Forma jurídico-processual e capitalismo

• Autor(a) principal: Grillo, Marcelo Gomes Franco
• Data de Publicação: 2016
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações do Mackenzie
• Texto Completo: http://dspace.mackenzie.br/handle/10899/23103
• topic: capitalismo; direito processual; forma jurídica; forma mercadoria; forma jurídico-processual; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; CNPQ::CIENCIAS HUMANAS::FILOSOFIA

The main purpose of this thesis is to show an essential connection between the commodity form – essential to the very style of capitalist production – and the legal form, procedural law, passing through the political and state form as a structural intermediate stage in the dynamics of giving greater importance to value and social formations within capitalist societies. The starting point here is a materialist understanding of law and of society. Based on the relations engendered by the capitalist means of production, we try to shed some light on the specificity of the legal form as the third essential form in the dynamics of capital, together with the commodity form, the political and state form, and legal subjectivity. The legal form is equivalent to the commodity form, and both are imbricated in the State form. The core object of this thesis shall be this: in which spectrum, within these dynamics, shall the legal form be situated, and what is its theoretical and practical importance within the realms of the subjectivity of the legal system and the State, within a line of materialist reading. Like any other academic thesis or scientific work project, the present proposal does not start out from a theoretical void. In the field of philosophy, the theoretical assumptions are those of historical and dialectic materialism; to a certain extent, these are with the ideas raised by the authors of criticism of value. In historiography, also from a materialist standpoint, there is a critical viewpoint regarding Roman judicial society, the Middle Ages and modern times. For the theoretical field of the junction between Marxism, the Law and the State, the most significant bibliographical references used in this work lie in the studies and thoughts of some essential contemporary authors: Evgeni Pachukanis, in The General Theory of Law and Marxism; Bernard Edelman, in Ownership of the Image: Elements for a Marxist Theory of the Law; Friedrich Engels and Karl Kautsky, in Legal Socialism; Henrique da Silva Seixas Meireles, in Marx and Civil Law (for historical criticism of a civilistic paradigm); Alysson Leandro Mascaro, in State and political form; Joachim Hirsch, in A Materialistic Theory of the State: Processes for Transformation of the Capitalist System of the State; Celso Naoto Kashiura Júnior, in A Criticism of Judicial Equality: A Contribution to Marxist Judicial Thought and Legal Subjects and Capitalism; Camilo Onoda Luiz Caldas, in The theory of the derivation of state and law and Márcio Bilharinho Naves, in his miscellaneous deep studies about judicial Marxism. In Legal-Procedural Form and Capitalism it is impossible to avoid references to judicial Marxism, knowing in advance that a return to the writings of Marx cannot be rejected, for the consideration of the locus of the judicial sphere within contemporary society. For general procedural theory, the texts used here are the most classical ones in the field, and seek to provide grounds for the criticism and preparation of possible links to the Marxist readings of Law and of the State, thereby moulding a feasible materialist theory for procedural law. In this direction, authors such as Bernhar Windscheid, Devis Echandía, Eduardo Couture, Enrico Tullio Liebman, Francesco Carnelutti, Giuseppe Chiovenda, Nicola Picardi, Oskar von Bülow and Theodor Muther, and (in Brazil) Cândido Rangel Dinamarco and Ovídio Baptista, among other prominent specialists in procedural law, provide grounds for this proposal of the methodological criticism against judicial and procedural thought, of which many approve. This said, it is quite clear that this thesis has not only considered the establishment a wide-scope relationship between the commodity form, the legal form, the political and state form and the judicial-procedural form, but has also, and more significantly, essentially made a point of making a turnaround in defining, within contemporary society, from a materialist standpoint, the meaning, the role and the due place assigned to procedural law.