出版社：Escola de Direito de São Paulo da Fundação Getulio Vargas
摘要：“Between equal rights, force decides,” said Karl Marx, describing the antinomy of law in antagonistic situations of capitalist production relations, in which “law [stands] against law”. He here addresses a question that lies at the centre of all critical legal theories: what violence is blurred in the medium of the concealment mechanism called ‘law’? to answer this question, we shall attempt below to make Antonio Gramsci’s hegemony theory and his model of a hegemonic law fertile for the theory of law. This tasK has to cope with the twofold difficulty that on the one hand gramsci was no theoretician of law in the narrower sense, which is why the potential of his theory for an analysis of law has only seldom been made use of. On the other, his approach can only be taKen up through a critique of restrictions associated with his times. This applies particularly to his conception of the econoMy as the basis and as the concealed essentialist core (Laclau/Mouffe 2001:69), as well as to his ‘classism’ in the form of a onesided focusing on classes, where there is instead more of a “pluralism of power” and a multiplicity of struggles (Litowitz 2000: 536). We shall accordingly regain key arguments by extending them using current findings of feminist and neo-materialist approaches to legal theory, as well as foucault’s analyses of power technologies and finally a systems-theory interpretation of communicative autonomizations.
其他摘要：“Between equal rights, force decides,” said Karl Marx, describing the antinomy of law in antagonistic situations of capitalist production relations, in which “law [stands] against law”. He here addresses a question that lies at the centre of all critical legal theories: what violence is blurred in the medium of the concealment mechanism called ‘law’? to answer this question, we shall attempt below to make Antonio Gramsci’s hegemony theory and his model of a hegemonic law fertile for the theory of law. This tasK has to cope with the twofold difficulty that on the one hand gramsci was no theoretician of law in the narrower sense, which is why the potential of his theory for an analysis of law has only seldom been made use of. On the other, his approach can only be taKen up through a critique of restrictions associated with his times. This applies particularly to his conception of the econoMy as the basis and as the concealed essentialist core (Laclau/Mouffe 2001:69), as well as to his ‘classism’ in the form of a onesided focusing on classes, where there is instead more of a “pluralism of power” and a multiplicity of struggles (Litowitz 2000: 536). We shall accordingly regain key arguments by extending them using current findings of feminist and neo-materialist approaches to legal theory, as well as foucault’s analyses of power technologies and finally a systems-theory interpretation of communicative autonomizations.
关键词：Gramisci;hegemony theory;theory of law;global law;GRAMISCI;TEORIA DA HEGEMONIA;TEORIA DO DIREITO;DIREITO GLOBAL
其他关键词：Gramisci; hegemony theory; theory of law; global law
