Labor legislation: a trench

Image: Charles Etoroma


Labor rights do not prevent exploitation and surplus value. But, better to live with them than without them

I heard that in New York
On the corner of 26th Street and Broadway
Every winter night there is a man
Who provides night shelter for the homeless there
Making requests to passers-by.

The world will not change with this
Relations between men will not improve
The age of exploration will last no less
But some men have a night shelter
For one night the wind is kept from them
The snow that would fall on them falls on the sidewalk.
Don't put the book aside, you who read me.

Some men have a night shelter
For one night the wind is kept from them
The snow that would fall on them falls on the sidewalk
But the world won't change with that
Relations between men will not improve
The age of exploration will not last long.

(Bertold Brecht, The Night Shelter)



          Parallel to the dogmatic positions about any and all legal disciplines, there are theoretical currents of different matter from a Theory of Positive Law itself. This would be confined to the objective analysis of the legislation put in place, not meddling with propositions of a political, sociological or philosophical nature[I]. In this sense, the Science of Law would not be concerned — in fact, jurists are less and less concerned — with considerations that do not concern the legal norms in force.

If for Science Polenta philosophical, sociological or political reasoning does not matter, the same does not apply to legal training as a whole, which includes not only the knowledge of law, but also peripheral and complementary sciences to that of law. From such sciences as Legal Sociology and Philosophy of Law, it is possible to understand not only what é e how it is law, but also why of being and of what should be Right. In other words, the factual reasons for the content of a given legal order are studied, such as the politics and social organization of the State to which it corresponds.[ii], and also what would be the ideal Law for a given conception of justice.

Thus, the present text is framed as belonging to such correlated sciences, which allow the interpreter to analyze the underlying meaning of positive norms. Here, however, there is no pretense of finding an absolute and unquestionable truth about the subject in question. A conviction presupposes faith in the possibility of achieving such a claim.[iii], faith that does not find space here. Therefore, this approach is not based on conviction, but on a perspective[iv].

Once these considerations have been made, in order to establish the epistemological assumptions from which I depart, it is time to delimit the theme that will be addressed. Here, we will talk about Principles of Labor Law, more specifically offering a conception of meaning, that is, a notion of what Labor Law represents for workers in the context in which labor relations are inserted. Such a conception, of a Marxist nature, will attribute to the labor legislation a sense of protection and protection for the workers, even if it does not prove to be enough to prevent the exploitation they suffer. It is also intended to offer an allegory that incorporates the meaning seen here in Labor Law.

2 – The capitalist mode of production

The theme of the present essay is inserted in the context of a capitalist mode of production, which is quite evident by the place where it is written and the legal scope that is analyzed, ie, the Brazilian labor legislation.

2.1. The accumulation of capital

The capitalist mode of production is based on capital accumulation. Capital, in its classic definition, consists of money (M) that is capable of producing more money (M') from its conversion into merchandise (M). The formula D—M—D' is followed, where D'>D is true when a profit is made. In the case of finance capital, such as interest income, D converts directly to D', abbreviating the formula to D—D'. This second case does not concern our investigation, centered on work, placed as a means between D—M[v].

2.2. the exploitation of work

It is the work that confers value to the good or use value. It is in the amount of work behind it, or, better said, what is materialized by it, that its value consists.[vi]. Thus, in order for the initial amount (D) to increase, it is necessary to create some value. Such value is created through work, in order to produce goods, that is, by changing objects from a primitive, crude form to an elaborate form, with use value.[vii]. The sale of goods, which in this mercantile relation will now be called merchandise (M), as long as it reaches revenue (D') greater than what was spent for its production, generates profit (M'- D).

What happened? In order to answer this question, it is necessary to understand how D becomes M. This occurs through work. But whose job is this? To the extent that the goods of production, that is, the goods that serve to increase capital (in current language, they are called “assets”), belong to a person (he will be called a capitalist) other than the workers themselves. , there is exploitation of foreign labor[viii]. For the capitalist to make a profit, it is obviously necessary that not all the value produced be paid to the workers.

Workers submit to work as in a buying and selling relationship. They sell their labor to the capitalist in exchange for a salary, in order to have material living conditions. Precisely because of private ownership of the means of production, workers have no choice[ix]: or work to someone, or are condemned to misery. Due to the lack of an alternative, as well as the so-called reserve army (i.e., the huge contingent of unemployed, increasing due to structural unemployment, which consists in the replacement of “raw” labor by machines[X]), there is no bargaining power on the part of the individual worker. Ahead, this point will be resumed.

As already mentioned, the exploitation of work, that is, remuneration lower than the value consubstantiated by work, is a necessary condition for the existence of profits on the part of the bourgeois. The superiority of the value produced to the value of wages is known as added value[xi].

Surplus value is divided into two types: absolute and relative. Let's start with the first one. Absolute surplus value can be understood as the amount of hours worked that exceed those that would be necessary to produce what is remunerated.[xii]. As an example, if a worker in a factory produces one hundred pieces per hour, worth 0,10 (one tenth of) a monetary unit, working for 10 hours a day, over 30 days a month, such a worker will produce 3.000 (three thousand) pieces per hour. monthly currency units. Let's say his salary is 1.500 (one thousand and five hundred) monthly units. This means that half of his work enriches his boss, that is, he works for 5 hours to produce what pays his salary, and another 5 hours that constitute the company's profit. This is the first and simplest form of surplus value.

Capitalism, to the extent that it can expand, will. In this way, through technological progress, production is maximized in such a way that fewer hours are required for the worker to produce the equivalent of his own salary. Thus, our worker in the example above, with the help of a machine, manages to produce not one hundred, but five hundred per hour. His productivity is multiplied by five, that is, he will produce 15.000 (fifteen thousand) units per month and, keeping his salary at 1.500 (one thousand and five hundred) units, only one hour of each of his working days will serve to produce the value that he receives. Now, the bourgeois exploits not five, but nine hours of work, through an investment of capital that will be recovered in a short time. This is the relative advantage[xiii].

3 – The counterpart: proletarian union and labor rights

           If it depended on the dynamics of Capital and the goodwill of the bosses, the workers would receive only the minimum necessary for their subsistence, that is, so that they could continue working[xiv]. Since there is no individual possibility of bargaining as a result of the reserve army, only through the joint effort of the proletariat is it possible to confront the exploitation of wage labor. This is the case of the different forms of workers' struggle, including the trade union struggle.

Workers' movements, throughout the history of several countries, including Brazil, were responsible for numerous achievements. The workers' strikes of the first half of the XNUMXth century played a fundamental role in this regard, in order to conquer a series of rights established by the CLT and other norms. These are rights that confront precisely the exploitation of the proletariat, conferring a minimum of dignity on the worker's condition and curbing his exploitation by his bosses. As will be seen below, this (namely, the worker's defense) is the current interpretation of the meaning and significance of labor standards.

The Principle of Protection governs Labor Law in Brazil and guides the interpretation of its content precisely as compensation to the socially and economically less favored party, that is, the worker. Corollaries of this principle are the Unavailability of Labor Rights, the Principle of the Most Beneficial Condition and others[xv].

Such rights, however, have come under attack in recent times. From 2016, with the fall of the Dilma Government through the impeachment, a shift can be seen in the conduct of economic policy, now guided by neoliberal principles. As a way of trying to solve the crisis of previous years, reforms were sought that would favor the heating up of the economy, the generation of jobs and the increase in production and consumption. This intention of resolving the crisis in favor of the community is seen as restricted to the field of discourse, and, in reality, the objective was to make the rights more flexible in favor of the profits of the business elite holding capital[xvi].

It is true that classical Marxist theory discredits bourgeois institutions in defense of the worker. This is due, among other reasons, to the possibility of a parliament that serves the interests of the bourgeoisie simply changing the legislation — even the Constitution —, derogating the results of an arduous and continuous union struggle. For Marx, it is inevitable that legislation is allied with the bourgeoisie. Law is part of a superstructure conditioned by the infrastructure[xvii]. The State is merely a means of realizing bourgeois interests[xviii]. Consequently, it is not possible to completely escape the shackles of capitalism without breaking out of capitalism itself, that is, destroying it.

However, it is misleading to assume that Marxist theory completely disregarded the proletarian conquests already achieved. Influenced to some extent by the Chartist movement, Marx and Engels saw such victories as part of a movement towards revolution, which would be the true and, if successful, definitive victory of the proletariat[xx].

4 – Conclusion: why trenches?

Despite the difficulty in maintaining them, the rights are not, however, useless. The partial dismantling of 2017 does not erase the legacy of decades that the CLT, in its original wording of 1943, left. While valid, these rights were asserted to some extent. Every labor cause won was (and is) a victory for the entire proletariat. It's not enough, but it's something[xx]. It can be reversed, but it's a win. That's why labor rights are trenches.

The trenches, here, are an allegorical resource to describe how we can, from a Marxist perspective and with the overcoming of capitalism on the horizon (albeit distant), understand what labor rights mean in the context of class struggle. Widely used in World War I as a combat tactic, trenches are excavations that aim to offer cover against enemy fire, as well as to curb their advance or consolidate a position. An army trench can be taken and used by the enemy. It can also be totally destroyed, bombed, buried. But no soldier prefers the open field to the protection that the trench walls offer, unless it is during the race to occupy another one further ahead, closer to decisive victory.

So are labor rights. They do not prevent added value. They do not prevent exploitation. They are not capable of guaranteeing the happiness of the worker, nor do they signify the final defeat of capitalism. But, better to live with them than without them. A minimum wage is better than half of it, a 40-hour week is better than a 60-hour week, and so on. Rights are necessary but not sufficient. There are still battles to fight.

*Alexandre de Lima Castro Tranjan is a law student at the University of São Paulo (USP).


DELGADO, Mauricio Godinho. Course of labor law. 18th edition. Sao Paulo: LTr, 2019.

KELSEN, Hans. Pure Theory of Law. Trans. by Joao Baptista Machado. 8th edition. São Paulo: Martins Fontes, 2009.

MARX, Carl. Criticism of the Gotha program. Sao Paulo: Boitempo, 2012.

___________. Capital: critique of political economy. Book 1. São Paulo: Boitempo, 2013.

MARX, Karl and ENGELS, Friedrich. communist manifesto. Sao Paulo: Boitempo, 2010.

NIETZSCHE, Friedrich. The Gay Science. Translation by Paulo César de Souza. São Paulo: Companhia das Letras, 2012.

___________________. Genealogy of Morals. Translation by Paulo César de Souza. São Paulo: Companhia das Letras, 2009

___________________. Human Too Human. Translation by Paulo Cezar de Souza. São Paulo: Companhia das Letras, 2005.

TEIXEIRA, Marilane Oliveira et. al. Critical contribution to labor reform. Campinas (SP): UNICAMP/IE/CESIT, 2017.


[I] KELSEN, Hans. Pure Theory of Law. São Paulo: Martins Fontes, 2009. pp. 113-119.

[ii]  For the correspondence between the State and the legal order, cf. Idem, pp. 316-321.

[iii] On conviction as the will to truth, cf. NIETZSCHE, Friedrich. Human Too Human. São Paulo: Companhia das Letras, 2005. §630, pp. 266-267. The very notion of science brought by the Enlightenment contains within itself a will to truth, the assumption that through it it is possible to arrive at knowledge invulnerable to doubt and error. For critical commentary on such a conception, cf. NIETZSCHE, Friedrich. The Gay Science. Translation by Paulo César de Souza. 1st edition. São Paulo: Companhia das Letras, 2012. §344, pp. 208-210.

[iv] NIETZSCHE, Friedrich. Genealogy of Morals. Translation by Paulo César de Souza. São Paulo: Companhia das Letras, 2009. Third dissertation, §11, pp. 100-101.

[v] For such considerations on the general formula for converting money into capital, cf. MARX, Carl. Capital: critique of political economy. Book 1. São Paulo: Boitempo, 2013. pp. 168-179.

[vi] Idem, P. 99.

[vii] Same, pp. 188-191.

[viii] MARX, Karl and ENGELS, Friedrich. communist manifesto. São Paulo: Boitempo, 2010. p. 40, note n° 1, added by Engels to the English edition of 1888.

[ix] Ibid.

[X] Work, being a commodity like any other for the bourgeois production game, is subject to the law of supply and demand and, thus, as work is increasingly replaced by machines, its importance progressively decreases. Cf. Idem, P. 46.

[xi] Translations of the German term added Value for Portuguese are divergent. There are those in which the term “additional value” is chosen; others, such as those by Boitempo Editorial, used here, use the expression “plus-value”. Although this translation was consulted, we opted for the first term, already enshrined in Brazilian Marxist literature, so that the reading sounds more natural and familiar to the reader's eyes or ears.

[xii] MARX, Carl. Capital: critique of political economy. Op. cit., p. 383: “The extension of the working day beyond the point at which the worker would have produced only an equivalent of the value of his labor power, accompanied by the appropriation of this surplus labor by capital – this is the production of absolute surplus value”.

[xiii] Ibidem: “The production of absolute surplus value only revolves around the length of the working day; the production of relative surplus value completely revolutionizes the technical processes of work and social groupings”

[xiv] MARX, Karl and ENGELS, Friedrich. communist manifesto. Op. cit., pp. 46 and 53.

[xv] See DELGADO, Mauricio Godinho. Course of labor law. 18th edition. São Paulo, LTr, 2019. pp. 233-239.

[xvi] See TEIXEIRA, Marilane Oliveira et. al. Critical contribution to labor reform. Campinas (SP): UNICAMP/IE/CESIT, 2017.

[xvii] MARX, Carl. Criticism of the Gotha program. São Paulo: Boitempo, 2012. p. 31: “Law can never surpass the economic form and the social development, conditioned by it, of society”.

[xviii] MARX, Karl and ENGELS, Friedrich. communist manifesto. Op. cit., p. 42: "The executive in the modern state is but a committee for managing the common affairs of the whole bourgeois class."

[xx] “Certainly, Marx and Engels did not despise the struggle for universal suffrage, even under bourgeois rule, in the same way that they did not despise the struggle for wage increases or the reduction of the working day in the name of the abolition of salaried work. […] What Marx and Engels did was to highlight the character revolutionary of this struggle, which, however modest its initial demands were, led necessarily to a decisive confrontation between the bourgeoisie and the proletariat. COGGIOLA, Osvaldo. 150 years of the Communist Manifesto. [in:] MARX, Karl and ENGELS, Friedrich. Communist manifesto. Op. cit., p. 23. Author's emphasis.

[xx] Idem, P. 48: “From time to time the workers triumph, but it is an ephemeral triumph. The true result of their struggles is not immediate success, but the ever-wider union of the workers”.

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