The law in the pandemic

Image_Elyeser Szturm

By Marcus Orione*

The government policy to preserve employment and income in times of coronovirus: perspectives for the subject of law

We will seek to read the set of measures of the Bolsonaro government aimed at maintaining income and employment, in particular Provisional Measures 927 and 936 of 2020, based on the historical-dialectical materialist methodological approach, with emphasis on the notion of legal form ( constituted by the subject of law and legal ideology), specific to the capitalist mode of production[I].

Since the subject of law is the one who freely, equally and as an owner sells his workforce, his perspectives are directly linked to the way in which, from the pandemic, the possibility of reiterating practices precisely to preserve that alienation will be processed. . After all, under capitalism, we are called upon to sell our labor power and everything that takes place, whether in production or in circulation, derives from this historical specificity.

Therefore, the big question that must be asked is the following: to what extent does this first wave of the coronavirus affect the dynamics of reproduction of the contract for the purchase and sale of the workforce? The analysis could take place from many perspectives (since the legal form is much more than a mere expression of the law, having ethical, aesthetic connotations and so on), however, ours will end in the framework of labor law and of the right to social security.

Here some background issues should be highlighted.

First, what we do is an immanent materialist critique. And what is this immanent criticism? It is the one that is processed from the relationship between what is essential in the capitalist mode of production (exactly the reiteration of practices that imply the purchase and sale of labor power: every day we are questioned, summoned even to leave the house, going to our jobs, buying our goods with cash or a credit card, and so on) and what hides this essentiality under the surface. Immanent criticism, therefore, seeks especially to identify the violence that is hidden, especially in production (but also in circulation) based on ideology, which, more than a subjective apprehension of facts, has an impact on the sphere of reality, in short, on our daily practices. It is the one that, ultimately, deals with the search for mediations that produce, in capitalism, the exchange of direct violence for another indirect, surreptitious and sneaky one in the life of the worker. For this, it operates in the analysis of repeated behaviors in the mode of production.

Therefore, when asking perspectives for the subject of law, care must be taken (for the effective realization of an immanent critique) to always operate from determinations that can be found in the historical process.

In this line, we will divide our analysis from: 1) the perspectives of the subject of law that are given by determinations that we will call first grade[ii] (which are those that are effectively already manifest, that is, those that have already been evident in the historical process) and 2) the perspectives of the subject of law that are presented as logical/historical consequences of the previous ones, which we will call second degree determinations and that, containing elements that have not manifested themselves yet, can be touched by chance or random. They often find themselves on the borderline between immanent criticism and the analysis of dystopian or utopian alternatives. Their manifestation is still in the process of being realized and, since they have not yet manifested themselves, there is a greater degree of instability in the conclusions than in the previous ones.

If the first field of analysis, that of perspectives based on determinations of the first degree, allows us to say that we are in the sphere of science (a dialectical historical materialist science and, therefore, much more dynamic in analysis than that which also proclaims itself science , positivism); in the second, that of second-degree determinations, the presence of randomness leads us to difficulties, which can lead to greater weaknesses in the analysis. However, as they are supported by a historical-dialectical materialist exercise based on first-degree determinations, they can still be given some status scientific, not situated in the fragile field of merely utopian or dystopian findings.

Of course, we have only done a very rudimentary exercise on this analysis procedure here. Even so, we understand that we have highlighted enough to compose the assumptions of our analyses.

Once the methodological assumptions are in place, let us begin to operate its incidence in the real, in what we have today, in the face of COVID-19, as a government policy “measures to protect the employment and income of male and female workers”.

Here, the fundamental question for the analysis, posed at the beginning of our investigation, is the following: if capitalism is the reiteration of practices of buying and selling the workforce that we are all compelled, summoned to practice, with the advent of the pandemic , how are the dimensions of possibility of reproduction of this contract?

Initially, we must note, using historical determinations of the first degree, that Provisional Measures n. 927 and 936 of 2020 are exactly at the heart of a set of measures that tend to seek to preserve the reiteration of behaviors favorable to the circulation of the labor force commodity. It is in this line that the proposals contained therein should be understood, such as the intensification of the remote work mechanism, the advance of vacations and holidays and the suspension of employment contracts.

Despite claiming to preserve income, such Provisional Measures, in essence, only deal with an alleged (and rather precarious) project to preserve jobs as a way of maintaining a typically capitalist practice of selling the workforce. It has nothing to do with life, the dignity of workers and even with income. It is enough to look over such provisions that do not even preserve the fundamental right to health in matters such as those referring to vacations or even the meager amounts available to the employee and the self-employed as an “emergency benefit”.

On the other hand, still in line with the observation of the first degree determinations, the great data of these measures was, in the same line of what had already occurred in the change of labor legislation promoted by the Temer Government, the intensification of the nuclear figure of the subject of law as isolated owner with full autonomy of will to make and undo the conditions for selling his workforce.

However, the two situations cannot be confused, under penalty of neglecting the very legacy of dialectical-materialism: the ever attentive care with the change of determinations in the course of the historical process .

There is a qualitative change in the measures of the Bolsonaro Government, in relation to those of the Temer Government, in this process of individualization, of empowerment of the subject of law. The historical conditions are different: capitalism is now confronted with a real possibility of its devastation (even if this is prolonged over time); perhaps something that can only be compared to the threat to its existence posed by the Soviet revolutionary process of the early XNUMXth century.

Therefore, from the point of view of law, we already have here a first fundamental finding resulting from a determination of the first degree, which gives us the basis to analyze the perspectives for the subject of law: at a time when there is the possibility of exterminating the practices that lead to to its reiteration, what did capitalism do in a country on its periphery? As contradictory as it may seem, he bet all his chips on intensifying the process of atomization of the subject of law, in the search for the most immediate and most unconditional resumption possible of our interpellation as individuals subject to the binding force of the purchase and sale of labor power. .

Here we are faced with a finding arising from first-degree determinations, which are effectively appearing in the historical process.

The question that remains is: what will this lead to? And it is exactly here that the perspectives of the legal subject come into play, rooted in second-degree determinations, therefore, subject to greater instability due to the possibility of chance, but not totally discardable, since they are based on the previous (first-degree) ones. Therefore, even if they find themselves on the borderline of dystopia and utopia, they cannot be entirely neglected, since they have not entered their field. They are still embedded in the historical process, and not entirely subject to chance, randomness.

Here I see two possibilities

The first, still outside the dystopia, would be the following: the excessive bet on the atomization of the legal subject, at such a delicate moment for the reproduction of the purchase and sale of labor power, could lead to a break with the mode of production based exactly on in the subject of law itself. The dialectic tension could produce the rupture of the legal form, with the imposition of violence (possibly combined, at the beginning of the process, with the sale of the workforce, appearing to be a kind of typical accumulation of capital, but which is gradually transformed ). If this scenario takes place, explicit violence would be gradually introduced, in place of legal ideology, and we would have the collapse of the capitalist mode of production, to the extent that coercion would begin to take place directly on the bodies and minds of workers. , without any mediation (no need for contract ideology). The subject of law would be killed from the death of the legal ideology or the contract. The process would not happen overnight, implying, in terms of law, the dichotomous relationship between the legal concession of a private autonomy that, in practice, would not be able to be minimally realized, and its gradual loss due to the reduction of fundamental rights individual such as locomotion (coming and going restrictions), communication or association. Everything always in the name of “collective” defense in view of the dangers of the virus.

In this first scenario, there would be an intensification of the real subsumption of labor to capital at a more intense speed than what has already been taking place. There would be what I have called the hyper-real subsumption of labor to capital. Capitalism accentuates, as if it were a great portrait of itself, all the constitutive elements, no longer having the means to hide the violence that is inherent to it, showing its real face, in such a way as to lose the mask that hides it. Here, in this hyper-reality, the work techniques already completely dominated by capital would be used in an even more intensified way against the male and female worker. The situation would move towards the total decadence of legal ideology. In a more dystopian scenario (here, yes), it could be that, with the end of the contractual relationship of purchase and sale of labor power, another mode of production would come into play (see that I am talking about a new mode of production) , which I will call, not in the sense adopted by Rosa Luxemburg, barbarism. About this one, to avoid dystopian daydreams, we only have to say that, with the hyper-real subsumption of labor to capital, the determinant would no longer be the reiteration of the contract of purchase and sale of labor power, but of something that, with a greater degree of violence (that is, greater direct coercion over workers), intensifies the process of extracting surplus value from an exacerbation of the domain of work and production techniques already absorbed by capital. The transformation would take place essentially from new relations of production and not from the productive forces.

The second hypothesis, although also given by determinations of the second degree, is less manifest at the moment (approaching, here yes, much more of a utopia than the previous one of dystopia). Although it cannot be extracted, like the previous one, from a relationship with more evident determinations, due to the speed that the historical process takes in moments like the present, it cannot be totally discarded. They can be inferred from facts in an embryonic state, which will not be explored here, with a still unstable degree of potentiality.

Let's look at this more optimistic scenario considering the perspectives for the subject of law.

This alternative is, incredible as it may seem, at first glance, based on what, under normal conditions, does nothing more than promote the reproduction of capitalism: social rights. However, to make it clear that it is not the same thing, we will give it another name: popular postulation for demands of an effectively collective nature. Here we think only of those that contain propositions that promote universalization. Always depending on historical conditions, and this is what happens at this specific historical moment, such demands cannot even be called rights due to the potential to break with the logic of reproduction of the capital of buying and selling the workforce[iii].

I insist: due to the new dynamics that they may assume, it is certainly not even possible to reserve them the name of social rights, as well as the implementation measures that accompany them, cannot even receive the nickname of public policies (which, in capitalism, are nothing more than social forms derived from the legal or contractual form). And here what differentiates them from social rights, as we know them today, is their potential for the rupture and not for the preservation of capitalism. Therefore, they would not assume the name of law due to a set of historical determinations that would be specific to its advent. Under normal conditions, they would reproduce the logic of buying and selling labor power; in times of coronovirus, they could assume another conformation in the historical process. However, one must always be aware of the fact that this typology, in view of possible exercises deviating from its purpose, should not be intended to only facilitate circulation in the form of money, but should carry strength for the generalized production of collective goods. (and not public goods, since they should not be thought of in the form-state dynamics).

In this second perspective for the subject of law, he would also tend to disappear. However, unlike the previous hypothesis, in which he is lost in the contradictory search for himself and propitiates the increase in exploitation of the working class; here it would be dissolved, leaving present a fundamental reminiscence of its dissolution: the gain in the perception that only the insertion of new reiterated practices, totally different from those related to the purchase and sale of the workforce, with an equipment that will be its own, and informed by a new ideology, will be able to promote the universalization of a new subjection of individuals.

However, something has to be clear: it will not be a virus that kills capitalism; what will promote the extinction of capitalism is how, given the current historical conditions posed by the coronovirus, the working class will fight the class struggle.

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

Text produced from the exhibition made in live held on April 28, 2020 by Research Group Human Rights, Centrality of Work and Marxism (DHCTEM) from the Faculty of Law of the University of São Paulo (available at


[I] In addition to Marx's work, to understand the method, especially the legal form, the following readings are suggested: PACHUKANIS, Evgeni. The general theory of law and Marxism and selected essays (1921-1929). coordinator Marcus Orione. Trans. Lucas Simone. São Paulo: Sundermann, 2017, EDELMAN, Bernard. The legalization of the working class. coordinator from Trad. Marcus Orione. São Paulo: Boitempo, 2016 and EDELMAN, Bernard. Law captured by photography (elements for a Marxist theory of law). Trans. Soveral Martins and Pires de Carvalho. Coimbra: Spark, 1976.

[ii] The division suggested here has nothing to do with the one that appears in Mészáros's work as first- and second-order mediations. A good text for understanding its meanings is that of MENEZES Rafael Lessa Vieira de Sá. Criticism of human rights in the light of István Mészáros 2013. 104 f. Dissertation (Master in Law) – Faculty of Law, University of São Paulo. São Paulo, 2013.

[iii] Here we draw attention to some of the observations, although not based on a current historical moment, placed, especially in its final part, in the work of BATISTA, Flávio Roberto. Criticism of the technology of social rights. São Paulo: Outas Expressions; Editorial Fold, 2013

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