By FRANCISCO PEREIRA DE FARIAS*
The collectivity needs a standard of law or legal principle in order to reproduce the coherence and cohesion of the type of social and political order
In this text, we will focus on basic norms as expressed by general laws or the so-called principles of law.
The primary function of these principles is to prescribe the basic terms or values to be implemented by the specific rules of social relations, constituting a historical type of political order. The collectivity needs a standard of law or legal principle in order to reproduce the coherence and cohesion of the type of social and political order. The legal principle therefore has the function of establishing the basic values of a type of collectivity, adding to such values the social interests that mark a historical era.
Contemporary social formation adopts the principle of legal equality. This formation needs to attribute the same legal capacities between the owner of the means of production and the possessor of labor force, so that the employment contract, the exchange between salary and the reproduction of labor force, can be established.
Thus, legal equality, by making people believe, in the eyes of the direct producer, that there is a harmony of purposes between the owner of labor power and the owner of means of production, contributes to the reproduction of capitalist production relations (Saes, 1994 ). In reality, it is about equal treatment of unequals, preserving the roles of capitalist entrepreneur and salaried worker.
The advent of capital society presents legal principles as formulations emanating from human “reason” (axioms). There is a demand by capitalist interests for a clear right, free from disturbances considered irrational, arising from concrete privileges, guaranteeing the validity of contracts. The alliance between the rising bourgeoisie and the impoverished peasants was one of the driving forces of the political revolution, spreading the formal rationalization of law. Law schools became separate from ecclesiastical institutions; and legal operators, responsible for obedience to religious precepts.
In contrast, feudal formations are not guided by the principle of legal equality, attributing unequal legal capacities to masters and servants. The latter are excluded, for example, from political positions, due to their lack of income; In these societies, electoral systems tend to be census-based, because in an economy based on the tax relationship, therefore non-monetary, the employee is unable to regularly receive a salary, having to guarantee his own subsistence while performing state functions. In this way, the principle of legal privileges becomes functional for the reproduction of seigneurial political power.
The fundamental norms in the feudal formation take the form of “revealed” principles (dogmas). The lordly class obtains a relationship of personal dependence with the serf class (Marx, 1983). In the same way that God makes a covenant with the chosen People on Earth. The appearance of fundamental laws in feudal society is that they are not made, but given, revealed through the mediation of the charismatic Prince or the charisma of the religious Church.
Legal practice appears to be little distinguishable from religious life; law schools are confused with the convents of religious orders and those applying coding are subject to strict respect for the imperatives of sacred texts (Cerroni, 1993).
The legal analyst adopts the maxim of methodical non-juridicism, exempting himself from the task, typical of the philosophy of law, of finding the foundations (the principles) of human rights. But this “organized skepticism” (Merton, 2013) does not mean restricting oneself to an institutionalized vision of human rights, which would lead the analyst to become trapped in the enigma of the law. It is about moving from the philosophical way of knowing (axiomatic demonstration) to the scientific way (non-axiomatic demonstration), in the research of the legal phenomenon.
Scientific knowledge acquires the specificity of moderating ethnocentric inclinations, typical of historical forms of collectivity to this day, relativizing their beliefs about the meaning of being human, at the same time that it does not ignore the struggle in these and these collectivities for the hegemony of meaning of humanity (Lévi-Strauss, 1996).
The normative pattern, on a more general level and, therefore, in the logical-historical genesis of social forms, refers to the very meaning of humanness. This anthropological meaning is, in itself, distinct from and prior to the meaning of citizenship, which is the individual arising in the developed social form, in which the separation of countryside and city is already found and, correlatively, the formation of the State.
The state employee becomes responsible for productive activities, primarily agrarian, and can dedicate himself to management functions in a permanent and specialized manner, through the adoption of the tax system. There is, on the one hand, the professionalized government and, on the other, the individual subject to the law emanating from the city-state. State law is the law of the subject form, that is, of the form of the categorical or unconditioned imperative, but whose essence is its social (functional) and not supra-historical (unconditioned) character.
Human individuals are already present in a stateless society, which does not mean a state of nature. The community of spontaneous life presents itself as a society, a set of roles governed by established norms. The human being coincides with collective and cultural life, that is, life provided with abstract language, based on general norms. In other words, the initial society, the stateless society, causes the behaviors of individuals and groups to be guided by the law of abstraction, an internal cause, and not by the law of nature, an external cause.
Equality is the core of human rights, since the relationship of equivalence historically precedes citizenship (“free” individual). In the contemporary capitalist formation, this equality is, on the one hand, formal: “all are equal before the law” (Declaration/1789) and, on the other, material: “the right to work, education, leisure, social protection ” (Declaration\1948). However, this recognition by contemporary law of the double aspect of law – abstract and concrete – becomes insufficient in responding to the requirement for adequate measurement contained in the law, as it abstracts the antagonistic relationship between capitalist entrepreneur (aiming at wealth) and salaried worker (seeking satisfaction of needs).
In turn, freedom becomes the center of citizenship rights, as the government of the separation of city and country or the state government, residing in the city, initially projects the owner of means of production as a “free” individual, the citizen, in opposition to the direct producer as an “unfree” individual, the slave – conditions for the owner to extract surplus labor from the direct producer, partly transformed into State tax revenue.
The development of citizenship, from slavery to capitalism, will result in the full inclusion, that is, in an egalitarian form, of the direct producer, the salaried worker, in the legal category of free individual, the subject form.
Therefore, the distinction between a human being, essentially egalitarian, and an individual citizen, formally free, implicit in the legislation of modern society, becomes justified, even if the list of declared norms leads us to think about the identification of man and citizen. Why the tendency of institutional discourse in contemporary law to say that human beings come into the world dressed as citizens? It is about eternalizing, in the eyes of those who practice the social game, the rules of the division of State and society, correlated with the division of owner of means of production and possessor of labor power.
The set of laws derived from the basic norms or Constitution of a political community varies according to the specific interests of the hegemonic social force. Through the internalization of the basic values of the social order in family and educational life, political socialization, social origin, pressure from the most powerful groups – all these factors induce the legislator to formulate the law from the perspective of the social force that conquers hegemony, or that is, the ability to transform your specific interests into general objectives.
In the first phase of capitalism - in which the interests of merchant capital prevailed, since this capital controlled cooperatives and manufactures in the nascent industry and had greater influence in directing the economic policies (monetary, fiscal, credit, exchange rate) of the State , resulting in commercial activities having a higher yield compared to productive activities -, the principle of legal equality, conceived as a law of nature, gave the Constitutions a natural foundation, whereby the laws of the legal system assume the character of formal hypotheses, that is, they do not necessarily describe a historical reality.
This is because legal formalism not only suited mercantile capitalism, due to the uncertainties about the meaning of human in primitive societies and the sense of nature in human beings, since it reinforced, on the one hand, the violence of colonialism and, on the other, the exploitation of the labor of women and children; but also facilitated the work of rationalization by legal practitioners, given the axiomatic form of the principles, as formulated by the contractualist current (Hobbes, Locke, Rousseau).
With the transition to industrial capitalism, with the installation of the machine system in the industrial company and the redirection of state policies to their benefit, the laws of nature were converted into material principles, expressing the influences of the utilitarian (Bentham) and socialist ( Saint-Simon). Industrial interests cannot operate with the expectation of overexploiting the workforce, as this blocks the passage from absolute surplus value (working hours) to relative surplus value (productivity) as the basis of the company's profitability.
In this sense, it becomes functional, to contain the impetus for immediate profits of the industrial fraction and to induce companies to adopt strategies of technical innovation and work methods, a policy of emphasis on the material principles of law, normalizing the well-being being working class.
The Constitution presents itself, then, as a political-legal set, which derives from a regular social process, at the same time that this table of laws intervenes in order to configure and stabilize the dynamics of this social process. As Umberto Cerroni (1993, p. 157) points out, in other words: “any [modern] law is articulated by two interconnected elements: the imperative element consisting of a will equipped with strength and the cultural element consisting of a rational disposition, emanating from a legitimate authority.”
* Francisco Pereira de Farias He is a professor at the Department of Social Sciences at the Federal University of Piauí. Author, among other books, of Reflections on the political theory of the young Poulantzas (1968-1974) (anti-capital fights).
References
CERRONI, Umberto. Politics. São Paulo: Brasiliense, 1993.
LÉVI-STRAUSS, Claude. Race et histoire. In: Anthropologie structurale deux. Paris: Plon, 1996.
MARX, Carl. The capital: critique of political economy. São Paulo: Abril cultural, 1983. (3v.)
MERTON, Robert. Science and democratic social structure. In: Sociology of Science Essays. São Paulo: Editora 34, 2013.
SAES, Décio. The concept of the bourgeois state. In: state and democracy: theoretical essays. Campinas: IFCH-Unicamp, 1994.
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