The 'syndrome' of legislative reforms in Brazil: criticism of the institutionalization of law in peripheral capitalism
| Autor | Carolina Alves Vestena |
| Ocupação do Autor | PhD student at the Graduate Law Program of the State University of Rio de Janeiro, UERJ, Brazil |
| Páginas | 232-250 |
232 • XXVI World Congress of Philosophy of Law and Social Philosophy
The “syndrome” of legislative reforms in
Brazil: criticism of the institutionalization
of law in peripheral capitalism1
Carolina Alves Vestena2
Abstract: This paper proposes a research agenda on the role of legal form in
the social reforms lead by the state in the periphery, considering the dialogue
between critical theory and postcolonial studies. In the rst part I present the
“state of the art” of the theories of legal sociology in Brazil and interpretations
of the Law, which have certain emancipatory features. By doing this explor-
atory analysis, some criticisms are pointed out, for example, the maintenance
of Eurocentric regulatory proposals and the lack of a critical reading about the
limits related to the institutionalization of legal form. These aspects open lines
for the connection between legal critique and postcolonial studies. In the second
part, I bring a preliminary analysis, result of ongoing research, on the inu-
ential approaches of postcolonial studies for the Latin American social theory.
With these contributions, it can be possible to indicate an opening of the eld of
social sciences to post-colonial studies, as well as the gains that these can bring
to the analysis of the role of law within global capitalism. Finally, I resume the
working hypothesis, namely, the proposed dialogue between critical theory and
postcolonial studies as a research agenda that takes seriously the potential con-
struction of a new imaginary for the critique of legal form.
Keywords: Legal form, post-colonial studies, critical theory
1. Introduction
Reformative actions are an important strategy of the State and
1
Paper presented in the Special Workshop “Give Marxism what it deserves! Law and the
Social Analysis: Is Marxism Still an Opportunity?” on 22th June 2013.
2
PhD student at the Graduate Law Program of the State University of Rio de Janeiro,
UERJ, Brazil. E-mail: carolvestena@gmail.com.
Special Workshop: Is Marxism Still an Opportunity? • 233
for the state. They primarily represent the institutional managing model
in capitalism, as the reforms are cyclically handled in order to provide
conditions for economic progress and social equality. If observed from
the point of view of this social formation, they mean, therefore, a rep-
ertoire of common action, and their characteristics may be dierent, as
a function of the ideology of the elected government, the political and
economic scenario, and the scope of the agenda of human rights and
social justice.
The discussions on reform were born from social struggles pro-
moted by workers. Nevertheless, over time, the reforms were linked to
the possibilities of transformation within the capitalist system itself. Tra-
ditionally, the term “reform” lay within a critical theory that set the idea
of reform to against that of radical social transformation, to the revolu-
tion (Luxemburg, 2007; Seembrini, 1983). In this debate, on one side
was the revolutionary movement, which was economically, politically
and culturally antithetical to capitalism, regardless of the means neces-
sary to be so; on the other side was the reform movement, whose pur-
pose was to improve and enhance the existing order, as the foundations
of this order were considered absolute and necessary for the develop-
ment of men (Seembrini, 1983). With the world changes introduced
in the postwar period and due to criticisms of the totalitarianism of the
Stalinist regime, the reform/revolution dichotomy gave way to the issue
of the gears of the state and democracy. The dierent approaches to this
subject include the debate about the “crisis of the State” in the 70s, which
brought the discussion of hegemony and material determination of the
State due to the conict of their fractions of class (Poulanas, 1969; 2001).
This approach was extremely important to discuss the role of ideology
and law in capitalism, showing how these assume a unifying meaning,
of an intrinsic order of the social body, which no longer had a transcen-
dent authority over all subjects, as stated by Buckel and Fischer-Lescano
(2009). Hence, the forms of State action depend on control mechanisms
of hegemony, which support the maintenance of political authority and
its legitimacy (Buckel; Fischer-Lescano, 2009). Although the reform ac-
tion is aimed at transforming some aspect of social reality, its interven-
tion limits do not exceed the possibilities of political emancipation of
the project of modernity linked to capitalism. Which factors characterize
this model of State action? Is its reproduction widespread in the world
system? Do center and peripheries use the reform discourse with the
same meaning?
The last Brazilian governments, for example, have worked
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