PP390
Analítico de Periódico
SANTOS, Boaventura de Sousa
O discurso e o poder : ensaio sobre a sociologia da retórica jurídica / Boaventura de Sousa Santos
Boletim da Faculdade de Direito, N.especial v.2 (1979), p.227-341
Estudos em homenagem ao Prof. Doutor J. J. Teixeira Ribeiro
FILOSOFIA DO DIREITO, MARXISMO, TEORIA DO DIREITO, ESTADO, ARGUMENTAÇÃO JURÍDICA
This essay does not aim at producing a Marxist theory of law (or even legal rhetoric) but rather at establishing a sophisticated, articulated analysis on the basis of which such a theory may be eventually developed. My study begins by acknowledging two important gaps in the sociological theory of law. The first one concerns the State — a topic which has been considered-too foreign to law to be an object of sociology of law; the second one concerns legal discourse or legal argumentation—a topic which appears too close to law to be an object of sociological analysis. My aim in this study is to fill the second gap. By assuming, contrary to what has been maintained by legal philosophical thinking, that the «field of argumentation», i. e. legal rhetoric, is not a constant factor, but that it varies in both quantitative and qualitative terms, this article then attempts to trace the lines of a theoretical explanation of such a variation. For this purpose, legal rhetoric is converted into a sociological variable and correlated with two other variables: the institutionalization of legal functions and the coercive powers available for the production of legality, which are here made to operate as independent variables. Based on the rich tradition of legal anthropological research and a systematic comparison between Pasargada law — i. e. the totality of informal and unofficial juridical and judiciary processes inside a squatter settlement in Rio (Brazil)— and the official legal system of the capitalist state — represented for the purposes of this study by the Brazilian legal system — the following correlation is advanced: the higher the level of institutionalization of the legal function, the smaller the rhetorical space of legal discourse, and vice-versa; the more powerful the instruments of coercion at the service of legal production, the smaller the rhetorical space of legal discourse, and vice—versa. This correlation is here considered as the necessary (albeit insufficient) step towards a Marxist theory of legal rhetoric and of law in general. It enables us to see that the structural-functional complexity (sometimes ambiguously called «ambiguity» of law in the capitalist society derives from multiplex combinations of its main structures each with its different discourse: bureaucracy (institution and system), rhetoric, and violence. The combinations between different structures are of different kinds. One of them, which I would call external or quantitative articulation, is established by the correlation stated above; the other, much less studied but probably much richer from a theoretical perspective, is the internal or qualitative articulation — a complex structural interpenetration that is to be detected only in the long-historical duration and which consists of the presence of a given (dominant) structure inside the other (dominated) structure. By posing as an analogical illustration the rhetorical articulation between oral and written culture (including legal culture), the present essay argues that the rhetorical discourse of the capitalist state legal system — itself already quantitatively degraded — is probably internally and qualitatively contaminated by the discourse of bureaucracy and by the discourse of violence. / A third form of articulation mentioned in this study is the geo-political distribution of legal structures across legal fields. The most adequate structures for the social reproduction of power and class relations are concentrated in the most sensitive areas of social interaction and social conflict, while the remaining structures are left to more marginal areas. Thus, for instance, the eventual increase of legal rhetoric in recent movements towards the informalization of justice may be the counterpart of an increase of bureaucracy and violence in other more central areas (from the point of view of the reproduction of class power) of the production of legality. This highly contradictory and unstable process always reveals unequal distributions of power among the structures of legality in social action in general.