O que é direito ? | Mascaro explica sua teoria geral do direito crítica | GEN Jurídico

Summary

The speaker explores the concept of law and its historical evolution, particularly in relation to capitalism. They explain that law, in its contemporary form, is grounded in the idea of legal subjectivity, where individuals are seen as legal entities with rights and responsibilities. This development marks a shift from earlier forms of societal organization, such as slavery and feudalism, to capitalist structures where relationships are governed by contracts. The speaker emphasizes how law in modern capitalist societies structures interactions through legal instruments, ensuring the circulation of goods, including labor, with various legal guarantees supporting property and contracts.

Takeaways

• 😀 The fundamental question for jurists and law students is about the nature of law itself, and most people working in law struggle to define what it truly is.
• 😀 Law is a historical phenomenon, not something that has always existed. It emerged during specific moments in human history, particularly with the rise of capitalist societies.
• 😀 Before capitalism, interactions between people were based on direct domination and exploitation, not on legal relationships or contracts.
• 😀 The transition to capitalism changed societal structures, creating a system where everything, including labor, is commodified and mediated through contracts.
• 😀 In capitalist societies, individuals engage in legal relationships primarily through contracts, which is the foundational element of modern legal systems.
• 😀 The notion of 'subjective legal personality' is central to contemporary law. People become legal subjects, owning property and entering into contracts, which are protected by law.
• 😀 Unlike the past, where law was linked to moral and religious issues, today's law is primarily about legal contracts and the rights and obligations they create.
• 😀 The capitalist system has transformed law into a mechanism for organizing social relations, ensuring that everything is structured as a transaction between legal subjects.
• 😀 The legal subjectivity of individuals allows for the buying and selling of goods and services, including labor, and is governed by legal guarantees provided by the state.
• 😀 In modern capitalist societies, the law facilitates a range of economic and social interactions, from wages and salaries to the buying and selling of new technologies and goods.
• 😀 Within the framework of legal subjectivity, there are varying degrees of legal rights, which can be more progressive or more exploitative, depending on the specifics of the legal arrangements.

Q & A

What is the fundamental question for jurists and law students according to the transcript?

The fundamental question for jurists and law students is about the nature of law itself—what exactly is law?

Why do most people struggle to define the nature of law, as mentioned in the transcript?

Most people struggle to define the nature of law because they work with it daily without fully understanding its essence, and it is embedded in all social relations, making it difficult to pinpoint its true nature.

How does the speaker define law in the context of human history?

Law is defined as a historical phenomenon that has evolved over specific moments in human history, rather than being an eternal or universal concept.

What distinction does the speaker make between the legal systems of the past and contemporary capitalist societies?

The speaker distinguishes that in past societies, law was often associated with moral or religious concerns, while in contemporary capitalist societies, law is centered around contracts, property rights, and subjective legal personhood.

What is meant by 'subjective legal personhood' in the transcript?

Subjective legal personhood refers to the idea that individuals in capitalist societies are seen as legal subjects with rights and obligations, particularly in relation to contracts and property ownership.

How did the concept of law differ in pre-capitalist societies compared to capitalist societies?

In pre-capitalist societies, legal relationships were based on domination and direct exploitation, such as slavery and feudal systems. In contrast, capitalist societies structure legal relationships through contracts and the recognition of individuals as legal entities with rights and duties.

What role does the state play in modern capitalist societies, according to the transcript?

The state plays a crucial role in ensuring the enforcement and guarantees of legal relationships, especially in safeguarding property rights and contracts, which are central to the functioning of capitalist societies.

What does the speaker mean by the 'quantitative arrangements' of law?

Quantitative arrangements refer to the varying forms of legal protections and regulations, such as labor laws, wages, and social guarantees, that can differ from one society to another, impacting the degree of exploitation or social protection within a legal system.

How does the capitalist system transform the nature of ownership and legal transactions?

Under capitalism, everything becomes a commodity, including labor and property. Individuals can buy, sell, or inherit these commodities, and the legal system ensures these transactions are carried out within a framework of rights and obligations backed by the state.

How does the modern legal system differ from past legal systems, according to the transcript?

The modern legal system, specifically in capitalist societies, is characterized by a legal framework based on subjective legal personhood, where individuals enter into relationships through contracts, rather than through brute force or direct domination as in past systems like slavery or feudalism.