ANAMORPHOSIS – Revista Internacional de Direito e Literatura v. 6, n. 2, julho-dezembro 2020 © 2020 by RDL – doi: 10.21119/anamps.62.449-469 LIVING AS AN OUTCAST OR NOT LIVING AT ALL: ON INVISIBILITY AND SEXUAL CONTRACT OF LABOR IN LES MISÉRABLES, BY VICTOR HUGO PAULO RICARDO OPUSZKA1 TUANY BARON DE VARGAS2 TRANSLATED BY FELIPE ZOBARAN ABSTRACT: This paper analyzes the lingering hierarchies and subordinations of gender, in the social, political, and legal spheres, especially in discourses of supposed fights for rights and freedom. To do so, the novel Les Misérables, by Victor Hugo, is a starting point. The character development of Fantine is focused here, with the Law in Literature theoretical and methodological approach. From the character in the narrative, two lines of thought are made. The first one analyzes women’s work in itself, with labor relations acknowledged socially and legally as such – at home and in factories, for instance. The second one attempts to demonstrate the marginalization of other activities not socially recognized as working areas, which are stigmatized and stigmatizing, such as prostitution. Thus, it is possible to discuss a traditional philosophical matter regarding labor and the law: the selling of one’s body. KEYWORDS: Les Misérables; prostitution; contract of labor; women’s work; sexual contract. 1 Full Professor at the Post-Graduation Law School of Universidade Federal do Paraná (UFPR). Professor of Labor Law and Labor Proceedings at the Law School of UFPR. Ph.D. and M.D. in Human Rights and Democracy at UFPR. Bachelor of Laws at Centro Universitário Curitiba (UNICURITIBA). Researcher and Leader of the Research Group on Labor, Economy and Public Policies (TRAEPP - Grupo de Estudos em Trabalho, Economia e Políticas Públicas) (PPGD/UFPR). ORCID: https://orcid.org/0000-0002-6105-2272. CV Lattes: http://lattes.cnpq.br/2323335691144453. E-mail: [email protected]. 2 M.D. in Human Rights and Democracy at Universidade Federal do Paraná (UFPR). Specialization Degree in Public Policy and Equality in Latin America at Conselho Latinoamericano de Ciências Sociais and in Law and Labor Proceedings at Escola da Magistratura do Estado do Paraná. Bachelor of Laws at UFPR. Researcher at the Research Group on Labor, Economy and Public Policies (TRAEPP – Grupo de Estudos em Trabalho, Economia e Políticas Públicas) (PPGD/UFPR). ORCID: https://orcid.org/0000-0002-2798-4244. CV Lattes: http://lattes.cnpq.br/4310422919701021. E-mail: [email protected]. 449 ANAMORPHOSIS – Revista Internacional de Direito e Literatura, v. 6, n. 2, p. 449-469 1 INTRODUCTION The Rule of Law, said to follow the revolutionary tradition of the nineteenth century, should be read as a specific moment of the history of citizenship. It is a strategy developed from the relationship between the State and the individual, of imposing a (legal) limitation to sovereign power. Either for the French or the North-American / English conceptions, “theoretical-social models are spread, assuming freedom and property of the subjects as the fundamental element of order, and granting the sovereigns with the duty to respect and protect these foundational structures” (Costa, 2006, p. 112). Law and freedom, thus, are at the core of representation and foundation of political order. On the other hand, this context does not exempt the law from needing the existence of sovereigns and coercion to keep order. “The law is a normative template, concretized in itself, and the order of liberties depends on it, however, only the coercive intervention of the State can effectively make it real” (Costa, 2006, p. 116). Although this liberal discourse has reached wider conceptions of what today is called the “principle of equality”, it was never able to abandon the prominence of hierarchy and subordination ideas from times prior to the Revolution. In their place, it only reinterpreted these ideas, legally placing them together with the social realities of the current context. Simply conceiving equality was not enough to bring consequences in order to undo any of the inequalities so deeply latent at that time, such as those related to virtue, age, birth, political feelings (such as gratitude). Thus, pre-political hierarchies from the domestic world were preserved. Hence, certain subjectivities and their recognition are excluded from the legal language of the citizenship discourse. In the legal fiction, which traps the present times and concretizes projections based on a frozen timing, the problem is the same. The role of women, for example, is 450 OPUSZKA; VARGAS | Living as an outcast or not living at all... blatantly visible as an example, be it within the family household, or within society, as a real subject of rights. Considering the interlocution between the Law and Literature, several methodological approaches surface, and the most prominent ones are Law in Literature, Law as Literature, and Law of Literature. This paper is in the Law in Literature branch, to investigate the "literary representations of justice and the law, while encompassing its institutions, proceedings and practitioners, as well as aspects of the legal universe" (Karam, 2017, p. 834). To do so, this paper starts from analyzing the novel Les Misérables, by Victor Hugo – especially the first part, Fantine. The purpose is to understand how the social maintenance of subordination happens in the society represented in the novel, with its plural, polysemic, connotative nature, about the French Revolution period, when social rights falsely seemed granted and celebrated. Thus, it is possible to, through Literature, deny a conception of Law reduced to conventionalism or “legal pragmaticism, since an ethical-legal dimension should be fundamental, understanding the social-historical community as a legal-ethical-political community in practice, integrated and integrating” (Espindola, 2018, p. 597). It is the same as saying, thus, that “literature helps to existentialize the law” (Streck; Karam, 2018, p. 617). This paper is based on two approaches. The first one is the analysis of female labor itself, women’s work acknowledged socially and legally as such – domestic and in factories (surrounded by gender violence). The second one seeks to demonstrate the marginalization of other activities not acknowledged as labor or work, prejudiced and prejudicing, such as prostitution, which imply financial exchanges, nonetheless. These workers demonstrate nowadays the intention of having their function acknowledged as labor, with formalization and regulation. Through the mercantile operations of the novel, and through Hugo’s language, which overflows with “the language of conventional philosophical prose, a style that is markedly monotonous and lacking in 451 ANAMORPHOSIS – Revista Internacional de Direito e Literatura, v. 6, n. 2, p. 449-469 imagination” (Nussbaum, 1990, p. 3), it is possible to situate a traditional philosophical question posed to Labor Law: the selling of one’s body. Also from this dualistic baseline, the paper attempts to develop an analysis that goes beyond the habitual legal theory – which is extremely connected to coercion and order –, by abandoning the regular rationality of hermetic and autopoietic nature. Thus, the practical contribution is the – very feasible –possibility of the law, by means of a certain “literary rationality”, to start seeing the subjects “not only as ‘members of an anonymous and undifferentiated mass’”, but through legal science, by means of a literary bridge to the subjects endowed with concreteness and with material justice (Fachin, 2005). 2 THE PLACE OF WOMEN IN RELATION TO THE CAPITAL, AND THE REPRESENTATION BY VICTOR HUGO The nineteenth century watched, alongside the emergence of capitalism, the appearance of new political subjects, especially due to the development of an industrial labor class, the movements of struggle and resistance against slavery, and the creation and growth of women’s movements. The state of bourgeois mercantile production was based on the introduction of the metallic coin, capital in form of money, taxes, interest, usury, traders as an intermediate class among capitalists, private land ownership, and labor as the predominant form of production. It all set the monogamic family model as the standard social organization, in which “men have supremacy over women, and the individual family is the economical unit of society” (Engels, 2009, p. 80). At this point, views about sexuality in the new European urban life directly impacted the transformation of the family and the deepening of the sexual division of labor. Property, then, has its first nucleus in the family, where the wife and children are slaves to the husband. “This latent slavery in the family, though still very crude, is the first property, but even at this early stage it corresponds perfectly to the definition of modern economists who call it the power of disposing of the labour-power of others” (Marx, 1986, p. 46). 452 OPUSZKA; VARGAS | Living as an outcast or not living at all... Reinforcing moralism, the constitution of bourgeois marriage became, above all, the community of married women (Marx; Engels, 2010, p. 56). The monogamic family is imposed over women but not over men. Constextually, thus, prostitution is a form of regularion of heterosexual relations, since “out of prudence, the man forces his wife to chastity, but is not satisfied with the regime imposed on himself” (Beauvoir, 1967, p. 323). On the other hand, as men are not submitted to the model he imposed himself in order to maintain his property, prostitution flourishes as a shadow cast by this family model, in terms of capitalist production. If economically speaking, family women are useful for the monogamic model as wives and mothers, the prostitute is useful for satiating masculine desires beyond the limits of the instituted family regime. More than that, – even though people commonly state that prostitution is the oldest profession, oldest than capitalism itself – in capitalism, prostitution gains a striking characteristic: the profit obtained by the summation of sexual arrangements in which the domination of women was central.