Critical Legal Studies.
| Autor | Franzoni, Julia Ávila |
Presentation
June 2021
2021 continues its course, replete with social, political and economic challenges since the beginning of the Covid virus pandemic. While a vaccination campaign is advancing slowly, as disputes on the political and legal levels are continually advancing and daily renewing the need for critical readings engaged to understand the moment we are experiencing, as well as to formulate alternatives to the present conflicts. With this in spirit, we present the new issue of Revista Direito & Práxis (Vol. 12, N. 2, 2021 - April-June), with fourteen unpublished articles, a dossier, as well as translations and reviews.
In the general section, the fourteen unpublished articles bring analyzes of the pandemic crisis from approaches in the fields of constitutional law and social theory, in addition to work in the fields of transitional justice, labor law, post-colonial studies, critical theory of hegemony, as well as analyzes of the field of critical criminology. Our translation section presents four unpublished works, originally written in Portuguese, the first three components of the dossier in this edition and the fourth, a work by Professor Kevin Anderson, with the title "Class, Gender, Race and Colonialism: The Intersectionality of Marx". The review section also brings two relevant work discussions on the field of critical studies, the first is part of the dossier and promotes a debate with Professor David Trubek, representative of Critical Legal Studies (CLS). The second addresses the issue of research in law from the perspective of indigenous peoples.
No less important, this edition's dossier makes a fundamental contribution to revitalizing the debate on the North American tradition of Critical Legal Studies, a current of critical socio-legal thought, which had its peak after the 1970s, but which still marks critical research in the field of law in Brazil today. The dossier was organized by Professors Julia Ávila Franzoni, André Coelho and Philippe Almeida from the Universidade Federal do Rio de Janeiro (UFRJ). This section contains, in addition to eight unpublished articles that are presented by the editors themselves in the text accompanying this editorial, the three translations previously mentioned, by authors such as Derrick Bell Jr., Duncan Kennedy and Angela P. Harris. This effort is part of a research and extension project developed at UFRJ, which aims, based on translations of pioneering works by these authors, to spread the thought and ideas originating from this tradition to female and male researchers in portuguese language. The review in dialogue with Professor Trubek also accompanies this collective effort to promote the debate on CLS based on the dossier.
We appreciate the rigorous work of the invited editors, as well as the translators who contributed to this edition! We remind you that the editorial policies for different sections of the magazine can be accessed on our page and that the submissions are permanent and always welcome! We thank, as always, the authors, reviewers and collaborators for the trust placed in our publication.
Have a nice reading!
Direito e Praxis team.
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Introduction to the Context and Purpose of the Dossier (1)
There is no wrong time for Critical Legal Studies. Every time, in any context, it is always right, because the wheel that unites law, power and privilege never stops turning. Rules are created every day that combine the promotion of dominant interests with the allegedly neutral and universal point of view and language. Every day, judicial decisions are made that invoke deductive force and pure technicality to the selection and application, among all possible ways of using Law, of the one way that most reproduces the status quo and reinforces inequality. Every day young law students are converted, with more or less knowledge and consent, into subjects trained in the hierarchical habitus of the legal academy and convinced of the liberal, capitalist and colonial myths - transmitted to them as scientific knowledge. Every day biomes and ethnicities disappear under the conniving eye of law. And, above all, every day, with the sanction of Law, black bodies are exploited and slaughtered, female bodies are harassed and raped, homosexual or transsexual bodies are prostituted and eliminated, and so many anonymous bodies that intersect these identities are victims of oppression equally crossed on the colonized periphery. For this reason, any voice that screams to make itself heard against the current and undo the false consensus of the hegemony of traditional law is always welcome, no matter at what time it arises.
There are contexts, however, where the task of criticizing and transforming the Law becomes more urgent than ever. This is the case of the economic, social and political crisis into which the new stages of Neoliberalism have launched all countries, especially those in the periphery--a crisis recently turned explicit and intensified by the health apartheid (2) and the generalized precarization of life in the Covid-19 pandemic.
With the increasing expansion of globalized financial capitalism and the cyclical expansion of the growth frontiers open to appropriation by dispossession (3), Law is increasingly called upon to play the role of establishing and regulating the extension of competitive logic to all fields of social life (4) and implementing the conversion of public spaces and institutions into efficient agencies guided by goals and typical processes of business rationality (5). It is through reforms and decisions of Law that labor becomes more precarious (flexibilization, outsourcing, uberization, etc.), that a growing private securitization of life in general and social care in particular takes place and that more and more controlling and perverse forms of biopolitical governmentality are exercised (6), which in the periphery becomes predominantly necropolitical (7).
It is not surprisethat the new subject, neo-subject, formed this way is much more vulnerable not only to the standard ethical discourse of neoliberalism in the form of self-entrepreneurship, but also to the polarization and political intoxication of the manipulative forms of the post-truth and reactionary and denialist circles, which know how to mobilize the feelings of resentment and insecurity in the form of directed and perpetually self-nurtured paranoia and hatred according to not so hidden agendas (8). This is also why the constitutive marriage between capitalist exploitation and multiple forms of identity oppression (9), which has defined the dynamics of capitalism since its inception, returns in the context of deepening neoliberalism in the form of association, both strategic and structural, among neoliberal agenda, social and religious conservatism and fascism (euphemistically dubbed right-wing populism) (10), which reinforces all identity oppressions (gender, race, gender identity, sexual orientation, physical capacity and fitness, etc.) in the name of restoring and sharpening the social distinctions that structure the capitalist reproduction.
The experience of Bolsonarism in Brazil, however nuanced with idiosyncratic and Latin American nuances, echoes, in its own way, experiences that occurred in Russia under Vladimir Putin, in Hungary under Viktor Orbán, in Turkey under Recep Tayyip Erdogan, in India under Narendra Modi, in the Philippines under Rodrigo Duterte and, to a lesser extent, but with greater prominence, in the United States with Donald Trump and in the United Kingdom of the UKIP and Boris Johnson, not to mention countless other extreme right parties that aspire to do the same in other countries. In this way, if neoliberalism has been, in one of its facets, a form of production and management of psychological suffering (11), at the same time it dedicates, on the other hand, to the explicit corrosion or cynical corruption of all public spaces for participation and transformation, marching towards a post-democratic horizon of political life (12).
Even the strategies that the left wing and social movements have used in the past (and continue to be used in the present), such as the gaining of gradual tactical spaces by means of the platform of rights and the exploitation of the innovative capacity of the judicial branc, have been captured and mimicked by the neoliberal and conservative right, which makes use of certain classic political freedoms (thought, conscience, religion, spreech, association, protest) to create shields and niches of anti-progressive resistance where the freedom to believe and to speak serves of excuse to discriminate and harass groups and dismantle and sabotage social policies (13). If, through austerity laws and policies (14), Neoliberalism hijacks the present and sabotages the future, through these strategic uses of freedom rights it also ensures that some of the worst ghosts of the past return to haunt new generations. All of this within the framework of a true "capitalist realism" (15), which internalizes the end-of-history thesis and converts tiredness, precariousness and hopelessness into melancholy, inability to even conceive an alternative to capitalism, producing not only resigned normalization, but also the defeatist acceptance of the more unequal, genocidal and ecologically suicidal economic-social system in history.
It is in this scenario that jurists with a critical inclination and emancipatory aspiration are called, again, to reevaluate the history, debates and gains of Critical Legal Studies and to engage creatively with this movement. It is the reason why we consider, as editors of this dossier, that the moment, both country and its legal intellectuals, was so appropriate for us to take stock of how far our predecessors have advanced and the propose the new strategies that the generation of crits needs to face the challenges of the present. This dossier brings together both types of contributions, mixed in...
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