Humanism and law in times of pandemic

Rubens Gerchman, Life at work, 1967.
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By JULIANA PAULA MAGALHÃES*

In capitalism, with the constitution and universalization of the commodity form, the bond between exploited and exploiters acquires a legal character.

Introduction

In the current scenario of crisis and pandemic, the challenge of thinking about the role of law and the State in facing the difficulties that arise arises. In this context, it is customary to point out the importance of constitutional guarantees in favor of public health and social rights, as well as the need for a humanist policy to guide the action of State agents.

However, from the Marxist theoretical platform, it is possible to verify that law, State and capitalism are structurally intertwined. Therefore, any achievement in the legal sphere, despite the relative importance it may have, from an immediate point of view, will not be enough to promote a structural change in society. Likewise, even if there are advances in terms of aid to the most needy, through state policies, this is not enough, by itself, to eradicate the structure that engenders poverty, social exclusion and exploitation.

Bourgeois humanism, by basing itself on the abstract notion of man, proclaiming ideals of freedom and equality as inherent to the human condition, as well as intending to place man as a subject of history, is umbilically linked to the legal ideology, which allows the reproduction itself of capitalism. In this perspective, the human being presents himself as a subject of law, due to his own human condition. However, such an ideological framework prevents the understanding of the fact that legal subjectivity is a specificity of the capitalist mode of production, which is based on the exploitation of salaried work, through the separation of the worker from the means of production.

Freedom, therefore, purely means the possibility of contracting freely, in a way that allows the purchase and sale of labor power, and equality emerges as a necessary attribute for contractors. Thus, any alleged humanist policy, guided by such conceptions, is structurally limited, as it does not attack the foundations of capitalism and, therefore, is not enough to give rise to the construction of a social organization, in which truly humanitarian practices can be present. .

Capitalism is marked by the constitution of the commodity form, precisely because of the fact that the relations of production become commodified, unlike what happened in previous modes of production. From there, there is the constitution of the legal form and the state political form. In ancient slavery and medieval feudalism, workers did not have a contractual relationship with their masters, and exploitation took place directly. It is only in capitalism, with the constitution and universalization of the commodity form, that the bond between exploited and exploiters acquires a legal character. At the same time, the state political form is erected as the guarantor of mercantile exchanges.

Karl Marx, in his mature work, unravels the functioning mechanisms of capitalist society, and other Marxist thinkers, such as Evguiéni Pachukanis and Louis Althusser, advance in the path opened by Marx, establishing, each in his own way, the critique of the form law and the legal ideology linked to it. Based on this fundamental theoretical framework, in our article, we will seek to analyze the current crisis and its possibilities for overcoming it, demonstrating that our horizon of struggles for social transformation must aim beyond the social forms of capitalism.

Humanism, law and capitalism

In the reading proposed by Alysson Leandro Mascaro, contemporary legal thought can be divided into three main paths: legal positivism, non-legal positivism and criticism.[I]

Juspositivism, in short, identifies the right to the normative framework set by the State, breaking down into strict, eclectic and ethical aspects. Strict juspositivism has the Austrian jurist Hans Kelsen as its main exponent, although it also has other prominent representatives. Kelsen intended to elaborate a pure theory of law, dissociated from social, political and historical elements, in a reductionist perspective and based on an analytical methodology.

Eclectic juspositivism, on the other hand, takes into account cultural factors and values, although it does not lose sight of the normative horizon. In turn, the representatives of ethical juspositivism start to integrate ethical questions in the understanding of the legal phenomenon and, for that, they take into account not only the normative format, but also the ethical substrate that makes up its content, even if they do not distance themselves from the quadrants of positive law.

Non-legal positivism advances towards an understanding of law that seeks to unravel the power relations that underlie it and, although it does not reach the ultimate material substrate that determines it, it allows a more accurate understanding of the legal phenomenon, precisely because it does not reduce it to the normative framework. state-owned. It is also worth noting the fact that some thinkers in this vein give rise to an existential understanding of law. Non-legal positivism is a very multiple field, full of nuances, in which, for example, jurists such as Carl Schmitt and Michel Villey, or philosophers such as Martin Heidegger and Michel Foucault, among others, stand out.

Despite the theoretical sophistication of many thinkers who fall into the path of non-legal positivism, the unveiling of the complexity of the legal phenomenon is only possible, in its entirety, through the horizon of criticism. Such is the theoretical path of Marxism, which encompasses several scholars of social relations, with immediate consequences for the understanding of law and its intertwining with the capitalist mode of production. Since Karl Marx himself, such a theoretical platform has several thinkers, with the Russian jurist Evguiéni Pachukanis as its main exponent, regarding the understanding of law from a Marxist perspective.

Starting from the theoretical foundations laid by Marx in his critique of political economy, Pachukanis establishes a critique of the traditionally established general theory of law, demonstrating the necessary overlap between law, the State and capitalism. Although the basis of such thinking can already be found in Marx's work, it is Pachukanis who gives it the definitive contours, as he deepens in the demonstration that the legal form is directly derived from the commodity form.

Pachukanis points out that “the subject is the atom of legal theory”,[ii] therefore, the core of law, for the Russian jurist, does not reside in the norm, but in the legal subjectivity that is constituted from the commodity-form. In this sense, the legal form, in its fullness, is a specificity of capitalism, insofar as it is structured based on the production relations inherent to it. Thus, Pachukanis presents the “understanding of the form of law as equivalent and reflection of the form of merchandise”.[iii] The Russian jurist is faithful to Marx's method, seeking to extract the understanding of the legal phenomenon from the social concreteness presided over by the logic of capital.

Based on the Pachukanian reading, it is possible to point out that the distinctive character of law in capitalism resides precisely in legal subjectivity and that such structuring has ballast in social materiality. Therefore, a rupture is established with the idealized views of the legal phenomenon, by demonstrating that law is the social form of capitalism, allowing its own reproduction, insofar as, in this mode of production, subjection does not happen in a systematic way. direct, because in it individuals are “subjects by law”.[iv]

Also the State, for Pachukanis – and for other theorists who advanced in the path opened by it, based on Marx –, is far from having the common good as its scope. Pachukanis highlights the role of the State in the reproduction of capitalism, pointing to the fact that, in this mode of production, one class does not exercise direct dominion over the others, since “the apparatus of state coercion is not constituted as a private apparatus of dominant class, but detaches itself from it, assuming the form of an impersonal apparatus of public power, separated from society”.[v]

Alysson Leandro Mascaro, in the wake of Pachukanis and derivationism,[vi] argues that the state political form is directly derived from the commodity form and therefore specific to capitalism. With regard to the relationship between legal form and state political form, the following excerpt is quite enlightening: “The core of the legal form, the subject of law, does not come from the State. Its emergence, historically, is not in its seal by the State. The dynamics of the emergence of the subject of law is linked, necessary and direct, with capitalist production relations. […] The State will later carry out the formal approval of the condition of subject of law, but this procedure is an ultimate coupling between legal form and political form that maintains, however, its specificities. The fully installed capitalist circuit operates a conjugation of the juridical and the state political only on the technical level: its forms derive, each one, from the capitalist relations themselves, but, in the immediate technical handling, by right, the state law will be understood, abhorring itself and pursuing customs arrangements or acts that confront the forms of social reproduction imposed by the State. Functionally, capitalist societies, during bourgeois revolutions, manage the State and the law as if they were the same complex. But this process, which is just an arrival process and at the technical level, does not prevent seeing the long historical maturation of its different formations. […] It is not wrong to find a close link between political form and legal form, because, in fact, in the contemporary historical process, law is shaped by state norms and the State itself is forged by legal institutes. It so happens that the link between political form and legal form is one of conformation, performing a kind of second-degree derivation between them, starting from a first and necessary background that is directly derived from the commodity-form. It is the already necessarily existing state apparatus and the socially announced legal forms that meet to then establish a political-legal phenomenal complex”.[vii]

Therefore, the most advanced Marxist reading of law points to the fact that the normative framework is not embodied in the core of the legal phenomenon, insofar as the legal form is a material fact, which is imposed from social relations. concrete. In this context, the lack of primacy of the legal norm in the process of structuring the law remains evident. As Mascaro asserts: “The exchange of commodities and work made into merchandise are the data that shape the subject-form of law. State normativity operates on this already given form, conforming it.”[viii]

Still in the field of Marxism, it is possible to highlight the criticism of the French philosopher Louis Althusser to the legal ideology. Based on a combination of Marxism and psychoanalysis, Althusser establishes a sophisticated reading of ideology, which, for him, does not appear as the result of an act of will, but operates in the unconscious, constituting its own subjectivities, based on material practices. reiterated. The French philosopher points to the existence of ideological State apparatuses, which operate primarily through ideology, differentiating them from repressive State apparatuses, which have the use of force as a fundamental characteristic. Althusser points out that the ideological apparatuses of the State branch out into different fields, such as the religious, school, trade union, political, cultural, legal systems, among others.

As far as law is concerned, Althusser observes that it peculiarly belongs at the same time to the ideological state apparatuses and to the repressive state apparatuses. He points out that legal ideology is the result of capitalism and has an essential character for the very reproduction of this mode of production. For Althusser, legal ideology is the core of the ideological framework in capitalism. From this perspective, legal subjectivity is precisely the result of a process of interpellation, through which individuals are constituted as subjects of law, as a result of the very logic of capitalism.

In the words of Étienne Balibar, one of Althusser's main disciples, “legal ideology “proves” that the social order does not rest on the existence of classes, but precisely on the individuals to whom the law is addressed”.[ix] On this point, the Althusserian Nicole-Edith Thévenin elucidates that “this mystifying function of legal ideology is necessary for the reproduction of the capitalist mode of production: it keeps individuals in an isolated representation, concealing the joint process of capital”.[X]

It is interesting to note that, in the Althusserian reading, ideology does not merely result from a process of distortion of reality, but has material ballast. Hence the fact that the ideology of capitalism is eminently legal, precisely because it is directly intertwined with capitalist production relations. The bourgeois ideals of freedom and equality are linked to legal ideology, that is, to the material need of free and equal legal subjects for the purchase and sale of labor power.

With regard to legal ideology, it is worth highlighting the following observations by Thévenin: “[...] if law ensures the functioning and material effectiveness of ideology, it can be said that, ultimately, the categories of law constitute the foundation of legal ideology. bourgeois ideology, that legal ideology structure bourgeois ideology, assures him of his permanence, which is the very permanence of the bourgeois state.[xi]

Althusser established himself as a critic of the humanist reading of Marxism, which postulates the existence of a Marxist humanism. The French philosopher points out that Marx, in his mature work, discovers a new scientific continent, the historical continent, with specific categories and methodology.[xii]

For Althusser, Marxism is not based on a generic concept of man or an alleged human essence, but on material structures: “The polemics around humanism in the French Communist Party and even outside it on this theme were famous. in my book Marxism, humanism and law: Althusser and Garaudy I deal with the debates about humanism in the sphere of Marxism and its implications for the understanding of the legal phenomenon. Defenders of the idea that Marxism is a humanism, such as, for example, Roger Garaudy, postulated the existence of alienation through work in capitalism, embodied in the loss of the properly human condition of individuals, so that socialism would mean the possibility of realization of the whole man”.

The humanist reading of Marxism is based on the Manuscripts from 1844. In turn, Althusser postulates the existence of an epistemological break in Marx's work, separating it into youth work (1840-1844), court work (1845), maturation work (1845-1857) and maturity work ( 1857-1883).[xiii] Althusser's focus is eminently on Marx's mature work, particularly on The capital. The French philosopher maintains that Marxism is a theoretical anti-humanism, precisely because the founding concepts of Marxism have no relation to humanist conceptions. He is even expressed when he states that: “The rupture with all anthropology or all philosophical humanism is not a secondary detail: it is constitutive of Marx's scientific discovery”.[xiv] Althusser observes that Marx, in his maturity, abandoned humanist constructions and began to work with scientific concepts, such as merchandise, mode of production, productive forces, relations of production, among others.

For the field of law, the rupture with the humanist vision of Marxism is fundamental, because, in the postulation of a split between subject and object, understood as a property relationship, socialism is seen as a mere process of extinction of private property. However, through the anti-humanist Althusserian critique, the core of legal subjectivity is reached, unraveling the intricacies of its own constitution.

Thus, in a combined reading of Althusser and Pachukanis, based on Marx's mature work, the need to break with the very structure that engenders exploitation is presented. Therefore, a merely quantitative change in the legal sphere is evidently insufficient. It is necessary to introduce a qualitative change in order to dismantle the capitalist production relations themselves.

Pandemic, crisis and the limitations of the legal horizon

In times of crisis and pandemic like the current ones, the darkest face of capitalism is usually revealed, both by the wide open social inequalities and by the possibility of – as Pachukanis points out – the tendency for the bourgeoisie to leave aside the “mask of the rule of law”, due to the “exceptional aggravation of the class struggle”.[xv] However, it should be noted that the current scenario does not exactly constitute an exception in capitalism, insofar as this mode of production carries the crisis in its very structure.

On this point, Mascaro clarifies: “The crises of capitalism are not exceptional to this mode of production, but rather its structural characteristics. In a regime of exploitation, made up of multiple agents in production and exchange, rooted in real inequalities and in class and group struggles, permeated by social forms and institutions that are necessary and relatively foreign to the immediate interest of the agents themselves, the contradictions are multiple, both both economically and politically. […] Within the capitalist dynamics, periods of stability reveal themselves only as partial consolidations of social reproduction. The various regimes of capitalist accumulation do not achieve, by their own motor, an infinite reproduction in their own terms. A law of tendency for the rate of profit to fall leads economic action – if hypothetically it were taken without countertrends, which is not the case in its actual historical roots – to a continuous decay of its bases. Accumulation regimes, however, establish themselves intertwined with modes of regulation that support, reform, constrain, modify or undermine them. Nor are the modes of regulation endowed with stability or planning beyond their constraints or contingencies, in such a way that there is no perfect coupling between the accumulation regime and the institutional network that can serve as a support. […] If the accumulation regimes follow a tendency to their economic constraint, the modes of regulation are based on a multiplicity of interests, forces and social relations”.[xvi]

Much more than merely biological data, the COVID-19 pandemic is the result of a society based on exploitation. In peripheral capitalist countries, where social contradictions are even more evident, it is easy to see the material difficulties for sanitary hygiene and social isolation measures to be fulfilled. However, even in countries considered “developed”, such as the United States, the pandemic has mostly victimized the poorest individuals.

It is common for superficial assessments to draw conclusions in the sense that everything was going well before the pandemic and that the new coronavirus is the sole cause of the chaos that is currently taking place. However, the appearance of Sars-Cov-2 is far from being solely responsible for all the disorders and deaths of recent times.

It should even be noted that the emergence of new viruses is something predictable from a biological point of view and is not exactly a situation of abnormality, as asserted by Alysson Leandro Mascaro, based on the health philosophy of Georges Canguilhem: “If you advances beyond the vision of health as average or normal, so the pandemic is nothing more than a possibility like others for human bodies. It is a disease, as it qualitatively diminishes vital possibilities, serious and extreme in terms of contagion and social implications, but it is not an exception to an alleged normal rule of health. The present pandemic does not present itself philosophically, in medicine, as an abnormal situation”.[xvii]

The crisis was already present before the advent of the pandemic and this event only enhanced its effects. In addition, the very difficulties imposed for full compliance with the sanitary measures necessary to contain the spread of the virus gave rise to its spread and, consequently, the constitution of the pandemic state.

Generally, critics of the current situation tend to point out the need to adopt a humanist policy and, therefore, legal measures to combat the social scourges that arise. However, such a perspective is a prisoner of legal ideology and does not reach the structural determinations of today's reality.[xviii]

The ills of the current crisis and pandemic are, ultimately, engendered by the capitalist mode of production itself, which, in turn, is structured based on specific social forms. The legal form and the state policy derive directly from the commodity form, therefore, it remains evident that the definitive way out of such a situation cannot take place from such forms.

Many yearn for a return to the so-called normality, forgetting that the norm of capitalism is exploitation and inequality. Before the current pandemic, the global numbers of hunger, misery and social exclusion were already alarming. Moreover, the very relations of production in capitalism, marked by the separation between workers and the means of production, prohibit the possibilities of full emancipation.

Capitalism is exploratory in its own structure, as Jorge Grespan points out, when dealing with surplus value or more value – depending on the translation –, based on Marx’s mature work: “The fact that the value of the workforce is lower that the whole day is a “circumstance”, a “luck” for the capitalist, it is a reality created by the social system and not by the capitalist as an individual. Surplus value does not result from an immoral attitude, so that there is no “injustice against” the worker. […] Undoubtedly, since the system is constituted on the difference between “paid” and “unpaid” work, it opens up the possibility for the practice of under-remuneration – when the actual salary is lower than the labor force. labor should receive for its maintenance – and for immoralities of all kinds on the part of greedier capitalists. But if this were not the case, if all individuals were perfectly moral, surplus value would still be extracted. Individual unscrupulousness may even increase the magnitude of the surplus a capitalist obtains, but he would obtain it even if he is scrupulous. Marx emphasizes this point enough to make it clear that a simple moral reform of individuals would not substantially alter the social system in which they live. The system needs to be completely and profoundly changed. […] The system in question is that of commodity production, in which it is still known to contain not only value, but surplus value”.[xx]

It is undeniable that, in a context of crisis and pandemic such as the current one, measures to help those most in need are fundamental, since, if not adopted, the very survival of individuals becomes threatened. However, it is necessary to realize that such sparse and temporary “benefits” are insufficient and can even serve as a pretext to keep people dependent on crumbs and incapable of fighting for an effective social transformation.

In the Brazilian case, for example, we had the emblematic granting of emergency aid, which was even the result of a lot of social pressure and, paradoxically, ended up presenting itself as a political asset of the current government. This only reinforces the thesis that merely welfare measures are always insufficient, as they do not attack the causes of extreme poverty.

Minister Paulo Guedes' neoliberal discourse is also a decoy, since the definitive way out of the crisis certainly does not lie in the much-vaunted privatizations, which aim solely at meeting the interests of specific economic groups and foreign capital. Add to this the fact that the adoption of such a policy – ​​although it may lead to the enrichment of some – will represent the deepening of the social abyss typical of Brazilian society, of peripheral capitalism.

However, the antidote to this disastrous situation is also not on the agenda proclaimed by many sectors of the left, who place their main hopes in the law and in the State. In the current situation, the discourse of the left has been almost completely co-opted by legal ideology and only moves within it. Law, institutions and democracy are ardently defended, forgetting that exploitation and its possibilities of perpetuation also pass through them.

Although, in the present scenario, the struggle to maintain public services and the democratic rule of law is very relevant at the moment, one cannot lose sight of the need for a structural change that can affect the very relations of production. The growing withdrawal of labor and social rights reveals the fragility of achievements in the legal field, which are the first to collapse in periods of acute crisis. However, even if such rights had been preserved and even expanded, this would not nullify the exploitative nature of capitalism itself, which structurally constitutes them.

The major mass media, in turn, in general, oscillate between disapproval of the “hate speech” propagated by Bolsonarism and the vigorous defense of an ever-increasing expansion of government action guided by the neoliberal platform. In parallel to this, the extreme right shows its strength in social networks and in a large number of religious entities and their followers, evidencing a growing reactionary attitude.

The horror of the present time is far from being fully combatable in terms of humanism and law. The most advanced critical perspective points to the imperative need to mobilize the masses for a concrete action in the sense of breaking with the social forms of capitalism. The scope of the most advanced social struggles must be precisely in combating the social structure presided over by the commodity. If the fight does not take place in these trenches, the most that leftist policies will achieve – if they manage to return to power – will be to “dry ice”.

Conclusion

In our text, we seek to bring a brief approach to the current context of crisis and pandemic and point to the limitations of the legal horizon to promote a structural transformation in society. We deal with the theme from a Marxist perspective, with ballast especially in Louis Althusser, Evguiéni Pachukanis and Alysson Mascaro.

Law, State and capitalism are structurally intertwined, given that legal form and state political form are directly derived from the commodity form, which, in turn, is only historically constituted when production relations become capitalist, as observed by the Russian jurist Evguiéni Pachukanis. The separation between workers and the means of production forces them to sell their workforce in order to survive. In capitalism, workers lose control of the production process, in a process called the real subsumption of labor to capital, and hence the appearance of the commodity form.

Legal subjectivity, in turn, derives directly from the commodity form, since, in order for the owners of the means of production and workers, owners of the workforce, to be able to enter into contracts and transact goods, they need to assume the form of legal subjects. . The state political form is also a specificity of capitalism, as it is only in this mode of production that the figure of the State presents itself as a third entity, separated from classes and guarantor of capitalist production relations.

The French philosopher Louis Althusser, in a combination of Marxism and psychoanalysis, points out that ideology operates in the unconscious and constitutes its own subjectivities from material practices. Therefore, in capitalism, subjectivity is eminently legal, precisely because this results from the production relations inherent to it, so that the core of the ideological framework in capitalism is the legal ideology, constituting free and equal subjects of law for commercial exchanges.

Althusser's contribution also consists of the study of ideological State apparatuses, which differ from repressive State apparatuses, as they operate primarily through ideology. Law, for Althusser, has the peculiarity of spreading across both.

The French philosopher proposes the existence of an epistemological rupture in Marx's work, highlighting the fact that, in his maturity, Marx abandons the humanist conceptions that characterized his youth work. For Althusser, humanism has a purely ideological character, interdicting a concrete analysis of social relations, therefore, Marxism is not a humanism. In the Althusserian reading, the bourgeois ideals of freedom and equality are necessarily intertwined with capitalism, establishing a direct relationship between humanism and legal ideology.

In a combined reading of Althusser and Pachukanis, it is possible to verify that a structural social transformation must take place beyond the law and the State, breaking with the legal ideology. From this perspective, the horizon of struggles must be socialism, which cannot be achieved through merely reformist practices.

Capitalism is structurally based on exploitation and crisis. Therefore, far from presenting themselves as mere contingencies, crises are inherent to this mode of production. Alysson Leandro Mascaro is one of the Marxist thinkers who develop the most advanced reflections in this regard and which served as the basis for our article.

The present-day pandemic goes far beyond an event of merely biological origin, but is the result of the very logic of capitalism, as the spread of the new coronavirus would be easily contained if sanitary and social isolation measures were quickly implemented. In peripheral capitalist countries such as Brazil, where social inequalities are exacerbated, the situation is even more catastrophic, culminating in thousands of deaths and an immense social and economic upheaval.

The left, in general, usually points to neoliberalism as the central problem to be fought – when it reaches such refinement in the analysis, since, in many cases, it partially embraces the neoliberal agenda –, not realizing that the central problem is the very capitalist mode of production. This is a limitation of the theoretical and practical horizon that prevents the implementation of an effectively critical and transforming action platform that could mobilize the masses.

Thus, the antidote to the chaos of the present time is not in the defense of human rights, the democratic constitutional order, labor and social rights and public services. Although these guidelines are of great importance from a conjunctural point of view, what is fundamental is the search for a structural change in our society, under penalty of perpetuating a vicious circle of exploitation, oppression, domination, crisis and misery indefinitely.

*Juliana Paula Magalhães PhD in Philosophy and General Theory of Law from USP. Author of Marxism, humanism and law: Althusser and Garaudy (Ideias & Letras).

Originally published in the book Critical dimensions of the pandemic condition: transformations and perceptions, organized by Juliana Teixeira Esteves (Belo Horizonte: RTM, 2020).

References


ALTHUSSER, Louis. Pour Marx. Paris: La Découverte/Poche, 2005.

BALIBAR, Etienne. About the dictatorship of the proletariat. Madrid: Siglo XXI, 1977.

GRESPAN, Jorge. Marx. São Paulo: Publifolha, 2008.

MAGALHÃES, Juliana Paula. Marxism, humanism and law: Althusser and Garaudy. São Paulo: Ideas & Letters, 2018.

MAGALHÃES. Juliana Paula. “Humanist politics?” Available in: https://aterraeredonda.com.br/politica-humanista/.

MASCARO, Alysson Leandro. State and political form. Sao Paulo: Boitempo, 2013.

MASCARO, Alysson Leandro. "Presentation". Left Bank Magazine, no. 30. São Paulo: Boitempo, 2018.

MASCARO, Alysson Leandro. Philosophy of law. 7nd ed. São Paulo: Atlas, 2019.

MASCARO, Alysson Leandro. Politics and Law in the Pandemic. In: WARDE, Walfrido; VALIM, Raphael. The consequences of COVID-19 in Brazilian law, Digital edition.

PACHUKANIS, Evguiéni. General Theory of Law and Marxism. Translation by Paula Vaz de Almeida. São Paulo: Boitempo, 2017.

THÉVENIN, Nicole-Edith. Legal ideology and bourgeois ideology (ideologies and artistic practices). Translated by Márcio Bilharinho Naves. In: NAVES, Márcio Bilharinho (org.). Althusser's Presence. Campinas: Institute of Philosophy and Human Sciences, 2010.

Notes


[I] MASCARO, Alysson Leandro. Philosophy of law. 7. ed. São Paulo: Atlas, 2019, p. 271-278.

[ii] PACHUKANIS, Evguiéni. General Theory of Law and Marxism. Translation by Paula Vaz de Almeida. São Paulo: Boitempo, 2017, p. 117.

[iii] MASCARO, Alysson Leandro. Philosophy of law. 7. ed. São Paulo: Atlas, 2019, p. 410.

[iv] “I always insist on proposing that subject of law it's just and just another way of saying subject by law.” (MASCARO, Alysson Leandro. Presentation. Margem Esquerda Magazine, n. 30. São Paulo: Boitempo, 2018, p. 30).

[v] PACHUKANIS, Evguiéni. General Theory of Law and Marxism. Translation by Paula Vaz de Almeida. São Paulo: Boitempo, 2017, p. 143.

[vi] “The debate on the derivation of the State begins in Germany, in the 1970s, when the crisis of the European welfare states. The reflection of authors such as Rudolf W. Müller, Christel Neusü, Elmar Altvater and, in particular, Joachim Hirsch sought to move beyond the Marxist tradition on the State derived from Stalinism or, on the other hand, pointing out the limits of interventionist economic and political views like the Keynesians. This debate, with a variety of theoretical disputes and controversies, broadened from the beginning to the United Kingdom, based on the thoughts of Bob Jessop, John Holloway and Sol Picciotto, among others. […] The understanding of the state's political form as derived from the commodity form is in line with the most radical Marxist tradition of understanding law, which has its nodal point in Pachukanis. The same derivation process takes place between the form of legal subjectivity and the commodity form. In such founding materiality of social forms, idealist readings – State as a common good, law as justice or order – depart in such a way that the capitalist nature of the state political form and of law remains patent. Derived from the same social determination by the commodity, state political form and form of legal subjectivity cannot be confused. Neither the State creates the law nor the opposite, contrasting with juspositivism. Legal subjectivity is materially due to the circulation of people and goods under capitalism. The State erects itself as a social relationship that is distinguished by the valorization of value itself. Between the political form of the state and the form of legal subjectivity, however, there is a process of coupling, reciprocal adjustment and accommodation. Derived from the same social dynamics and their determining basic forms, such social forms tend to be implicated later.” (MASCARO, Alysson Leandro. Philosophy of Law. 7th ed. São Paulo: Atlas, 2019, p. 511-513)

[vii] MASCARO, Alysson Leandro. State and political form. São Paulo: Boitempo, 2013, p. 40-41

[viii] MASCARO, Alysson Leandro. State and political form. São Paulo: Boitempo, 2013, p. 40-41

[ix] In the original: “In the original: “the legal ideology, 'prueba' that the social order does not rest on the existence of classes, but precisely on the individuals to whom the right is addressed”. (BALIBAR, Étienne. Sobre la dictadura del proletariado. Madrid: Siglo XXI, 1977, p. 45.)

[X] THÉVENIN, Nicole-Edith. Legal ideology and bourgeois ideology (ideologies and artistic practices). Translated by Márcio Bilharinho Naves. In: NAVES, Márcio Bilharinho (org.). Althusser's presence. Campinas: Institute of Philosophy and Human Sciences, 2010, p. 68.

[xi] THÉVENIN, Nicole-Edith. Legal ideology and bourgeois ideology (ideologies and artistic practices). In: NAVES, Márcio Bilharinho (Org.). Althusser's Presence. Campinas: Institute of Philosophy and Human Sciences, 2010, p. 70.

[xii] ALTHUSSER, Louis. Pour Marx. Paris: La Découverte/Poche, 2005, p. 264.

[xiii] ALTHUSSER, Louis. Pour Marx. Paris: La Découverte/Poche, 2005, p. 27.

[xiv] In the original: “La rupture avec toute toute anthropologie ou tout humanisme philosophical n'est pas un détail secondaire: elle fait un avec la découverte scientifique de Marx.” (ALTHUSSER, Louis. Pour Marx. Paris: La Découverte/Poche, 2005, p. 234).

[xv] PACHUKANIS, Evguiéni. General Theory of Law and Marxism. Translation by Paula Vaz de Almeida. São Paulo: Boitempo, 2017, p. 151.

[xvi] MASCARO, Alysson Leandro. State and political form. São Paulo: Boitempo, 2013, p. 125-126.

[xvii] MASCARO, Alysson Leandro. Politics and Law in the Pandemic. In: WARDE, Walfrido; VALIM, Raphael. The consequences of COVID-19 in Brazilian Law, Digital edition.

[xviii] MAGALHÃES. Juliana Paula. Humanist politics? Available in: https://aterraeredonda.com.br/politica-humanista/. Accessed on: 03 Sept. 2020.

[xx] GRESPAN, Jorge. Marx. São Paulo: Publifolha, 2008, p. 30-31.

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10 MOST READ IN THE LAST 7 DAYS

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  • About artificial ignoranceEugenio Bucci 15/06/2024 By EUGÊNIO BUCCI: Today, ignorance is not an uninhabited house, devoid of ideas, but a building full of disjointed nonsense, a goo of heavy density that occupies every space
  • The society of dead historyclassroom similar to the one in usp history 16/06/2024 By ANTONIO SIMPLICIO DE ALMEIDA NETO: The subject of history was inserted into a generic area called Applied Human and Social Sciences and, finally, disappeared into the curricular drain
  • Franz Kafka, libertarian spiritFranz Kafka, libertarian spirit 13/06/2024 By MICHAEL LÖWY: Notes on the occasion of the centenary of the death of the Czech writer
  • A look at the 2024 federal strikelula haddad 20/06/2024 By IAEL DE SOUZA: A few months into government, Lula's electoral fraud was proven, accompanied by his “faithful henchman”, the Minister of Finance, Fernando Haddad
  • Letter to the presidentSquid 59mk,g 18/06/2024 By FRANCISCO ALVES, JOÃO DOS REIS SILVA JÚNIOR & VALDEMAR SGUISSARDI: “We completely agree with Your Excellency. when he states and reaffirms that 'Education is an investment, not an expense'”
  • PEC-65: independence or patrimonialism in the Central Bank?Campos Neto Trojan Horse 17/06/2024 By PEDRO PAULO ZAHLUTH BASTOS: What Roberto Campos Neto proposes is the constitutional amendment of free lunch for the future elite of the Central Bank
  • Chico Buarque, 80 years oldchico 19/06/2024 By ROGÉRIO RUFINO DE OLIVEIRA: The class struggle, universal, is particularized in the refinement of constructive intention, in the tone of proletarian proparoxytones
  • Why are we on strike?statue 50g 20/06/2024 By SERGIO STOCO: We have reached a situation of shortage of federal educational institutions
  • The melancholic end of Estadãoabandoned cars 17/06/2024 By JULIAN RODRIGUES: Bad news: the almost sesquicentennial daily newspaper in São Paulo (and the best Brazilian newspaper) is rapidly declining
  • The strike at federal Universities and Institutescorridor glazing 01/06/2024 By ROBERTO LEHER: The government disconnects from its effective social base by removing those who fought against Jair Bolsonaro from the political table

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