sociology of law

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By SILVANE ORTIZ*

Comments on the book by Alysson Leandro Mascaro

Legal and social sciences, this is the official designation of the law course for most traditional Brazilian universities. However, when evaluating how we face this training, do we really think about what the opening – and fundamental – term of this nickname entails? When the student enters the gates of the academy to attend this very traditional course, he is proposing himself to a study that should deal, albeit from a legal perspective, with the highest sciences of humanity.

However, what he ends up accompanying is the tendency for the legal bias to supplant the importance and diversity that the social sciences represent. Focusing the object of study of law on normativity as the ultimate goal of its knowledge, legal operators tend to see this – an urgent way for the structural maintenance of the current social architecture – in a way that is above all other sciences that are dedicated to the understanding of society. However, law cannot avoid being, itself, part and object of the field of social sciences.

The concreteness of the relationships that permeate sociological theories, meddling in legal practice, gives rise to the academic discipline sociology of law. His study supports a greater understanding of the participation of law, even in the construct of sociability that we experience. By delving deeper into the concrete practices of reality, which touch the making of law and are touched by it, sociology performs the “hard work” of giving effect to the abstraction of knowledge, sometimes strictly theoretical. As a science, it supports the understanding of how the practice of law is effective, directing society towards the assumption of a certain legal-social culture. And, in this movement, when taken to its highest point of reflection on the materiality of social relations, it has the ability to awaken critical thinking.

With these questions in mind, the article in question intends to present an overview of the main arguments of the work sociology of law authored by Alysson Leandro Mascaro. Launched at the end of 2021, this important text, especially – but not only – aimed at legal scholars, performs the necessary analysis of the imbrication of the legal form with the totality that conforms society.

In Mascar's proposition, based on the immanent dialectic between forms of production and social relations, it is understood that the legal form, with its direct derivation from the commodity form, conforms to engendering social relations and is, simultaneously, shaped by them. Due to limitations in terms of size and the immense quality immanent to the text, it is strongly recommended that it be read in full, serving as a presentation that, very superficially, touches the complexity of the topic under analysis.

The three Mascarian paths

Sociology, as the science that seeks to understand the human-society bond, crosses the understanding of any area dedicated to the achievement of actions at the level of society. This is the premise that underlies Alysson Mascaro's thinking in sociology of law. In this notable work, the jurist erects the historical-scientific landmarks that define the need for such a science to be seen as a conceptual background study for the formation of the future jurist, as well as for everyone who is willing to understand the totality of society.

As for the method for its scrutiny, Alysson Mascaro presents two approaches: that of theoretical reflection, more complex and complete, and that which focuses directly on the specific issues of legal practice, directly linked to the quantitative issues of the field. It is not difficult to intuit which of them will direct the understanding to a knowledge of scientific depth. However, the quantitative study, based on measuring the scope of institutional positivism, is what tends to be better accepted and used in jus-sociological studies.

The author still and decisively transfers his original and already consecrated assessment of three paths for approaching the philosophy of law to the scope of sociology. In this movement, in yet another great contribution to the field of law, Alysson Mascaro defines the possibilities for understanding the sociology of law today, surrounding them in three theoretical matrices: legal positivists, non-jurispositivists and critics. In this proposal – scientifically based – the study of the sociology of law is now organized not chronologically, but rather, thematically, focusing on the theoretical background of each thought on such a broad topic.

“My proposal to read contemporary sociology of law by grouping its thinkers into three paths does not intend to establish a complete distinction between such axes. Much of social science draws on multiple sources and arrives at disparate or eclectic results. It so happens that, in terms of structuring thought about society – sociological theory –, there are lines of force that demarcate the field of study, the methods available and the scope of reflection. It is these axes that determine three large and specific roads of sociological construction today” (MASCARO, Alysson. sociology of law).

Under this analytical division, after weaving in the first part of the work a broad and in-depth historical overview of the development of classical social theories, Alysson Mascaro enters the conceptualization of contemporary sociology, under the prism of the three paths proposed in its original conceptualization. In this confrontation, the author crosses the scope of contemporary theories, choosing authors who serve as key examples of how sociological approaches can be conceptualized in contemporary times.

Alysson Mascaro brings, under the scope of positivist theories, authors of apparently contradictory nuances, such as Niklas Luhmann and Jürgen Habermas. This relative theoretical differentiation is immediately counterposed by the similarities that end up coupling the thinking of both thinkers, since the theories proposed by them center their analyzes on the presenteeism traversed in their own time, or rather, on the capitalist system and its institutions as posts.

However, it is important to emphasize that such analytical engendres, despite having the same horizon of confrontation, arrive at concepts that do not necessarily lead to the same aspect of understanding and/or practical action. However, invariably, the juspositivist theories fall back on the conservative defense of the maintenance – reforms and improvements – of the liberal structures that support the current social edifice.

When the author unravels the paradigms that characterize the theories grouped by their concept of non-legal positivism, what is verified is a criticism that is occasionally made to liberal institutions. However, as these are of broad hues, one can find theories with quite discrepant uses of the tools derived from this critique. Turning to the right, what is observed is the erection of a thought that, by attacking the established institutionality, understands the need for a return to the past and not an advance towards emancipatory practices that may be at the bottom of contemporary social practice.

In its progressive sense, non-legal positivism conforms to a theorization that points to the future. They criticize the powers that be and their weight on social relations, but they fail to make the leap to structural criticism of the system. The thinker chosen by Alysson Mascaro as the most outstanding non-jurispositivist is the Frenchman Michel Foucault.

The author denotes the turning point for a sociology of law with an emancipatory impact, when he highlights the decisive importance of critical Marxist theories. These are responsible for recognizing the indelible link between law and capitalism. The decisive thinker for this theoretical conception is Evguiéni Pachukanis who, by focusing his critique of the capitalist system on its forms – beyond its relations of force – discovers the immediate derivation of the subject form of law from the commodity form – exposed in detail by Marx, especially in The capital, his work of full maturity and the most decisive for all of sociology.

“This conception makes clear the real subsumption of work to capital, since the workforce degenerates into a “mere expenditure of energy” backed by legal equality based on a contract” (MASCARO, 2022, p. 162). In this way, labor is finally transformed into a commodity.

The Russian jurist, then, advances in Marxist science and unveils the shared root of the political form of the State and the legal form; both derive from the commodity form and, therefore, are specific forms of the capitalist system. From this unavoidable Pachukanian discovery, understandings unfold that capital, under the determinations of the commodity form, conforms itself to lord of all social relations, far beyond those of the economic spectrum, its reason being the one that will determine its own subjectivation of the individual and the spirituality of society.

The sociology of Brazilian law

Alysson Mascaro begins her conceptualization denoting the difference in the terminological definition of a Brazilian sociology of law – the science made in Brazil about the legal phenomenon –, and the term sociology of Brazilian law, which would be the social theory of law applied in the historical formation specifically Brazilian. This differentiation is important because it defines the theoretical object that draws the limits of the work's approach.

The professor shows that, inescapably, the legal, political and social formation, in the Brazilian case, follows the same line that he traced for the reading of jus-philosophical theories and transposed to the sociological theory. With this, the jusphilosopher exemplifies how the thinking of canons of Brazilian sociology tends to discuss social ills, without touching the depth of the structures that architect the inequality that crosses our society. Thinkers such as Sérgio Buarque de Hollanda, Gilberto Freyre or even Darcy Ribeiro, albeit in different ways – juspositivist in the case of the first and non-juspositivist for the other two – end up seeking in institutionality the condition of political and social evolution that they aspire to. That is, they always reinforce the forms of capitalist sociability, even with criticism of their modulation.

It is with critical readings that one reaches the apex of Brazilian social thought. With thinkers who achieved in them the condition for a basic understanding of the structures that make up the social experience in Brazil. Investing in the materiality imposed by the late capitalist system in the Brazilian case, authors such as Caio Prado Júnior, Ruy Mauro Marini and Florestan Fernandes – especially that of maturity – find in Marxist science the ballast to unravel the historical conditions that created the bases for social experience that we see in the country today.

With subtle differences, especially in the key points of the Brazilian experience that substantiate their theorizations, a specific point unites these three basic thinkers: they all had radicalism as the main line of their meanings. Taking the country's social experience by the roots is the metric of his analyses.

Bringing recent political events, from varguismo to petismo, the author reveals how the economic elites react to any slight advance in terms of social policies. Even if these occur institutionally – within the system – such policies are rejected with a vehemence that even tends to break with constitutional legality by the very key of law, combined with military force. In this regard, we have in the civil-military coup of 1964 a paradigmatic example of the use of the military front line with legal support. In the recent institutional coup of 2016, the positions are reversed; the system uses legality as its spearhead and militarism as its base support.

We thus have clear examples of how the legal form serves to support the established system, regardless of its own legal ties. The crisis, which the capitalist system bears, always works as an “emergency button” for adverse situations. When social advances call into question the unequal balance of the system – even if one does not even consider touching its structures – the holders of power resort to a closure that even breaks with the structures that are inherent to it.

These borderline situations are concrete proof that achieving effective transformations can only occur when intervening in the structuring of the system. Reforms that are oriented towards increasing rights have a deleterious effect, where every advance is, without much effort, undermined and converted into a setback, leaving only the real conclusion that the policy, as stated, does not effectively serve the dominated.

Conclusion

With the systematization presented in the work sociology of law, Alysson Mascaro establishes a new and revalued way of looking at the study of sociology from a legal perspective. Privileging the bases and correlations of the sociological jus-making with the contingency (randomness) of the materiality of social reality, in accordance with the determinations that come from its forms, the author opens the way to revive the urgency of an accurate study of sociology - in its theoretical and practical domains – for the achievement of a powerfully critical right, open even to its own overcoming, since it is a guarantee for the maintenance of capitalist sociability.

In addition to this conformation, Alysson Mascaro also denotes the need to overcome dogmatic views on the theoretical contributions that support current thinking. Nothing is untouchable or impassive to interpretation, renewal and advancement by thinkers who, with scientific rigor, address classical theories. The view that science, as an observer and systematizer of past or future events, is always on the move and open to possibilities of concretizing (or not) its prognoses, when compared to the established materiality, is one of the main and most admirable contributions that Mascarian criticism regales us.

For the savage prehistory of humanity to end, the end of the legal form – sustenance of capitalist sociability, ideologically and concretely – is a condition sine qua non. By placing legal science at the confluence of the materiality of theoretical and practical knowledge, which crosses the structure of the class society in which we live, the jurist can forge an action that is not subject to the shallow study and practice of a sterile normativity that insists on seeing the world in constant reductionism. The study that leads to structural criticism and, above all, that sees the role of justice in the social construct - far beyond legality - is the engine that can lead knowledge and practice to overcome the reproduction without logical content of the system still in its infancy. vogue.

Criticism is the hope of the possibility of walking the paths that can lead us to the beginning of history, as it is always open and the task of those who are predisposed to make it their struggle is to dispute the beginning of the new that will one day come.

* Silvane Ortiz is gstudent at the Faculty of Law of the Federal University of Rio Grande do Sul (UFRGS).

Reference


Alysson Leandro Mascaro. sociology of law. São Paulo: Atlas, 2021, 312 pages (https://amzn.to/45ucLYY).


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