more the character of the national power of capital over labor, of a public force organized for social enslavement, of a machine of class despotism” (MARX, 2011:55) .

[X] “The organization of the developed capitalist production process breaks down all resistance; the constant generation of a relative superpopulation keeps the law of labor supply and demand, and therefore wages, on track convenient to the needs of capital appreciation; the mute coercion exercised by economic relations seals the dominion of the capitalist over the worker. Extra-economic, direct violence continues, of course, to be employed, but only exceptionally. For the usual course of things, it is possible to entrust the worker to the 'natural laws of production', that is, to the dependence in which he finds himself in relation to capital, a dependence that originates in the very conditions of production and which is through them guaranteed and perpetuated” (MARX, 2013: 808-809).

[xi] Edelman had the merit of relating, for the first time, Pachukan's critique of law to Althusse's theory of ideology. Hence its centrality in this argument.

[xii] Althusser also supported this idea in another text: “For there to be classes in a 'society', society must be divided into classes; this division does not take place postfestum, it is the exploitation of one class by another and, therefore, the class struggle that constitutes the division into classes. For exploitation is already class struggle” (ALTHUSSER, 1978: 27).

[xiii] See, in this regard, the fundamental work of Júlia Lenzi Silva (2019: 177-183).

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