The racial deficit of Labour Law in Brazil

This article seeks to analyze the racial deficit in Labor Law in Brazil, based on the understanding, by the critical field of the labor sector, of the place in which black workers are inserted in the emergence of Labor Law and in the very constitution of the working class. Thus, we seek to show how this field deprives itself of an analysis that identifies black workers as relevant agents in the historicity of labor relations in Brazil


Introduction
Initially, it should be noted thatthis paper has a very specific purpose, which is also a very problematic one: to discuss racial relations in the critical field of Labor Law in Brazil.It is true that the racial debate has now resumed a relative protagonism, be it by the persistence of social inequalities caused by the racialized structure and the proposed paths for its overcoming or accommodation, whether due to the theoretical-discursive expansion in different areas of knowledge.In that sense, the racial debate began to instigate questions about certain commonplaces that were sacralized in certain areas, which, due to dominant conceptions and readings on specific historical facts, became naturalized as truths, to the point of delimiting the very criticism of those who rebel against them.
In this sense, the emergence and consolidation of Labor Law as a historical experience in the country is a fertile field for these common places, residing there an environment in which the exercise of (self)criticism must be the horizon that will guide the debate from which a new social historiography of labor will support a more judicious look on the founding bases of Labor Law.And this is exactly where your critical eye must direct your attention, either by virtue of certain narratives of the past still gravitate in your imagination, conditioning your readings and behaviors, either because facing such issues is an imperative necessity, compatible with the constant exercise of criticism.
Thus, in order to apprehend a given topic as a relevant problem to be debated and faced in a public debate, a critique must be able to arouse in the interlocutors a certain discomfort regarding the crystallized certainties that hover over its state of the art, in a way that allows pointing to the inconsistencies and limitations of its arguments.In this sense, criticism arises to deconstitute the common places that fossilize historical readings that, in the face of new milestones and perspectives of a certain field, become incapable of answering the new questions asked, while are resistant to change, as they are introjected as dominant conceptions over the historical subjects of a specific area of knowledge.
As well raised by Marcos Nobre, 1 the fundamental sense of criticism is to be able to point out and analyze the obstacles to be overcome so that the potential better gifts in the existent can be realized.In his opinion, this is how is possible to see, in the present reality, Finally, from the reading of three authors from the critical field -Maurício Godinho Delgado, Jorge Luiz Souto Maior and Wilson Ramos Filho -, we try to understand how they treat the transition from colonial slavery to class society in the country, in terms of emergence of Labor Law and the constitution of the working class.So, we seek to show, in an exemplary way, how Labor Law critical field deprives itself of an analysis that identifies the black worker as a relevant agent in the historicity of labor relations in Brazil.

Delimiting the debate
To Karl Marx, 3 in the social production of their own existence, men enter into determined, necessary, independent of his will.For the author, these relationships of production correspond to a certain degree of development of its material productive forces.Thus, in his view, the totality of these production relations constitutes society`s economic structure, the real basis on which a legal and political superstructure is built and which is a correspondence of specific social forms of conscience.In this sense, the mode of production of material life is what determines the process of social, political and intellectual life, it is not the conscience of men that determines its being, but it is the social being that determines its consciousness.
The Marxian thinking, by inverting the logic of Hegel and focusing on the material conditions of human existence, in which work assumes an ontological status in the formation of the human being, either individually or as a social being, establishes a severe criticism of capitalist sociability.In this sense, by capturing the capitalist social formation as a historical social formation, conditioned by relations of specific productions, traced the structure and dynamics of bourgeois society, pointing its foundations, conditionings and limitations, with a view of promoting the overcoming of this sociability mode.Present in Marxian thinking, the exercise of criticism, aimed at radical transformation and human emancipation from the societal form of capital, allowed him to develop dialectical historical materialism.
In this sense, Florestan Fernandes4 notes that Marx's greatest contribution was the historical materialism, which allowed, for example, new possibilities of scientific development in social sciences.For the author, the method introduced by Marx contributed to the following understandings: a) the social laws and economic conditions are valid only for certain social forms and for a determined period of its development; b) the existence of regularity in the social phenomena, yet the human will intervenes in historical events, in certain determined conditions; c) social facts are articulated among themselves by intimate connections, in an idea of totality; d) the existence of determining factors (the production in modern capitalist societies) acting over the other factors.
Thus, articulating the concept that bourgeois society is a totality concrete, contradictory and mediated by multiple determinations, Marxian thinking establishes its fundamental theoretical-critical perspective.It allows, therefore, to articulate the inseparability of a theoretical dimension with a revolutionary praxis, transforming social reality.
Rúrion Melo 5 is precise in pointing out the transforming impetus of revolutionary praxis, based on Marxian thinking, needed to be grounded in a successful relationbetween Rev. Direito e Práx., Rio de Janeiro, Vol.14, N.02, 2023, p.940-966.João Victor Marques da Silva DOI: 10.1590/2179-8966/2021/60495i| ISSN: 2179-8966 theory and practice.As a result, for the author, an adequate understanding of the capitalist system was fundamental as to a clear orientation towards a revolutionary action.In his view, Marx draws from the very existing capitalists conditions the real movement of their transformation, being the most important theoretical task to produce a diagnosis of the time capable of highlighting the conditions and obstacles to practical guidance.In this sense, there is, within Marxian thinking, an immanent criticism of capitalist society, which, according to Rúrion Melo, is a diagnosis of the time based on: a) the historical and categorical investigation of the functioning logic and reproduction of capitalism; b) the contradictory determinations of the system (intrinsically creating forms of social pathology); and c) the withdrawing of the development assumptions of the system itself towards the social conditions of its overcoming, that is, of social emancipation.
In this way, a critical theory based on Marx should be able to produce a diagnosis of the complexity of the functioning and contradictions of the capitalist sociability, pointing ways for transformation and overcoming of its societal form.In this sense, it later supported the field of what was conventionally called Critical Theory, guided by an interdisciplinary materialism. 6r its delimitation, Marx Horkheimer 7 already observed that, insofar as the concept of theory is independent, as if coming out of the inner essence of gnosis, or having an non historical foundation, it becomes a category objectified and therefore ideological.For the author, what the traditional theory admits as existing, without engaging in any way, are questioned by critical thinking, because of its positive role in a bourgeois society, the relation of media and untrue forms with the satisfaction of general needs and its influence in the renovation process in the life of the majority, requirements which science itself is not used to worry.As a result, in his view, criticism is associated with the social structure in its entirety and the non-alignment with the current social order, being necessary, therefore, to expose the social contradictions and constitute itself as a factor that stimulates and transforms.In this way, critical behavior is based on an orientation towards emancipation of society.In this sense, Marcos Nobre8 observes that the orientation for emancipation requires that theory be an expression of critical behavior in relation to knowledge produced under capitalist social conditions and to the very social reality that this knowledge intends to capture.In his view, the theory is so important for the critical field that its meaning is completely altered, because it is not limited to saying how things work, but analyzing how things work in light of an emancipation project that is at the same time concretely possible and blocked by the prevailing social relations.Hence, for the author, one of Critical Theory's most important tasks is the production of a certain diagnosis of the present time, based on structural tendencies of the current social organization model, as well as in concrete historical situations, in which show both the opportunities and potential for emancipation and the real obstacles to it.This way, Critical Theory cannot be confirmed except ifis transforming practice of existing social relations.
The formulation of Critical Theory in Max Horkheimer moved away from initial conceptions, notably due to the publication of Dialectic of Enlightenment, 9 in which, on one hand, the emancipatory orientation would be blocked by instrumental reason.Nathalie de Almeida Bressiani, 10 in this context, observes that Adorno and Horkheimer argued that social integration would have been reduced to its systemic forms, and that the identification between reason and domination, a consequence of a progressive process of enlightenment, would have eroded the very possibility of freedom in society, which would be inseparable from enlightening thinking, which, paradoxically, destroys it.Thus, in his view, the possibility of a emancipated society can only be conceived from the abandonment of rationality, would be Maurício Godinho Delgado, Valdete Souto Severo, Magda Barros Biavaschi, Gabriela Delgado and Rodrigo Carelli.
In this sense, the selection of work pieces written by Maurício Godinho Delgado, Jorge Luiz Souto Maior and Wilson Ramos Filho 14 is justified, on one hand, because they are books in which their respective authors develop their arguments more broadly and judiciously on Labor Law, allowing the reader to understand the nuances of their criticism perspectives.On the other hand, as they are commonly used in Law schools, their perceptions about the emergence of Labor Law crystallize commonplaces about the locus of black people in labor relations in Brazil.Thus, given the breadth of its scope, contribute to the maintenance of a racial deficit in the current critical field.
Having made these delimitations, we will proceed to analyze the new readings of History that allowed the repositioning of the historical place of the black in the relations of work in the country, in order to subsidize the criticism of the narratives of the emergence of Labor Law and the formation of the Brazilian working class.

New readings of the social history of labor
It is undeniable that colonial slavery, due to its length in time and quantitative relevance, has a big historical mark in the construction of Brazilian sociability, delimiting the spaces of power, the structuring of the State, the qualitative restriction of a civil society, those included in the distribution of wealth, fundamentals production relations and the post-1888 class society transition.In that regard, It would not be an exaggeration to say that analyzing race relations constitutes an excellent interpretive path for understanding the dilemmas faced by the Brazilian society to deal with the challenges of transitioning from a slaveholding structure to a free and wage-earning typically capitalist society.For Florestan Fernandes, 15 the social and slave order did not open easily to the economic, social, cultural and juridical-political requirements of capitalism and the emergence and development of the competitive social order took place gradually, as the disintegration of the slave-owning social order and manor house provided really consistent starting points for the reorganization of the production and market relations on a genuinely capitalist basis.The author observed that "the social revolution linked to the desegregation of slave production and corresponding social order was not made for the entire Brazilian society", which is why its "historical limits were closed, although its historical dynamisms were open and durable". 16t in other words, despite the country being inserted, since slavery colonial times, in socio-economic forms related to the development of the capitalism at a world level, how to develop, domestically, a sociability essentially capitalist if the Brazilian historicity is founded on an slavery ethos and in a rigid social structure?What to do to "civilize" a mass of enslaved, now free, and direct them to a rational, disciplined, and organized society of a wage-earning society?
The problem of how to build a typically capitalist sociability in Brazil would necessarily have to go through the challenge of reorienting the mass of enslaved, because the universalization of free and salaried work, based on juridical equality, was in theory not be compatible with the standards established by the slavery ethos.In this sense, the constitution of a free labor market was imperative, given that the elites' imaginary about the enslaved, as observes Celia Marinho Azevedo, 17 treated them as subjects despoiled by slavery and unprepared for free work, unable, therefore, to adapt to the new contractual standards and for rationalizing and modernizing large-scale agricultural and industrial schemes.In the author's understanding, under this guideline, they would become marginal by force of the inevitable logic of capitalist progress.
In this sense, for the aforementioned author, the inevitable way out found by the nineteenth century elites for the constitution of a free labor market would be in a worker 15 FERNANDES, Florestan.A revolução burguesa no Brasil: ensaio de interpretação sociológica.5 ed.São Paulo: Globo, 2006. 16FERNANDES, Florestan.Significado do Protesto Negro.São Paulo: Cortez; Autores Associados, 1989, p.13-14. 17  compatible with a corresponding industrial economic development, the European immigrant.Thus, on one hand, the historical inevitability of a new agent as the dominant labour power, and, on the other hand, the image of a mass inert, disaggregated, uncultured, of no great importance in that period -the black -.And is precisely this imaginary, in her view, that will rise as a historic rationality, founded on fear and insecurity aroused by real or simply potential conflicts between the elites and the mass of miserable people, 18 who show themselves as a fundamental piece for the understanding of the concrete tensions that will form within the interactions of the Brazilian working class, notably for the configuration of a racial labor division and the invisibility of the black worker's role in post-1888 labor relations. 19nce, this formation of the free labor market is marked by debates, on one hand, by an emancipationist perspective, guided by the internalization of capitalist social hierarchy and its limits, without direct physical coercion, and, on the other hand, from an immigrant perspective, focused on replacing the national workforce.And it is exactly the latter that, in a way, a posteriori, will contaminate the future interpretations of labor relations in Brazil and the constitution of the country`s working class.Put it in a different way, this is the framework that will constitute, in the words of Sidney Chalhoub and Fernando Teixeira da Silva,20 as "the historiographical Berlin wall" that engages in "the necessary dialogue between slavery historians and the political and cultural practices of poor urban workers and the factory worker movement scholars ".
In this sense, Silvia Hunold Lara 21 observes that labor`s social history in Brazil starts to be identified with free and salaried work, in which the enslaved worker does not have space.For this reason there is an irreconcilable opposition between slavery and freedom.
For the author, there was an abundant historiography on the transition from slavery -18 AZEVEDO, Op. cit. 19Lúcio Kowarick, in his work Trabalho e Vadiagem: the origin of free work in Brazil, observed that the construction of an idea of vagrancy of the national worker, enslaved, freed or about to be freed, associating him with the lack of love for disciplined and oriented work for the then nascent class society in the country, which, in his view, reinforced the slave order and relegated the national to a marginal position in the labor market, in more degraded and poorly paid activities. 20CHALHOUB, Sidney; SILVA, Fernando Teixeira da.Sujeitos no imaginário acadêmico: escravos e trabalhadores na historiografia brasileira desde os anos 1980.Cad.AEL, v. 14, n. 26, 2009, pp.13-47, p.  See that the Social History of Labor in Brazil, for a certain period, described the working class as exclusively white, industrial, of European descent, masculine and urban, leaving considerable gaps regarding enslaved workers, free or freed in the 19th century, who constituted the very worker class through which colonial slavery was sustained.Such agents would not appear as relevant to the configuration of the post-Abolition labor market, for the dynamization of urbanization and for the industrialization process that took place in the first decades of the twentieth century.Thus, for Raissa Alves, 22 the narrative of this area as of the arrival of European immigrants and the silencing of the experience had by the black people, hides the different situations experienced by black workers on the fringes of what is understood as a working class, obscuring the continuities of this place marked by racial discrimination.In this context, he rightly states that working conditions extremely degrading are not problematized, but naturalized as inherent activities carried out by the black population.
Antonio Luigi Negro and Flávio Gomes 23 point out that several studies began to break with this paradigm, by approaching the experience of manufacturing work and industrial use of slaves, as well as the complexity of the enslaved work, urban and rural, with the technological and ideological transformations occurred in the 19th century in several slave societies.In this sense, for the authors, instead of a weak class and technological backwardness, it would be possible to nuance the historicity of the urbanization and industrialization process in Rio de Janeiro since the end of the first half of the 19th century.
On the other hand, Sidney Chalhoub and Fernando Teixeira da Silva 24 point towards a change from a paradigm of absence, which identified, in the experience of Brazilian historians, a history that is incomplete and out of step with other national models, into a 22 ALVES, Raissa Roussenq.Entre o silêncio e a negação: uma análise da CPI do trabalho escravo sob a ótica do trabalho "livre" da população negra.2017.Thesis (Masters in Law).Universidade de Brasília.Brasília. 23NEGRO, Antonio Luigi; GOMES, Flávio.Além de senzalas e fábricas: uma história social do trabalho.Tempo Social -Revista de Sociologia da USP, v.18, n.1, junho/2006, pp. 217-240. 24 CHALHOUB; SILVA, Op.cit.paradigm of agency, according to which the actions of enslaved, freed and urban workers resulted from negotiations, choices and decisions in the face of institutions and regulatory powers.In the latter, according to the authors, a line of studies on the history of workers was developed that expanded the concept of worker in the academic imagination, in which emphasis was given to grouping professionals (textiles, graphics, ports, etc.), their forms of organization, specific movements and dynamics, the composition of the workforce, among others, which allowed new relevant theoretical and empirical inflows. 25us, these paradigmatic changes in the Social History of Labor more recently allowed Antonio Luigi Negro and Flávio dos Santos Gomes26 to correct the assertion of the myth of the radical immigrant as a prejudice, considering that, between silences and forgetfulness, prevents the national worker -starting with the enslaved -to appear as the protagonist of workers' fights.In this sense, the authors point to the emergence that the working class cannot be linked only to immigration, considering the history of strikes -at the time, walls -, common practice of collective action and resistance of the enslaved and free people during the 19th century.
Accordingly, what is intended to demonstrate is the existence, even in the second mid-nineteenth century in Brazil, of experiences of struggles promoted by the enslaved or freed in the urban scene of the main cities, in diverse work environments, through which it is possible to build paths that lead to the process of formation of the working class in the country, not only with the arrival of immigrants and their union activities.Thus, it is explained that the process of constituting the working class worker is not limited to the formation of the wage labor market in the country. 27One cannot fail to also observe the sharing of work experiences between enslaved and free workers as well as their articulations for mobilizations and fights, which demonstrates bonds of solidarity for the formation of the working class as a political subject.
Because of this, the observation of Marcelo Badaró Mattos28 is precious, in the sense that, in the early decades of the 20th century, when the number and diversity (emigrants foreigners, former artists, ex-slaves, migrants from rural areas) of urban areas workers expand, the experiences common to enslaved and free in the second half of the nineteenth century will have left quite significant marks on the process of formation of working class.
Thus, in view of these paradigmatic changes in the Social History of Labor, could the critical field of Labor Law remain indifferent or oblivious to these theoretical flows, with a strong empirical basis?Why then the place of the black worker in the historicity of Labor Law sector still lacks these valuable contributions?Would this critical field be oriented by commonplaces, devoid of new historiography perspectives on labor relations in Brazil?Let's see in the next section.

Discussing the racial deficit in the critical field of Labor Law
Presenting a debate or historical analysis in the legal area has proved to be a Herculean task that raises strong chills for the professionals of the craft -the historians -, in view of the tendency of the subjects of the legal profession to seek in the past elements of a certain linearity that inexorably confirm their intensions or arguments.Almost always, contradictions, tensions and conflicts do not appear, as it doesn`t the respective historical subjects, history being only a univocal tangle of legislative and protocol norms for the apogee of legal dogmatics.Going out this trap -or trying -, a notion of how to understand the historic phenomena can guide the incursion in this area.perspective.Thus, it is necessary to replace the theoretical models, built in an abstract and dogmatized manner, by historical investigations, engendered from the dialectic of production and concrete social relations.
In this sense, how to articulate such considerations for our problem in question?
From how the historical narrative of Labor Law is processed.Note that this narrative shows itself, in its hegemonic expression, as a subsidiary to the study of the Labor Law dogmatics, presents a linear and evolutionary history, which ends, uncritically, for the free and salaried work relationship, it is based on the impossibility of setbacks, involutions and discontinuities, and is unable to show the laws as resulting from social tensions and conflicts, as well as their contrasts in different forms of social organization.32What does this imply, the reader would ask, for the arguments of this text?The contradictions and subjects of each formation in Brazil do not appear in their historical dimension nor the roles they play in the modes of production for the characterization of Labor Law.
As a result, the critical field of Labor Law cannot be subject to such historical misunderstandings, having to break with these common places to which traditional dogmatics leads us.In this sense, it is imperative to break with certain understandings crystallized in the critical field of Labor Law regarding this racial deficit, as well as to what extent certain readings can be complemented, as they lack a closer look.
If it is true that the advent of rules regulating work relations should not be confused with the emergence of Labor Law,33 as we understand as a legal form, it is not inconsiderable to observe that work relation should not be framed mechanically towards the societal form of capital, under penalty of losing the "dynamic tensions in which we detect the rupture with the past", in the words of João Bernardo.Thus, a break with the past requires to be attentive to the differences in which they made it possible for Labor Law in the country to structure itself as such, based on a dialectical process.This way, enslaved labor and free labor are put side by side, as expressions of labor relations in dispute for hegemony, in the dynamic history of Brazil, reason for which the critical branch of Labor Law must not lose sight of the fact that the tensions of coexistence of these working Thus, it is evident that Jorge Luiz Souto Maior has produced an effortin his work to discuss the racialized structure of Brazilian society and its impactin Labor Law, while in the respective works of Wilson Ramos Filho andMaurício Godinho Delgado has an explicit racial deficit in their critical readings.Therefore, the intention, by signaling such a framework, is to propose a public debate that includes Labor Law critical thinking in a perspective of breaking with the racialized structure, promoting a rethinking of labor historicity relations in the country.
For Max Horkheimer,44 "determining the content and purpose of their own achievements, and not only in the isolated parts but in their totality, is the hallmark characteristic of intellectual activity.Its very condition leads it to historical transformation." In the author's view, the conformism of thought, the insistence that this constitutes a fixed activity, a separate realm within the social totality, makes the thought leaves its own essence.