sociology of law

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By ALYSSON LEANDRO MASCARO*

Excerpts, selected by the author, from the newly released book

Sociology and sociology of law

A sociology of law course is built through two main paths that, in the end, complement each other. The first of them, the most difficult – but at the same time the most important for the formation of the worldview of the jurist or the scholar of the subject – is the theoretical reflection on society, which involves the analysis of the guiding ideas from the sociology of law, the discussion about its possible methods and visions of the world. This is a more complex part, because it teaches how it is possible to understand society and law scientifically; here it is necessary to see, then, the most important sociologists and their methods.

The sociology of law taken from a theoretical point of view goes through the discussion of the most distinguished thinkers about society, such as Durkheim, Weber and Marx, for example. A second path to a sociology of law course would be that of a sociology directly applied to specific legal issues. In this case, it would be a matter of seeing the sociology of law in the empirical or technical problems of law, either from the institutional perspective of each society, at the international level or, then, in questions related to the sociology of the judiciary powers. Such questions, more specific or exemplary, reveal concrete facets of law in society. But, for the sociology of law researcher to be able to reach them and, from them, extract vigorous interpretative benefit and scientific implications, he will need the theoretical tools of the social sciences, the structured visions regarding the way in which the relationship is understood. between society and law. This is our purpose in this course.

It happens that much knowledge about the sociology of law suffers from the fact that it leads directly to factual sociological findings, whose empirical findings almost become re-elaborations of newspaper data – how many years, on average, does the progress of processes in such instance of the Judiciary Power take , how many judges are missing from the Federal Court, how many social groups do not have access to institutional protections, what is the profile of the clientele of elite law. This is a dimension of lesser impact of the sociology of law: a sociology of collecting information about the Judiciary, about institutions or about specific legalized relationships.

It is the sociological theories of law, based on their methods and scientific and world views on society and law, which will allow managing and applying their goals around any problem around which one comes to work. A sociology of law based only on specific and already given quadrants of law, of judicial institutions, of legal branches, involved only in concrete problems, such as environmental, consumer, criminal law, will not reach determinations, constancies, causalities and social structures, considering the modes of production and forms of social organization. For the jurist and the sociologist to be able to deal more appropriately with the specific problems of law, it is necessary, inexorably, to tread a greater road than that which makes social knowledge merely a statistical science.

A sociology of law is based on the great theoretical outlines that guide the understanding of society and law, based on the scientific nature of social analytics. Sociology, which lends itself to being a powerful critical hermeneutics of society, will do so if it uses scientific tools on society itself. Sociological study, before closing in on the analysis of specific objects (law, politics, the family, institutions, etc.), must begin with its great theories, which found the basic methodological horizons of sociological apprehension.

A reference author of the systematization of the teaching of sociology in the XNUMXth century, the Canadian Guy Rocher, refers to the approach to sociological questions: “In fact, I am convinced that one cannot approach particular sociologies or the sociology of a given environment without having first became aware of the most general foundations of sociological analysis. Although recent, sociology is not without traditions, certain theoretical and methodological knowledge; a language was forged, concepts were defined; typologies were elaborated and theoretical models or schemes were constructed. It is through this conceptual and theoretical apparatus that the sociologist approaches social reality in a certain way. Getting started in sociology consists of progressively entering into the perception of reality proper to this discipline. Which requires knowledge of certain basic works, of certain particularly important investigations; this requires above all familiarity with essential concepts and leading theories”.[I]

In the same way that the sociology of law cannot only be contained within the narrow horizons of possible thematic specializations, it is also necessary, from the outset, to distance oneself from the vices of jurists when dealing with so-called social speculations. The sociology of law is traditionally taken by some as a reflection of jurists on society, without having its own theoretical scientificity, merely confronting positive law and legal institutions. However, the sociology of law is a reflection of sociology on law, which can and should also be done by jurists, but from another perspective, greater than that of mere intellectual work around positive law or institutional relations. Therefore, it is not just any thought of jurists about society; it is a thought of sociologists – or even of jurists as social scientists – regarding a specific object that is the legal phenomenon in society: legal relations within social relations.

The approach of the sociology of law from theoretical bases will be responsible for better qualifying its terms, breaking with customary schematisms to jurists. Traditionally, legal knowledge has had vague and superficial views of sociology, supported by common sense statements, such as the one that men live in society because they have entered into a social contract, or else because they seek the good of all, which was the definition of sociology of common law for two millennia, from Rome until today. Reflections such as that law accompanies any society were made without problematizing its terms and without developing a deeper level of analysis about the foundations of law itself and society.

Taking the old prism of jurists, where there is society, there is law. This is one of the Roman sayings, and the sum of them seemed to provide the jurist with a complete banalized legal sociology, on par with popular sayings, which give rise to a sociology vulgar to the masses: the value of a sociological reflection that where there is society there is law is the same of a sociological reflection that the voice of the people is the voice of God. Visions of this nature were imposed without better qualifying these assertions repeatedly presented.

The practical legal life and also the graduation and post-graduation formation of the jurist, gradually erect a series of constitutive schemes of knowledge, as well as a series of occultations and interdicts, from which usually rise and identify the considerations from the field called philosophy and sociology of law. Daily interactions, social groups, the influence of the mass media, all this leads to an average opinion about criminal law that barely passes for a science in the respect – in the jargon “a good criminal is a dead criminal” deep ideological complexes that organize sociability. The discipline of criminology does not reach the whole of those who think about or deal with criminal law, as subjects of this nature are more often than not dominated by common sense views. Roman law, with the old adage that where there is society there is law, provides an easy ideology and a dimension regarding our thinking about society that is quite difficult to modify later. Knowledge about society comes from the most varied sources, few of them scientific.

Traditionally, there is a mutual disconnection between law and sociology. The vulgar and common sense views of jurists make them relatively impervious to sociological knowledge. And, on the other hand, general sociology does not pay much attention to the issue of sociology of law either. The social scientist's treatment of law is different, for example, from that provided to other topics of knowledge, such as political sociology, on which there is a consolidation of interests that has generated great works and reflections by important thinkers. More recurrent is also the treatment of the sociology of religion, of which Weber himself is one of the greatest figures, or the sociology of art, also on which many thinkers have already spent much attention. In general, sociological knowledge about law has never gained much attention from the social scientist. And since the sociology of law is also not observed satisfactorily by the jurist, it is then a complete reject of university knowledge.[ii]

The presence, in Brazil and in the world, of great thinkers in the sociology of law is not historically unknown. What happens is that, in the Brazilian intellectual development, juridical-sociological traditions of greater perenniality did not occur or that, from them, comprehensive readings were constituted, making law a theme-force or a privileged angle for the understanding of the whole. of sociological understanding. The need to return to the classical theorists of sociology stems from this lack of a strong sociological perspective, because they support the broader and more stable perspectives of the world from which law will more appropriately be taken as an object.

By making the sociology of law drink from the sources of sociological theories, theoretical visions that are very different from each other will inexorably open up. But, whether from Weber or Marx, with all the divergence kept between both, there are sociological ballasts that are much more perennial and correct in academic terms than, for example, keeping to the repetition of the list of common understandings of sociology of jurists' law. This avoids sociological positions taken from the banal ideological horizon or from the phrases of jurists or ideologues. Gilberto Freyre talks about this:

Conflicts of jurisdiction between sociologists and jurists and constitutionalists are more severe than border issues between Sociology and Psychology or Sociology and Anthropology, perhaps because of greater ease on the part of jurists and constitutionalists in taking the name of Sociology in vain; and give as sociological solutions, solutions only of legal experts or doctrinaire politicians, without scientifically sociological basis. Conflicts of jurisdiction between Sociology and Law and Political Science, around social problems that are not exclusive to any of these studies, are inevitable. Several problems are presented to sociologists and jurists who are distinguished less by the object of each one, than by the point of view of Sociology or Law, Sociology and Political Science, by which they are faced.

What seems to be avoidable is the ability of jurists, constitutionalists, professors of Public Law to consider sociological constructions or solutions that they arrive at under the influence of Sociology, it is true, but without scientifically sociological control of their generalizations or adaptations of laws of a people to another. Here we refer mainly to adaptations, from one area to another, of laws and constitutions. Adaptations in which office-only jurists intend to work on Sociology, when their intended solution to problems of inter-human relations is only technically legal.

[...]

As for the scientific study of social institutions, mainly juridical and of the State, belongs – like the scientific study of social institutions in general – to the sociologist, who examines their origins and formation, development, forms, interrelationships, in terms of social life or the cultural totality.[iii]

By constructing itself as sociological knowledge about law, and not as legal knowledge about law, the sociology of law is positioned within the general framework of social sciences, permeated and crossed by their various areas of occupation. With regard to its most obvious and immediate ambience, the social sciences have an interface with philosophy, from which they have even sought to differentiate themselves since the XNUMXth century. The encyclopedic classifications that are made about the social sciences identify it from the fundamental core of sociology, but also unfold it in political science and anthropology. For many cultural, scientific and university environments, it is called by social sciences, stricto sensu, to this ensemble of sociology, political science and anthropology.[iv] But they can also be called by social sciences, Postgraduate Course , other disciplines that deal with society, such as economics, administration, history, geography and law itself. Theodor Adorno thus refers to the sum of areas and disciplines that characterizes sociology:

At the outset, it is worth saying something very simple – of a simplicity apprehensible to all without the need to refer to the problem of social antagonisms – namely, that in current terms, Sociology is an agglomeration of disciplines, in the beginning totally disconnected and independent. I believe that much of what appears today as an almost irreconcilable dispute between sociological schools simply has its origin in the fact that sociology harbored many things that at first sight had nothing in common, although it is clear that behind this there is something deeper. Sociology grew out of philosophy and Auguste Comte, the man who introduced the name "sociology" to the map of the sciences, named his first major work Positive Philosophy Course, translating: “Course in positive philosophy”. On the other hand, starting from the science of administration in the XNUMXth century, under the terms in which it already operated in the mercantile system, there was a gradual development of empirical techniques for obtaining information related to specific social situations. But they were never really connected with the aspirations arising from Philosophy and both developed independently.

[...]

But I would like to dwell a little on the subject of sociology, because you have the right to know more about what constitutes the object of sociology. In the first place, this question suffers from the configuration of the theme of sociology, according to Hegel, a “bad infinity”. That is, there is nothing, nothing at all, under the sun that, because it is mediated by human intelligence and human thought, is not at the same time also socially mediated.[v]

Law is both a general object studied by the various areas of applied social sciences – one could say of a sociology of law and, also, of a political science on law, of a legal anthropology – but, still, it is itself , a specific constituent of the vast field of social sciences in the part in which it asserts itself as knowledge and practice in the face of society. Traditionally, jurists usually assign, to their graduation diplomas, the identification of bachelors in “legal and social sciences”.

The internal legal knowledge that would qualify the law to be a social science is of the same nature as that of economics: since they are occupations that generate social relations and reflections about themselves, they become contributors, in the broadest sense, to what the social sciences study. in the strict sense. With regard to the social sciences and a sociology stricto sensu, however, law is one of the subjects studied using sociological methods, not legal methods. Thus, it can be said that there is something in law that, on its own, is a social knowledge undertaken by jurists; but in what is the great study of it, law is an object of the social sciences.

Fundamentally, the sociology of law is not knowledge of the jurist as a jurist, but knowledge of sociology applied to law. In such a way, law is an object of sociology, it is a theme, as are politics, religion, culture, art, etc. It is true that the jurist's knowledge helps in a better sociological understanding of the analyzed phenomenon. It so happens that the sociology of law is not made from the jurist's impression of his work, nor is it enough in his ideological readings about society, but has it as an object of study. Exactly the consolidation of the legal phenomenon in the Contemporary Age allowed to know its bases in a more stable and universal way. The sociology of law will emerge in the XNUMXth century along with sociology itself also because, at that time, law was already established in capitalist societies, in a pattern that structurally follows the same until today. Capitalism is already, in this period, constituted by legal relations and bourgeois political institutions. The theme of the science of law arises at the same time as social science.

Law, since the emergence of sociology, becomes one of its necessary objects of study. Sociology incorporates it as one of its themes because, since its dawn in the XNUMXth century, it has not had a limited theme, so that it incorporates fields of knowledge and varied social practices, as they consolidate themselves, gaining importance and awakening the interest of sociologists. . Florestan Fernandes deals with the various themes of sociology and its unity based on sociological methods, in line with the opposite of considering that special sociologies, such as law, revolve around the knowledge of jurists:

As can be seen, sociology is divided into several disciplines, which study the existing order in the relations of social phenomena from different irreducible, but complementary and convergent, points of view. However, nothing was said about the so-called “special sociologies”, such as economic sociology, moral sociology, legal sociology, sociology of knowledge, etc. Strictly speaking, this designation is inappropriate. As in any science, sociological methods can be applied to the investigation and explanation of any particular social phenomenon without, therefore, having to admit the existence of a special discipline, with its own object and problems!

This trend had reason to exist in the past, while doubts hovered over the essential questions concerning the object of sociology, the nature of sociological explanation and the investigation techniques recommended in the sociological study of social phenomena. It simplified the specialists' work, confining the scope of discussion to methodological issues and the meaning of their contributions.

[...]

The more or less free use of such expressions facilitates the identification of the content of the contributions, thus simplifying the author's relations with the public. This seems to be enough to justify their use, since attempts to indefinitely subdivide the fields of sociology lack logical sense.[vi]

Given that sociology spreads across various thematic fields, the sociology of law, in this range, is close to some other sociologies of more similar themes, such as political sociology. Escaping the strict general sociology, political science is also close to a sociology of law, and, in addition to the social sciences, areas such as the philosophy of law and political philosophy are close to it. Some of the major themes common to all these fields are politics and the state. Knowing that the manifestation of law in the contemporary world necessarily passes through the State, a large part of the sociology of law reflection is also political sociology. There, junctions are opened that make the sociological and humanities fields related.

This results in an affinity and even a blurring of dividing lines between sociology of law, philosophy of law, political science, etc. Materially, when you look for the sociological foundations of both law and the state, you will discover the critique of political economy, capitalism. The sociology of law, then, will end up facing the great questions of the very structure of society. Economy, politics, culture, the whole social complex crosses the law and is crossed by it.

In the internal classification of the list of disciplines of legal knowledge, the sociology of law has traditionally not gained prestige. In law faculties, in a tradition that in Brazil is still practically dependent on Portuguese roots – the old Coimbra standard serving as a model for national legal courses –, little importance was given to sociological knowledge about the legal phenomenon. A rather large role has always been reserved for natural law, which was the name of the former chair of philosophy of law, as if law had only to do with theoretical, almost metaphysical speculation and as if the concrete understanding of social data was not so worthy of the jurist.

Even today, the philosophy of law is considered a free and noble thought, while the sociology of law, going into the field, involving facts and statistics, would turn to a work that would not be valuable, because it demands a lot of empirical work. It is as if sociology, with its hands to work, immersed itself in reality – the contradictions and horrors of society – and that did not bring it as much dignity as that of merely speculative studies. Perhaps such a vision goes back to a division of labor in which philosophy thought from itself, without effort, and sociology proceeded like manual labor, going to the facts and data, thus perhaps – in a capitalist society, of exploitation of work –, some rancidity of indignity due to the discredit to the act of working, even if intellectually.

Sociology of law, legal knowledge and criticism

The sociology of law studies practical legal knowledge; these, however, do not necessarily study it. For jurists, their daily lives do not see the structural bonds of law, such as those of the mode of production or class. Thus, they do not establish greater associations between law and capitalism or between law and class struggle or antagonisms between social groups. The day-to-day work, as a rule, only deals with individual cases and, with that, practical legal knowledge tends to reiterate common sense about societies: the immediate, the technical and the efficient are its explanations of the world . In contrast, permeating scientific knowledge about society, there is a possibility of criticism. Training in the sociology of law is not just a tool for legal practice. Nor does it only revolve – or it should not revolve only – on the internal axis of knowledge of its methodologies or its great debates. The sociologies of law can help to reconfigure the understanding of law and society itself.

If some views of the sociology of law allow for a scientific requalification of the structures, dynamics and problems of law in society, it happens that, among students of sociology of law, few, in the future, will dedicate themselves to advancing in the relationship between theory and practice or will focus specifically on the theoretical issues of the discipline. The majority will be legal professionals and women and men living in society, seeking to understand the world for practical purposes, interested in issues applied to their tasks, their relationships and their positions taken. Few will look at theoretical studies in the area based on consequent critical horizons, although all, indistinctly, will be agents and patients of their time, needing to take some action, even if that of conservation of what has already been given, in the face of ills, exploitations and oppressions, whether they are legal or not. If a science on society is extracted from the myriad of sociological readings, materially rigorous and consistent in terms of implications, it will serve as a contribution to the struggles for the transformation of times and societies. One – rare, but possible – hypothesis of the implication of the sociology of law in the training of jurists and citizens is that it allows a better understanding of the world and leads to engagement to transform it: science and revolution.

Georges Gurvitch, in his legal sociology, when dealing with the importance of knowledge of the sociology of law to the jurist, recognizes that when this knowledge is not offered, a kind of practical sociology of law is then established in the legal culture. But it is beyond this purely practical knowledge that the relevance of scientific jus-sociological knowledge is outlined: “Where an immense abyss is being dug between traditional legal categories and legal reality, the sociology of law takes on a vibrant relevance. This is what happens in our time; because, in the current situation, abstract legal formulas denote being totally incapable of capturing the tumultuous waves of the real life of law, with its unprecedented, unforeseen institutions, emerging from an elemental spontaneity. The jurist can no longer take a step without doing the work of a sociologist, without appealing to the sociology of law. And since the latter, as a methodological discipline, is often foreign to legal education, and never occupied the position that would have been its due, we see here and there the emergence of a spontaneous sociology of law, sprouting, sometimes in the work of theoretical jurists, sometimes in the judges'.[vii]

More scientifically based sociological perspectives will immediately allow us to understand causes and objective determinations of social relations, removing persistent idealistic schematisms. Well-intentioned theses on environmental law said and say that the environment is fundamental to the common good and, therefore, came the legislation of environmental crimes. This word “therefore”, which states that the law arose from such a need, demonstrates the lack of quality of the alleged sociology of idealist law, because it ignores the causalities and contexts of normative elaboration in contemporary societies. In the same terms, dealing with other matters, it is argued that the worker deserves to have his working and living conditions preserved and deserves to have guarantees of dignity, therefore resulting in the CLT. A science about society does not operate like that, as if speculating about what is precise, necessary, ideal, more socially worthy.

Such arguments turn out to be a kind of metaphysics of society and history. Against such empty rhetorical bases, scientific horizons rooted in the materiality of social relations. It is possible that a relationship can be established between the emergence of environmental law and the action of pressure groups at the political level, as in the case of the Greenpeace, for example. In this case, even if shallow and provisional, there will be a better command of the language of the sociology of law than the one that simply says that social conscience created environmental law, even if the reading of the change of law through pressure groups lacks a better understanding of the connections between economics, politics, law and environmental protection.

On another level, much more scientific, will be the proposition of the emergence of environmental law because the technological advance of the current capitalist industrialization no longer needs so much more the exploitation of nature, in such a way that it can be legally preserved better because it is less impediment to reproduction of capital and, as a necessary counterpart to this movement, we see the economic groups that profit from activities that involve deforestation and pollution and that resist this capitalist update for reasons that are also capitalist.

The same happens with regard to the internal relationship between law and the State, thought by many to be similar. From this perspective, the law is the law, the State is the law, the State makes the law for the law, the law for the law organizes the State. Hence, there is, overwhelmingly, the belief that to know the law better – even sociologically – is merely to know better the laws or the social bases of the legislative process. For such a relationship, there is in the State a sovereign or autonomous power distinct from society, interfering in it under the support of the bureaucracy itself. Ultimately, according to this view, law makes law. This is how the various juspositivisms think.[viii]

Its result, although seeking to be supported by a sociology of law, is technical. Achieving the materiality and scientific objectivity of the social phenomenon of law is to go beyond institutions and norms, seeking to understand its relational nature, its social forms, its determinations. With this, it follows that not only is democracy sacralized, but one seeks to analyze it from its structures in capitalism. A sociological reflection on civil procedure and citizenship does not go along the path of recognizing in them a necessary basis for the demand of subjects of law: it is necessary to ask about why there are subjects of law, why their conflicts are necessarily put in a procedural form, etc. . Much less is there any need to say that appeal is a principle of natural law or that individuals in all societies have had the right to appeal against sentences passed against them. Civil procedure is not a sacrosanct principle, nor a biological impulse of man, nor, necessarily, the technical platform for the best resolution of social conflict.

Gurvitch himself emphasizes the position of the sociology of law as knowledge beyond positive law or jurisprudence: “Jurisprudence, or the “dogma of positive law”, can only establish a coherent system of normative standards and symbols (more or less less rigid or flexible), valid for the experience of a particular group at a particular period and with the aim of making the work of the courts easier. But legal sociology faces the almost infinite variety of experiences of all societies and groups, describing the concrete content of each type of experience (as they are expressed in externally observable phenomena) and revealing the full reality of law, whose patterns and symbols hide more than they express”.[ix]

The intersection between approaches from the sociology of law and others from economics, politics or philosophy, among other types of knowledge, means that there are many contact zones and even knowledge common to all these areas, if one thinks of them as compartmentalized disciplines. In the systematic framework of what are the branches of law and their underlying theoretical disciplines – philosophy of law, sociology of law, history of law and general theory of law – major theoretical keys cross the specific fields of each of these analyses.

Such knowledge interpenetrates. Taken in isolation only in a merely didactic division, by the common sense of jurists and academics, the sociology of law differs from the general theory of law and philosophy of law because it does not deal with the technical knowledge of the general theory of law, and also because it does not reflects sovereignly and doesn't even take sides directly in relation to the data, as is the case of the philosophy of law, for which great meanings of understanding of sociability and its criticism are sought. In the tradition of many great sociologists, the attachment to facts and data leads to a sociology that is aware, totalizing without ever presenting itself as transforming, accounting but without party in relation to the analyzed object. It will not matter, for the treatment of sociology according to many, taking a position in relation to what it is about. In this myth or ideology of neutrality, the bias against or in favor of labor law is not revealed beforehand: something in the numbers must show a truth that is reputed to be inexorable.

If there is unemployment, the numbers would clearly show the need to reduce labor protection in order to create jobs. Ideology and political interest are concealed by statistics, this alleged technical objectivity. For some sociologists, like Weber, what matters at first is that the entire development of reasoning has a foundation in causes and social explanations, and this foundation cannot be incoherent. It is clear that most of sociology proceeds in this way, in order not to take into account that which is the deepest and most critical of the traditions of analysis of society, Marxism, which does not allow a mere dilettantism for sociological knowledge. Marxism, reaching the science of sociability, its determinations and objective causes, allows the objectivity of knowledge for transformation, and it is certainly here that it distinguishes itself from the so-called neutral, indifferent or technical sociology, well-established in the universities and companies of the world .

Common sense has a tendency to consider sociology as knowledge that is very close to Marxism, leaning towards the horizon of socialism. In fact, in the history of contemporary university knowledge, it is almost the opposite. Theodor Adorno, in his lectures on sociology, deals directly with this, even evoking a joke: “I know – and here I address myself again to those present who are beginners or present themselves as such – that, when a young person starts studying of Sociology, often faces some resistance at home, as it is believed that due to the two syllables “so” and “ci” [risos] Sociology should be eo ipso something like impregnation with socialism. However, when the concept of Sociology is apprehended in its specificity, how it emerged historically and what its historical significance is, it can be said that the truth is just the opposite. This is a naive reversal of the actual situation. However, I myself still remember very clearly my student days, when I realized with great surprise that dealing with social issues does not automatically imply questions relating to a better or more adequate society. On the contrary. Already at that time I noticed in a certain sociologist the attitude of an accomplice wink, which meant: we sociologists know things, we know that everything – with an emphasis on “everything” – is a lie, that there is no revolution, that there are no classes , that everything is just invention according to some interest and that Sociology consists precisely in positioning itself above that through the superiority indicated by the blink of an eye”.[X]

Sociologies and sociologies of law, due to the false expectation that in some small part they can approach Marxism – even though most of them are frankly anti-Marxist[xi] – have traditionally been seen by conservatives as pernicious, critical, uncomfortable. For this reason, in the list of academic knowledge on law, the sociology of law, like the critical philosophy of law, has always been considered a poor cousin. The prejudice of the conservative jurist against sociology is twofold: if he refers to the sociology of law, which is also conservative, he considers it only a science of statistics or percentages or he says that social analysis is not something for lawyers, they are for sociologists, political scientists, mathematicians , statisticians or journalists, merely serving as aid, news or illustration, having secondary importance in legal life; if he refers to the critical sociology of law, he accuses it of being against order, hence anti-legal and, therefore, abhorrent to the sustenance of society as it is.

Beyond the conservative or silly quadrants of social common sense, dealing with any topic of law requires reflecting on this topic having ballasts in social reality. The relationship between labor law and the cost of companies must be able to reach the very nature of capitalism and its social forms – work, company, private property. Therein lies the structural sociological critique. Labor law itself allows for a great reflection on society, but not the criticism of the review appeal in the Labor Court, its costs or the delay in its judgment - or, then, cutting the theme merely from the angle the cost of social entitlements to employers.

More specific themes, such as the Statute for the Elderly, require legal and sociological reflections to know their social repercussions, but, sociologically, this is not achieved with the exegesis of the norms of the Statute for the Elderly, which would only result in a practical manual of the Statute of the Elderly, but not a reflection on the situation of the elderly and the law in contemporary society. From the theoretical bases come the assumptions, the matrices, the scientific understandings that, later, will be used in the many concrete situations, although it is also known that something of the sociology and sociology of law is forged with the coexistence and the look at the reality of exploitation and oppression, exploited and oppressed in societies. Hence, in addition to scientifically appropriate and consistent ideas, there are also great struggles and transformation actions and great commitments to those who suffer. Living in the favelas, in the unions, on the streets, with male and female workers, with the unemployed, with vulnerable groups, with minorities, with social movements, derives much of our greater sense of society.

*Alysson Leandro Mascaro He is a professor at the Faculty of Law at USP. Author, among other books, of Utopia and law: Ernst Bloch and the legal ontology of utopia (Latin Quarter).

 

Reference


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

 

Notes


[I] Rocher, Guy. General Sociology 1. Lisbon, Editorial Presença, 1977, p. 9.

[ii] “I spoke of the difficulties that collaboration between sociologists and jurists encounters at the organizational and psychological level, and I cannot fail to refer to the analogous, if not greater, difficulties that such collaboration encounters at the scientific level, difficulties due to ignorance and aversion that, for on the one hand, sociologists demonstrate through legal studies and that, on the other hand, jurists demonstrate through sociological studies. An ignorance and aversion that is certainly not found in the classics of sociology (Durkheim, Tönnies, Weber) and that modern sociologists of law should seek to eliminate in order to facilitate and promote interdisciplinary work”. Treves, Renato. Sociology of law: origins, research and problems. Barueri, Manole, 2004, p. 233.

[iii] Freyre, Gilberto. Sociology: introduction to the study of its principles. Rio de Janeiro, José Olympio, 1973, pp. 269 ​​and 271.

[iv] Dealing with the social sciences in the Brazilian case: “Among the disciplines that make up the so-called 'Social Sciences', Sociology has always been a kind of 'representative' of the others, namely, Political Science and Anthropology. Prior to the institutionalization of Social Sciences, there were not exactly 'political scientists': all were 'sociologists', if not 'philosophers' who ventured into social analysis. Anthropology was a little different because of its object, very focused on ethnographic activity with the Indians, but when moving away from this precise research object, it was possible to find anthropologists who presented themselves as sociologists. With the development of graduate programs in the early 1970s, differentiation took on a more definitive shape, and boundaries became better established”. Bastos, Elide Rugai; Abrucio, Fernando; Loureiro, Maria Rita; Rego, Jose Marcio. "Presentation". In:Conversations with Brazilian sociologists. Sao Paulo, Ed. 34, 2006, p. 9.

[v] Adorno, Theodor W. Introduction to Sociology. Sao Paulo, Ed. Unesp, 2008, pp. 56 and 72.

[vi] Fernandes, Florestan. “Sociology: object and main problems”. In:Ianni, Octavio (org.). Florestan Fernandes: critical and militant sociology. São Paulo, Popular Expression, 2011, p. 99.

[vii] Gurvitch, Georges. Legal Sociology. Rio de Janeiro, Kosmos, 1946, p. 37.

[viii] SeeMascaro, Alysson Leandro. Philosophy of law. São Paulo, GEN-Atlas, 2021, caps. 12 and 13.

[ix] Gurvitch, Legal Sociology, on. cit., P. 88.

[X] Adornment, Introduction to Sociology, on. cit., P. 62.

[xi] “Even in the 1960s and 1970s, sociology was not intrinsically associated with the Left, let alone revolutionaries. The matter was the target of many criticisms by Marxists from the most varied perspectives who, far from considering it subversive, saw it as the true epitome of the bourgeois order that so disgusted them. In some aspects and circumstances of its development, sociology has, in fact, a long history of links with the political right. The political convictions of Max Weber, usually considered one of its classic founders, leaned more to the right than to the left, and the author was a fierce critic of those who, in his day, called themselves revolutionaries. Both Vilfredo Pareto and Robert Michels, towards the end of their lives, flirted with Italian fascism. It is likely that most sociologists have been liberals by temperament and political inclination: such a statement is true of Émile Durkheim and, in later generations, of RK Merton, Talcott Parsons, Erving Goffman and Ralf Dahrendorf, among many others. renowned sociological thinkers”. Giddens, Anthony. In defense of sociology: essays, interpretations and rejoinders. Sao Paulo, Ed. Unesp, 2001, p. 12.

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