Sociology of law -

sociology of law

21/12/2021

Partners • Law/Judiciary • Sociology

By FRANCISCO PEREIRA DE FARIAS*

Commentary on the recently released book by Alysson Leandro Mascaro

The importance of this work by Alysson Mascaro – a researcher with a consolidated presence in the academic and political fields – is shown by its dual function: to stimulate social science studies in the training of specialists in law; and to favor the theme of law as an area of social science research. This is because, on the one hand, the tradition of law courses in Brazil, as Mascaro indicated, consists of giving social science an approach of social philosophy, complementary to the study of legal doctrines; and, on the other hand, the social sciences tend to accept a restrictive role of dealing only with the application or effectiveness of the law, without advancing on the scientific explanation of the construction of the legal norm as such.

Now, between legal philosophy and social science, as Georges Gurvitch pointed out, there is a dialectical relationship: complementarity, opposition, polarization.^[I] This is what, in summary, the reader will follow and appreciate throughout sociology of law. Its chapters are organized into three sections, according to a historical-epistemological criterion: legal pre-sociologies (ancient, medieval, modern); the classical legal sociologies (Comte, Durkheim, Weber, Marx); contemporary legal sociologies (international and national). Finally, there is, in a specific chapter, Mascaro's research on society and law in Brazil.

Evidently, this is not the place to present a summary of 11 chapters and an introduction in which the author presents the notions of sociology and sociology of law. We will limit ourselves to a few comments, with the aim of emphasizing the point indicated above: the scientific, and not doctrinal, reconstruction of the legal norm. This is an approach explored by E. Pachukanis, in The general theory of law and Marxism, on which Alysson Mascaro's reflection is largely based.

The law in Marx

Mascaro thus exposes the core of Marx's contribution to the scientific analysis of law: “if the circulation of goods has its meaning in accumulation, then the meaning of law is also to allow accumulation. Law is the form of relationship between the agents of capital. If trade makes clear the form of legal relationship between those who exchange, in production this becomes more decisive. The exploitation of one human being by another, of a worker by a bourgeois, is mediated by an employment contract. Through it, the worker legally submits to the bourgeois, voluntarily, both in an equal position to accept or not the bond. The employment contract is the heart of legal subjectivity: it is not just the circulation of products, but the sale of labor power, which makes the form of social relationship legal” (p. 115).

The modification of the abstract government, which must be transformed into a bourgeois State, cannot occur in this same abstract government, since as a representative of the collective interest it only institutes the law, which, persisting in its own historical form, eternalizes itself as a type of right. Nor can the modification originate from a second act of codification, the constitutional reform, since this act only retransposes the basic norms of the type of law. The modification needs to occur in the law instituted by the constituent, but not in its meaning, as it always declares an equivalence relation, the law maintains the sense of fairness.

The modification can only originate, therefore, in its application, that is, in the enjoyment of the right. In order to obtain an unequal result in the use of the law, the subject of law needs to find within the legal sphere, in particular laws, a law whose application has the peculiar characteristic of being the source of interversion of equality (form) into inequality (content). The subject of law finds this law, the labor law or the employment contract, within the legal sphere.

For the legal subject to find the contractual labor law in the legal sphere, some conditions need to be met. As the appearance of this labor law is the equal treatment of the owners of goods, the declaration of the equivalence of wages and the use of labor power, the first condition is that the possessor of labor power, as the private owner of it, and therefore is declared a subject of law or person (free), reiterates the belief in the freedom (unconditionality) of the right to property. Now, the continuity of this belief in the unconditional or categorical form of the law is determined not by the legal sphere itself, but from outside it, by the cultural sphere, religious and philosophical beliefs. In the modern world, revelation theologies and deist philosophies spread the axiom that every human individual is free.^[ii]

The second condition of the law of the labor contract is that the owner of labor power, while holding the same property rights as the owner of the means of production or the owner of capital, reproduces the belief in the egalitarian character of capitalist property rights. Likewise, the permanence of this belief in the egalitarian form of the law is determined not by the legal device itself, but by cultural practices. Both modern theologies and anti-theologies convey the axiom of the egalitarian origin of human beings, either by divine will (theologies) or by social destiny (anti-theologies).^[iii]

A third condition of the law of the employment contract is the encounter between, on the one hand, the professional ruler and, on the other, the governed who are formally equal to each other. This meeting is the result of a long historical process: on the one hand, the specialization, regularity and complexity of government activities and, on the other, the expansion of individual rights, especially the right to private property of the means of production, which will be completed with the onset of the modern capitalist era. Let us take a closer look at this capitalist law.

The contract for the purchase and sale of labor power is, at the same time, true and fictitious. In the sphere of circulation, labor power behaves like a commodity; it is bought for its exchange value, that is, the amount of value of the goods necessary for its reproduction. But when it enters the sphere of production, labor power ceases to be a commodity; there, it does not exactly transfer its value to the final product, as any commodity does. The workforce transfers to this product a value more than what was contracted.^[iv]

However, this exploitative relationship is hidden from the eyes of social agents. For the conversion of surplus labor into new exchange value only takes place with the sale of the product. Now, as the realization of surplus value takes place in the sphere of circulation, social classes acquire the illusion that profit, the surplus value relative to the initial capital, appears as a kind of bonus conferred on the capitalist enterprise by the entire community. But where would this power of consumers to value capital come from? This is the apparent mystery that sustains bourgeois society.^[v]

The institutional appearance of the labor law is, therefore, the equal treatment of the owners of goods, which presupposes the right of ownership by the owner of the workforce. But the structural reality of the labor contract is the equal treatment of producers, in order to preserve the roles of owner of the means of production or capitalist entrepreneur and owner of the workforce or salaried worker. This reality concretizes the character of the legal law as a functional imperative, which tends to stabilize the roles of a historical form of society, the capitalist society.

Critical contemporary sociologies of law

(1) Evguiéni Pachukanis

For Mascaro, E. Pachukanis “will develop the most consistent and scientific view of law. All the novelty of his discoveries begins with his methodological rigor, based on Marx” (p. 161). The core of his contribution is presented in a quote from Pachukanis himself: “the material presuppositions of legal communication, or communication between legal subjects, were elucidated by Marx in the book I d 'The capital. It is true that he did so only in passing, in the form of very general suggestions. However, such suggestions help to understand the juridical moment in the relations between people much better than several treatises on the general theory of law. The analysis of the subject's form derives directly from the analysis of the commodity's form” (p. 161).

The institutionalized functional imperative begins in its concrete form – reciprocity in production, to satisfy material needs; reciprocity in marriage, for the enjoyment of affective and reproductive needs, etc. – and develops into an abstract formula: the duty of reciprocity, for the stabilization of social relations. Let us call this abstract formula the fundamental law or legal principle. Thus, the normativity that materializes in the reiteration of practices is mediated by the legal principle, whose truth content will assume different justifications, related to the historical periods of the collectivity.

In the collectivity divided into social classes – on the one hand, the powerful (rich) and, on the other, the weak (poor), in which the professionalization of legitimized violence (State) must be available, since class dominance needs to be sophisticated rules, which discourage subversion among the poor, and regular weapons, given the high degree of conflicts –, the knowledge of the dominated will be of a religious type, the form of belief of paganism, Christianity, etc.^[vi] Given that the desire of the powerful is to oppress, that is, to make it seem that the laws serve the aspirations of all, and not the order that privileges the interests of the rich, it becomes advisable that the justification of the legal norm be supported, more than the ancestral tradition or myth, in the form of knowledge considered absolute, unconditioned – the religious discourse.

The state legislator then transforms the functional imperative – “respect reciprocity, in order to preserve the roles of owner of the means of production and expropriated worker of these” – into an unconditional or categorical imperative. The formula of the categorical imperative, proper to the law of collectivity with the State and private ownership of the means of production, simply says: “you must respect reciprocity!”. This formula is suitable for the governed converted into “citizens” (under the state government), both the owner bosses and the expropriated employees, since unconditioned, divine representations are characteristic of religious belief systems. Both the expropriations (slave, serf, proletarian) required divine vigilance (the most perfect vigilance), and the divinity demanded the sacrifices of the expropriated (the frustration in their aspirations and needs).

(2) Western Marxism

Alysson Mascaro identifies by “Western Marxism”, in terms of sociology, a set of three lines of critical thought: the Italian debate, having Antonio Gramsci as its most important theoretician; a nucleus of Western thinkers linked to the Soviet experience, such as Georg Lukács and Ernst Bloch; the intellectuals with a very cohesive theory and research platform, the Frankfurt School.

According to Mascaro, for Gramsci, a society that manages to establish a hegemonic cycle, in which the ruling and ruled classes operate under the same tuning fork, forms a “historical bloc”. State, legal institutions, repression and freedom to negotiate establish a pattern that sustains social reproduction (p. 168).

The set of laws derived from the basic norms or the Constitution of a political community varies according to the specific interests of the hegemonic social force. By internalizing the basic values of the social order in family and educational life, political socialization, social origin, pressures 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 their specific interests into general objectives. The table of laws or the Constitution presents itself, then, as a political-legal set, which derives from a regular social process, at the same time that it intervenes in order to configure and stabilize the dynamics of this social process.^[vii]

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 from all this to commercial activities a superior yield compared to productive activities –, the principle of legal equality, conceived as a law of nature, gave the Constitutions a natural foundation, through which the laws of the legal system assume the character of formal hypotheses, that is, they do not necessarily describe a historical reality.

Not only did the uncertainties about the meaning of human in primitive societies and the sense of nature in human beings suit mercantile capitalism – since it reinforced, on the one hand, the violence of colonialism and, on the other, the exploitation of labor of women and children –, but also facilitated the work of rationalization by legal practitioners, given the axiomatic content of the principles, as formulated by the “contractualist” current (Hobbes, Locke, Rousseau).

With the passage to industrial capitalism, from the installation of the machine system in the industrial company and the redirection of state policies in its 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 (workday) to relative surplus value (productivity) as the basis of the company's profitability. In this sense, it becomes functional to contain the momentum of immediate profits of the industrial fraction and to induce companies to adopt strategies of technical innovation and new work methods, a policy of emphasis on the material principles of law, normalizing well-being of the working class.

With regard to Lukács, in History and class consciousness, summarizes Mascaro: “one of the great examples of the reification of capitalist society resides in law. Legal reasoning is also based on this logic by which everything becomes a thing. Upon arriving at positivism, law operates mechanically, as if legal activity were mechanical, standardized, and as if legal and social problems were automatic, processed indifferently, whose greatest measurement was monetary” (p. 169-70) .

The law has been something that circulates, since everyone is informed or should be informed about it, but it remains enigmatic. Its enigmatic character occurs, in societies with a State and social classes, not only because this thing tends to eternalize in the eyes of the governed a form of reciprocity that is historically particular, but also because it hides its functional character and appears as of origin. supramundane, in the form of the categorical imperative.

The theory of law in Immanuel Kant^[viii] would contain in practice the result on the true character of the legal norm, as the German philosopher claims that the imperatives of law are only “according to duty”, and not “by duty” (unconditional). In other words, under the form (appearance) of the categorical imperative, what is in fact in the law is the conditioned or functional imperative. Now, the imperative of the subject form basically consists of the unconditioned imperative. Thus, in essence, the legal norm does not pose itself as supra-historical, therefore, conditioned. The law of the subject form tends to relate to specialized, professional and permanent government – in a word, the State. Only in collectivities with the State (oppression) and social classes (labor exploitation) does this legal form become functional.

(3). The Frankfurt School

In yet another of his acute syntheses, Mascaro tells us about the theses of these authors (Horkheimer, Adorno, Neumann): “One of the great artifacts of this instrumental reason, which makes capitalist society fully dominated, is law. Rationality is technical. Exploitation and domination are not carried out only when going against the law, but mainly for the sake of the law itself. Private property, one against all, the extraction of surplus value from salaried work, imprisonment, segregation, organized class violence, all these manifestations, socially, are not only attacks against the right and the laws, but are the law itself and the laws. Exploitation and social domination are procedures of brute force, physical violence and economic coercion that gradually establish themselves in a refined process of social institutionalization of the domain. In the faculties of law, complex and difficult legal operations are taught so that society is dominated, but in such a way that all this is called legal rationality and order” (p. 176).

Social property – land, workshops, transport, etc. – is always collective, belongs to the political community. An individual or family primarily exploring new products without the support of their community would easily fall under the greed and threat of others. This community, through its leadership, transfers or institutionalizes the ownership of common resources to its private members, so that individuals and groups there develop their productive potential according to the division of social work.^[ix]

It becomes evident that the so-called private ownership of the means of production is, in essence, symbolic violence, sanctioned by the state code.[X] For the individual or group only has the right to possess what primarily belongs to the community. So how is it possible that what is really a grant of ownership – control of the means of production – becomes the form or appearance of private property? This distortion is established because the social formation, when facing the problem of redistributing its resources to each new generation, was induced to institutionalize the device of inheritance to the granted resource.^[xi] As a result, the impression was formed that a plot of productive land, an industrial workshop, a pluvial transport facility belong to an individual or a family in the same way that the individual appropriates his physical body and the family his home.

(4). Louis Althusser

Finally, Louis Althusser is presented as the author in transition to the constitution of the “new Marxism” of today. After a thoughtful exposition of the Althusserian approach to ideology and the relationship between the main aspects of this theme (humanism, subjectivity, unconsciousness) and the law – part of which is based on the work of his students (Juliana Magalhães, Pedro Davoglio, Lucas Balconi) in Law School of the University of São Paulo –, Mascaro sums it up this way: “by proposing that ideology is material, derived from the social and productive relations of subjects, Althusser allows us to envision that law has a fundamental ideological role for capitalism. As all relate to each other intermediated by goods, all relate to each other as subjects of law. With this, the perception of freedom of negotiation and equality before the law is the ideological basis closest to the very materiality of capital. If religion and moral conservatism are very adherent to capitalism, legal ideology is even more recondite. A capitalism of atheistic subjectivities and progressive customs is even possible, but all these subjectivities buy and sell goods and labor power. So, the ideology of the subject is the central point of capitalism, being its determining ideology” (p. 195).

It is known that the predisposition to believe in the sanctioned norm arises beyond the apparent conditions – interest, custom – that this norm would raise as a cause. This causality leads to the work of abstracting what appeared to link, on the one hand, obedience to the norm and, on the other, the visible conditions, of a concrete nature, and to fix the abstract aspect of this conditionality, that is, the norm as such. If we put aside the correlation between the predisposition to follow the norm and interest and custom, we are left with the reciprocal implication of the predisposition to obey the pure norm. Thus, the predisposition to respect the spontaneous norm becomes the effect of an abstract cause – the norm simply or normativity.

The functions of ruler and ruled thus demand submission to normativity – spontaneous, implicit, unconscious –, conditioning the reiteration of each one's practice. The first norm will take the form of the functional imperative: “each one must obey reciprocity, in view of the usefulness of his function in the type of collective order”. It is about indicating the means, the duty of reciprocity, to reach the end, the satisfaction of needs in a given historical period. But the work of making the norm visible, explicit, conscious – in short, its institutionalization – distinguishes the ruler (leader) from the ruled (led). The art of saying the norm efficiently and effectively qualifies the leader's speech against the leader's speech, since such art requires organization and specific training for its performance.

We have, therefore, a sensitive point: the proposition that the norm has a double character, abstract and concrete. The abstract norm is presupposed in the concrete norm that guides the execution of the governmental service. This, just as abstract work is an implicit condition of concrete work in commodity production.

The norm in its institutional form, present in government services, is the visible manifestation of the meaning of the norm, since the institutional norm concerns the “index” (denotative form) of the norm, and not the “norm as such” (individual form). connotative). Thus, the connotative form of the law, called the structural norm, has a specific, metonymic causal relationship with its denotative form, the institutional norm. The institutional (concrete) norm thus becomes the sign of the existence of the structural (abstract) norm.

Althusser would refer to this double character of law through the terms “legal apparatus” (the structural norm), and “legal ideology” (the institutional norm): “it is clear that we can no longer consider only the 'Law' (= the Codes), but this one as a piece of a system comprising the law, the specialized repressive apparatus and the juridical-moral ideology”.[xii] Hence, the pertinence of Mascaro's assertion: “by producing, controlling and sustaining the positivities that allow the reproduction of capitalism, ideological apparatuses can be considered structural to society” (p. 194).

* Francisco Pereira de Farias He is a professor at the Department of Social Sciences at the Federal University of Piauí. Author, among other books, Reflections on the political theory of the young Poulantzas (1968-1974) (Ed. anti-capital struggles).

Reference

Alysson Leandro Mascaro. sociology of law. São Paulo, Atlas, 2021, 312 pages.

Notes

[I] G. Gurvitch. Dialectic and sociology. Lisbon: Don Quixote, 1971.

[ii] "We still find among us zealous Christians, whose religious soul loves to feed on the truths of the other life: they will undoubtedly act in favor of human freedom, source of all moral greatness" (Alexis de Tocqueville. Democracy in America. Paris: Gallimard, 1986, p. 48).

[iii] “Christianity, which made all men equal before God, will not hate seeing all men equal before the law” (Tocqueville, 1986, p. 48).

[iv] Cf. K. Marx.The capital: critique of political economy. Vol. 1, T. 1.São Paulo: Abril Cultural, 1983.Chapter 4: transformation of money into capital.

[v] Cf. Marx, 1983, vol. 3, volume 2, chapter 48: the trinitarian formula of capital.

[vi] See Niccolò Machiavelli. The prince. Brasília: UNB, 1987. See also Gérard Namer. Machiavel or les origines de la sociologie de la connaissance. Paris: PUF, 1979.

[vii] See Umberto Cerroni. Politics. São Paulo: Brasiliense, 1993. Chap. 5: Institutions. Cerroni states: “any law is articulated by two interconnected elements: the imperative element consistent in a strong will and the cultural element consistent in a rational dispositionissued by an authority legitimized” (p. 157).

[viii] See Immanuel Kant.Critique of Practical Reason. Lisbon: Editions 70, 1986.

[ix] There is the pioneering thought of Thomas Hobbes, in The Leviathan, about this point.

[X] “Human society [civil-state] arises, for Rousseau, not to improve human nature, but precisely to corrupt it. Through the theft of what was common, private property and civilization were built” (Mascaro, 2022, p. 54).

[xi] There is Émile Durkheim's criticism, in sociology lessons, to the device of inheritance.