CHRISTOPH MENKE
In the preface to his Contribution to the Critique of Political Economy, Karl Marx states the agenda of his critical theory of law in the claim that legal relations “originate in the material conditions of life” (or “arise out of” them), “the totality of which Hegel … embraces within the term ‘civil [or bourgeois] society.’ ”1 This is the hypothesis that defines the program of a social critique of law: its objective is to reveal the social logic of law, the structural nexus between its normative content and the basic forms of social domination.
In this chapter, I will try to sketch a critique of the social critique of law. A critique of this social critique must accomplish two things: it must both justify the social critique of law and delimit it. I will begin with the first component, with an exposition of Marx’s program of the social critique of law, in which I will seek to recall the originality, consistency, productivity, and radicalness of this program; there can be no critical theory of law without its social critique (sections 1–2). I will then show why Marx’s critical revelation of the social logic of law is insufficient, in a twofold sense: it cannot comprehend the double existence of the law in bourgeois society as private and social law (sections 3–4), and so it also cannot comprehend the political logic of law (section 5). In recent years, however, the program of a political critique of law has largely supplanted that of its social critique (in all those forms of theory that have sought to replace the critique of society with a theory of democracy). I will argue that both critical programs must be conceived in their contradictory union (section 6), because of the contradictory union of the two fundamentally different versions in which the one fundamental form of bourgeois law, the form of subjective rights, is realized (section 7).
1. THE LAW AS “DIFFERENT FORM”
In his draft for an introduction to his Contribution to the Critique of Political Economy, Marx sums up the program of a social critique of law in a deceptively simple figure that is intrinsically double and, indeed, self-conflicting. Marx writes that the conventional arguments for the legitimacy of the bourgeois constitutional state or state of law, which are mostly based on natural law, ultimately amount to the trivial point that “production proceeds more smoothly with modern police than, e.g., under club-law [Faustrecht: law of the fist]. They forget, however, that club-law too is law, and that the law of the stronger, only in a different form [unter andrer Form], still survives in their ‘constitutional State.’ ”2 The progression from club-law to the bourgeois constitutional state does nothing to change the fact that the law of the stronger persists. The bourgeois constitutional state is the law of the stronger “in a different form.” In other words, the legal relations of equal recognition are the social relations of domination, oppression, exploitation, and violence in a different form.
So the form of the bourgeois constitutional state is “different” not only in the historical sense—it not only differs from the older club-law—but also in a structural sense: it is “different” vis-à-vis its own content. The “form” and “content” of law, as Marx emphasizes on several occasions,3 differ; they correspond to each other only in the sense that they conflict with each other. The law contradicts itself, yet it does so not because it possesses a normative content that, unfortunately, is not (yet) entirely realized but because it has its material basis as well as its content in social domination, and a “form” that is “different” vis-à-vis this basis and content: the form of relations of equal recognition. The social logic of law is a double logic: the content of law is social domination, while the law is at once the inversion of this social content into a different form.
With this claim, Marx, on the one hand, assigns the law to the field of ideology; it makes social relations of domination appear as relations of legal equality. On the other hand, law is the “condition of the existence” of social domination.4 Social domination requires the different form of law not just because it seeks to conceal itself. Rather, it functions only by virtue of the form of law. It is not just the ideology but the reality of legal relations of equal recognition that is required for relations of social domination and oppression to exist. The law serves a “necessary function” for social domination, and so has a “necessary presence.”5 The inversion into the “different form” of law enables social domination in a twofold way: it both conceals and engenders it. The law is necessary and semblance—necessary semblance.
2. BOURGEOIS PRIVATE LAW AND CAPITALISM
Marx’s critical hypothesis of the law as the inversion of social domination into a “different form” concerns a historically as well as a socially specific object and scene. The object of this hypothesis is bourgeois private law; the scene of the inversion of social domination into legal equality is the interrelation between the capitalist mode of production and the contractual relations of exchange in the sphere of circulation.
Bourgeois private law is the only legal formation Marx analyzed and criticized. That is because, for Marx, bourgeois private law is the only functionally necessary legal formation of bourgeois society. So the law that comes into consideration for Marx, the student of Friedrich Savigny and G. W. F. Hegel, is “modern Roman law” (Savigny) or “abstract law” (Hegel). Marx shared Savigny’s and Hegel’s conviction that the Roman law of antiquity provided the model for the modern development of this legal formation by defining the legal person by his or her ability to acquire through exchange. Yet bourgeois private law, Marx further recapitulates his teachers, reframes the Roman concept of the legal person in such a way that it comes to express “exactly the opposite” of the classical legal idea, which was based not only on the inequality between freemen and serfs but also on the premise that the exercise of rights is regulated by a shared ethos.6 Bourgeois private law reinterprets the figures of Roman law, which turn on the contracting person, as media of the equal freedom to engage in the arbitrary acquisition and disposal of things. The bourgeois revolutions claim this freedom of arbitrary disposal to be equally enjoyed by all citizens and guaranteed by private law as an inalienable human or basic right vis-à-vis the politically constituted commonwealth (the “state”).
There can thus be no social relation in bourgeois society that would not meet this condition. As a society constituted by private law, bourgeois society is the realm of freedom and equality. These principles apply no less to its basic economic transaction: the purchase and sale of labor power as a commodity. Considered in terms of private law, the sale of the commodity of labor power is not special in any way. It is a transaction in which equal freemen trade their commodity, exchanging it with other equal freemen for the commodity the latter offer, or the sum of money corresponding to its value. In so doing, as in any contractual act of exchange, they abstract from the use value the commodity being exchanged has for either of them. The realization of equal freedom in exchange is premised on the “indifference” of this use value.7
Marx’s central argument homes in on this point by insisting that the use value of the commodity of labor power the capitalist purchases is of a particular nature. Crucially, the capitalist, in legally purchasing the commodity of labor power, also acquires, as in the purchase of any commodity, the right to the use of this commodity; that is part of the meaning of the contractual acquisition of property as defined by private law. Yet the use of the commodity of labor power is qualitatively distinct from that of other commodities. The use of labor power consists in the exercise of that power, which is to say, in labor. So, if the purchase of the commodity of labor power includes the right to its use, this implies the right to use its use: one person’s right to the other person’s exercise of his labor power. This severs the right to use from the execution of that use. The laborer uses his labor power by working, and the capitalist who has bought his labor power has the right to this use (or more precisely, a right to the use of this use).
The purchase of the commodity of labor power, in other words, is the acquisition of a peculiar commodity because it implies the acquisition of a right over the person who is solely capable of exercising this labor power. The purchase of the commodity of labor power establishes a right to domination of the laborer. The equal freedom enjoyed by both sides in the exchange of the commodity of labor power, guaranteed by bourgeois private law, is thus revealed to be merely a “surface process, beneath which, however, in the depths, entirely different processes go on, in which this apparent individual equality and liberty disappear”8—processes of unilateral appropriation, of the domination and exploitation of one party by the other. As labor power becomes a commodity that can be exchanged in accordance with the rules of private law, like any other commodity, and then freely used at the purchaser’s discretion, bourgeois private law turns from a normative order of equal freedom into a mechanism that serves both to conceal and to enable social domination.
Thus, the dialectical nexus between circulation (where legal equality and freedom prevail) and production (in which one class rules over the other) has two implications. First, there is no capitalist production, and hence no capitalist domination, without legal equality and freedom in the purchase and sale of labor power.9 Second, when labor power becomes a commodity, the equality and freedom of bourgeois private law engender the relations of domination in capitalist production.
3. BOURGEOIS PRIVATE LAW AND “SOCIALIST BASIC RIGHTS”
Bourgeois private law is not merely the particular object for which Marx elaborated his hypothesis regarding the social logic of law in bourgeois society; it is the only such object. Marx’s hypothesis regarding the law of bourgeois society is that it is bourgeois private law because only bourgeois private law constitutes the “different form” of the capitalist relations of production.
This claim follows from the conjunction of two premises; the first is a conceptual premise, while the second is an empirical one. According to the first premise, there is no law whose purpose is not to enable social domination; according to the second premise, the forms of social domination in bourgeois society are rooted in the capitalist relations of production. Therefore, bourgeois law can only be one whose purpose is to enable the capitalist relations of production. This law, Marx argues (as noted in section 2), is bourgeois property and contractual law; bourgeois society neither needs nor has room for more law.
Yet the hypothesis concerning the law of bourgeois society, which follows necessarily from the two premises of Marx’s theory, is incorrect. The law of bourgeois society is not only bourgeois private law. Rather, the law of bourgeois society is always already codetermined by a second, coequal legal concept: the concept of “social rights” or, more properly, of “social law.” The term “social law” indicates that this is not merely another class of rights than those of bourgeois private law but also is a different conception of law vis-à-vis (and antagonistic to) bourgeois private law. Bourgeois society knows two equiprimordial and fundamentally different legal formations: private and social law. Both legal formations are conceptions of the basic bourgeois idea of equal legal freedom, which they interpret in opposite ways: as the equality of owners of (private) property enjoying the freedom to use and dispose of their property, and as the equality of (social) participants enjoying the freedom to develop and exercise their abilities.
In his reflections on the law of bourgeois society, Marx systematically misapprehended the reality and logic of social law. That is not because Marx did not yet know the social law of bourgeois society, let alone because he could not have known it. On the contrary, social law as the equal right to free participation develops concurrently with bourgeois society and constitutes a central element of the “state of the understanding” (Verstandesstaat, from Hegel) or “state of providence” (l’état providence, from François Ewald), which begins to emerge in the eighteenth century. Such a state undertakes not only to administer (private law) justice but also to comprehensively secure the “possibility of sharing in the universal assets” of bourgeois society.10 This initially “authoritarian” conception of social law becomes a point of reference for “progressive” demands as the socialists, from François-Noël Babeuf and Pierre-Joseph Proudhon to Ferdinand Lassalle and the German social democrats, take up the idea of human rights, and (as Engels and Karl Kautsky summarize the matter in 1887, in their critique of this interpretation of social law) develop them into “socialist basic rights.”11 In the welfare state of the twentieth century, some of these socialist legal demands eventually became a defining legal reality.
Marx dismissed the socialist conception of social law, and rights, as the “foolishness of those socialists.”12 According to the reading of Marx’s critical theory of law that I have sketched, this is not just a political or strategic claim. It follows consistently from the two premises of Marx’s argument. Marx calls the socialist idea of social law “foolish” because it runs counter to the conditions required for a discourse of “law” to be meaningful. The social logic of law consists in its being the “different form” of social domination. Social domination is defined by the relations of production. The idea of a law that, like social law, does not relate to the social domination defined by the relations of production—whether in authoritarian or socialistic fashion, whether it expresses, enables, or seeks to change these relations—is meaningless and so is indeed “foolish.”
As Marx’s dismissal of the socialist conception of social law is not a political/strategic question, neither is the rejection of this claim. It is a matter, first and foremost, of legal theory; it concerns the question of how the law of bourgeois society must be understood. In the following, I will sketch the counterhypothesis to Marx’s, that, if private law has a “necessary presence” in bourgeois society, due to its “necessary function” (in the words of Étienne Balibar) for this society, so does social law.13 I am thus interested here not in the question of the legitimacy of social law, not in its justice, but in its necessity, which is to say, in its functionality for the form of social domination that constitutes bourgeois society. Furthermore, I am interested in the consequences that the insight into the existence of social law has for our understanding of the structure and functioning of law in modern, bourgeois society in general.
4. SOCIAL LAW AND NORMALIZATION
According to Marx’s methodological premise, all law is a “different form” of domination. It is obvious—and this is why Marx dismisses its idea and thus existence—that social law is not a different form of the specifically capitalist form of domination. If social law, too, is a different form of social relations of domination, these relations are not economically determined relations of production. To understand the social relations of domination that find their expression in social law, we may look to that legal formation itself. The idea of social law does not at all consist, as Marx and Engels’s critique of the socialist-progressive reframing of the idea of social law maintains, in the demand for an equal distribution of the means of consumption. Its pretensions go much further and, more importantly, are fundamentally different in kind, as even the form in which it was articulated by its nineteenth-century proponents makes plain. As socialist demands for rights to, say, education (which Marx also mentions) or labor regulations show, social law has never been only about equal distribution; it is about the ability to participate equally in social life. Social law proclaims the right to (a social) life or, as the programmatic writings of (neo-)Kantian socialism put it, the “right to existence.”14 In short, social law is concerned with relations of social participation—including relations of social discipline, formation, and normalization, without which there is no social participation. The relations of domination, of which social law must be understood as a “different form,” are relations of participation.
Michel Foucault’s interpretation of the socialist demand for a right to participation, a right for “existence” or “life,” can help us describe social law in this perspective:
Since the last century, the great struggles that have challenged the general system of power were not guided by the belief in a return to former rights, or by the age-old dream of a cycle of time or a Golden Age. One no longer aspired toward the coming of the emperor of the poor, or the kingdom of the latter days, or even the restoration of our imagined ancestral rights; what was demanded and what served as an objective was life, understood as the basic needs, man’s concrete essence, the realization of his potential, a plenitude of the possible … The “right” to life, to one’s body, to health, to happiness, to the satisfaction of needs, and beyond all the oppressions of “alienation,” the “right” to rediscover what one is and all that one can be, this “right”—which the classical juridical system was utterly incapable of comprehending—was the political response to all these new procedures of power which did not derive, either, from the traditional right of sovereignty.15
The final sentence of this analysis reframes Marx’s program of the social critique of law, of revealing its social logic. It links the new category of social law—the right to social participation, to social existence or life—to the “new procedures of power” that have evolved since the eighteenth century, procedures Foucault describes as normalization. These procedures of power aim to ensure and enhance the possibilities of social life, to engender, organize, and promote participation in social processes. This normalizing form of social domination is distinct from—not antagonistic to—the capitalist form, not least importantly in that it is essentially in the purview of the state. Normalizing domination concerns the relation between the state and the populace, not the relation between owners of private property, governed by private law, or the socioeconomic relation between the classes. The normalizing form of social domination consists in defining and enforcing the conditions of social participation.
So, the fact that the social rights demanded by socialists are, as Foucault puts it, the “political response” to this formation of social domination does not imply that they attack it from outside, from a conceptually and normatively independent basis. The social rights demanded by socialists (and, a fortiori, their realization in the welfare state) quite emphatically relate to this new formation of social domination as what Marx would have called its “different form.” Social rights express the social domination of normalization in the legal formation of equal recognition—and, in expressing it, make it possible in the first place. The domination of normalization is realized through the demands of equality, supported by social law, of those who are subjected to this domination. This means that what Marx showed for the relation between private law and the capitalist mode of production is also true of the relation between social law and normalization: the “different form” of social rights is the “condition of the existence” (according to Nicos Poulantzas) of normalizing domination—just as private law is the condition of the existence of capitalist domination. The critical revelation of the social logic of social law consists in the demonstration that—regardless of whether that social law is enforced by authoritarian power, called for by socialists, or realized in the welfare state—it is the “mere semblance” of normalization.
5. THE STRUGGLE FOR LAW
Marx writes that the idea of a social law that is distinct from bourgeois private law, and, indeed, its (authoritarian or critical) antagonist, is “foolish” because it cannot have any social function. By implication, he disputes its practical role in the class struggle as well. When workers fighting over the length of the workday invoke their “right,” Marx argues, they, too, understand this “right” in the sense it has in bourgeois private law. The struggle between the classes over the normalization of the workday pits “right against right, both equally bearing the seal of the law of exchanges”16—in other words, it pits the title under private law of the owner of the commodity of labor power against the title under private law of the owner of the means of production.
Empirically, this interpretation—that the struggle between the classes is waged solely in the conceptual framework of bourgeois private law—is hardly persuasive. The counterhypothesis concerning the “presence” and “function” of social law in bourgeois society, sketched in the preceding section, enables us to abandon this interpretation as well. What my counterhypothesis proposes, instead, is that we interpret the struggle of “right against right” between workers and capitalists as being also a “struggle for law,”17 a struggle over how to understand the concept of law—a struggle of the socialist legal idea of equal participation against the bourgeois legal idea of equal ownership. It is this struggle for law—between the bourgeois-liberal legal idea and one that is now authoritarian, now socialist, between private and social law—that constitutes the reality of law in bourgeois society. The law in bourgeois society is not just the “different form” of social domination but the object, medium, and scene of a struggle, of antagonistic relations of power.
We begin to recognize the consequence that the insight into the positive existence of social law, and hence into the double formation of law in bourgeois society as both private and social law, has for the conceptual premise of Marx’s legal theory. This premise consists in the hypothesis of the “social logic” of law. It asserts that the law is defined by the fact that it is the “different form” of social domination; it is the social logic of the legal form that has relations of social domination as its content. The struggle between private and social law that is the reality of law in bourgeois society shows that we must speak of “laws” rather than a single “law,” and it shows, moreover, that each legal formation not only corresponds to social domination but also is antithetical to—wages a struggle against—the other. If this relation of struggle is constitutive of law, then it is in this regard at once also subject to a logic other than the logic of the social; it is subject to a political logic (since political logic concerns relations of struggle or power).
The central theorem of Marx’s theory of law is that social domination generates legal equality as its “different form,” so that legal equality enables or expresses social domination. Contrary to appearances, this theorem is not implicitly a form of reductionism; it does not deny the normative content of law. On the contrary, it is only the normative content of law that makes social domination possible.
Yet normative content does not come into being of itself. Normative content is generated in acts and processes; specific normative contents flow from acts of normative determination. Being generated in such acts, particular normative contents may change, divide, combat, overlap, rewrite one another. The “development” of normative content is “the succession of the more or less far-reaching, more or less independent processes of overpowering which affect it—including also in each case the resistance marshaled against these processes, the changes of form attempted with a view to defense and reaction, and the results of these successful counteractions. The form is fluid, but the ‘meaning’ even more so.”18
This brings the problem of Marx’s social theory of law to the fore: it can refer only to specific, already determinate and fixed legal content and must accordingly both presuppose the conclusion of the process of the determining generation of that content and abstract from the process of its ongoing redetermination. The social logic of law applies only to definable, which is to say, to ahistorical,19 or more precisely, to apolitical law. This is the constraint that limits the conceptual premise in which Marx’s legal theory frames the hypothesis of the social logic of law: it can address the law only as independent or dissociated from the political process in which it is engendered and subject to change.
6. THE CIRCLE OF LAW IN BOURGEOIS SOCIETY
What are the consequences of this methodological critique of Marx’s social theory of law for the critical examination of the law of bourgeois society? This law, I have argued (see section 3), exists in twofold form, as social and as private law. Following the methodology of Marx’s social critique of law, but going beyond the limitations of his own realization of this method, we can say that each of these two kinds of law is the “different form” of each of two kinds of social domination in bourgeois societies: social domination in capitalist production and social domination in normalization by the welfare state. At the same time, each kind of law is political in having been made. Moreover, their relation is political, as a relation of struggle—a struggle for (about) law. This political logic of law is structurally different from its social logic (the functionality of its normative content for social domination). At the same time, the critical insight into the social logic of law plays a fundamental role in the political struggle between the two basic forms of bourgeois law.
The relation between the two legal formations in bourgeois society is defined by the fact that their political struggle manifests itself as a mutual critique in which each reveals the social logic of the other. Private law criticizes social law as the “different form” of normalizing domination; social law criticizes private law as the “different form” of capitalist domination. Both legal formations of bourgeois society are not only functional for domination, each the “different form” of a formation of social domination—private law for capitalist, social law for normalizing domination. They also are functional in such fashion that they are at once also critical of domination; each is the critique of the other formation of social domination.
FIGURE 6.1. The struggle for law in bourgeois society.
In the arguments proffered in the struggle for law to vindicate private as well as social law, each side avers that the other side’s legal equality is revealed, in the process of critical experience, to be the mere semblance of social domination—that it undergoes a dialectical reversal into domination. Both legal formations are subject to the same dialectical reversal of the critique of domination into functionality for domination. Private law critiques normalizing domination in the name of individuality and undergoes reversal into the privatization of the basic means of production; social law critiques capitalist domination in the name of social participation and undergoes reversal into the normalization of the basic conditions of life (see figure 6.1). The reversal of law into domination, then, is here no longer observed by a critical theorist standing outside the law; it is an observation asserted in the struggle (between the classes and ideological camps) for law. The social critique of law, the critical revelation of its social logic, is a strategy in the political struggle for power, as both sides seek to vindicate themselves in this struggle by invoking the dialectical reversal into domination of the other, opposing, legal formation.
7. THE DIALECTICAL UNITY OF BOURGEOIS LAW
The claim of the preceding argument is that the critique of law that reveals its social logic as the “different form” of domination is already implicit in (and thus complicit with) the struggle that defines the existence of law in bourgeois society. In this way, the critique of law is limited. It can only look from one side at the other; it can only take sides in the struggle of bourgeois law and thus remains unable to understand the internal entanglement of the opposite legal formations, which reproduce themselves precisely by struggling against each other. Marx distinguishes this internal and thus limited form of critique from a “truly philosophical critique,” which “not only shows the contradictions as existing, but explains them, grasps their genesis and necessity.” True critique is genealogical: it “shows the internal genesis … It describes the act of [the] birth [of its object].”20 True critique reveals the necessity that binds the two opposite formations of bourgeois law together by revealing the common ground of the two conceptions of bourgeois law that charge each other with reverting into social domination. True critique is genealogical in leading these opposite legal formations back to their ground.
This ground is the new basic form of bourgeois law; it is the form of subjective rights. The turn to the form of subjective rights, as the basic form of bourgeois law, thus allows us to offer one answer to the question concerning both legal formations; it enables us to conceive the unity of bourgeois law behind or beneath the struggle between its formations.
Max Weber has defined the basic purpose of subjective rights as the “empowerment” of the subject.21 Subjective rights subjectivate; they confer power, and to have power means to be able to do something or to be a subject. Weber explains this subjectivating empowerment conferred by rights as giving a subject the power to engage, or fail to engage, in certain conduct, as it pleases. This is the specific innovation of the bourgeois form of subjective rights. They are rights to the subject’s own willing, and actions without “interference,” which is to say, unhampered—not only, and not even primarily, by the intervention of some other; this was already the traditional function of rights. Rather, subjective rights in the specifically modern or bourgeois sense empower the subject to will and act beyond the interference, also, of the Other, unrestricted by any ethical, political, or legal regulations.
Furthermore, unlike in the theories of private law since Thomas Hobbes, Weber conceives of such empowerment not just in a negative sense—that nothing specific is prescribed in certain respects and domains. Rather, Weber conceives the permission of private law in positive terms, as the acquisition of an ability. That I have rights does not just mean that I am unimpeded and permitted to do as I please; instead, rights, by permitting, give me the ability or power to do as I please in the first place. To conceive of rights as empowerment is to understand what law entitles me to do—to do as I please—as the exercise of a faculty or power that I only have by virtue of my rights. This faculty engendered by law is the will of the individual: subjective rights empower the subject to have its own will. Empowerment by subjective rights means empowerment of the subject’s own or empowerment of the subject to have its own—the constitution of the unethical, apolitical, nonmoral private will of the individual. The empowerment of subjective rights engenders a new subject: the subject of “its own will [Eigenwille].” This is the sense in which subjective rights can be said to implement a proprietary logic; the subjective right is “ius proprium.”22
This fundamental trait of subjective rights has two implications. First of all, it allows us to trace back the two different shapes of subjective rights—the rights of private law and of social law—to one single source; this source or ground is the bourgeois empowerment of the subject’s “own will” (A). Second, in accordance with Marx’s idea of genealogical critique, by tracing back the formations of bourgeois law to their ground, we also can identify the error that they share (B).
A. THE DUALISM OF SUBJECTIVE RIGHTS
The form of subjective rights exists only as intrinsically double and divided within itself. The exemplary manifestation of this dualism is the bourgeois concept of private property. The traditional definition of private property is that the owner is entitled, to the exclusion of all others, to determine the use he or she will make of the property. Bourgeois private property lends a radically new meaning to the privacy of decision making; it is the exercise of the individual subject’s own will. Thus, the basic liberal definition of bourgeois private property is that it is the “province of the independent mastery of the individual will.”23 Bourgeois private property is the private sphere in which the subject can decide “without interference” and solely according to its own will. Unauthorized infringement of my property by another is thus no longer merely an encroachment on my power (dominium) but now a violation of myself (or my self); it is something that “would injure [lädieren] me.”24
This bourgeois redefinition of property implies a radical transformation of society. It “release[s] the individual property right from the limitations of the law of nature”25 by unshackling it from all limitations—except for other property. The proprietary principle of bourgeois property—its conception as ius proprium—undoes the constraints limiting the possessive power of disposal. On the one hand, this has implications for the question of what can become property. Quite simply, anything that can fall within the private “province of the independent mastery of the individual will.” This makes bourgeois property the juridical instrument for the expansion of the category of the commodity to include labor, land, and money, which marks the inception of bourgeois society.26 On the other hand, the proprietary unshackling affects ways in which the subject can dispose of its property. It can do so, quite simply, in any way it pleases—including, in particular, by allowing others to make use of its property in a quid pro quo arrangement. The very exclusion of the other from the decision concerning the subject’s own property “internalizes” him into the province of the private property owner’s mastery; it effects an “absorption of his ‘sphere of rights’ into the sphere of property.” Bourgeois property enables the subject to use its power of exclusive disposal in order to exercise “inclusive domination” over others.27
The formal structure of bourgeois property is this: protection and security for the subject’s own will. In the formation I have considered until now, these protections are provided by the warranty of a private sphere within which the subject freely disposes of its own. This presupposes an understanding of the subject’s will as discretion: the legal warranty of a private sphere secures the subject’s own will as discretion. Discretion is the ability or power of will to set itself objectives as it pleases. It does so by making a choice. Exercising its discretion, the subject sets itself objectives by choosing among the different impulses it finds within itself and thus “incorporat[ing]” them “into [its] maxims.”28 By power of its discretion, the subject confers on an impulse the form of a maxim, an objective it does not have but has set itself.
But subjects do not merely choose objectives; to will these objectives is to will their realization. To this end, they select appropriate means as the conditions of the realization of their objectives. To choose objectives is to will means, and to will means is to assess or evaluate them. This evaluative attention to means constitutes the subject’s “interests”: interests are interests in abilities, expedients, or resources. Thus, if discretion is the willing of objectives, interest is the willing of means. The subject’s own will is both: choice and evaluation, discretion and interest, the willing of objectives and of means. That is why, furthermore, the bourgeois property that secures the subject’s own will takes not only the form of an own or private sphere but also the form of own or private assets. Property as the private sphere secures the exercise of discretion; in its private sphere, the subject is free to choose objectives as it pleases. Property as the subject’s own asset, by contrast, secures the subject’s interests, its will to have abilities, resources, expedients. Contrary to the ideology of liberal private law, the subject of subjective rights cannot be reduced to its discretion. As an agent, it has interests, it wills means or resources, and this is the basis for a second formation of bourgeois property: property as asset.
The definition of property as the private sphere of arbitrary decision concerning the individual’s own objectives is the foundation of liberal private law. The concept of the asset—which secures the realization of the individual’s own will that is the object of the subject’s interest—marks the first and crucial step beyond the confines of liberal private law. The second step consists in the insight that the subject’s assets, contrary to what liberal ideology wishes it to believe, are of course not the subject’s own. The subject, this critique of liberalism notes, has assets that are its own only by appropriating socially generated and existing assets; the subject has its “particular assets” only by “sharing in the universal assets” of society.29 All particular assets are appropriated social assets. That is why the property right as an asset is nothing but a right to social participation or access.30 To define property as privately appropriated social assets is to see “that the concept of property [must] be broadened—that it [must] no longer be confined to the individual right to exclude others, but be extended to include each individual’s right not to be excluded from the use or benefit of things, and productive powers, that can be said to have been created by the joint efforts of the whole society.”31 Property as asset is the right to social participation, because social participation here means participation in a social asset—acquisition of individual assets through the appropriation of social assets.
Social rights to participation, too, are subjective rights founded on the subject’s own private will; that, how, and to which end the subject wills assets through social participation is no less a matter of its own will than the arbitrary choice of its objectives. Social rights to participation are rights to social participation in the subject’s own interest; social rights to participation are rights to private assets by way of social participation. That is what social participation here is about: acquiring particular assets through sharing in the universal assets. The right to social participation is no less the legalization of the fact that the subject wills this, takes an interest in this. It is not a break with the form of subjective rights but the expansion of this legal form to include social content.
The form of subjective rights, which is based on or legalizes the subject’s own will, exists in two irreducible and equiprimordial formations:32 as the legalization of discretion and of interest, the first through property as the private sphere of arbitrary decisions and the second through property as the private asset of social participation. These two formations of bourgeois (property) right are fundamentally different because they are rooted in two no less divergent conceptions of the will—as the faculty of arbitrary choice and of interested evaluation. Hence the antithetical relation, in legal practice as much as in legal policy, between the two conceptions of property. They are the parties in the “struggle for law” in bourgeois society—the struggle, in legal practice, between private and social law, and in legal policy, between liberalism and socialism (or between liberal democracy and social democracy). Yet it is precisely because the two formations of bourgeois property are rooted in different conceptions of the will as discretion and interest, as choice and evaluation, that they are not mutually exclusive in the perspective of the logic or theory of law; both are aspects of the subject’s own will. That is why the struggle between the two formations of bourgeois (property) law cannot be resolved. Bourgeois law consists in this struggle.
B. THE EMPIRICISM, OR POSITIVISM, OF SUBJECTIVE RIGHTS
Empiricism is the “myth of the given.” It ascribes unquestionable “authority” to something merely given, demanding its passive acceptance by declaring it to be the “ultimate court of appeal” for all normative questions.33 In epistemological empiricism, what is given are sensory data; they are the noninferential basis capable of determining the truth of propositions. Similarly, bourgeois law is empiricistic or positivistic in presupposing the subject’s own will as given and hence as the ultimate court of appeal. The fact that juridical empiricism invokes as its unquestionable authority is thus an act: the act of willing. Bourgeois law treats the subject’s will as (or as though it were) a fact; it constructs, presupposes, and authorizes a will that “does not refer to any judgment, reasoning, or calculation.”34 The bourgeois subject, the subject of subjective rights, wills—without a view to judgment, reasoning, or grounds. The subject of rights is a subject without grounds, or more precisely, a subject whose willing, as mere fact, counts as ground, that is to say, whose willing needs no ground, no good reason, in order to legally count. The subject’s own will is a category of law and hence a category of validity; the subject’s own will is valid—without a view to whether its will has good or bad reasons, whether it is autonomous or heteronomous in its formation.
The form of subjective rights empowers the subject’s own will. In the form of subjective rights, the law legalizes the pure fact that something is a subject’s own will; subjective rights lend force to the fact that the subject wills something. All subjective rights presuppose this fact; it is their prerequisite. True, another step is necessary to turn this prerequisite—the individual subject’s own will—into a legally binding title: the fact must be converted into a right. But, crucially, this conversion into a right does not require a transformation of the will. It is not an intrinsic conversion, a transformation of the substance, but an extrinsic one, a quantitative modification. The step from a subject’s will to its right does not consist in an evaluation of the content or manner of its will. If it did, the subject would have the mere right to an ethical or autonomous will. Yet the subject’s will becomes a subjective right not by virtue of the ethical quality of its content or the autonomy of its genesis but solely by virtue of its extrinsic delimitation in accordance with a universal law of equality. The equality of everyone’s subjective wills is the only normative consideration in the evaluation—which is to say, the merely extrinsic delimitation—of each individual will. That is why the basic principle of subjective right is this: each subject’s will, whatever it may be, is legitimate when it remains within the bounds drawn by the law of equality.
The thesis thus is that subjective rights operate in a mythical way. They produce a myth not in the sense of an ideological misrepresentation but, on the contrary, by effectively granting the subject’s will the status of a given—something presupposed, valid in itself, beyond ethical and political evaluation, and hence also immune to ethical and political transformation. I want to suggest that this is the fundamental role that law, the law in the form of subjective rights, fulfills in bourgeois society. It is the mechanism by which the bourgeois state presupposes bourgeois society as its natural “basis.”35 The fundamental trait of the relation between “civil society and the state” is the assumption that “society … is already given,” and so the politics of bourgeois society is “much more a naturalism than liberalism.”36 More precisely, liberalism is in reality a naturalism, because the form of subjective rights that liberalism makes the foundation of law lends force to the subject’s own will and thus makes it a fact. The form of subjective rights is myth put into practice, the inversion of something that is made into a given.
NOTES
1. See also his “Critique of the Gotha Programme,” where Karl Marx claims that “legal relations arise out of economic ones.” Marx, “Kritik des Gothaer Programms,” in Werke, by Karl Marx and Friedrich Engels, 43 vols. (Berlin: Dietz, 1956–90), 19:18. Translated as Marx, “Critique of the Gotha Programme” (Moscow: Progress, 1970), https://www.marxists.org/archive/marx/works/1875/gotha/ch01.htm; and Marx, Zur Kritik der Politischen Ökonomie, in Marx and Engels, Werke, 13:8. Translated by S. W. Ryazanskaya as Marx, A Contribution to the Critique of Political Economy (Moscow: Progress, 1970), https://www.marxists.org/archive/marx/works/1859/critique-pol-economy/preface.htm.
2. Karl Marx, “Einleitung zur Kritik der Politischen Ökonomie,” in Marx and Engels, Werke, 13:620. Translated by S. W. Ryazanskaya as Marx, “Introduction to a Contribution to the Critique of Political Economy,” in A Contribution to the Critique of Political Economy, appendix 1, https://www.marxists.org/archive/marx/works/1859/critique-pol-economy/appx1.htm.
3. See Karl Marx, Das Kapital, vol. 1, in Marx and Engels, Werke, 23:99 and 23:609; and Marx, Das Kapital, vol. 3, in Marx and Engels, Werke, 25:352.
4. Nicos Poulantzas, “A propos de la théorie marxiste du Droit,” Archives de philosophie du droit 12 (1967): 145–62.
5. Étienne Balibar, “The Basic Concepts of Historical Materialism,” in Reading Capital, by Louis Althusser and Étienne Balibar, trans. Ben Brewster (New York: New Left Books, 1970), https://www.marxists.org/reference/archive/althusser/1968/reading-capital.
6. Karl Marx, Grundrisse der Kritik der Politischen Ökonomie 1857–1858, 2nd ed. (Berlin: Dietz, 1974), 156. Translated by Martin Nicolaus as Grundrisse: Foundations of the Critique of Political Economy (Rough Draft) (New York: Penguin Books, 1973), https://www.marxists.org/archive/marx/works/1857/grundrisse/ch05.htm.
7. “Thus indifference and equal worthiness are expressly contained in the form of the thing. The particular natural difference which was contained in the commodity is extinguished, and constantly becomes extinguished by circulation.” Marx, Grundrisse, 158.
8. Marx, Grundrisse, 159; translation modified.
9. See Oskar Negt, “10 Thesen zur marxistischen Rechtstheorie,” in Probleme der marxistischen Rechtstheorie, ed. Hubert Rottleuthner (Frankfurt: Suhrkamp, 1975), 46–54.
10. Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1991), § 200, 233; translation modified.
11. Friedrich Engels and Karl Kautsky, “Juristensozialismus,” in Marxistische und sozialistische Rechtstheorie, ed. Norbert Reich (Frankfurt: Athenäum, 1972), 58. The idea of equal social participation is already an essential element of the French declarations of human rights in their Jacobin version. See Maximilien Robespierre, “Draft Declaration of the Rights of Man and of the Citizen,” in Robespierre: Virtue and Terror, ed. Slavoj Žižek (New York: Verso, 2007), 66–72.
12. Marx, Grundrisse, 160. In this instance, Marx’s scorn is directed at Pierre-Joseph Proudhon.
13. Étienne Balibar, “Basic Concepts of Historical Materialism.”
14. Quoted in Engels and Kautsky, “Juristensozialismus,” 58. See the texts collected in Hans Jörg Sandkühler and Rafael de la Vega, eds., Marxismus und Ethik: Texte zum neukantianischen Sozialismus (Frankfurt: Suhrkamp, 1974). The clearest articulation of this idea by a contemporary writer can be found in Amartya Sen, Inequality Reexamined (Cambridge, MA: Harvard University Press, 1992).
15. Michel Foucault, The History of Sexuality, vol. 1, An Introduction, trans. Robert Hurley (New York: Knopf Doubleday, 1986), 144–45. For the following, see also the suggestions on the paradox of juridification in the welfare state in Jürgen Habermas, Theorie des kommunikativen Handelns, vol. 2 (Frankfurt: Suhrkamp, 1981), 522–47.
16. Marx, Das Kapital, vol. 1, 249; my emphasis. Marx’s analyses of revolutionary movements like the Paris Commune, however, deviate from this rigorous explication of his legal-theoretical premises in Capital.
17. Rudolf von Ihering, The Struggle for Law, trans. John J. Lalor (Chicago: Callaghan, 1915).
18. Friedrich Nietzsche, On the Genealogy of Morals, trans. Douglas Smith (Oxford: Oxford University Press: 1996), II.12, 58.
19. “Only that which is without history can be defined.” Nietzsche, On the Genealogy of Morals, II.13, 60.
20. Karl Marx, Critique of Hegel’s “Philosophy of Right,” ed. Joseph O’Malley, trans. Annette Jolin and Joseph O’Malley (Cambridge: Cambridge University Press, 1977), 92; translation modified.
21. Max Weber, Economy and Society: An Outline of Interpretive Sociology, ed. Guenther Roth and Claus Wittich (Berkeley: University of California Press, 1978), 667.
22. Roberto Esposito, Immunitas: The Protection and Negation of Life, trans. Zakiya Hanafi (Cambridge: Polity, 2011), 21–28.
23. Friedrich Karl von Savigny, System of the Modern Roman Law, vol. 1, trans. William Holloway (Madras: J. Higginbotham, 1867), 271.
24. Immanuel Kant, The Metaphysics of Morals, ed. and trans. Mary Gregor (Cambridge: Cambridge University Press, 1996), 37; translation modified.
25. C. B. Macpherson, “Locke on Capitalist Appropriation,” The Western Political Quarterly 4, no. 4 (December 1951): 550–66.
26. Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time, 2nd ed. (Boston: Beacon, 2001), 68–76.
27. Ulrich K. Preuß, Die Internalisierung des Subjekts: Zur Kritik der Funktionsweise des subjektiven Rechts (Frankfurt: Suhrkamp, 1979), 43.
28. Immanuel Kant, Religion Within the Boundaries of Mere Reason, and Other Writings, ed. Allen Wood and George di Giovanni (Cambridge: Cambridge University Press, 1998), 65.
29. Hegel, Philosophy of Right, § 200, 233; translation modified.
30. Étienne Balibar, “ ‘Possessive Individualism’ Reversed: From Locke to Derrida,” Constellations 9, no. 3 (2002): 299–317.
31. C. B. Macpherson, Democratic Theory: Essays in Retrieval (Oxford: Clarendon, 1973), 136.
32. The formation that the classical periodizing schema of Thomas H. Marshall or the typological schema of Georg Jellinek list as the final in a series of three formations—political rights—is actually located on a different categorical plane; it concerns the act that engenders the (form of) rights.
33. Wilfried Sellars, Empiricism and the Philosophy of Mind (Cambridge, MA: Harvard University Press, 1997), 68–79; for “authority,” see 71.
34. Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978–79, ed. Michel Senellart, trans. Graham Burchell (New York: Palgrave Macmillan, 2008), 272.
35. Marx, “Zur Judenfrage,” in Marx and Engels, Werke, vol. 1, 369.
36. Foucault, Birth of Biopolitics, 61, 309.