525.6 Labor justice – The Brazilian way. Political ideologies and professionalism of our judges

Friday, August 3, 2012: 1:45 PM
Faculty of Economics, TBA
Gabriel Eidelwein SILVEIRA , PPG Sociology, UFRGS - Universidade Federal do Rio Grande do Sul (Brazil), Porto Alegre, Brazil
This paper discusses the political ideologies and the philosophical orientations of the judicial profession in Brazilian Labour Justice: the implicit deontology of judicial acts. //

Protective (and marxist!) role of the Judiciary, laboral version of the “alternative Law”. Although Labor Justice has emerged in the 40s, the true juslaboral charismatic founders, who achieved to legitimize its particularity as a protective justice, were the generation of the hyper politicized labor judges of the 80s and 90s. The “judicial marxism” was characterized by the actuation of judges who have learned their ideology among student movements and labor unions. They sustained their position against the traditional view of a neutral and impartial judge in the Montesquieu style. //

Laboral Neoconstitucionalism. At the same time, following the general tendency of public law and criminal law, labor judges developed their version of the "legal garantism" (a term coined by reference to Ferrajoli) by acting in accordance with the fundamental labor rights doctrine, which is based on the concept of dignity of work: It's like if Kant had committed himself to the "social question "... // But reality is more complex than it´s suggested by pure concepts: judges who are politically oriented to marxism produce garantist discourses when they utter a speech in legal terms, i.e., in their sentences. In the other hand, not all the "garantists" have had a marxist political education. We must distinguish militant experience from humanistic learning because they often do not coincide. //

Judicial professionalism – the depoliticization of the labor judge. By the 2000s, marxist veterans 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 judges are qualified as "juspositivists" (by reference to Kelsen).