The Struggle for the Human Right to a Good Life for Everyone: Oscar Correas’s Legacy for the Crítica Jurídica Movement in Latin America

Introduction

Oscar Correas Vazquez, who passed away in April 2020, was one of the most renowned Marxist jurists in Latin America. Born in Argentina, where he took the first steps that paved the way for a long career, he conducted most of his academic work in Mexico. During his time there, he became one of the pioneers and main representatives of the Crítica Jurídica movement in Latin America, even extending its influence to some European countries, including Spain, France and England.

In spite of the importance of Correas’ writings, his work has been less studied – even in Argentina and Latin America – than that of other intellectuals belonging to the Critical Legal Studies movement, such as Duncan Kennedy, Peter Fitzpatrick and David Kennedy. Indeed, Correas was not even particularly well known within Marxist legal schools of thought which were, rather, more strongly influenced by Russian or French theorists. Nevertheless, his contributions have been very influential for a generation of left-wing and progressive jurists and political activists in Latin America.

While Correas published a huge number of books on Sociology of Law, Philosophy of Law and Human Rights, he also conducted thorough analyses of a wide variety of topics that are core concerns of critical legal studies, such as the relationship between Marxism and the law, legal ideology, the role of lawyers, legal pluralism or the law of indigenous peoples. In addition, he promoted the need to analyse societies and Latin American legal systems from a situated perspective that accounted for the characteristic features of the region. Although consistently choosing a Marxist perspective as a framework for his contributions, Correas has always added his own original and controversial analyses, drawn from a remarkable background in disciplines that are complementary to law: namely, history, philosophy, sociology and economics.

Besides his academic rigour, he conceived law as a battlefield, and he expressed that conception with political commitment, honouring a long-standing intellectual tradition that avoids orthodoxy and commonplace thinking, presenting different perspectives with an incisive tone but also with honesty and respect, in a constructive manner.

In what follows, we first review Oscar Correas’ academic and intellectual path and his contributions to the Crítica Jurídica movement in Latin America. His academic education took place during a very particular political context of Argentinian history, marked by the radicalization of working-class movements and the growth of leftist ideas, while his subsequent career developed in the period between the failure of ‘actually existing socialism’ and the rise of neoliberalism. It is worth reviewing that background to better understand Correas’ militant conception, as well as offering a brief overview of the Critica Jurídica movement in Latin America.

We will then go on to analyse some of Correas’ contributions that are considered as part of his great legacy towards the development of critical legal studies and human rights challenges because of their originality and their power to enrich critical perspectives.

We will also examine his approach to Marx’s works and its extension to the analysis of modern law, in order to see how Correas tries to underpin the strength of Marx’s attempts to better understand the role of law in the capitalist society. These are significant contributions that seek to follow the path traced by Marx in The Capital but adding original views, some of which we contrast with other authors, such as Pashukanis. We will also include Correas’ analysis of various legal institutions and the role of the state expressed through economic law, and his idea that law itself may be explained in terms of the operation of the law of value.

Next, we will explore his distinctive understanding of Hans Kelsen’s theory. While Kelsen has been one of the most prominent jurists of the 20th century and his work is still the subject of extended discussion, he has often been criticized from the perspective of critical legal studies. However, Correas points out that Marxists – and also many non-Marxists – have misinterpreted Kelsen who seeks to prove that ‘pure legal theory’ is a true ‘political theory’ that ought to be taken into consideration and that it is actually a general legal theory that Marxists are lacking. Consequently, this article will demonstrate how Correas actually established a kind of correlation between Marx and Kelsen through concepts like ‘ideology’ and especially the idea of ‘legal fiction’.

Finally, we will pay special attention to Correas’ contributions to debates on human rights. Correas has addressed many central issues that have been widely debated in Critical Legal Studies, such as the ideological role of human rights, the limits of the principles of human rights in unequal societies and the necessity to prioritize some rights such as ‘second generation rights’. In every case, he contributes anti-dogmatic and realistic views that promote a holistic understanding of human rights for political intervention. Thus, it becomes clear that his critical approach is certainly a valuable contribution to contemporary debates, particularly those related to the possibility of applying human rights from an emancipatory perspective and how they operate in the struggle to achieve a better world.

Oscar Correas: A Brief Review of His Background

Oscar Correas was born in 1943 in the province of Córdoba, Argentina, and was raised in a family of middle-class professionals. He grew up surrounded by the influence of Catholicism and anti-Peronism. ¹ However, he received a progressive Christian education, closer to liberation theology and removed from family and conservative Catholic influences (Ferreira, 2011).

Correas studied law at the Universidad Católica de Córdoba, an institution governed by a conservative and right-wing sector of the Church. The institution educated not only important members of the right-wing dictatorship, but also outstanding activists of the Montoneros organization (a Peronist armed group). Despite this, some of his contemporaries even embraced Marxist ideas, as did Correas himself (Ferreira, 2011).

The political context of his youth greatly influenced the formation of his ideas. During that time, the mid 1960s, Córdoba was one of Argentina’s industrial development areas and constituted one of the centres that attracted a migrant workforce from other provinces. In 1969, when 25 years old, Correas experienced one of the greatest workers’ uprisings in Argentine history, popularly known as ‘Cordobazo’. This was a turning point that hastened the fall of the military dictatorship led by Juan Carlos Onganía who had abolished political parties and was aligned with the National Security doctrine of the United States (Buchbinder, 2005). The radicalization of political and intellectual struggles extended throughout the country until the advent of the military dictatorship in March 1976.

During Cordobazo, the student element was also key. Córdoba had one of the most important university traditions in the country, as well as the oldest one. It was where the movement leading to the university reforms of 1918 commenced and from where they then spread throughout the continent. This was the city where the repeatedly proclaimed ‘worker-students’ union was made real.

In addition, there were numerous ‘Priests for the Third World’ throughout the city. ² Some months before, these priests had gathered in Colonia Caroya and issued a statement that: ‘[We] adhere to the revolutionary process, to a radical and urgent modification of its structures and we formally reject the present capitalist system and all forms of economic, political and cultural imperialism’ (Moyano, 2011: 102).

In that particular context, Correas developed an activism, ‘characteristic of revolutionary lawyers’, as a member of Agrupación de Abogados de Córdoba [the Córdoba Lawyers Group], an organization of democratic and left-wing jurists committed to the defence of political prisoners, workers and popular and neighbourhood movements (Figueroa Valencia, 2013). Correas also worked as a professor at the Escuela de Servicio Social of Universidad de Córdoba and at the Universidad Tecnológica Nacional. He was dismissed from both universities in 1975 because of his public adherence to Marxism (Ferreira, 2011).

Furthermore, the radical nature of politics at the national level at that time also gave rise to an intellectual movement that sought to address the structural determinations of the country’s legal system. Intellectuals and activists, such as Arturo Sampay and Juan Carlos Portantiero, published important legal works which influenced Correas’s ideas.

In 1975, Correas began to experience political persecution by the Argentine Anti-Communist Alliance (widely known as ‘Triple A’), a taskforce commanded by José López Rega, the right-hand man of Juan Domingo Perón during his third presidential mandate (1973–1974) and, after his death, of Perón’s wife and successor María Isabel Martínez de Perón (1974–1976). However, with the advent of the military dictatorship, which coincided with the conclusion of his philosophy course, Correas was forced to escape from Argentina and became an exile in Mexico.

In 1976, he settled in the city of Puebla where he became a professor at the School of Philosophy of the then Universidad Autónoma de Puebla and completed a Master’s degree in social sciences in 1982 with a thesis on the critique of modern law. From then on, with the creation of the magazine Crítica Jurídica in 1983 and 2 years later the organization of the first seminar on Crítica Jurídica, Correas would be a driving force within the Crítica Jurídica movement in Latin America.

He later travelled across the Atlantic to undertake his doctoral studies at the Université Saint-Etienne, in France, where he encountered the group ‘Critique du Droit’, directed by Michel Miaille. He earned his doctorate (with honours) in 1992 with a thesis on the critique of the law as a discourse. His original formulations and innovative approaches to Marxist texts, coupled with the seriousness of his arguments, made a great impression on his French colleagues.

Correas went on to become a professor at the Universidad de Barcelona and at several universities in Mexico. In the year 2000, he joined the Centre for Interdisciplinary Research at the Universidad Nacional Autónoma de México, and this enabled him to give a new impetus to the Crítica Jurídica movement, mainly through the Project on Law and Society, which he coordinated, and the magazine Crítica Jurídica. Correas also encouraged the Latin American Conference on Crítica Jurídica which, since 2004, has continued to develop, with nine meetings in different countries of the region.

In his long career, in addition to editing collections and periodical publications, Correas sole-authored some 20 books which skilfully addressed most of the major topics in critical legal studies, namely: Marxism and the law; sociology of law; ideology and law; legal methodology; philosophical principles of the law; legal pluralism; law of indigenous peoples; legal activism; and the role of lawyers, among others.

Critical Legal Studies: The Development of a Necessary Perspective

Critical legal studies is the most common name given to an academic trend that has developed in the legal arena since the 1960s and is principally focused on relating the law to relevant social, political and economic topics from a standpoint that challenges existing relationships.

This movement had different trajectories under various names, depending on the region: in Mexico it was Crítica Jurídica; in Brazil Direito Alternativo; in Argentina Teoría Crítica del Derecho; in France Critique du Droit; and in the United States and the United Kingdom it is known as critical legal studies (Nuñez Vaquero, 2010). Because the US/British label is the most widely used, some seek the origins of Latin American critical legal studies in European and English sources. However, according to Correas, the Latin American critical legal studies movement is native and may even have preceded that of Europe and North America – and was more fruitful (Ferreira, 2011; Tapia Argüello, 2018).

Very different and sometimes contradictory schools of thought interact at this movement’s core. Some provide general and radical criticism of capitalist society, which Correas (1990) described as a sort of ‘negative criticism’, while others focus on specific problems inherent in the law without questioning its substance. There are also political differences which influenced the development of these various strands. In the Latin American case, many jurists belonging to the movement felt close to the idea of the deep social transformation of Latin American nationalist movements at the beginning of the 21st century and also to some of the constitutional reforms, such as those of Bolivia and Ecuador. In contrast, others considered these as very limited and far removed from a real process of social transformation.

Yet, as stated by Nuñez Vaquero (2010), these varied perspectives are distinguished by a strong political, radical and/or left-wing commitment and, although interested in the study of the law, the resulting research seems to be driven not only by a search for scientific knowledge but also by an inclination towards political activism.

In theoretical and ideological terms, critical legal studies has been strongly influenced by different expressions of the Marxist tradition: the cultural critique of the Frankfurt School; the reinterpretations of Marxism based on the reappraisal of Gramsci’s work; the contributions of Althusser or Poulantzas; and Foucault’s archaeology of knowledge and genealogy of power, among others (Duquelsky Gómez, 2018). From that standpoint, critical legal studies has questioned normative positivism, a dominant point of view within the law. With a methodological approach to the study of the law, critical legal scholars primarily aimed at providing evidence for the lack of coherence between the theoretical construction and formal recognition of human rights and social reality itself (Wolkmer, 2006).

Some of the recurrent topics of critical legal studies include: the right to protest and the criminalization of social protests; the legal structure of social inequality; access to justice; the criminal justice system and criminology; human rights; legal activism; the political activism of lawyers; the new Latin American constitutionalism; legal pluralism; the alternative use of the law; and legal education.

From the beginning of the 1980s, Correas promoted and significantly contributed to the development of the Crítica Jurídica around the Spanish-speaking world, thus becoming one of its main representatives. The emergence of the magazine Crítica Jurídica in 1983 and the First Seminar on Crítica Jurídica at the Universidad Autónoma de Puebla, Mexico, in 1985, were two very clear foundational milestones in both of which Correas held a principal role.

Among his many contributions to critical legal studies, the ones that stand out the most are Introducción a la crítica del derecho moderno [Introduction to criticism of modern law] (1982) (2006) and Crítica de la ideología jurídica [Critique of the legal ideology] (1993), in which he comprehensively develops his critique of the legal system of capitalist society. Other contributions are his studies of the work of the jurist Hans Kelsen, author of Pure Theory of Law and considered one of the ‘fathers of legal positivism’. The collection El otro Kelsen [The other Kelsen] (1989) that he edited offers an original and challenging approach to the Austrian author. In Kelsen y los marxistas [Kelsen and the Marxists] (1994), Correas discusses the meaning of Kelsen’s work in different strands of left-wing thought, specifically in connection with Marxism–Leninism. Correas also made important contributions to the debate on the theory of human rights in many of his texts and, specifically, in Acerca de los derechos humanos [About Human Rights] (2003), in which he addresses in depth the linguistic origin and nature of human rights, their place in the modern state and their role in political practice, as well as their potential for proposing social emancipation.

His encouragement of the movement, despite in many ways offering a new vision, was always based on the defence and promotion of Karl Marx’s theoretical perspective and, essentially, on the need for a revolutionary theory and practice that for Correas translated into the struggle to overcome the capitalist system and organize society on new pillars. Notwithstanding his strong commitments, he always considered that the critical legal studies movement should be comprehensive, and he encouraged respectful and democratic debates between heterodox schools of thought.

Apart from his vast production of theory, Correas’ contribution to the expansion of critical legal studies was also actively carried out through his editorship of the magazine Crítica Jurídica and the foundation and organization of the Conferencia Latinoamericana de Crítica Jurídica, which has been held from 2004 until the present, with most of its 15 meetings being in Mexico, with 1 in Brazil in 2013 and 2 in Argentina in 2011 and 2014. The Conference has connected jurists and intellectual critics from the entire continent, who continue to promote the movement from different regions and institutions.

The Law and Marxism in Correas’s Work

Having studied Marx from an early stage in his academic and political life, Marxism is a thread that has run through all of Oscar Correas’ work. He once described Marxism as ‘the greatest and best attempt of human intelligence to explain how capitalism works and how it can be destroyed to build a community-based society’ (Ferreira, 2011: 34). ³ Moreover, given that the law is a normative architectural discourse of capitalist society, Correas said that Marxism is both a critique of the latter as well as of its normative architecture – what Marx called at some point its ‘superstructure’. Thus, Correas concluded that the struggle against capitalist society was also a struggle against laws in capitalism (Ferreira, 2011: 34).

In contrast to the paths taken by other Marxists in relation to the law, such as Poulantzas, Pashukanis or Foucault, who had more interest in ‘rereading’ Marx, Correas advised the direct study of Marx, and he repeatedly argued that Marx’s critique of capitalist laws could be found in Capital (2000). Consequently, studying Capital was much more productive that studying thousands of quotes in which Marx made reference to the law. According to Correas: ‘If Marxism’s core is poured in Capital, Marx’s critique of the law also lies there’ (Ferreira, 2011: 35).

Pashukanis, the great Russian revolutionary theorist of the law, in his renowned General Theory of Law and Marxism (1976), had also tried to explain the law and the legal form in his own way, following the conceptual structure of Capital (Cristeche, 2018). However, in this famous work he did not develop an analysis of the legal forms of exploitation of waged workers, nor of the expanded reproduction of capital (Villena, 2017). Correas therefore considered that the Russian author introduced confusion with his main proposal of the ‘legal category’ as something inherent to capitalism (without explaining what he meant by the term ‘legal category’). Correas explained that, if this were true, the law would be an exclusive phenomenon of capitalist society and wondered whether this would mean that Roman law was therefore not law at all (Ferreira, 2011).

On the contrary, Correas stated that ‘each society produces its own legal structure. Thus, slave societies have their own law and the same may be said about feudal societies and, therefore, capitalist society’ (Correas, 2006: 49). Identifying that there is some sort of continuity or common elements in legal systems of very different societies, Correas suggested that the challenge of analysing modern law does not rely on understanding the continuity but the disjuncture. The specific nature of modern law clearly comes from the specific nature of the capitalist society, but Correas adds that ‘it becomes really difficult to explain it if one starts from a dogmatic idea that a correlative legal superstructure is generated by the mode of production’ (Correas, 2006: 50).

In his research carried out during 1978–1979, published for the first time in 1982 and later in 2006 as Introducción a la Crítica del Derecho Moderno (Esbozo) [Introduction to the Critique of Modern Law], Correas presents a ‘theoretical critique of modern law’ and its different expressions (formalism, natural law, sociologism and voluntarism). Correas then provides an analysis of most of the modern legal institutions of private law, from free will to corporate law, presenting precise historical references and clear and novel conceptual interpretations.

Subsequently, he carefully develops the key topic of the book: an analysis of labour law based on the contradiction between capital and labour, and of economic law based on the needs of capital circulation. The basis of his reading is that law may be explained by the operation of the law of value.

As its main feature, he states that modern law finds its substance in three economic phenomena of capitalist society: the circulation of commodities, the purchase and sale of labour power, and the circulation of capital. In turn, these are all elements of the development of value. Correas adds that this does not mean ‘that all rules of the system are the “expression” of some economic phenomenon, nor of exclusively capitalist phenomena’ (Correas, 2006: 10). However, he did try to show that modern law includes a ‘logic’, a structure, a ‘normative’ form of the demands of the expanded reproduction of capital.

Correas argues that civil law operates to ensure the equivalence of commodities. In this sense, he states that:

Jurists who claim to explain civil law rules apart from stating and commenting on them usually make reference to the relationship between the economy and law. Thus, they believe that a sale is a transfer of money in exchange for commodities, and barter involves two parties exchanging commodities. (…) And explaining the rescission of an agreement due to breach by one of the parties (…) they naturally conclude that the legal provision is justified because the delivery of money was made “without cause”, so it would be “unfair” not to accept rescission as there are no equivalent mutual benefits (…) But the idea that a sale is an exchange of equivalents is never clearly and firmly expressed and, therefore, the lack of equivalence is the reason that explains the presence of the rules sanctioning the rescission and/or full or partial restitution of the price, depending on the case. Jurists are caught by the fetishistic idea that an agreement is a meeting of the minds, without considering that the latter is just the expression of the exchange of equivalents. (Correas, 2006: 42–43)

In his classical work (2006), Correas addresses in detail Marx’s development of the analysis of commodities and his conclusion that in capitalist society work is a commodity like any other, which reaches the market like all other commodities but, instead of being held in possession by its owner, it exists in the form of labour power. In addition, Marx further states that the difference lies in the fact that, while other commodities are dead labour, labour power is living labour – the labour force’s life. Moving this issue to the legal arena, Correas argues:

Given that no laws recognise “labour” as a commodity, but state expressly the contrary, it may appear that jurists are the intellectuals who offer the most resistance to this recognition. They have been educated with the cry of “Labour is no commodity!”, the introductory phrase of the entire labour law. On top of that, normally labour laws include a provision that a worker is not an article of commerce, which jurists usually consider as sufficient to substantiate the initial claim (…) As Kelsen thought, a rule that is not capable of infringement is not a legal rule. The only way to infringe this provision is in effect to treat labour as a commodity; however, no one has heard about a claim filed against a capitalist for trafficking in human energy. (Correas, 2006: 142)

Indeed, we have argued that, in Theory, Pashukanis does not go beyond the circulation of capital: that is to say, the transformation of commodities into money and the conversion of the money back again into commodities – the C-M-C movement (Cristeche, 2018; Villena, 2017). Hence, through this movement, the social relationship does not extend beyond an exchange of equivalents, the exchange relation, nor does it establish the specific kind of social relationship that is the capitalist social relation (Cristeche, 2018; Villena, 2017).

In contrast, Correas goes beyond the simple exchange relationship to analyse the capitalist relation, developing the idea that the purpose of the capitalist relation is not the simple accumulation of wealth but the expanded reproduction of money and, more specifically, the expanded reproduction of capital: namely, the capacity to dispose of social labour and to put it into operation in order to produce more capacity of that social labour. The subject of that process is capital itself, and the subjects of production (capitalist and worker), insofar as they are personifications, no longer have their consciousness alienated in their commodity, but in the general social relationship: capital.

His economic analysis is accompanied by an analysis of the corresponding legal forms, by proposing a study of them at superimposed levels, because he considers it impossible to explain the law ‘horizontally’, as if all the ‘branches’ were contiguous. He firstly analyses civil law; then those institutions of labour law which reform or ‘contradict’ civil law; and, finally, those of economic law, which do the same as the two others.

His analysis of economic law, which he defines as ‘the most developed legal form of capitalism’, (2006: 265) allows Correas to bring his critique beyond immediate negative terms, such as exploitation, injustice, inequality, which are often interpreted as ‘another ideological resource with which the bourgeoisie deceives the proletariat, where formal equality masks real inequality’ (2006: 72). Analysing state intervention in the capital accumulation process through economic law, Correas presents some critiques of the idea that the welfare state struggles against capitalism in order to give justice to workers and other dispossessed people, and of the notion that it is even a form of the overcoming of bourgeois society. He synthetizes its role by saying that the state has to try to guarantee: (1) the existence of the means of production and of the labour power necessary for the initiation of the production process and the separation between the two; (2) the maintenance of an ‘adequate’ rate of surplus value; (3) the realization of surplus value (2006: 280).

Based on these three routes for the deployment of state or economic ‘planning’, he proposes that the study of economic law be divided into the following three parts: legislation that tends to ensure the construction of means of production and labour power as separate issues; legislation that guarantees a certain rate of surplus value; and legislation that allows the capital accumulation process to be speeded up. Since that study would take a great deal of effort, the current approach to teaching in law schools would have to be completely rethought, a task that, according to Correas, should be faced sooner rather than later (2006: 281).

Correas’ contributions as regards economic and legal relationships deserve to be considered not only for their inherent value, but also because they are extremely rare in the field of the law in general and even among Marxist jurists, who to a great extent understand legal Marxism or critical legal studies as a mere way of reporting injustice and inequality in capitalism.

Correas, Kelsen and the Marxists

Hans Kelsen’s thought was another of Correas’s most recurring academic concerns and probably his hallmark. Convinced that Pashukanis did not have a general theory of law, Correas went to find it in Kelsen (Correas, 2015: 245).

Correas read and interpreted the work of the Austrian jurist in a very different way to the explanation we are used to in law schools, where Kelsen is referred to as the ‘father of positivism’. As such, Kelsen has usually been subjected to judgmental points of view, and mainly by legal Marxism, especially for having proposed a ‘pure legal theory’, which meant a theory of law purified of all ideology (Correas, 1989).

Furthermore, although Correas recognizes that even Kelsen himself seems to have wanted to attract criticism as a precursor of an apolitical positivism, apologetic of the bourgeois state, Correas believed that Marxists have misinterpreted Kelsen. Subsequently, Correas made a considerable effort to study ‘the Kelsen that has been hidden’ in the departments of philosophy of law (Correas, 2015: 237) and to try to find the connection between Marx and Kelsen to vindicate their contributions. ⁵ In fact, that connection would be provided by the recognition both authors make of the inhuman nature of capitalist social relationships. While Marx expresses this when analysing the objectification imposed by owning commodities, Kelsen expresses it when analysing legal forms (Correas, 2006).

It is important to state that Correas differentiates Kelsen’s formulations from those of Kelsenists, or the school of legal formalism. In this sense, Kelsen acknowledges that the science of law focuses on the study of the form of legal rules and their validity, but he also proposes that we pay attention to their effectiveness, this is to say, the issue of why people act according to or against the law (Correas, 2006).

Correas believes that the problem of formalists is rooted not so much in what they study but in what they do not study, and that their apolitical nature is a fallacy. This leads to his critique of most Kelsenists, with regard to whom he emphasizes that their approach operates in favour of the bourgeoisie and to ensure that its state works efficiently, without considering whether that form of functioning is fair. In this regard, Correas points out:

For formalists, the content of rules, their efficacy, is a valid issue for legal sociology but not for the pure science of law. Under this doctrine, the fairness or unfairness of rules has no interest; their validity is enough for the science of law. It is not important either to answer the following question: why do rules establish certain acts and not others as obligatory? The relevant question is whether a rule is valid or not. And to answer it, a legal category of duty is elaborated. (Correas, 2006: 20)

On the other hand, it is well known that Kelsen argued against many Marxist ideas in The Communist Theory of Law and, specifically, some of Marx’s, Engels’ and Lenin’s thinking on the law and the state. In that book, the main idea is that legal Marxism is incompatible with a theory of law without ideology. Thus, after pointing out the ‘ideological character’ of Soviet legal theory, ‘essentially determined by the political interests of the Soviet government’, Kelsen warns that this ideological character of Soviet legal theory is an inevitable consequence of the Marxist principle that social science in general and the science of the state and law in particular must be political: i.e. they must be translated into formulas that can be used in the political struggle of one group against another (Manero, 1986).

According to Correas, the reason for founding a pure science of law was never to justify all power but the opposite: to strip any power of ‘scientific justification’. Legal Marxism rejected Kelsen’s ideas because through the influence of Stalinism and Communist Parties its supporters did not like the way that Kelsen defended the ideas of democracy and freedom and claimed that legal ideology should no longer be passed off as science, which is in effect only the attempt to justify the power exercised by someone.

In El otro Kelsen [The other Kelsen], a collection edited by Correas, as well as in his own work Kelsen y los marxistas [Kelsen and the Marxists], Correas concludes that Marxists should adopt the Austrian’s ideas, given that he describes an approach that allows discussion of the content of the law, despite what many of his disciples have said. In this framework, Correas states that:

What ends up being pure is science, not the theory on which it is grounded (…) there cannot be a scientific foundation of a science: it is always of a philosophical nature. (…) Only some positivists who were true advocates of bourgeois society have dared, without blushing, to try to make others believe that science is not grounded in a philosophy. (…) What [Kelsen] really did was not legal science but establishing its foundation: what he did was political philosophy. And this, which seems to be hidden, is the other Kelsen: one of the most interesting and stimulating contemporary thinkers. (Correas, 2004: 35–36)

Marxism and Human Rights

Correas dedicated an important part of his contributions to human rights. He analysed their origin and linguistic nature, their place in the modern state, their role in political practice and even how they operate in the fight to achieve a better world, among other issues. After writing numerous articles about the topic from a Marxist perspective, he published Acerca de los Derechos Humanos [About Human Rights] (2003), a selection of texts written at different times between the 1980s and the beginning of the new century.

Acerca de los Derechos Humanos is a comprehensive book about human rights in capitalist society, where Correas addresses some key issues not only because of their theoretical significance but also because of their political and socioeconomic relevance. He warns in the introductory note that the volume’s content may cause him work-related and academic problems: ‘I have decided to avoid self-censorship, avoiding all the fear some people made me have. I believe there is no future for me to safeguard. And this gives me some sort of freedom’ (2003: 10).

In that book, Correas organized his ideas around a series of topics he considered key to the discussions of human rights, with a committed activism. Firstly, he developed the idea of human rights as ‘discourse’, a discourse belonging to ‘modernity’ with a special linguistic structure. As long as human rights fitted the idea of ‘subjective rights’, they would consist of a discursive strategy that separates the state from civil society and, at the same time, identifies the state and takes into consideration individuals and citizens (2003: 11 et. seq.)

Correas also addressed traditional and philosophical approaches towards human rights, such as natural law and historicism. Correas challenged the grounds for human rights offered by natural law, that is, rights being inherent to human nature, an issue that has been discussed since the publication of On the Jewish Question by Marx. He asserted that the natural law vision does not stand up to philosophical scrutiny but did acknowledge that natural lawyers have always backed good causes, justice and the satisfaction of human rights. From a vision based on a materialist conception of history, Correas pointed out:

Human rights have no extra-terrestrial or extra historical grounds. The point is simply that capitalist society itself has displayed the spectacle of commodities that – rightly – constitute everyone’s ambitions. Why shouldn’t everybody have a house, enjoy conditions of care, general comfort and other commodities that the collective effort has shown may be achieved? And as all these commodities are objects of desire, and as desire for all those may only, linguistically, be expressed in terms of subjective rights, it remains clear that human rights are the discursive expression of a desire for a good life. And that constitutes its very terrestrial and historical grounds. (2003: 155)

The possibility of applying the law, particularly human rights, from an emancipatory perspective has been discussed in depth by the critical legal studies movement. Kennedy (2002) has tried to summarize the critical comments issued from that perspective. Other authors (such as Kennedy, 2007; O’Connell, 2017; or Moyn, 2012) have been cautious about the contemporary wave that exalts human rights and have warned about their potential to distract the energies that ought to be applied to claiming more egalitarian economic reforms when economically regressive policies are imposed throughout the world (Moyn, 2018).

Although Correas understood that the discourse on human rights was born as a need for capitalist domination (where the importance of understanding its limits resides), he believed that, on the contrary, this was no reason for human rights to be discarded as a tool along the path towards the construction of an egalitarian society. To some extent, his view is similar to the one developed 15 years later by Moyn in his renowned Not Enough: Human Rights in an Unequal World (2018). Correas points out that, if human rights were born as a strategy for domination, it is not less true that second- and third-generation rights express the interests of the oppressed classes and, therefore, have an ‘irretrievably subversive’ nature and constitute a ‘weapon for class struggle’ (2007: 17).

He also addresses the challenge of considering human rights in the specific context of Latin America (2003: 117 et. seq.). He poses a very interesting question as regards the classic harmonious interpretation of equality and the absence of hierarchy in human rights. Correas asserts that the region reproduces very high levels of inequality, sentencing huge portions of the population ‘to the opposite of what human rights preach’ and, consequently, the principles of interdependence and indivisibility of rights must be set aside as a means of interpretation, and priority must be given to the ‘main right to an adequate standard of living’. This is what he aims for when he mentions that ‘second generation rights’, i.e. social rights, ‘are primary in relation to first generation rights’, especially in relation to the right to property.

Another significant and key aspect of his work is the relationship between human rights and the dominant class, the ‘wealth owners’. Correas asserts that the fact that the discourse on human rights has always placed the state as the interlocutor presents two problems: first, that the capacity of the state to confront the demands for an adequate standard of living is limited because it has been historically indebted (he makes reference to Latin American states in particular), and that the state has worked as a wealth transmission channel for capital. Second, placing the state as the sole valid interlocutor contributed to hiding the real debtor, the main obligor: the dominant class. Furthermore, Correas provides solid arguments for the need to direct criticism towards that class.

One of his most controversial ideas is his outright opposition to the globalization phenomenon, which he believes, without hesitation, equates to imperialism. Correas considered globalization to be a threat to human rights, particularly second-generation rights such as the rights of workers, and he asserted that Marx had already pointed out the tendency for capital to take over the entire universe, leading, as the direct result, to an increase of outcasts – called the industrial reserve army. He also referred to the relationship between human rights and sovereignty within globalization, pointing out that, as a consequence of globalization, the contemporary state has stopped being sovereign and can no longer impose economic policies that tend to satisfy the needs of most of the population. ⁶

Finally, in addition to his idea of prioritizing social rights over ‘first generation rights’, Correas states that it is also equally necessary to defend individual rights such as freedom of expression, due process, etc. since ‘except for the right to privately appropriate collective effort, first generation rights are conditioned on second generation rights’ (2003: 154). However, he further says, first generation rights only have moral sense to the extent that they ensure the effectiveness of the defence of second-generation rights. This means that rather than being an aim, they are a requirement of that aim: namely, an adequate standard of living for all.

The main right for every – EVERY – human being in this planet is the right to good life. All other social techniques, including the entire legal system, are exactly that: techniques that serve the good life. Otherwise, as we currently demonstrate, they are not justified; they have no legitimacy. Good life is simply human life with all advantages, comforts and safety that human development has displayed for everybody to see, although not everyone can achieve. This means that humanity has achieved a level of development that would allow everyone to enjoy an adequate standard of living. (2003: 9)

His studies on human rights faithfully express a combination of scientific rigour and political commitment. Correas addressed many human rights topics in depth, both with a historical perspective and in dialogue with existing literature. However, Correas also showed what he called ‘an ethical-political imperative’ to fight for the eradication of all injustice, and hence he considered all his writings as a ‘political act’.

Final Comments

In his long career, Oscar Correas achieved a profuse output covering the fundamental issues concerning critical legal studies and became a pioneer, and then a reference point, of the Crítica Jurídica movement in Latin America. His theoretical contributions, which resulted in about 20 books as sole author, apart from collections and journal articles, were – and still are – essential for a generation of jurists and political activists committed to critical thinking and social transformation. Furthermore, his constant academic initiatives led to an important development of the movement.

Marxism runs through Oscar Correas’ entire work and, in consequence, many of his books relate to the study of Marx’s contributions. Correas’ detailed analysis of Capital made him stand out from many other Marxist jurists of his time. He nurtured the study of Karl Marx’s work from a thought-provoking angle and made great efforts to study the nature, ideology and roles of the law in capitalist societies from a critical perspective. This resulted from his belief that studying the law in depth, rather than just Capital, was essential. He used to say: ‘we do not need lawyers that become sociologists. We already have plenty of those. What we need is lawyers that study the law in depth, and we also need lawyers that know history and universal revolutionary ideas in detail’ (Ferreira, 2011: 36). His analyses of labour law, based on the contradiction between capital and labour, and of economic law, based on the needs of the circulation of capital, are remarkable, as is his proposal to analyse civil law, labour law and economic law at superimposed levels.

His research on Kelsen also constitutes a valuable resource for critical legal studies. Kelsen has been one of the most important and influential jurists of the modern age and Correas developed a view of him that is not only different, but also opposite to the one most people have of the Austrian legal philosopher. Correas insisted on showing a kind of correlation between Marx and Kelsen, applying the idea of ‘legal fiction’ and the link between the emphasis on commodities in Marx and on individuals in Kelsen. Furthermore, he did this based on the concept of ‘personification’ of commodities in Marx and of rights and duties in Kelsen, which Correas found consistent with the idea of social relationships being resting points. Challenging others who claimed that Kelsen built a theory that operated in favour of those who hold power and gave legal and ideological support to authoritarians and genocidal dictators, Correas considered that Kelsen always defended democracy and was against the domination of those who exercised power over others.

Finally, Correas’ contributions to the debate on human rights – as discourse, law and practice – are also a fundamental input to the critical legal studies movement. His critical analysis of certain hegemonic legal constructions, such as the ‘indivisibility’ of human rights, his situated studies of human rights in Latin America, and his approach to the role and responsibility of the dominant classes in the violation of human rights, among others, show Correas’ scientific rigour and committed activism.

Oscar Correas’ academic history and work are an invaluable legacy for the Crítica Jurídica movement in Latin America and the world as a whole, and especially for those who share the desire and commitment to build a society where all individuals can enjoy a good life.