Judicial Marxism

a sociological essay on ideology in Brazilian Courts

Abstract

This article discusses the “judicial marxism”, which was characterized by the actuation of judges who have learned their ideology among student movements and labor unions. Brazilian Labor Justice was created in the 40s, but the true Labor Law charismatic founders were the hyper politicized generation of labor judges, stood out in the 80s and the 90s, when Marxist labor judges held their position, in the field, against the traditional view of a neutral and impartial judge in the Montesquieu style. It’s known that judges who are politically oriented to Marxism produce “garantist” discourses (in Ferrajoli´s sense) when they utter a speech in legal terms (in their opinions), referring to the fundamental labor rights doctrine – which is based on the concept of dignity of work. However, sometimes “labor garantism” and “Marxism” don’t coincide in attitudes of the same labor judges because it’s not necessary that garantist judges have both the humanistic education and the political initiation in their backgrounds. The truth is that Marxism and garantism can live together, once we recognize that the prior is a political and philosophical doctrine, effective only in the political field, but never into the legal field, while the later is a major philosophical theory especially applied to law issues. By the 2000s, elder Marxist judges were challenged by a younger generation of hyper technicist magistrates formed at the benches of the career preparatory courses. By asserting the autonomy of the juridical discourse, rather than the political ideology, these legal positivist judges (in Kelsen´s sense), so called “professional jurists”, partially delegitimized the judicial activism, particularly relevant in Brazilian Labor Courts. Nowadays, Judicial Marxism faces a crisis, losing space to pure garantist and legal positivist judges, although it still holds a formidable aura of legitimacy because it’s the only labor law tradition that deeply  justifies the “protective principle”, by assuming the class struggle theory as a main postulate.