Ownership of the Image: Elements for a Marxist Theory of Law

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THOMAS J. BATA U BRARY TRENT UNIVERSITY

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Ownership of the Image Elements for a Marxist Theory of Law

Bernard Edelman Translated by

Elizabeth Kingdom Introduction by

Paul Q. Hirst

Routledge & Kegan Paul London, Boston and Henley

This translationfirst published in 1979 by Routledge & Kegan Paul Ltd 39 Store Street, London WC1E 7DD, Broadway House, Newtown Road, Henley-on-Thames, OxonRG9 1 EN and 9 Park Street, Boston, Mass. 02108, USA Set in 10/ 12pt Baskerville by Computacomp (UK)Ltd, Fort William, Scotland and printed in Great Britain by Redwood Bum Ltd, Trowbndge and Esher Translatedfrom Le Droit saisi par la photographie French edition © 1973 Librairie François Maspero

© English translation Routledge Ir Kegan Paul 1979 No part of this book may be reproduced in any form without permission from the publisher, exceptfor the quotation of brief passages in criticism

British Library Cataloguing in Publication Data Edelman, Bernard Ownership of the Image. 1. Law I.

Title

340

[Law]

ISBNO 7100 0103 7

78^10916

To Nicky for the ground which has been covered thanks to you

Contents

Acknowledgments Translator’s note Introduction by Paul Q. Hirst

ix xi 1

Part I 1 2

Theoretical practice of the law The reasons for an absence The birth certificate of juridical ideology

19 21 27

Part II 3 4

The juridical production of the real The commodity form of creation The commodity form of the subject

35 37 68

Part III 5 6

Elements for a Marxist theory of law Law and circulation Law, circulation and production

89 93 103

Conclusion: Law and ideological struggle

109

Appendices 1 Notes on the functioning of juridical ideology : the election of Algerians to institutions of staff representation 2 Transitions in Kant’s The Metaphysical Elements of Justice The subject in law in Hegel’s Philosophy of Right 3

113

Notes and references

115 142 170 192

Acknowledgments

Le Droit saisi par la photographie is in the Maspero ‘Théorie’ series. It was published in 1973. The Appendix to that work ‘Notes sur le fonctionnement de l’idéologie juridique’ hrst appeared in La Pensée, no. 167, 1973. ‘La Transition dans la “Doctrine du Droit” de Kant’ first appeared in La Pensée, no. 167, 1973. An edited translation by Keith Tribe: ‘The Transition in Kant’s “Doctrine of Right” ’, appeared in Economy and Society, vol. 6, no. 2, May 1977. ‘Le Sujet de droit chez Hegel’ first appeared in La Pensée, no. 170, 1973 pp. 70-85. A version of the present translation appeared in Economy and Society, vol. 7, no. 2, May 1978.

Translator's note

Lack of correspondence between legal systems has made it necessary to retain certain French and Latin terms. Occasionally an explanatory note is supplied. A particular problem is posed by the French terms: droit réel, droit personnel, droit personnel-réel, and droit personnel selon une modalité réelle. Where the first two refer to Roman law, they are translated jus ad rem and jus ad personam respectively. Where they refer to Kant’s classification of rights, they are translated jus reale andjus personale respectively. The second two are both translated jus realiter personate. This rule is consistent with the use of terms both in Kant’s Metaphysische Anfangsgriinde der Rechtslehre, §§ 11, 18 (see below), and in Hegel’s Philosophy of Right, translated with notes by T. M. Knox, Oxford University Press, 1976, § 40 Remark. In all other cases, all these and related terms are translated by the closest possible synonym. Where possible, I give standard or the most easily available English translations of the French extracts used by Edelman and where it is necessary parts of those French extracts are supplied to avoid obscuring Edelman’s argument. In this respect, there is a problem with Edelman’s references to Marx, Contribution à la critique de’ l’économie politique, Editions Sociales. There is a close correspondence between parts of that text and parts of Marx, Grundrisse, Harmondsworth, Penguin, 1973, translated by Martin Nicolaus, ‘The Chapter on Capital’. But there is also considerable discrepancy between the two texts. In such cases, I translate Edelman’s quotations from Contribution à la critique de l’économie politique, retain his references and supply the nearest comparable reference to the Grundrisse. Similarly, there is a problem with Edelman’s references to Kant, Doctrine du Droit. The original work is Metaphysische Anfangsgriinde der Rechtslehre. This is the first part of

xii

Translator’s note

Die Metaphysische der Sitten, Werke, vol. 7, Wissenschajtliche Buchgeselschaft, Darmstadt, 1968. The most easily available translation is by John Ladd, Kant, The Metaphysical Elements of Justice, New York, Bobbs-Merrill, 1965. Where possible I use Ladd’s translation. Unfortunately, Ladd omits Chapter 2: ‘Of the Mode of Acquiring Something External’, which comprises §§ 10-35 of the original. Where Edelman quotes from those paragraphs, I translate direct from the French and give Edelman’s reference. My additions in the text are in square brackets and my footnotes are indicated by asterisks.

Introduction Paul Q. Hirst

Bernard Edelman’s work is the most original contemporary Marxist writing on the theory of law. In Ownership of the Image, Edelman attempts to produce a general theory of the nature of legal categories and their social function, to theorise law as a specific discourse and a specific practice. Orthodox Marxist treatments of law have all too often been simplistic and reductionist, regarding law merely as the expression of economic class interests. Law becomes little more than the codification of class interest and a relay of class force. But, as the Russian legal theorist E. B. Pashukanis pointed out, this ignores the specificity of the form of law. It is necessary, he argues, to pose the question why do class interests take the form of law and what effect does this form have upon them? Edelman follows Pashukanis in this enterprise. In doing so Edelman makes use of recent developments in Marxist theory in France, the work of Louis Althusser and his collaborators. Althusser’s account of the Marxist theory of modes of production and his reconstruction of the theory of ideology are central to the conception of law presented here. Edelman works with these concepts, interrogating specific areas of juridic theory and practice. Although his project is to characterise law in general as a system of categories and a practice, there is no attempt to review all branches of the law and the practice of all legal apparatuses. The elements chosen for analysis, the law relating to photography, the rights of Algerian workers, are central to the theory because they concern the law of property and the definition of the status and rights of ‘labour’. Edelman’s original title, Le Droit saisi par la photographie, puns on the law being seized or caught by photography, surprised or caught out by it. Photography, a

2

Introduction

technical innovation developing independently of law, contradicts the existing formulations of property right in representations of things. Edelman attempts to use this surprise as a device to reveal the categories constitutive of property law. Thus he shows that, when legal practice reverses direction under the pressure of big business, photography is admitted to the domain of property right and private appropriation by means of the very category of subject which appeared to exclude it. For Edelman the definitive substance of the law is a form of presentation of the subject. Law depends on reference to the subject for the constitution of its categories, to the attributes of this subject for its grounding of the rights of property and political representation. It constitutes the very subject whose existence it refers to, interpellating individuals as subjects with certain attributes through the practice of law. It is in this context that the essays on Kant and Hegel occupy a key place in Edelman’s project (and it is for this reason that they are added to the original collection published in France). In this case too it is the law of property, and of the rights of subjects as family members, servants, workers, etc., that is the field of debate. For Edelman Hegel gives expression to the essential category of bourgeois law, the subject as a universal (all men are equally subjects) and selfpossessive entity. Kant, Edelman contends, remains enmeshed in the feudal order of concepts and unable adequately to think the subject as a concrete universal self-sufficient being. Hegel’s expression of the essence of bourgeois law is, however, limited to comprehending the categories necessary for its practice, but not the conditions of its operation as a practice or its effects. Hegel’s universal self-possessive subject is produced by and is necessary to generalised commodity exchange and production based on wage labour. The analysis of the social conditions and functions of bourgeois law remains as the task of Marxism. In the three most sophisticated Marxist attempts to theorise law in the specificity of its form, Edelman’s own, Pashukanis’s General Theory of the Law and Marxism and Renner’s The Institutions of Private Law and their Social Functions, it is the law of property that commands almost exclusive attention. Other areas of civil law, the criminal law and public law receive little attention, as do legal institutions and court procedure. It may be noted that at this point law touches directly on the theory of the state. Marxists in treating

Introduction

3

the state as a mechanism of class dictatorship have tended to regard constitutional forms and criminal procedure merely as a means for the maintenance of class rule under certain ‘normal’ conditions, as an ideological cloak which is both possible and desirable when the class struggle is at a low level of intensity. Analysis of these aspects of law has lacked the sophistication possible in the field of‘private’ law. In that field it is possible to argue the specificity of the representation of the conditions of capitalist production in the form of law without creating difficulties in the orthodox Marxist theory of politics and the State. Thus Edelman conceives law as a specific ‘imaginary’ representation of the conditions of production in capitalism, it represents a system which functions by the exploitation of wage labour in terms of the categories of commodity circulation. The commodity form of the subject, the subject as possessor of things because possessor of itself, is necessary in order that the subject be able to sell itself (its self-possession guarantees its essential freedom and therefore makes its life-long servitude in wage labour possible). Hence the pertinence of Althusser’s theory of ideology. Law is an ‘imaginary’ relation of subjects to their conditions of existence which has the effect of representing them in such a way that the reproduction of the relations of production is secured. The specificity of the legal form, that is, the presentation of the subject in its commodity form, is thus a necessity to the capitalist mode of production. This is not the place to criticise Edelman’s analysis of law. It is a brilliant presentation of a position worthy of serious attention. In introducing it I will confine myself to matters which facilitate its comprehension rather than to points on which it can be contradicted or challenged. Two main issues are important in this respect. The first concerns Edelman’s relation to Marxist theory. Althusser and Pashukanis are crucial to an understanding of Edelman’s position. He uses but does not explicate Althusser’s theory of ideology ; a short exposition will be given for the reader to whom it is unfamiliar. Pashukanis’ enterprise is very similar to Edelman’s but Edelman is no mere disciple, he formulates his theory of law on a distinct conceptual basis. I will attempt to bring out some of the important differences between them. The second concerns Edelman’s use of the French legal system. Edelman uses French legal forms to formulate general concepts of the nature

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Introduction

and functions of law. The question which concerns us here is the extent to which his point of departure conditions his conception of law and the consequences this has for its applicability to other legal systems. Thus Edelman discusses the ‘subject’ but he does not consider all the subjects that enter into the legal sphere and how they are constituted. On the law relating to photography and author’s right French law is quite different to that which has prevailed in England; English law could not be ‘caught’ in the same way as the French. A short account of English copyright law will be given.

Althusser’s theory of ideology Edelman’s conception of the legal subject depends substantially on Althusser’s conception of the mechanism of constitution of the subject in his paper ‘Ideology and Ideological State Apparatuses’.1 For Althusser all modes of production characterised by private property in the means of production are structured in the form of three ‘instances’. An ‘instance’ is the mode in which a particular practice is articulated into the social totality. The three practices are: economic (transformation of nature within definite social relations, producing the means of subsistence); political (the transformation of social relations themselves through the class struggle); and the ideological (representation of the social process to the agents who support it). A mode of production is a social totality, a complex whole of three relatively autonomous levels (‘instances’) each of which is articulated into the whole and contributes to the production of its effects. The practices are articulated with one another to produce a ‘society effect’. This articulation is determined ‘in the last instance’ by the economic and is governed by the dominant relations of production. This is roughly the position as presented by Althusser and his collaborators in Reading Capital. ‘Ideology and Ideological State Apparatuses’ is an attempt to theorise the ideological instance in capitalism as a relatively autonomous level articulated into the whole and governed by the dominant relations of production. Ideology is the key mechanism of reproduction of the relations of production. That is, the reproduction of social agents in forms which are appropriate to the places in the

Introduction

5

capitalist social division of labour. Ideological state apparatuses (ISA s) form subjects with conceptions and capacities appropriate to their places as agents in the division of labour and distribute them in roughly the right proportions required by this division (managers, technicians, manual workers, etc.). The coupled institutions of family and school are the main means whereby this conditioned and proportionally distributed supply of subjects is produced. Ideological state apparatuses function to produce this effect because they operate through and are unified by the ideology of the ruling class (the bourgeoisie), the form of imaginary representation necessary to the relations of production. The relations of production are reproduced by means of the dominance of this ideology operating through definite social mechanisms and material practices. Ideology for Althusser is not composed of ‘ideas’ and is not illusion or falsity. All ideology is embodied in and reinforced by material social practices, it takes its effect on the subject through social interaction and activity and not by the abstract cognition of ‘ideas’. Ideology as social practice, as materiality, cannot be an illusion. Moreover, ideology is not a false cognition by men of reality, of their conditions of existence, rather, it is men’s necessary imaginary relation to their conditions of existence. It is through the imaginary relation that men ‘live’ their social relations, the imaginary is their mode of existence as subjects. The notion of ideology as falsity supposes the possibility of the direct cognition of social reality in subjective experience. It supposes social reality as a totality is present to experience. This Althusser argues is not possible because all social totalities are structured in such a way that their workings cannot be comprehended in the social experience of their subjects/agents, social relations depend on conditions which could not be given in the intersubjective relations of social agents. Social relations transcend and make possible intersubjective relations (‘society effect’). Social relations are opaque to experience and can only be comprehended by the non-subjective rationality of a science, historical materialism. It should be emphasised that Althusser does not believe in an originary subject and in given objects of experience. Subjects and their experiences are constituted by definite social mechanisms. Because the social relations which condition men’s existence are opaque, and yet definite patterns of subjective action are

6

Introduction

necessary to those relations, and imaginary (‘lived’) relation to those conditions is constituted as part of the totality itself. The imaginary is thus part of the totality. The subject and its imaginary relation are constituted through the ideological mechanism of ‘interpellation’. This mechanism involves what Althusser calls the ‘dual-mirror’ structure. This structure is composed of a master Subject (the Other who ‘hails’ the subject) and the subject (who is hailed, ‘interpellated’ literally, interrupted by being spoken to). This structure constitutes concrete individuals as social subjects, assigned the attributes of a definite ideological formation. The subject is constituted through its recognition of an imaginary master Subject (God, conscience, etc.) which hails its recognisor. The Subject addresses the subject, recognising it, speaking to it as a subject. In being interrupted by, recognising, this address the subject recognises itself as a subject, as spoken to as a subject. All ideology involves a form of master Subject as one pole of the dual¬ mirror relation. This structure of duality is called ‘speculary’, a reflection and counter-reflection of a single image. The being the subject becomes is a reflection of its Other the Subject, made by Its word in Its image. Subject and subject exist only in mutual recognition. The subject comes into existence as subject only through its recognition of itself in the Subject, only because it accepts being spoken to and the content of the spoken. The Subject exists only through its recognition by subjects, it has no being apart from its effects, apart from its activation in the recognition by subjects. There is no originary constitutive Subject or subject prior to this imaginary dual-mirror structure. Concrete individuals become social subjects of a definite form through this process. This process begins with the infant in the family (the being of the mother becomes whole through the imaginary, as an Other; it should be noted that Althusser draws on the concepts of the French psychoanalyst Jacques Lacan) and develops as the child encounters articulated ideological systems (religion, ethics, knowledge) and enters the social practice of the school. Through ‘living’ the commands of the Subject constitutes itself as the bearer of a pattern of conduct. Constituted as a subject in the imaginary relation to the Subject, the subject recognises itself as constitutive. It is spoken to, interrupted, as if it were an already existing self-subsistent being-

Introduction

1

as-subject. The Subject speaks to it as if it were a constitutive subject and the subject responds by recognising itself as such. The effect of interpellation is to constitute a subject which thinks of itself as free, which chooses to obey the commands directed at it by the Subject and which commits itself to patterned actions as the consequences of principles it itself as chosen. Subjects ‘work by themselves’, internalising their subordination in and by ideology as choice and autonomous will : ‘ the individual is interpellated as a (free) subject in order that he shall submit freely to the commandments of the Subject, i.e. in order that he shall (freely) accept his subjection’ (Althusser, 1971, p. 169). It is in this way that the ISA’s produce subjects capable of operating in the ways required by the relations of production and accepting the forms of imaginary representation of those relations as necessity. Ideological practice thus serves to provide agents appropriate to a certain form of totality and the ‘society effect’ is produced by articulating the subjects into the structure through the imaginary relation. The relation of the theory to Edelman’s account of law is relatively straightforward. Edelman conceives the relation between law and legal subjects very much on the model of the relation of Subject and subject. Law grounds and justifies its categories by referring them to the attributes and wills of subjects, these categories are necessary in order to correspond to the nature of man. But men as legal subjects are constituted in these forms by being interpellated by the law. They are produced as subjects in the form of the categories which are supposed to represent their essence and which do indeed represent their essence because that is what they become within the law. Law and the legal subject reflect the circularity (the dual-mirror relation) of all ideology. Law is a process of constitution of subjects with certain attributes necessary to capitalist production.

Edelman and Pashukanis Edelman quotes Pashukanis appreciatively, as well he might. In some ways Edelman’s treatment of the form of law resembles Pashukanis’s; law is a representation of the commodity form and the subject is central to the operation of law in both theories. But

8

Introduction

there are notable instances of difference between the two and, equally important, of Edelman’s silence on issues where Pashukanis takes an explicit and clear position.2 Pashukanis contends that the ‘subject is the atom of juridic theory’ and that ‘every sort of juridic relationship is a relationship between subjects’ (Pashukanis, p. 160). This position in effect defines law as intersubjectivity. Law is the medium in which subjects meet in pursuit of rights, a sphere of resolution of disputes between subjects. The essence of law is the relationship between subjects and rights : rights are possessive, the relationship between a subject and a right is a proprietal one (it is ‘his’ right) and the content of the right is possession (something appropriable by the subject). Subjects are equal to one another as possessors of rights and each is sole appropriator of what he possesses. Right is in essence the recognition of possession. The recognition of private possession by equivalent individuals. Law is the product of commodity relations, it is the formal representation of subjects as possessors of products of labour who enter into the exchange of those products one with another. The equivalent status of subjects (formalised as equality before the law) is the product of the social process of commodity exchange, men are equated in their labours being made equivalent (labours are equated as quata of labour time through the proportions in which the products of those labours are exchanged against one another). Law becomes possible as a form and as a sphere of resolution because subjects are made alike by the mode of production (no longer are there radical differences of social status, freeman and slave, lord and serf, etc.) and the objects of dispute between them are reduced to a material and equivalent form (in commodity society everything has its price, law can value the loss and order recompense or restitution). Law establishes titles to property and obligations arising from contract, it arbitrates in terms of these formal representations of possession and exchange when relationships between subjects lead to dispute. Law is thus an organic outgrowth of commodity relations. The legal subject is a formal representation of the economic subject in commodity society. The subjects the law represents are constituted in social relations prior to it and are its point of origin. Edelman conceives the relation between the law and subjects in a different and more complex way. Subjects are not merely

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9

recognised but constituted in the form of law. Law is an imaginary representation of an aspect of men’s relation to their conditions of existence. It is in the law that men are constituted as subjects in the commodity form. Law interpellates individuals as possessive subjects. Law defines and justifies itself by referring to what it creates as a reality it gives recognition to. Law and the subject are engaged in a circular and self-reproducing relation. The law justifies itself by pointing to its own products, at one and the same time avoiding dogmatism (grounding its categories) and hiding its own effects. The law, which represents an imaginary relation of men to their conditions of existence, is both necessary to the operation of those conditions and ideological, occluding its own action and their operation. The legal form of the imaginary is a real and necessary linkage in capitalist relations of production. The representation of social relations as relations of circulation makes possible the existence of social relations based on the exploitation of wage labour. Whereas for Pashukanis the theory of fetishism (the phenomenal forms in which the social process is experienced by the agents) amounts to a direct, if distorted, representation of the real, for Edelman the imaginary relation constructs the subjects and their experiences. In Edelman the imaginary overdetermines the real : as an imaginary form it is part of reality and makes a certain set of real effects possible. Law is thus an active force in the constitution of subjects and not merely a formal recognition of subjects already constituted at the level of the economic. Edelman, moreover, does not define law simply as possessive right. The subject is not confined to a possessive relation to things. Law is conceived as definitive of a certain form of subject. Edelman, therefore, does not need to be concerned with a dispute in legal theory within which Pashukanis is forced to adopt a stand, law as possessive right versus law as command. Pashukanis contends that law as command fails to differentiate legal norms from other orders, it cannot make laws a specific form of rule. Edelman goes beyond the terms of this opposition. Law interpellates the subject: it endows it with rights according to its nature, and it thus requires the subject to be what it claims that it already is. Command is neither absent from nor external to the form of law. Law commands and constrains through the circularity of interpellation, it makes the subject in its own image

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Introduction

and inscribes its commands within it as an obedience ‘freely given. It might then be asked, as Pashukanis asks in the case of legal theories based on command, what differentiates Legal interpellation from ideological interpellation in general ? Is there a distinct legal subject, constituted within the form of law? Is not the commodity form of the subject, as autonomous agent in circulation, the general form of bourgeois ideology? Edelman is silent by and large on the criminal law and certainly does not fall into Pashukanis’s crudities. For Pashukanis criminal law is merely the derivative extension of the form of law (a form which has a necessary and autonomous function as private law, the regulation of production through property) to class oppression. In conditions of acute class conflict the ideological nature of the legal form in the criminal sphere is revealed, the juridic mask is discarded to reveal class force unlimited by legal rules or procedure. Edelman, on the contrary, could argue on the basis of his position that the criminal law form is not a pure illusion and merely an ideological cover for the realities of power. It is one of those realities made the more powerful for being ideological and, therefore, intruding into the constitution the subjects brought before it. Criminal law involves a specific modality of the structures of interpellation of bourgeois ideology. The criminal is brought before the Subject-as-Law, hailed and constituted as a defector from himself, a violator of his own nature as subject. Criminal law serves to reproduce the relations of production (just like private law) in converting crimes into acts of individual deviation. Edelman could adopt this position and insist that the State is a mechanism of class oppression. Edelman also avoids comment on an issue on which Pashukanis commits himself irrevocably, the relation of the form of law to commodity/capitalist society. Pashukanis regards the legal form as a derivative of the value form. Law is essentially private law, characteristic only of social relations in which private property in the means of production and production for exchange dominate. The full development of the legal form (equality of subjects) requires generalised commodity production and the equation of labours in the social process of exchange of their products. In like manner the demise of the value form is the demise of the form of law. Socialism will supersede the law of value, private property in the means of production and, therefore, disputes between

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autonomous subjects as possessors of those means and their products. Edelman does not commit himself to this thesis ; I will take the liberty of answering it in his stead. This seems justified in that the general Althusserian position would militate against the thesis. Thus whilst value in the form of value is superseded by communism the law of value in general is not. Social labour is divided and its products distributed in definite forms which require specific forms of representation to subjects. Law in the sense of rules promulgated by the State will disappear with the withering away of the State, but the representation of the social process to the agents in imaginary forms and the constitution of those agents as subjects of a particular type will not. Communism does not dispense with the ideological instance. Subjects will be interpellated in an imaginary relation corresponding to the new mode of production. If law as rules promulgated by the State disappears, the social function of ideology does not, and functional equivalents of those rules will be necessary in communism. Law for Pashukanis is confined to possessive right; this necessarily disappears with the commodity. Edelman defines law in a broader and more complex way : the effects produced by law are part of the functioning of the ideological instance. As Althusser asserts ‘ideology has no history’, it is a necessary component of social existence. Again this raises the question of how the workings and functions of law are differentiated from the workings and functions of ideology in general ? Edelman and Pashukanis both draw on methodological positions with certain similarities. Edelman uses Althusser’s work, this epistemological position was constituted to a considerable extent by means of an analysis of Marx’s ‘ 1857 Introduction’ and Capital. Pashukanis draws on the same sources. He uses the ‘1857 Introduction’, a neglected and little-known text in his time, to argue that analysis must proceed by the formation of general concepts, abstracting the essence of the developed form of what is being investigated, and proceeding on this basis to comprehend and reconstruct its specific manifestations in all their complexity. He uses Marx’s distinction between value and the form of value, in which Marx avoids the reduction of the specific commodity form to labour in general, to argue for the need to analyse law as a specific form. Edelman’s and Pashukanis’s methods of analysis and presentation differ substantially, however, despite these

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Introduction

apparent similarities. Edelman uses general theoretical concepts in the analysis of specific texts and legal issues in order thereby to arrive at general characteristics of the practice in question. General propositions about the nature of law emerge as an effect of making specific materials speak them. Thus his concern in catching the discourses of law off guard in order to reveal what is essential in them. The halting of juridic discourse before a problem reveals the mechanism of its production; its surprise registers the limit and, therefore, the nature of its categories. Conceiving law as a specific ideological practice makes legal discourse and its workings the central object of analysis. Edelman can claim to proceed by attention to the law’s own symptomal sites, using his concepts to read the silences and halting speech. He is not thereby committed to presenting his theory of law as a comprehensive and systematic characterisation of its nature, limits and effects. Pashukanis is, he attempts to define in a single general concept the essence and necessary limits of the form of law. He is more committed to work out all the consequences of his doctrine of law. Edelman is not. He can stay silent on issues where Pashukanis commits himself, what he says about the law can be limited to the materials analysed. Moreover, to a certain extent his analyses of legal discourses and legal problems are specific and leave a residue beyond his general methodological positions and his general concept of law. Thus, whatever the problems with his general concepts, his treatment of French legal doctrine enmeshed in the trap of photography and his accounts of Kant and Hegel are brilliant and enlightening.

Subject and legal subjects Edelman conceives the subject of law in much the same way as Hegel does. Hegel is considered as the philosophical reflection of the categories operative in developed bourgeois legal ideology. Legal personality and human personality are identified: the rights and capacities of the legal subject are constituted by reference to the attributes and will of the (bourgeois) individual. The legal subject is a specific constitution of the subject/individual in capitalism, the subject in the mirror of circulation. This legal subject is an essential component of the subject/individual who

Introduction

13

acts as the bearer or support of capitalist social relations. Legal personality is part of a general social subject form, the bourgeois individual as the bearer of civil, property and political rights (free to sell or to exploit labour, free to vote, etc.). This identity of legal subject and human subject is problematic, as is the foundation of legal status on principles which refer it to the attributes of man. Two issues arise here. First, legal subjects are by no means exclusively human subjects. Second, not all legal systems attempt to rationalise the statuses they create by reference to principles. English law is an example. Property law is founded on no ‘doctrine of right’, its categories and classes of possession have never been systematically codified as was French law under Napoleon. The characteristics and rights of legal subjects are (‘dogmatically’) defined by statute and by the practices of the courts under Common Law. Legal subjects are by no means confined to human individuals (this is in no sense a peculiarity of English law). Thus statute law, in the form of the Companies Acts, designates companies as distinct legal entities capable of holding property, making contracts, sueing and being sued, whose rights and powers are by no means reducible to those of their shareholders or officials. Public bodies, trusts, etc. also have specific legal personalities.3 Limited companies in the United Kingdom are the major employers of wage labour and the possessors of the great mass of capital. They, and not individual capitalists owning the means of production, are the main supporters of capitalist production. This is the case in all modern capitalist countries, France included.4 Edelman does not deal with the position of companies as legal subjects. He does not examine how they are constituted as subjects or with how they relate to the substantiation of legal categories by reference to the category of human subject as supposed in his theory. Clearly, companies as legal subjects cannot be interpellated in the circular form which is claimed to operate in bourgeois legal ideology; this form depends on the myth of the constitutive natural person recognised by the law. In the terms of this myth companies must be artificial constructs, and their position and rights as legal subjects would require another form of grounding. Companies are not subjects capable of being conceived as having prior or essential attributes and wills which are recognised by the law, for their attributes and capacities to act

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Introduction

are produced by legal recognition and legislation. The legal subject cannot have a single and consistent ideological foundation once the identity of legal and human personalities is challenged. Another problem arises, in that ideological interpellation cannot generate the subjects of possession necessary to capitalist relations of production. Interpellating individual humans as subjects of the commodity form cannot serve to produce all the agents necessary for capitalist production. Legal subjects and rights of property corresponding to certain crucial forms of possession (corporations) are excluded. A vital class of agents cannot be comprehended in this doctrine of law nor can corporate property be grounded on the rights of the human subject (it is a form of property separate from these subjects). Edelman does not discuss how French legal doctrine and property law have coped with the corporation.

Photography and copyright The law relating to photography and the cinema plays a crucial part in Edelman’s attempt to demonstrate the rôle of the subject in law. Edelman works within French legal forms. His interrogation would not work so easily, if at all, in respect of English law.5 Edelman argues that in the nineteenth century property rights in photographs were sought on the same basis as literary property right and were at first denied on the grounds that the camera did not involve any creative activity of the subject and was a mere mechanical reproduction of reality. Thus the conception of the ‘over-appropriation’ of reality through the creative labour of the artist could not apply. Reality, the public domain, is common property. This position was reversed under the economic pressure of the cinema industry, photographic technique having moved beyond its handicraft beginnings and become a significant sector of capitalist production. The technique of the cinema industry becomes a means for creative expression of the subject and not a mechanism in which it has no place. Photography receives legal protection on ‘condition of bearing the intellectual mark of its author, the imprint necessary to the work’s having the characteristic of individuality necessary to its being a creation’

Introduction

15

(Cour de cassation, chambre criminelle, I, 23 June 1959: cited by Edelman p..51). Edelman comments: ‘The advance of capitalist productive forces is concretely realised in the site of the subject in law. And the realisation takes the very form of a subject. All production is the production of a subject, meaning the subject the category in which labour designates all man’s production as production of private property’ (p. 52). The doctrine of property derives from the properties of the (bourgeois) subject, man as possessor of himself and, therefore, possessor of his own labour and the things appropriated by it. Cinematic production involves collective/co-operative labour, and yet its products are conceived as property as author’s right, a right grounded on the notion of the creative individual subject. This ideology of individual creativity is then transformed and travestied in the service of the economic realities of capitalist industrial production of images. The effective subject in the ‘creative process’ is ultimately vested in the producer, property right through the creative act is secured in the interest of the capital advanced. A decision of 1939 ruled decisively in favour of the producer as creative subject. The French law of 1957 stated a different position: it explicitly recognises the ‘moral right’ of certain persons involved in cinema production (script writer, director, etc.) to property in the work. This right does not impede the effective disposition and commercial exploitation of the work. Thus whilst the director can sue in respect of this right he or she cannot appropriate the work or prevent its distribution, certain damages and the right to the removal of his or her name from the credits define the resort in law under this right. The product, property by right of creative subjective activity, remains with the true productive power, capital. In English law these contradictions and this problematic location of the subject appear not to exist. The relevant branch of English law is copyright, not author's right. Author’s right in French law is a specific class of property based upon reference to a principle. Thus the Law of 1957 states: ‘The author of an intellectual work shall, by the mere fact of its creation, enjoy an exclusive incorporeal property right in the work, effective against all persons.’ This right includes attributes of an intellectual or moral nature as well as attributes of an economic nature, as determined by this

16

Introduction

law’ (UNESCO translation, cited by Whale p. 23). Thus there is an explicit legal concept of a class of property and the reference of rights in that class to the principle of creativity. English copyright law has not defined a specific class of property right or referred its provisions to any principle. Thus the Copyright Act of 1956, for example, merely defines copyright as ‘ the exclusive right ... to do, and to authorise other persons to do, certain acts’ (S.I), these acts in respect of the work are those designated by the act as restricted to copyright holders. Copyright is specified as certain definite capacities of legal subjects who meet certain conditions. The basis of the right is the statute itself. Part I of the Act relates to ‘original works’, whether literary, dramatic, musical or artistic. Copyright exists if the author of such a work was a ‘qualified person’ at the time the work was made. The wording is deceptive to the philosophical reader - ‘literary’, ‘original’ and ‘author’ all have specific legal significance. ‘Qualified person’ refers, either, to individuals who are British subjects, domiciled in Britain, etc., or, ‘in the case of a body corporate, a body incorporated under the laws of any part of the United Kingdom or of another country to which the Act extends’. (S. 1 (5)) ‘Author’ is not defined as such, except in the case of photographs where it means (S. 48 (D) the owner of the material on which the photograph was made at the time when it was taken. Copyright is not the right of the ‘author’ : a copyright work made by an employee of a newspaper or magazine in the course of his employment is the copyright of the proprietor in respect of its publication in newspapers, etc.; the person who commissions a photograph, a portrait or an engraving is the owner of the copyright in question. There is no attempt to define a coherent right arising from authorship. ‘Originality’ is not defined in the Act but a creative process is not implied, a specific wording or specialised information are sufficient to qualify. Thus Whale points out that a football fixtures list could qualify as an ‘original’ ‘literary’ work, the copyright holders would be a body corporate, say Tottenham Hotspur AFC. English law does not use the same modes of definition or demonstration that Edelman is able to draw on in the case of French law. A creative subject is not supposed and photography presents no special problems. Photographs are covered under Part I, with artistic works, and ‘cinematograph films’ under Part II. Copyright in Part II is extended to what is called ‘subject matter’,

Introduction

17

where no question of‘authorship’ can arise. Thus the particular typesetting of an edition of a work can be copyrighted, as can a particular sound recording of the performance of a musical work. The copyright holder of a film is designated as the ‘maker’, this being defined as the ‘person by whom the arrangements necessary for the making of a film are undertaken’. All that is required is that the maker be a ‘qualified person’ ; this, as we have seen, can be a ‘body corporate’. The maker of a film and the holder of copyright in it can, without special accommodation, be a film company. Similarly, photographs and engravings are copyrighted to who commissions them not the photographer. There is no equivalent of the French ‘moral right’ in this part of the law. Rights of directors, etc., can be secured under the law of contract, but again not by reference to creativity, rather in terms of explicit provisions in an agreement. This non-reference to creativity is no innovation in English copyright law but can be traced back to the Act of 1709 and beyond. Modern copyright legislation began as part of an attempt to protect the book trade (particularly against Dutch pirating) and not to secure the rights of authors as such. Engravings were brought under copyright in 1734 and photographs in 1862. Under the 1911 Act the products of the cinema were not copyrighted as such but the various components of the production were projected under separate headings, the images as for artistic works and photographs, the soundtrack as a contrivance for the mechanical production of sounds, etc. The Act of 1956 replaced this and recognised the film as a whole, not for reasons of creativity but for the convenience of replacing several copyrights by one. Not only would the formal basis of the English law not serve Edelman’s purpose, rights being dogmatically defined and created by statute, but its substance differs from the provisions of the French laws in question. Companies coexist within the same framework of rights with individual subjects, football fixtures are defined in the same terms and enjoy the same rights as Finnegan’s Wake. The law singularly fails to depend on the (supposed) attributes of individual subjects for the foundations of its provisions and persists in treating of legal subjects with indifference to any formal doctrine of subject. Football clubs and heroes of modernism are considered on the same terrain.

18

Introduction

Notes 1 Althusser’s theory can be criticised on a number of grounds, see Hirst, 1976. 2 Pashukanis’s General Theory of the Law and Marxism was published in English translation in Babb, 1951. For discussions of his work see Arthur, 1976-7, Berman, 1963 and Schlesinger, 1951. 3 For a consideration of company law in the UK from a radical standpoint see Hadden 1977. 4 Whilst this is true private company forms remain prominent in France as compared with England or Germany, for example. They continue to exist in large-scale industry. De Hoghton (p. 40) notes that the French equivalent of private companies, société en nom collectif (which require two partners only), employed 2,440,000 persons out of a workforce of 14,071,000 wage earners. Companies which are not jointstock but which are subject to greater regulation that the SNC, société à responsiblité limitée, employed some 2,000,000, and joint-stock companies, société anonyme, employed 4,700,000. 5 On the 1956 Act and the law relating to copyright in the UK Whale, 1971, is a clear and thorough non-technical discussion. References Althusser, Louis, ‘Ideology and Ideological State Apparatuses’ in Lenin and Philosophy and other essays, London, New Left Books, 1971. Althusser, Louis and Balibar, Etienne, Reading Capital, London, New Left Books, 1970. Arthur, Chris, ‘Towards a Materialist Theory of Law’ Critique vol. 7, Winter 1976-7. Babb, Hugh W., Soviet Legal Philosophy, Cambridge Mass., Harvard University Press, 1951. Berman, Harold J., Justice in the USSR, Cambridge Mass., Harvard University Press, 1963. De Hoghton, Charles, The Company, London, Allen 8c Unwin, 1970. Hadden, Tom, Company Law and Capitalism, 2nd edition, London, Weidenfeld 8c Nicholson, 1977. Hirst, Paul Q. ‘Althusser and the Theory of Ideology’ Economy and Society, vol. 5, no. 4, 1976. Marx, Karl, ‘ 1857 Introduction’ to A Contribution to the Critique of Political Economy, London, Lawrence 8c Wishart, 1971. Schlesinger, Rudolf, Soviet Legal Theory, London, Routledge 8c Kegan Paul, 1951. Whale, R. F., Copyright, London, Longman, 1971.

PARTI

Theoretical practice of the law

1 The reasons for an absence

I shall treat of a certain discourse : the theoretical discourse of juridical practice. It has never been done before and I shall explain why. This discourse is staked on the claim to say what we are for the law, that is, what are really for the juridicopolitical instance that is the law. Accordingly, what we must prove is not that general juridic concepts can - and actually do - become integrated into the structure of ideological processes and systems (which is indisputable), but that in them - in these concepts - the social reality which has, in a certain manner, been wrapped up in mystery cannot be disclosed.1 The approach is complex and not innocent. In his explanation of the law on fines, Lenin made the subtle distinctions of a jurist in opposing a fine to compensation for damage.2 He who does some damage to someone is bound to make it good. That is compensation, the courts rule. It is article 1382 in the Civil Code. The worker who does some damage to the employer is penalised. That is a fine. The employer is the sole judge. Lenin was doing law, which is to say that he was ‘animating’ the law or, if you prefer, he was giving law its true ‘spirit’. He opposed the general formula of Civil liability [Responsabilité Civile*] to class struggle. The ‘he’ of the Code Napoléon becomes ‘the worker’ of the June 1886 law; the abstract and general ‘someone’ becomes the employer; compensation becomes fine; and the court becomes the capitalist. Lenin said that everyone thinks he knows what a fine is. If you * Responsabilité Civile, or Responsabilité, refers to the branch of liability concerned with payment of damages for wrongs which is designated ‘Tort’ in English law.

22

Theoretical practice of the Law

ask a worker if he knows what a fine is, he will be amazed. How could he not know, when he has to pay fines? That is the illusion. For it is in paying a fine that the worker is not a free man. He is bruised with pennies.3 Law replaces the knout. For us, Lenin was doing law. For the jurists, Lenin is doing politics. For the ‘politicians’, Lenin is doing politics. The ground on which I place myself is not being concealed from view. It is the ground of‘theoretical struggle’. It is the very ground imposed on me by what I am discussing, even if what I am discussing, the law, must be unaware that that is its ground. I mean that this is precisely the ground that the law circumscribes, and that the frontiers it seeks to mark out are the ‘true’ frontiers of its ideology. I mean that the law presents the amazing ‘ paradox’ of sanctioning its own ideology by force. It has been necessary to set about the work of deciphering rulings and sentences. It has been necessary to take seriously the juridical categories, the discrepant reasonings of jurists, the technical formulas of the courts, and the false rigour of doctrine.4 Taking them seriously did not mean taking them for what they claim to be. It meant taking them for what they were in their necessary functioning. Marxist theory permitted this seriousness, gave us its means, and made us aware of its stake. The law presents the double necessary function of, on the one hand, rendering effective the relations of production and, on the other hand, concretely reflecting and sanctioning the ideas men form of their social relations. Marxism taught us that. It also taught us that juridical categories state without stating the reality of the relations of which they are the expression. It taught us even more. It taught us the necessary movement by means of which these categories becomes relatively autonomous and the reason for their being thought - in their functioning, that is - as totally autonomous in their mode. That is to say that Marxism gave us the theory of the concrete content of the anthropological illusion which the law has in its belief that it holds an eternal discourse on eternal man. In that way, the law took on its true dimensions. It filled the political space, that is it sanctioned political power in order to sanctify private property. Lx exchange, it legitimated ‘the essence of man’. I say ‘in exchange’ because man is the price. I shall not spend long on these established results. They have

The reasons for an absence

23

been established for us, for all of us who work concretely every day to discover the real in order to transform it. I shall not spend long, either, on the necessity of the ‘critique of arms’. The working class has already been sufficiently sliced up by the drawn sword of the law for that to be unnecessary. But the question I am now posing is a theoretical question. It is also political. Marxist theory of law is still in its early stages. That might seem an incredible thing to say; it might seem unthinkable. And yet it is, and that is thinkable. I want to be properly understood here. I am not saying that the theory of law, for us Marxists, is still in its early stages. I am saying something more modest and perhaps more ambitious too. I am saying that the Marxist theory of law is still in its early stages. The ‘enormity’ of this proposition must, of course, be demonstrated. Marx left us works on the philosophy of law, but he also left us texts which are more valuable, more valuable for us. These are the texts of a ‘jurist’, the texts on the theft of wood and on censorship. Above all, he left us a great many indications on law in general, from The Holy Family to Capital. I am thinking of the famous passage in The German Ideology where he shows us that the juridical characteristics of private property —jus utendi et jus abutendi - explain : on the one hand the fact that private property has become entirely independent of the community, and on the other the illusion that private property itself is based solely on the private will, the arbitrary disposal of the thing.5 Such indications are invaluable. Marx never stops providing us with them. The juridical forms do not determine the content even of what they make effective. But he never stops saying also that the law renders effective this content by means of the constraints of the State Apparatus. And he tells us something even more important, namely, that the relation between the expression of the content and the effectivity of the content is ideological and that it is this relation itself that becomes a mysterious power, ‘ the true basis of all real property relations.’6 For, in the end, the relation refers to free will, to the illusion that private prop¬ erty itself rests on the individual private will. In law, the T will’ is an T can’. The contract is a Hegelian act, a pure meeting of wills. This, to repeat, is invaluable. So is Engels’s The Origin of the

24

Theoretical practice of the law

Family, Private Property and the State, and so are the innumerable indications in Capital. But what is even more invaluable is that that permits the development of a Marxist theory of law. It is now time to explain myself. We do not have a theory of the internal ‘theoretical’ practice of law. I mean that if we know - or rather, think we know - what the law is, we do not know how it functions. Further, I mean that the very knowledge of the ideology refers to the production of the effects which that production engenders, that the ideology is effective only through its functioning, and that the concrete knowledge of its functioning is itself the theoretical knowledge of the ideology. More precisely, I mean that to separate the general theory of law from the theoretical practice of the law produces incalculable theoretical and practical effects. It would be to hand over to the law the very ground it claims. Political ignorance of its ‘theoretical’ work in the end leaves the law free to perpetuate itself in its own illusion. And that illusion becomes ours too. Why the ideologists turn everything upside down. ... For this ideological subdivision within a class (1) the occupation assumes an independent existence owing to division of labour. Everyone believes his craft to be the true one. Illusions regarding the connection between their craft and reality are the more likely to be cherished by them because of the very nature of the craft. In consciousness - in jurisprudence, politics, etc. - relations become concepts ; since they do not go beyond these relations, the concepts of the relations also become fixed concepts in their mind. The judge, for example, applies the code, he therefore regards legislation as the real, active driving force. Respect for their goods, because their craft deals with general matters.7 We have left the ‘ownership’ of their order to the jurists ; we have left them unpunished. I mean that we have left them their place. This place is also perpetuated in its being, that is, perpetuated in its innocence, by our absence. The jurist, the ‘philosopher of law’, has the innocent soul of the good law he legitimates. The Archives de philosophie du droit could publish their 1971 annual issue under the title ‘Le Droit investi par la politique’ but we Marxists take no notice of it because we are busy organising conferences which nobody attends. We Marxists prefer to devote ourselves to the urgent task of assassinating our allies. Pashukanis - whose genius

The reasons for an absence

25

it is time to recognise — is coldly accused of the crime of ‘abstraction’, abstraction ‘which inevitably inscribes him in contradiction with all the givens of the contemporary battle in which ideological analyses have their reference and their very concrete problematics’.8 Pashukanis’s unprecedented project is degraded to the level of an ‘infantile illusion’.9 Here, then, are our contemporary ‘theoretical’ texts. It may not seem much, but it is significant if it is seen as ‘symptomatic’. This is now my self-imposed task. The consciousness of the jurist is a bad consciousness, his morality an immorality, his public order the order of private property, his ‘soul’, that is, his illusion of taking juridical relations to be human relations, is the soul of an owner and a shareholder, and his concepts are the necessary expression of capital. And since I have spoken of his soul, I must add that I have spoken of it never to speak of it again : The fact that ‘feeling and conscience’ interfere in law is sufficient reason for the ‘critic’ to speak of feeling and conscience when it is a matter of law, and of theological dogmatism when it is a matter of juridical dogmatism.10 Or I shall say rather that it is necessary to return the soul to the law and that its ‘soul’ is its practice. the theologian ... continually gives a human interpretation to religious conceptions, and by that very fact comes into constant conflict with his basic premise, the superhuman character of religion.11 Law comes into constant conflict with its basic premise, private property. The claim of justice becomes the practice of injustice and the claim to describe man becomes the practice of the owner. What I was proposing earlier can now be more clearly understood. Marxist theory of law is none other than the concrete knowledge of the functioning of the law. Legal practice must make amends. Now, that making amends, that rendering of accounts, cannot be business-like, properly ‘balanced’ for us accountants unless we discount the formal procedure of legal practice and unless we discount the analyses of that legal practice that are impossible to dissociate from certain forms of reasoning. And these forms of reasoning themselves cannot be understood outside certain

26

T heoretical practice of the law

theoretical and ideological constraints. We shall take account of legal practice only to the precise extent that it necessarily produces certain abstract and constraining forms which permit it its actual practice. This is because the juridical categories, just as much as the categories of bourgeois economy: ‘are forms of thought expressing with social validity the conditions and relations of a definite, historically determined mode of production, viz., the production of commodities’.12 The practice constitutes their functioning, as their functioning constitutes the practice. That is sufficient for the law. Smith and Ricardo were sufficient for classical political economy. If they fought against private property, it was against private property ‘in one or other particular form’.13 But what is sufficient for the practice of an ideology - that is, the frontiers which an ideology marks out - constitutes precisely its function and its functioning. Juridical ideology is defined by its frontiers, by its ‘taboos’. It surrounds itself with a sanitary cordon. It fears the pollution of the political. Worse than that, it fears the pollution of the economic. Its fear designates its function. Juridical ideology is the index of its censure, since its censure is itself. It denounces the political in its ‘a-politicism’,14 it denounces the economic in the very abstraction of the law, and it denounces the theoretical in its empiricism. Here I am thinking of the form of the subject in law [sujet de droit]. We shall come back to that. Suffice it to state here our ultimate theoretical project: to treat of a scientific discourse on law is also to treat of the discourse of the conditions of the necessary production of juridical categories in the practice of law.

2 The birth certificate of juridical ideology

In Chapter 1, I said that the denegation [of the law] invoked the presence which is denied. I now want to make that central point more precise. Juridical ideology denounces itself in the drawing up of its birth certificate. And its birth certificate is the postulate that man is naturally a subject in law, that is, a potential owner, since it is of his essence to appropriate nature. The ‘illusion’ is universal in speculative philosophy. So, it will be a question of treating of the discourse of the privative appropriation1 of nature in its historico-social combinative. The two ‘simple men’ described by Engels fix the ideal relation of exchange, law and the political. Robinsonalia are the ‘commonplace’ of classical political economy and of the theory of law. The only difference is that the jurists still believe in them. I shall not recite the ‘history’ of the ‘ordinary concept of man’ in law, the theory of the transition from Roman law to modern law, that is, the transition from a right which can have the ‘quality of the thing’, as Jhering said, to a right which is the subject itself. And yet a reprise of this ‘history’ will be necessary, though somewhere other than in Occam, or Puffendorf, or Kant, or Hegel; again, somewhere other than in Loyseau, in his Traité des seigneuries, other than in Dumoulin, and other than in the Grands Coutumiers* The reprise will be effected in a ‘strange place’, the site of circulation. It is the site where commodity exchange is deployed and where the exploitation of man by man under the form of the ‘free contract’ is realised. So, we shall see that the very function of * These were the official texts of customary law. Their revision from the sixteenth century onwards permitted the rise of common law in France.

28

Theoretical practice of the law

juridical ideology is the necessity of its fiction, which permits it ‘a practice in abstracto’, as Marx puts it so splendidly. And we shall see that class struggle has shattered the fiction of this function.2 But the road to theory is long, and it is right that the practice should be examined first, in the hidden elaboration of everyday jurisprudence. It is in this laboratory of practice that we shall see coming to life categories which assume the most banal vestments of contract, will and consent. Above all, we shall see in this practice the evolution of a well known and yet badly known being, the subject in law. It is with the subject in law that I shall begin, for: ‘'the category of the subject... appears ... above all with the rise of legal ideology ... which borrowed the legal category of “subject in law” to make an ideological notion: man is by nature a subject.’3 It is through my reading you the subject in law in the practice of jurists that you will better understand what I shall be talking about and how I shall be talking. In this way the road to my most direct purpose will be open.

The ‘doctrinal’ life of the subject in law I shall therefore read you two series of texts. The first series will constitute a juridical introduction to the category of the subject in law. The second series will constitute a juridical explication of that category. This is effectively to establish a category in the first series and to bring it alive in the second. You will witness my attempt at deciphering the category.

The juridical introduction For the law, law begins with the person. the juridical personality of man exists by itself and independently of the possibility for the human being in question of forming a will.4 In juridical language, beings capable of having rights and obligations are deemed ‘persons’. More briefly, the person is said to be identical with the subject in law. The idea of

The birth certificate of juridical ideology

29

personality, necessary for giving support to the rights and obligations ... is indispensable in the traditional conception of law.5 After the abolition of slavery, every human being is a person. It is not necessary that he should be fully conscious of himself and be endowed with intelligence and will. Children and madmen are persons, even though they have no conscious will ; they are, then, bearers of rights and obligations.6 That is my first series of texts, drawn from two major contemporary classics of French civil law. I could have added many others, but they do no more than repeat the one distinctive point that the human person is juridically constituted as subject in law, as ‘always-already subject’, quite independently of his will. The concrete content of this subject form will be further studied below. Here I just want to decompose the juridical postulate of the subject in law. The texts say that the subject in law is the general and abstract expression of the human person. They also say that what makes this expression effective is the general capacity of man to belong to him¬ self and therefore to acquire. Finally, they say that if this capacity is the mode of existence of the subject, it is because the subject can/will/consents/is free to belong to himself and to acquire. The following proposition can now be advanced in all rigour. Freedom is the juridical capacity to belong to oneself, that is, to be the owner of oneself by virtue of one’s essence. This can be made more precise. The freedom to acquire is the juridical consequence of the free ownership of oneself. The slave, ‘the object of ownership, can hardly be conceived as a subject in law.’7 The person, the subject of ownership, can be conceived as a subject in law. At this point the following question can be posed. What is interpellated in the subject in law by juridical ideology ? I leave the question provisionally in suspense. That, indeed, is the state of this first reading. The juridical explication Here is the second series of texts. They run from Savigny to

30

Theoretical practice of the law

Carbonnier, from 1840 to 1972. They study the ‘adventures of the will’. Savigny Subjective right8 is a power accorded to the individual ‘by objective right’ so as to guarantee him: ‘a domain in which his will reigns independently of all external will, and so that the parallel development of individuals finds independence and security.’9 The human will can act on things in the external world. This is the right of ownership. And the human will can act on a person who comes under the sway of the will. This is jus personate which refers to all rights in the law of obligations. The mystery of this objective right remains intact. All we know of it is that it gives the person the power to be an owner or an employer. It is this concept of law that, for the law, determines the domain of law. It is the subject that determines the subject. To translate, commerce is proved by commerce. It is a mystifying tautology. Jhering ‘Rights in no way exist for the realisation of abstract will; they serve to guarantee the interests of life.’10 Jhering warns us of a trivial error. It would be wrong to think that the ‘interests of life’ consist only of material delights. ‘Higher than good fortune are ranked goods of a moral nature whose value is great in a different way: personality, freedom, honour, family ties. Without those goods, external and visible wealth would be worthless.’11 Thank God - what a relief! To the man who asks, ‘Who protects my freedom?’ Jhering replies, ‘Interest’. To the man who asks, ‘What is the origin of my interest?’ Jhering replies, ‘Your freedom’. To the proletariat, showing its empty purse,Jhering replies, ‘You have as much as the wealthy, since the price of wealth is freedom.’ Michoux This author asks himself a serious question. It is not realistic to say that subjective right is a power accorded to a will by objective right, because: ‘the juridical order has no object other than the protection of the manifestations of that will.’12 It is realistic, however, to say that the will ought to be protected only on grounds

T he birth certificate of juridical ideology

31

of its object, that is, on grounds of the interest which it aims to satisfy. Like a conjuror taking a rabbit out of his hat, Michoux derives from this profound meditation - which has greatly advanced juridical science - the following definition: ‘Subjective right is the interest of a man or a group of men which is juridically protected by the power accorded to a will to represent or defend that interest.’13 The will has been brought down from the sky of Roman law to the ground of the Code Napoléon and, on that ground, the ground of men, it is concretely examined. What does the will will? The will, good girl that she is, replies, T will what I am, your interest.’ And if anonymous society questions her, she replies equally serenely, T will your interest, which is my interest.’ Ripert Subjective right is a power recognised by the objective right of the subject. ‘He who has a right over another person has a private power over that person, since the debtor is obliged to give a good or to execute a piece of work for the creditor.’14 On the ground of the Civil Code the will is humanised. The power of the will is proved by the exploitation of man by man. Carbonnier I shall finish this section with Carbonnier. He has set himself up as a sociologist of law ‘without rigour’.15 For this sociologist ‘without rigour’, subjective right is proved by animals, by children, and in the viscera. We learn that ‘juridical phenomena, sub-juridical at the very least’, are produced ‘in animal societies’.16 We learn that when the lion defends his hunting territory, we humans conceptualise this reaction ‘as a subjective right’. It is ‘in the depths of these instincts’ that our sociologist would not hesitate to look for ‘the natural [the ‘natural’ here means ‘animal’] root of subjective right.’17 Saint Sancho is beaten. The dog has a subjective right over his bones.18 With the child: from the second year, there is gradually manifested the instinct to hold an object and to defend it, as with the correlative reaction of annoyance when it has just been taken away. This annoyance, this retractibility, as with a tissue, is surely the biological substance of subjective right.19 Make no mistake - the child’s rattle is already ground rent. Private

32

Theoretical practice of the law

property is inscribed in our cells; it is chromosomic. It is an easy step from the cells to the viscera. The notion of subjective right ‘expresses an elementary psycho-sociological and as it were visceral phenomenon’.20 We have now returned to our starting point. I shall not take the matter further. At the moment I want only to ask what is said, what is occulted, and what is the relation between what is said and what is occulted in the above texts.

Ideology and the subject in law What is said in the texts is that man has a power given him by the concept of right, objective right. If we take Althusser’s theses for granted, we can already read the functioning of ideology in what is said, that is, in what is explicit.21 ‘Individuals’ are interpellated in subjects by the law. This interpellation is constitutive of their very juridical being in the sense that it is the interpellation ‘you are a subject in law’ that gives them concrete power, that permits them a concrete practice. ‘Since you are a subject in law, you are capable of acquiring and selling (yourself).’ This interpellation is interpellation by the concept, the law, the subject. In Appendix 1 I show that, in its functioning, juridical ideology postulates the necessary relation between two subjects, and that a relation in law is none other than a relation between ‘couples of subjects’. I also show that the rule of law was thought as a relation between the law and subjects in law, and that it is the existence of a subject - the law-maker, that is, the State - that gives coherence and unity to the rule of law, so that law has existence only through the mediation of subjects in law. The subjection of the subject in law to the subject permits it both to legitimate its power outside itself and to operate the return to power. This ‘doubly speculary structure of ideology’,22 that is, this double mirror-structure assures the functioning of juridical ideology. On the one hand, the subject in law exists in the name of the law, that is, the law gives him his power. Better, law gives right the power to give itself a power. On the other hand, the power law has given right returns to law. The power of right is none other than the power of subjects in law. The subject recognises itself in the subjects. The power, ownership, recognises itself in the power,

The birth certificate of juridical ideology

33

the State. Ideologically, the State operates the place that in the Middle Ages devolved on to the Church. The constitution of a State subject in law assures the functioning of juridical ideology. What is occulted in the texts is the actual functioning of juridical ideology. What I mean is that this functioning is self-sufficient, and that this sufficiency is an occultation in the very functioning of its sufficiency. In other words, the functioning of juridical ideology renders ‘useless’ the question of its functioning. A little like Descartes’ God, giving an ideological shove will get the machine going. We ask of a clock only that it tell the time, and we ask of justice only that it be just. It is sufficient to the law to say that man has a power, that this power protects his interest, and that his free will is a will that wills his interest in order to ‘start’ juridical ideology. The tautology is the ultimate process permitting operation on the real without denouncing it. Besides this meaning in everyday consciousness, these general ideas are further elaborated and given a special significance by the politicians and lawyers who, as a result of the division of labour, are dependent on the cult of these concepts and who see in them, and not in the relations of production, the true basis of all real property relations.23 The relation between what is said and what is occulted is the very practice designating it. This is what I was proposing above. The law occupies the unique place from where it can sanction its own ideology by force, that is, in an equally direct way it can render effective the relations of production. The fact that these relations of production are rendered juridically effective by the primary category of the subject in law clearly reveals the imaginery relation of individuals to the relations of production; and juridical practice refers back to ideology its own practice - the practice of the Civil Code, the practice of the Penal Code, and the practice of the courts. So we shall see these categories coming alive. We shall see them signing labour contracts, and justifying convictions for illegal strikes. We shall see them applying the necessary rules of the relations of production. I say no more than that I shall try not to bring them alive but to show what brings them alive. The man who makes the puppets dance is always in the wings.

PART II

The juridical production of the real

3 The commodity form of creation

I have finished with the concept of the subject in law. It was useful to me for opening the way, that is, for the specification of the fundamental concept of juridical practice. What I am going to talk about now will for the moment seem an insignificant, minuscule question, unrelated to the ambition I have been claiming to have. Actually, it will be a question of the law of photography and of the cinema. So it is not a modest little question. That is because it concerns the juridical problems posed, thrown up by the technical and economic irruption of the cinema and photography. Now we shall discover that there is in this ‘insignificant’ question the entirety of the law in condensedform, all the forms, visible and invisible, which govern it. There are also questions of aesthetics, economics and philosophy. But everything we shall be concerned with will be revealed, will be formed, in the juridical concepts. This is to say that we shall be satisfied with making the law treat of the discourse which is its own. Better, we shall try to ‘surprise’ it in its discourse, the very discourse that has been ‘surprised’ by photography and the cinema. We shall surprise it in its very formation, in its decomposition/re¬ composition, in its process of absorption of these new modes of apprehension of the real. For it will be fundamentally a question of the juridical production of the real. This must be clearly understood. From now on I shall be making use of juridical notions. When I write subject, it will have to be understood as subject in law. When I write object or real, the real will have to be understood as designating something that can fall under juridical categories, hence also under the juridical category of the real, that is, the real as object in law, susceptible to appropriation, sale and contracts. Also, when I say that it will be a

38

Thejuridical production of the real

question of the juridical production of the real, I mean that it will be a question of the constitution of the real - or of the re¬ constitution of the real - in the law and for the law. More precisely, it will be a question of the process which will make the real an object in law. And since I have spoken of the process which constitutes the real as an object in law, it will be a matter of posing the juridical conditions which permit a photographer or a film-maker to treat of his discourse about ownership of a real which is ‘alwaysalready’ invested with property. For it is an amazing ‘paradox’ that the ‘reality’ whose image is reproduced by the negative always belongs to someone. And the paradox of the paradox is that if what I reproduce ‘belongs’ to everyone, that is, to the national community, if in other words what I reproduce is part of the public domain - streets, rivers, territorial waters - it will become my property only on condition that I reappropriate it. So if, on the one hand, all juridical production is the production of a subject whose essence is property and whose activity can only be that of a private owner,1 then, on the other hand, the specific activity of the film-maker or photographer is exercised on a real already invested with property, that is, already constituted as privative common property, in the public domain.2 The law must therefore accomplish the 'tour de force’ of creating a category which permits the appropriation of what has already been appropriated. With this in mind, we propose the concept of the over¬ appropriation of the real.

The over-appropriation of the real This concept designates the contradictory content of literary and artistic property. Literary and artistic property has the strange, unique, original characteristic of being acquired through superposition on an already established property. This concept designates for us our concrete project. The subject must make the real ‘his’. The photographer must be able to be the owner of the ‘reflection of the real’, his photograph, just as the film-maker must be able to make his own the ‘fiction of the real’ which is ‘produced’ by his camera, his film. But, at the same time, what is ‘mine’ is opposed to what is

The commodity form of creation

39

‘thine’. The subject makes ‘his’ a real which also belongs to the ‘other’. In the very moment they invest the real with their personality, the photographer and the hlm-maker apprehend the property of the other - his image, his movement, and sometimes ‘his private life’ - in their ‘object-glass’, in their lens. Such is the concrete content of this concept. It constitutes the site where the ‘unknown’ of the law is elaborated. It designates the creation as a property, it designates the creator as a subject in law, and it designates ‘civil society’ as a domain of exchanges between owner subjects. And it renders ‘true’ - that is, it presupposes an unthought truth - a practice which is real, by which I mean a real juridical practice. It is the actual effectivity of the ‘belief that man is a subject in law and it renders that effectivity effective. Juridical ideology has the material existence of juridical practice. I shall therefore prove, prejudicially, the validity of this concept by studying, in the texts, the ideological constitution of this over¬ appropriation. Two theorems must be demonstrated. The first is that literary and artistic property is a property. Its nature as over¬ appropriation of the real presupposes that it is the production of a subject in law. [The second concerns the real as the production of the subject.]

Theorem I.

Literary and artistic property is a property

Scholium 1.

Literary and artistic property is immaterial

Having got used to seeing property only under a more or less material and yet intangible form, it is with difficulty that we accustom ourselves to recognising it under this new and wholly immaterial form ; we are even inclined to deny it, because we no longer recognise its characteristics, its ordinary appearance.3 The material of the work is ‘an essentially immaterial idea which is always distinct from the matter and which continues to reside in the intelligence of the author.’4 This allows Balzac to write : No one, then, can prevent the recognition of the only property that man creates without land and without stone, a property

40

The juridical production of the real

which is constituted between heaven and earth, with the help of rebuffs, the black smoke from bones, and rags left on the public highway.5 The juridical fiction is that property is a concept of law — ‘the railways do not “actually” belong to the shareholders, but to the statutes.’6 Through its own functioning this fiction permits the transition from the invisible- ‘intelligence’, ‘creation’, ‘genius’ to the visible - real estate, the ‘tangible’, the ‘true’, the transition from the immaterial to the material. The functioning of the fiction denounces its role. It is a matter of giving to the invisible the thought of man - the character of the visible — private property. People knew already, without knowing it, even though it was impossible for them not to know, that the invisible was what is the visible, since it presents itself in the visible. Such, then, is the effectivity of the fiction. I shall return to this point.

Scholium 2. Which does not prevent its being property The chorus of owners: The legislator : Of all properties, the one least susceptible to being contested is unquestionably that of the production of genius.7 The most sacred, the most legitimate, the most impregnable and, if I may put it like this, the most personal, of all properties is the work, the fruit of the author’s thought.8 The authors: Lamartine : the general idea Property and society are so identified with each other that... the philosopher recognises, through definite indications, that the absence, imperfection or decadence of property in a people are everywhere the exact measure of the absence, imperfection or decadence of society.9

The commodity form ofcreation

41

Victor Hugo: the sacred alliance of all owners (including himself) You feel the importance and necessity of defending property today. Well, begin by recognising the first and most sacred of all properties, the one which is neither a transmission nor an acquisition but a creation, namely, literary property ... reconcile the artists with society by means of property.10

Balzac: the revolutionary threat To disinherit the families of authors in the name of the public interest would surely be to prepare the ruin of other properties.11 The transition from the invisible to the visible is demonstrated by the legal identification of all human production. The fiction of legal equality, which refers in a fundamental way to the juridical concept of property, permits the rigorous demonstration that every ‘fruit’* of man ripens on the tree of property, freedom. The juridical identification is at the same time a return to the juridical source of the sacred and the eternal. Scholium 3. For it has the same origin in natural law The words of sacredness and legitimacy had already been spoken. The Cour de Paris will utter the master word. Literary and artistic creation constitutes a property in the author’s name, the foundation of which is in natural law or in the law of nations but the exploitation of which is regulated by civil law.12 Here is the bedrock, the original element, the granite on which in the last instance all property is constructed. And if the bedrock is labour, ‘if we look for the origins of property we shall soon discover that the right of the author proceeds from the same source: labour’.13 That is because labour itself does none other than objectify the essence of man, that is, property. This first theorem is closed in its perenniality. Property has demonstrated property. It now has to be proved that this property * Fruit is the term in French law used to describe whatever is regularly produced by property without the substance of the property being diminished, for example, rent.

42

The juridical production of the real

can over-appropriate Property - without damage, for that is its nature.

Theorem II.

On the real as production of the subject

The law is terrified of an empty space. The land invites me to ownership. It thirsts for a master. Kant and Hegel have shown that the status of the will postulates the privative appropriation of all nature. Scholium 1. The public domain is common property There can be no contesting : the right to view which every individual has over everything there is in the street: frontages bordering it, personages and carriages proceeding along it, in short, over all the scenes unfolding there, and, as a result, [there can be no contesting] the right to make a negative of everything the individual sees for reproduction on picture postcards or on cinematographic reels.14 the streets of towns, of countries, picturesque places, are a public right as far as their reproduction by the photographic industry is concerned.15 The juridical deduction is perfect. I have the right to photograph what I can see, provided, of course, that I recreate what I photograph. The deduction is perfect except that nature is already appropriated. Scholium 2. Property can be inscribed [in the public domain] without damage This will be in effect a question of‘personal appropriation which harms no one’.16 This invocation of the public domain* renders effective the articulation of the creation on the real. * Public property, or State property consists of the public domain and the private domain. The public domain consists of properties, such as roads, rivers and cemeteries, which the public at large can use. The private domain consists of properties, such as the estates of people who die without heirs, which are not in the public domain but which are still properties belonging to the State.

The commodityform of creation

Scholium 3. On condition ‘re-production’

that it is ‘creation’

and

43 not

Here is the juridical key to creation. It is that I must be satisfied with reproducing the public domain and that I shall have no right to the protection of the law: for a natural product which is not stylised (meaning by that that it has not been invested with a personality) belongs to the public domain.17 This is effectively to say that ‘the reproduction of natural aspects’ or, better, the ‘reproduction of the work of nature’18 is the antinomy of an appropriation. The public domain therefore reveals its true nature as the general abstract expression of property.19 Here is the explanation. The law tells us that the streets belong to everyone, in the same way as places and landscapes. In order ‘intellectually’ to appropriate what belongs to everyone, I must not reproduce it, for then I shall do no more than expose what belongs to everyone, but I must produce it. Portalis has expressed this wonderfully well. In the case of literary and artistic property, he says, there is not only property by appropriation, as the philosophers say, but there is also property by nature, by essence, by indivision, by the indivisibility of the object and the subject. I find this formula exemplary: property by ‘indivisibility of the object and the subject’. In order to be ‘appropriated’ the object, the real, must become the subject itself. The real must become the production of the subject in order to be protected by the law. I have posed everything I wanted to pose. I have entered into the practice through the ‘gamble’ of taking seriously the concepts of the law. I can now put into practice its most prosaic discourse, the discourse of the courts.

Man and the machine I have already indicated my project, the description of the process that constitutes the real as an object in law. I have already indicated the contradiction whereby the photographer and the film-

44

The juridical production of the real

maker produce the real, but that in that production they encounter a real which already belongs to someone else. The photographer can indeed photograph a face, but that face belongs to someone, the person who is photographed and who owns the face. The production of the subject therefore finds its necessary limitation in the subject himself. This thesis requires its concept, the concept of the form of the subject in law. We shall try to construct this concept without losing sight of the movement animating our scene. The subject in law puts at issue what it has necessarily granted to the ‘objectivity’ of the real - its own negation. I want to study more closely the juridical ‘history’ of photographic and cinema creation. This history is in two acts. The law recognised only ‘manual’ art - the paintbrush, the chisel - or ‘abstract’ art-writing. The irruption of modern techniques of the (re)production of the real - photographic apparatuses, cameras surprises the law in the quietude of its categories. A photographer who is satisfied with the pressing of a button, a film-maker with the turning of a crank handle - are they creators? Is their (re)production equivalent to the over-appropriation of the real ? The law is surprised by the question and its first answer is in ‘resistance’. The man who moves the crank handle or the man who works a hand-lever is not a creator. The law’s resistance first passes through the denegation of the subject in law. The labour of this individual is a soulless labour. That is the first act. The second act is the transition from soulless labour to the soul of the labour. The time of the resistance was not economically neutral. It was the time of craft production. The fact that industry takes the techniques of cinema and photography into account produces a radical reversal. Photographer and film-maker must become creators, or the industry will lose the benefit of legal protection. I shall study this ‘evolution’ in the actual work of the juridical categories, that is, in what is the visible of the law, and I shall summon the aid of the invisible of the law in order to make the plot of our piece comprehensible.

From the man-machine What I am going to analyse is therefore a historical stage, that of the

The commodityform of creation

45

juridical birth of photography and the cinema. In this birth, there is the form of the relation of man to the machine, the form of the relation of the worker to the machine. This form is given us by the law in that privileged site of the bourgeois soul that we are used to calling creation. As I have already said, this is the time of soulless labour and it is an economically dead time because it is the time of craft production. Though it is not a scandal for the law, the law will reveal the scandal whereby the subject can disappear into the machine, disintegrate into the ‘mechanical’. In the same way that by ‘serving the machine’ the proletarian squanders his freedom through the use of his labour power, so the photographer squanders his creative freedom in putting himself at the ‘service’ of his apparatus. The photographer of 1860 is the proletarian of creation; he and his tool form one body. As the curtain rises, we have the song of the good fairy : A painter is just just a copyist ; he is a creator. In the same way that a musician would not be an artist if with the aid of an orchestra he restricted himself to imitating the noise of a cauldron on the firedog or the noise of a hammer on an anvil, so a painter would not be a creator if he restricted himself to tracing nature without choice, without feeling, without embellishment. It is because of the servility of photography that I am fundamentally contemptuous of this chance invention which will never be an art but which plagiarises nature by means of optics. Is the reflection of a glass on paper an art P No, it is a sunbeam caught in the instant by a manoeuvre. But where is the conception of man ? Where is the choice ? In the crystal, perhaps. But, one thing for sure, it is not in Man.20 And Lamartine has this wonderful dictum : The photographer will never replace the painter; one is a Man, the other a machine. Let us compare them no longer.21 Jurists cannot be satisfied with sentiment. They need rigour,22 even if such rigour demonstrates their sentiment. How is soulless labour proved juridically ? Through the analysis of its products: soulless product, soulless labour. The product, the photographic negative, is soulless because only the machine works, and the photographer:

46

The juridical production of the real has merely learned to get it working properly ... and to set up chemical operations for reproduction. ... His art reduces to a purely mechanical process in which he can show more or less skill, without his being capable of assimilation to those who profess the fine arts, in which spirit and imagination operate, and sometimes genius formed by the precepts of art.23

In fact: the art of the photographer does not consist in the creation of subjects as its own creation, but in the getting of negatives and subsequently in the making of prints which reproduce the image of objects by mechanical means and in a servile way.24 The effort of jurists will be directed towards the actual analysis of the process of creation. What is important is that the subject must always be present in the creation. Once he disappears, then, quick as a flash, his absence will designate his nature - he was ‘mechanical’. All the intellectual and artistic labour of the photographer is anterior to the material execution. ... When the idea is about to be translated into a product, all assimilation [into art] becomes impossible. ... The light has made his work, a splendid agent but one independent of achievement... the personality will have been lost to the product at the precise moment when that personality could have given it protection.25 The labour of the man is ‘disqualified’ in mechanical labour. Better, since the work [sc. the product] can be realised only through artistic means, the sheer utilisation of a machine cannot convey the thought of the artist.26 In other words, the end (the production of the subject) reverts to the means (the production of the subject) and the means to the end. The recursive reasoning is at once a justification and a teleology. It follows that such ‘mechanical labour cannot therefore give birth to products which can justly be ranked with the production of the human spirit.’27 The juridical consequence is radical since: this industry cannot be assimilated to the art of the painter or the sketcher who creates compositions and subjects with the sole resources of the imagination, or again, the artist who, following

T he commodityform of creation

47

his personal feeling, interprets the view-points which nature offers him and which constitute a property in his name.28 In contrast, the photographer ‘makes an exposure for purposes of representing public places or monuments’ and ‘constitutes only an industrial instrument’ which has no privilege. We have not seen much of the Beautiful or the True there, but Professor Savatier will not disappoint our expectations. On the one hand, ‘ the true is not necessarily confused with art’ and, on the other hand, photography is ‘in itself a mechanical process of reproduction which has no other interest than the exact physical truth of the imprint it takes of real forms’,29 so that reproduction excludes the subject-creator of the beautiful. We thought that all men were subjects in law - sacramental texts confirmed it for us and we had its causes explained to us. Juridical practice, in those heroic times, told us in black and white. The activity of a man can be solely the activity of a machine and his very activity transforms him into a machine. To repeat, the law said this only at the moment of birth of photography when it still did not ‘know’ that photography could be an art, when it still did not know that courtesy of industry the cinema would be able to take its place at the Académie Française. For, in the eyes of the courts, photography and the cinema are of the same nature. The only difference is that the cinema ‘moves’. But, in a precise way, the very analysis of movement will be referred to the machine, and as a result the cinema will appear as the production of the machine. If it is correct to claim that the arrangement and composition of pictures can be of an artistic character, the movement with which the actual projections are endowed is not due to the author or to his executive assistants but to the special machine by means of which the movement is obtained, and to the optical illusion occasioned by the uninterrupted succession of pictures in front of the lens and their projection on a screen.30 In other words, on the one hand, the cinema is assimilated to a series of photographs, the author being: the man who has first arranged his subject... who has planned the setting, that is, made sure that the important part of the scene to be reproduced is well in the centre of the lens31

48

The juridical production of the real

and, on the other hand, the movement with which the photographs are animated is due to nothing but a machine. The result of this is that the re-production of the real is not in any way an artistic creation - the cinema is juridically assimilated to the category of‘curiosity shows’ and reels are sold by the yard.32 The result is also that the reproduction of a production, such as a theatrical representation, is, to the extent that it is realised courtesy of‘the means of industrial processes, [similarly] included in the definition of curiosity shows.’33 The soulless body of the machine and the coldness of the lens reproduced what people wanted them to be and what people were afraid they might be : the crowd, the turf, the people. What else was there to do but oppose ‘the mechanical to intelligence ..., the impersonality of the technician to the personality of the craftsman, anonymity to the individuality of talent.’ ?34 In a word, what else but oppose ‘matter to spirit’ ?35 ‘To tell the truth’, said the Hyères tribunal de police in 1912: cinema shows ... are not made for the same public as the theatres ... ; they are presented to excite and sometimes to amaze public curiosity rather than to awaken and develop aesthetic feeling in the spectators.36 And the first censorship decision banned the film of four executions with these words : There must be an absolute ban on all spectacles of this kind — spectacles liable to provoke demonstrations which disturb the public order and the public peace.37 The whole problem of censorship therefore rests on the illusion of reality which is ‘reproduced’, ‘willy-nilly’, by the machine. For his part, the jurist, the sanctioner and ‘theoretician’ of order, discerns in that position only necessity: On the one hand, indeed, the cinema cannot do without censorship, for it constitutes an exact visual representation of reality and it is destined for an unlimited public. Now, it is quite clear that there are some realities which cannot be shown to just anyone and that there are some realities which cannot be put into images. So, an absolute freedom is technically inconceivable.38 This fear has no limits and stems from the depths of theology.

The commodityform of creation

49

Such was the amazing process which brought a producer into conflict with a projectionist who refused to project a film on the passion of Christ since he saw in that a crime perpetrated by the order of the prefectorial authorities of the day!39 The machine is the battleground between the angel and the beast and, worst of all, it reproduces that same battle. It might be said, then, that there is no solution to the problem of continuity between the reproduction machine and the ‘machine of stupefaction and dissoluteness [which is] no more than a pastime for the illiterate and for wretched creatures abused by their neediness’.40 This is the first photograph of the law, the photograph of its resistance, congealed in its eternal pose. But, and this is the second act, I am looking ahead only slightly when I say that industry’s taking account of photography and the cinema will produce the most unexpected juridical effects. The soulless photographer will be set up as artist and the film-maker as creator, since the relations of production will demand it. We will therefore be able to pose in a concrete way the ‘strangest’ question - what is this soul, I mean, what is this creation that depends in the last instance on the relations of production ? To the subject-creator The economic importance of photography and the cinema was to lead to a fundamental revision. It is our task to demonstrate and to describe not the economic process as such but both the way this process is reproduced within the law and the way the law makes it effective. In 1910 it was already possible to write that photography: provides millions of people with their livelihood. Professional photographers, manufacturers and workers would be profoundly damaged if the law did not protect them against unscrupulous competition. Finally, and most importantly of all, photography has given birth to a welter of chemical, mechanical and industrial processes and applications which today feed a flourishing industry.41 From 1880 a considerable increase, parallel to ‘a considerable extension of the number of amateur or professional

50

The juridical production of the real

photographers and of the application of photography in different industries’42 was noted. That led to, for example, the wish expressed by the German society for the legal protection of photographers. It said that, ‘it is desirable ... 2. that the reproduction of photographs should equally be prohibited when it is used in the work of industry, craft manufacture or manufacture.’ Bulloz was writing in the period leading up to that time. He noted that: there are more than 50,000 people who live by photography in France and that France exports the products in millions. He then added, with a naive cunning, that to refuse them the protection of the law would mean ‘ putting photographers at the mercy of all infringers and justly killing all those of them who have artistic feeling ...’43 It can be seen that artistic recognition of photography and, in consequence, recognition of the quality of the photographer’s being a creator would become a necessity of industry. These new productive forces had to find the means of their efifectivity. Even here, this effectivity proceeds through the ‘aesthetic’. In a parallel way, the duration of legal protection (monopoly) was questioned, and the point was made that: it is for the legislator to ascertain if the duration of privilege of reproduction is sufficient to encourage artists and, at the same time, to ascertain if on the contrary the duration is not too great both in relation to the personal effort of the author and in relation to the trouble which the exorbitant restrictions of common law impose on commerce in general.44 We can see how pseudo-aesthetic considerations are subtly mixed with openly commercial considerations. Better, the aesthetic is subordinated to commerce. In other words, ‘commerce’ imposed its laws under a double title, both at the level of the necessary recognition of copyright and at the level of the necessary limitation of that recognition. Indeed, if there is no doubt that it is the capitals committed to the cinema and photographic industries that have brought about this radical reversal, it is no less doubtful that the juridical reversal euphemistically called the ‘veering of jurisprudential opinion’ —

The commodity form of creation

51

has given industry the ‘means’ of its production. These exigencies certainly do not exclude photographic art as such but they do explain the juridical and hence the economic effectivity. ‘Suddenly’ taking heed of what the law did not define: ‘the characteristics which constitute a creation of the spirit or genius in an artistic product’45 the courts utilised the concept of‘imprint of personality’ to wrest photography from the machine and to bring it into the domain of the actuating subject. The emergence of this concept is at a double price. It is both through the substitution of technique, the support of the subject’s activity, for the machine, and, as a result, through the intervention of the subject as such in the process of reproduction. In this way, in so far as it is the means and no longer an end in itself, technique permits the subject’s self-affirmation, and in this way the subject can have self-affirmation only through the mediation of a technique which permits his investing himself in the real and his making it his private domain. The subjectivisation of the machine reverses the relation: means/end. The labour of the machine becomes the labour of the subject, and it is only a means to the creation itself. Creation is no longer subordinated to the ‘means’ of creation; it is the means that are subordinated to the finality of creation. One might say that the machine loses its ‘being’ and that it becomes the means of the subject’s being. It is on this condition that the machine becomes worthy of protection ‘as a utilisable product of labour’.46 And the unspeakable Lamartine, changing horses, could shamelessly exclaim that photography ‘is better than an art; it is a solar phenomenon in which the artist collaborates with the sun.’47 Too much! The machine in this way becomes the site of human labour; it is the ‘technical’ mediation of the subject’s production. But it is not the site of just any kind of labour because it has become pure meditation and therefore leaves the subject to ‘invest’ the real. In other words, photography benefits from legal protection only on ‘condition of bearing the intellectual mark of its author, the imprint necessary to the work’s having the characteristic of individuality necessary to its being a creation’.48 Better, the work must reflect the personality of its author and reveal ‘the effort and the personal labour of the person capable of individualising it’.49 This is to say that if the photographic apparatus does indeed re¬ enter the sphere of the actuating subject, it submits to domination

52

The juridical production of the real

in its turn. Here, in the same way as there, the real belongs to the subject only if the subject invests it. The process is significant. The machine reverts to the subject only within the limits of the fundamental relation: subject/ creation of the real. So much so that as soon as the real no longer appears as ‘created’ by the subject the machine magically rediscovers its first function of reproduction. If I use an aerial photograph of the Cité on a bank note and put it in a new setting, I cannot be taken to task, because there has been only a reproduction of a natural site.50 If I fancy taking a snap of a lake where, as it happens, there are six sailing boats, that indeed is a happy choice but one which belongs more in the province of the benevolence of chance than of artistic creation.51 In sum, even the photographic reproduction of an attractive girl is in no way sufficient for the characterisation of the appropriation as intellectual, for ‘the mere features of a face ... are not susceptible to appropriation’.52 The advance of capitalist productive forces is concretely realised in the site of the subject in law. And that realisation takes the very form of a subject. All production is the production of a subject, meaning by subject the category in which labour designates all man’s production as production of private property. The will of man is the soul of external nature, and this soul is private property, for it is the intended purpose of man, qua subject in law ‘to take possession of this nature and make it his private property’.53 From the moment that, for their good functioning, the productive forces demand that these products be protected by copyright law, it is sufficient for the law to say that the machine transmits the soul of the subject. That is to say that it is sufficient for the law to permutate the terms in the same structure. The soulless machine becomes the soul of the machine. These are the ‘imperceptible social processes which ... always underlie [the processes of the Palais de Justice] and which constitute bourgeois practice.’54

The process of capital and the process of creation The photographer is a solitary man ; his production is production

T he commodityform of creation

53

of a subject. Certainly the photographic industry has taken his creation into account, and that has already been sufficient for it to be said that the photographer is a creator, but it has left him his instrument of labour, the photographic apparatus. The photographer is a craftsman. What I am going to study now are the quite extraordinary effects of an industrialised artistic production, that is, a production in which the socialisation of production, exchange and consumption are realised all at the same time. What I am going to study, in the prodigious process of an artistic product which is from beginning to end and through and through subject to the law of capital, where the process of capital becomes the very process of intellectual creation and where the commodity form of this product becomes the production of this very product - what I am going to study is the destiny of our eternal category of the subject (in law). And, at the same time, I shall also study the destiny of our real (in law). This double destiny is prodigious. It is the double destiny of the economy and the cinema. Here, indeed, my project becomes ambitious, and I must present my proof. It rests on the fundamental thesis that the socialisation of the cinema industry produces the socialisation of the subject-creator, a collective subject. That socialisation produces a socialisation of the real - the unfolding of the event. To repeat, my avowed purpose is juridical. But that vow was born in a place other than the law; it was born in the relations of production. I shall begin there.

Economy and cinema Because it had an industrialisable technical base, the cinema ‘afforded businessmen what the theatre had always refused them, an industry of spectacle, and because it was technically possible there was no reason why production and the market should not be concentrated.’55 The United States Industrialists and bankers gained control of the growing industry in three stages: control by competitive small business, from 1896

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The juridical production of the real

to 1908 ; conflict between trusts, each enterprise seeking to acquire absolute control, from 1909 to 1929; and from 1929 to the present day, ‘ thanks to the patent of sound which it controls, high finance takes over the situation’.56 Capitalism had to adapt its methods of production/ distribution/consumption to the ‘intellectual’ product, the film. The adaptation had to take account of the specificity of consumption, and that meant taking big risks. The jurists had already taken cognisance of that. Here are two examples, one French, one German. France The juridical problems born of the fact of‘cinema’ are new problems the solution to which must take account of the modern exigencies of business life, the need to move fast and to simplify, owing to the fact that the cinema is a powerful industry employing tens of thousands of employees. Juridical subtleties must give way to practical considerations of the flexibility of institutions, of the simplicity of rules, of the convenience of processes and methods .. .’57 Germany The author of the film manufactures a large quantity of merchandise which has to be dispersed throughout the world. Because of this, and because of the fact of commercial risk engendered in this way, a greater economic weight bears heavily on him ... the slant of his production is entirely on the manufacture of merchandise which has to be dispersed ... he must forecast his reserves. He is much more dependent on the times, on the tastes of the public, on the up-to-dateness of the subject and on world competition than is a theatre producer in his own town.58 The distraint of industrial and financial capital over the material means of production (equipment, machinery ... ) is necessarily accompanied by a monopolisation of the ‘human material’ in so far as it is an original element in cinema production. As far as the American cinema is concerned, it has gone in two directions: monopolisation of the intellectual primary material - the purchase of

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books, news and bestsellers - and, fundamentally, mon¬ opolisation of intellecutual man-power by contract. ‘The companies constituted a veritable pool of talent and lent each other stars, directors, script writers, and technicians.’59 The contract appears as the privileged instrument of capitalist domination. It designates the commercialisation of man as object in law. The star system is a perfect illustration. Contracts are Draconian. The star under contract loses a large part of his freedom. The organisation not only of his public life but also of his private life is laid down in the contract. Breach of contract means his name being put on a blacklist. .. ,60 As for the extravagant salaries, they are nothing but an ideological part of the system. Briefly, the film is a commodity subject to the ‘law of profit’ and all those participating in it are subject to the monopolist structure of the cinema. The film is not a product for itself ; it is not a means of artistic expression. Its production allows the financiers a useful placement for their capitals, it is as industrial as can be, and the standardisation of the product shows that a commercial criterion operates at all levels of the industry.61 For my particular purpose, what I want to retrieve from this analysis is the fundamental process whereby the monopolist structure of finance and industrial capital involves the monopolisation of intellectual primary material. I want to go further and disengage the relation between this monopolist structure and the category of the collective subject-creator. First, however, I must deal quickly with a certain controversy. In his book Cinéma et idéologie, Lebel claims that: the production of cinema is no more than a production of spectacle, and, in spite of the material it puts to work and the material on which it is inscribed, this production does not enter into a process of material appropriation of the world by men.62 According to Lebel, in fact, ‘the complex infrastructure of the cinema’ belongs to ‘the sphere of superstructures’.63 If Marx had read this text, his eyes would have popped out of his head. What is this infrastructure that forms part of the superstructure ? Ideology plays havoc with people who take its denunciation to heart. But let’s be serious. The monopolisation of the means of cinema

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(technical and intellectual) production puts in play a new juridical form expressing relations of production at the level of imperialism - the form of a collective subject. The working class made no mistake about the monopolist character of cinema protection. In 1937 the Confédération Général du Travail mounted a plan for the nationalisation of the means of cinema (laboratories and studios) production and of the large distributors.64

The capital-author To return to my stated purpose, there are two propositions which reflect the dialectic of the process of socialisation of the subjectcreator. From the start the courts recognised the producer as the sole author of the film, taking account of the financial responsibilities incumbent on him. But the struggle waged by the authors for their ‘rights’ as intellectual creators brought into the open the combination of intellectual production and industrial production. It brought about the ‘appearance’ of a collective subject caught up ‘in the process of technique, considered as a process of commodity production’,65 and whose moral interests are in the last instance subordinated to the maximum profit of the film product. This appearance/revelation brought the script-writer, the dialogue writer, the director, etc. into the ‘sphere of creation’ and produced for the law a revolutionary aesthetic effect. It had to take into account the ‘social essence’ of the cinema. I know that the circuits I am describing go deep. But these circuits are the very ones the law has borrowed, and they are significant. They prove the perpetual contradiction between the ideological representations conveyed by juridical discourse and the practice of this discourse itself. And they prove the very functioning of juridical ideology brilliantly described by Brecht : ‘What is amusing is that they - yes, they! - could no longer exercise their practice, neither if they abandoned their ideology nor if they made it concrete.’66 Capital, the damned soul of the cinema

In the thirty years in question, the courts take legal cognisance: ‘Cinema productions cannot be denied the character of literary

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artistic and scientific productions.’67 The material conditions of this creation designate the author, that is the person who realises the capitalist process in the film. The author/producer forms part of the apparatus of production, he participates in the process of production in his very capacity as author. ‘The producer is, in a way, an intellectual production machine in which each wheel has a brain and a particular talent but in which everything is confused in the product as a whole.’68 This jurist text is a materialist text, indubitably. The metaphorical description is at the same time a description of the real process of cinema creation. The process of production is the (bourgeois) essence of the film. Art is both ‘product’ and ‘moment’ of capital. ‘The film is not a product for itself; it is not a means of artistic expression. Its production allows the financiers a useful placement for their capitals.’69 Indeed, the producer ‘directs all the successive elements from which stems the complete production of a cinema work for which he has responsibility.’70 By ‘responsibility’ we must here understand the entire financial responsibility. Juridical categories become the receiver of the process of capital, since capital is realised in them too, whether in the category of the subject or in that of the creation. The cinema work has its ‘author’, even if the author is not a subject but a process. The documents are irrefutable and they are extraordinarily important. The law will state what we would never have hoped it could state — the true creative subject is capital. This statement will be incarnated in the very ideology of the subject. Capital becomes the very person it interpellates. Capital assumes the mask of the subject, it is animated, it speaks and it signs contracts. Capital cannot do without its beloved subject in law, since the subject in law is its subject. As I said, the documents are irrefutable. On 16 March 1939 the Cour de Paris ruled as follows: Considering that legal protection of artistic property can, in the quite special and still new category of cinema creation, be fully assured for the producers, since the work would not exist without its intellectual labour ..., considering that the producer, that is the physical or moral person whose profession is the realisation of cinema works, incontestably manifests himself through creative activity in the order of the intellect consistent

58

T he juridical production of the real with that required of every author; considering that he imagines and expresses the ideas that will constitute the canvas, that he exercises a determinant influence over the entire direction and execution, and that it is under his creative direction, whether personal or delegated, that he exercises his influence over hundreds of specialist assistants who are duly remunerated at a fixed rate or according to contract, who are in any case interchangeable with other employees with the same specialist skills, and who will proceed to the more or less intellectual or mechanical task assigned to them ; considering that the distribution by the producer of the intellectual labour ... could not have the consequence of all those who contribute to the sequence of the work’s successive stages being given a personal right over the exploitation of the film. .. .71

The producer is the owner of the ‘creation’ he produces. The subject-capital is rigged out in the mask of the creation at all industrial stages. The determinant influence of capital becomes, for the law, the creative influence ; financial direction becomes creative direction ; the authors become proletarians who are payed for the job which accomplishes a ‘task’ work and not a creative activity, halfway between the man and the machine, and who can be shown the door if they do not give satisfaction. Capital takes on the face of Art but retains the necessary methods of capital : the methods of buyers of labour power, the methods of slave-drivers, the methods of privileged contractors. The authors of the film are the people who, in their participation in the elaboration of the cinema work, manifest a creative activity, provided, however, that they are not subordinated to the producer by means of hire contracts of employment or of service.72 This is an amazing revelation. Creative activity, that is, the expression of the ‘personality of man’, can be subject to a contract. In other words, contractual clauses are sufficient for the transformation of creative activity into the pure and simple costs of labour power. The contract is no longer a pure and simple act of will. In its functioning it permits the extraordinary mutation which turns an artist into a proletarian. The author is the ‘authorised agent of society [engaged] to direct the production and not to

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create it ... he is the executive [on a par with] the conductor directing the execution of the libretto or the artists interpreting it on the stage. .. ,’73 This is capital’s great score, under the baton of the capitalist. And if, for the German Supreme Court, the director can play a certain part with regard to the public, this part ‘is translated into the importance and reputation of the society which has given the director fixed employment and which is assured of his intellectual capacities’.74 Capital provides the name so that the name relates back to capital. The juridical subordination of the ‘assistants’ to mortgaged capitals, the travesty of capital as subject-creator, and the necessary ‘interchangeability’ of film workers are translated into a necessary aesthetic formulation. The labour of the assistants is not essential to the cinema’s artistic process. In the event of absence or breach of his obligations, the assistant remains essentially replaceable without the work being in any way modified.75 It is capital that becomes the essential element of the work. It is necessary to accord to the producer the right of representation ; it would lead to absurd consequences if he had to be deprived of that right in favour of the authors of the film, each of whom could then claim to be justified in disposing of his own part in the communal work, which is, in any case, indivisible, and each of whom could unite to dispose of the work independently of the producer. .. .76 The thing which is indivisible, that is, which constitutes the essence of the cinema work, is capital itself whose representative the producer - is the sole author. And the danger foreseen by the courts — the collectivisation of the artistic product - is real. Let the ‘others’ declare themselves authors, and one would very quickly see them ‘expelling’ the producer. Let the workers have the legal means of appropriating the means of production, and they will see that they can dispose of the production ‘independently of us’ to translate, independently of capital. Rhetoric and private property The producer and the jurist will fight on this ground. They will act as if the cinema were a sort of filmed theatre where it is the ‘ literary’

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The juridical production of the real

that takes precedence. It would therefore be possible to expel the assistants ‘aesthetically’. ‘If the director is changed, neither the subject, nor the scene sequence, nor the dialogue will have been changed ...; the essence of the work will not have been modified.’77 The director, says the Paris cour d’appel, cannot be an author because he remains ‘essentially replaceable without the essence of the work being modified’.78 The aesthetic category of the theatre, that is, the ideology of the spoken word, will work against the assistants. Capital will become the Word. The basic thing is language. ‘The word before the image, and the dialogue writer can cast the director into oblivion.’79 It is important to remember the capital economic fact that it is thanks to the patent of sound that high finance has taken over in the cinema industry. That means that if the cinema was compared with mime in the theatre in the days of the silent film, in the time of the talkies it is compared with the spoken word in the theatre. By that I mean that, even if the spoken word were silent, the ideology of the spoken word obsessed the cinema, and that this obsession became flesh when it embodied the evolution of the productive forces. This aesthetic ‘obsession’, this rhetorical obsession, is articulated on the ‘obsession’ of the producer. The cinema word is the property of the banks. The process of capital closes in on itself in its own spoken word, the talking Subject. Capital has become its own rhetorician, the herald of its own process.80

Creation and the collective subject But the victory of the ‘commoner’s condition’, a condition which coloured the nobleness of the Word, designated the time of the cinema. The growth of the productive forces in the cinema industry was socialising the subject-creator. And the capitalist collective subject designated what the cinema was. I do not mean that the producer will be evacuated from this dialectic, for that would be to evacuate capital. I mean that the struggle for the recognition of a subject-creator unveils the dialectical truth of the cinema process - the forced coexistence of art and industry which can exist only under the form of the subject. And I might add that the necessary consciousness of that coexistence is none other than the objective

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unveiling of the objective socialisation of the productive forces. The capitalist mode of production perpetually destroys bourgeois ideology. What destroys the ‘bourgeois’ cinema is, at one and the same time, the category of the subject-creator in law by means of the arrival of the collecfive subject and the aesthetic broadening of that category by means of the arrival of the ‘essence’ of the cinema. The industrial phase of cinema production produces its contradiction, the (ostensible) collective work. The subject-creator in law is pulverised into subject-creators in law of an artistic process, the him. The French law of 11 March 1957 takes legal cognisance of this subject. If, in Article 14, it does indeed allow that the physical person or persons who realise the intellectual creation of the work have ‘the quality of being author of a cinema work’ and that ‘ 1. the script writer, 2. the adapter, 3. the dialogue writer, 4. the composer, ... 5. the director ... are presumed, unless there is proof to the contrary, to be coauthors of a cinema work realised in collaboration’, there is a double subordination of the authors to the production. The place of this subordination designates the essential articulation of the process. On the one hand, ‘... the authors of the work ... are tied to the producers by a contract which, unless there is a clause to the contrary, carries the assignment to the producer of the exclusive right of cinema exploitation ...’ (Article 17). On the other hand, ‘if one of the authors refuses to complete his contribution to the cinema work ... he will not be able to object to the utilisation of that part of his contribution already realised in order that the work can be completed ...’ (Article 15). This is the language - noblesse oblige - of an avocat général* The cinema work calls for labour, imagination, and artistic sense in great quantity, at the same time as it calls for science, and finally for financial power. It is the ‘economic factor’ that of necessity exercises an influence of which the legislator cannot be unaware. Investment, profitability, settlement by mutual concession, these are the words that crop up in the language of the commentators... .8I

* Avocat général is the equivalent of Deputy Director of Public Prosecutions in a court of appeal.

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T he juridical production of the real

And the Paris cour d’appel specified the role of industry in the cinema with an important statement: The producer is not an author ... but he and the director participate

directly in the elaboration of the film, through the contribution of the material means necessary for that elaboration ; it is his [the producer’s] responsibility, furthermore, to guarantee the commercialisation of the work and the profitability of the funds invested. .. .82 I said that the statement was important. It is so because it is a dialectical statement of the contradiction between an artistic ideology which measures the ‘value of a personality by the manner in which it is expressed in a work and the success of a work by the amount of personality expressed in it’83 and a production which is threatened by this very ideology. The statement is important,^ if the producer is no longer an author, he is the author par excellence of the film as commodity. We shall see how far the moral right of the author goes.

A court can annul the following clause of a contract between producer and director: We reserve the right to make any modification or excision which we shall judge necessary ... except where it is impossible, you will be consulted on the subject of these modifications ; none the less, if a dispute of whatever nature were to persist before, during or after the production, we remain sole judge of the final decision. In such a case we always undertake to remove your name from the credit list and from the publicity should you demand it. According to its logic, the court can sentence the producer to pay damages to the director for ‘moral’ injury; but according to its logic, which is to assure the good functioning of the production, the court can hand over the exploitation of his film to the producer. The moral right disappears at the very moment it can impede production. And when the matter comes before the court of appeal in its turn, the court has to deal with the distressing question of whether the director or the producer, art or industry, should prevail. The court does not shrink from resolving the problem in the absolute contradiction of the denial of justice when it instructed the parties ‘to come to an agreement’!84 Refusal to pronounce judgment must be analysed as a resignation

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from the very functions of justice. If the contradiction between material interests and immaterial interests received a solution ... this whole apparatus, unified and rationalised with so much art, would itself have moral and immaterial interests. In short, if everything did not revert exclusively to the protection of profit, we for our part would have very little to put before [that apparatus].85 The category of the subject - and of the creation - is safeguarded to exactly the same extent as the production, but the development of the productive forces has created the collective subject that bespeaks ‘the ideological inconsistency’ of the relations of production. This is the human age this dissolution of the dramatic process into so many individual images resulting ... from the fact that everything is collected together in short scenes filmed independently. ... The labour of the director is not just to set the scene in a formal way but to transpose into reality all the things that are necessary.86 The director gives ‘life in the mode of the cinema’87 he brings about ‘the essential act of creation, the transformation of a text into images’,83 he ‘watches over the succession of scenes, as over choice in the shooting; he participates essentially in the artistic creation of the film’.89 Further, he ‘creates the movement and the images which are the very essence of cinema art.’90 And, just as the producer is no longer the artistic author, in a striking reversal the essence of the cinema is analysed as the ideological ‘reproduction’ of the real. Ideology as subject in law Even here ideology comes to the rescue of production. The camera reproduces the structure of the subject, and the effect of this reproduction is to turn the ideology of the subject back into the subject of ideology. I am not exaggerating. ‘The cinematographic apparatus is a purely ideological apparatus. It produces a directly inherited code of perspective which is constructed on the model of the scientific perspective of the quattrocento.’91 The cinema cannot be discussed ‘without the deconstruction of

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the ideological production of the apparatus (the camera), for which, because of its structure, there is no possibility of maintaining any objective relation with the real.’92 So the cinema is in debt from the very first... through this fatal fact of the reproduction not of things in their concrete reality but as refracted by ideology ... ; accordingly, ideology is itself represented by the cinema. It shows itself, speaks to itself and teaches itself in the very representation of itself.93 ‘Rectifying’ his position, Pleynet adds : The questions posed by the code of perspective of the ‘ monocular camera’ provided us with a decisive proof of the fundamental complicity existing between the basic appliance of the cinema and an important aspect of bourgeois ideology, the metaphysical centring on the Subject. ... To say that the camera is an ideological apparatus does not mean that it is accorded an ideological essence (nor that it is being confused with an ideological state apparatus !). It means that through being an apparatus committed to the representation of space it is part of the material basis of an ideological practice : cinema practice... .94 In other words, we are witnessing a return of the camera/subject. It is no longer the subject that is absorbed by the machine but the machine that is made subject. It has become the very site of creation. It has become a creator in itself. The machine/subject can do nothing but reproduce the subject because it ‘holds’ the subject in a space which ‘redoubles the Hegelian closure ... fitc]’.95 What is at issue here, latently, is — for once - explained unambiguously by Pleynet. Since the humanist code of perspective is ‘institutionally guaranteed’ by the Ideological (class) State Apparatus, if a class can provisionally make use of this type of representation which ‘fundamentally serves another class ..., the action of the class struggle on this point concerns not so much representation in the last instance as the State apparatuses which guarantee representation as alone valid and outside which representation does not exist’.96 In other words, bourgeois ideology sanctions the camera qua apparatus since the camera reproduces its very essence! And, if a film is made of a workers’ strike, then, to the extent that the strike

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would be reproduced within the ‘humanist code of perspective’, to the extent that it would redouble the ‘Hegelian closure’, the strike would be guaranteed by the ideological State apparatuses, unless its aim is to criticise these same State apparatuses! How? We do not know. This pretentious and pseudo-scientihc gibberish, which dares cite Marxism as its authority, reveals a symptom, the imperialism the subject in the writings of people who claim to liquidate it the name of Marxism. The issue here is the ideological reprise

to of in of

Marxism.

But what is at stake is more serious - the elimination of the class struggle on the ground of ideology, the ‘ mechanical’ impossibility of the hold of consciousness. Since ideology (the subject) imprints its necessary reproduction on the laws of optics, capital is acquitted in the fatality of its process. Ideological fatalism is the last aesthetic rehash ; it presents the political advantage of the ‘natural’ elimination of political struggle. It is no longer ideology that is reproduced by the machine. Rather it is ideology that produces the machine. So, ideology itself becomes the subject, and the real becomes the predicate. Ideology has achieved the ‘aesthetic’ tour de force of appearing as the subject-creator of the him. History and creation Our subject has performed all the figures and assumed all the poses. It remains for it to become ‘owner’ of the happening, to over-appropriate history. That, in a very precise way, is the stake. It consists in the contradiction that for the ‘facts’ to become the property of an author they must be ‘created’ by him. Now, how is it possible to ‘ create’ or to ‘ produce’ something which develops in truth ? If that is not a problem for the ‘artistic’ him, it is a problem for direct ‘shooting’. The juridical ‘set to partners’ will be prodigious. For if‘the visual creation must express the author’s original thought through the reflection of its author’s personality and through the choice and composition of the images’97 then the creation (spirit) will be opposed to ‘historical chance’ (matter). Reality will be pursued into its most obscure corners. It will be argued that there is reality and that there is the ‘heart’ of reality. ‘It is when it is

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carried into the very heart of reality that televisual art flourishes in a domain which it alone can perfectly explore.’98 It will be argued that to show reality as it is is still to ‘create’ it. The Tribunal de grand instance had bitter and ingenuous experience of this debate. The court was obliged to rule whether a television broadcast could be legally protected by legislation governing copyright. It expressed itself in this way : To watch a few scenes of mountains, taken in evocative and well chosen landscapes, with peasants in their chalet or at a cheese market exchanging their cheeses for money with a typical retailer, living scenes taken from life, is enough to be convinced that this is indeed a question of creation.99 Everything which is convincing looks true ! But I want to give an even more amazing example of juridical practice. This example will permit me to articulate the concept of over-appropriation of a thing that would seem to be the least susceptible to over-appropriation : history. The concrete problem was posed in these terms. An amateur film-maker had, by chance, shot the assassination of Kennedy, an 8mm film of 480 frames which he hastened to sell to the editor of Life Magazine. Later on, a book was written about that event - Six Seconds in Dallas by Joshua Thompson - which illicitly reproduced 22 frames of the film. An action was brought, and Thompson put forward three forms of argument for his defence. First, he argued, it was a question of an actual event ; second, in respect of which no creation had been effected; and third, which could not be appropriated as such, under pain of creating a veritable ‘oligopoly’ of information.100 On that line of argument it can be said that to the extent that, on the one hand, the event formed part of the public domain and, on the other hand, that it was reproduced as such, the event could not be appropriated since the subject had done nothing but follow the objective course [of events]. Now, Judge Wyatt rejected this defence by making use of a structure of the real which makes a distinction between the foundation and the form [of the real]. If it is true, he observed, that ‘an event in actuality cannot be protected by copyright’, it none the less remains [the case] that: ‘Life claimed no copyright in respect of the actuality element of the event but only in respect of

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the particular form of the recording'. As for the charge of oligopoly, he confined himself to the remark that Life did not claim copyright over the events in Dallas but over the particular form of expression materialised by the film. ‘If that is oligopoly, it is an oligopoly specifically conferred by copyright law, and any appeal on this subject must be presented to Congress.’101 And on creativity, he advanced the proposition that each photograph reflects ‘the personal influence of the author and that there are never two identical photographs’. The American judge’s dialectic is amazing. History is the foundation, the public domain, the abstract expression of all property, and the author gives it form, which is to say that he gives the form of private property to a foundation considered to be private property. The over-appropriation of the real is constituted by the simple recording of the real. It is impossible to go further than this.102 I have ‘mobilised’ the contradiction ‘at the heart of things and happenings’ and I have kept ‘the events themselves moving throughout the duration of the inquiry’.103 In order to witness its bankruptcy, I have taken the ideology of the subject at its word. But it is an ‘ambiguous’ bankruptcy. I mean that it is this very bankruptcy that causes it to live. For, far from being afraid of the contradiction, the subject makes it his daily bread. By turning the subject’s own weapons against him, we must see that the weapons will perish with him.

4 The commodity form of the subject

I have finished with the subject-creator, and I can now propose what will permit the closure of the process of creation, or, to be more precise, what will complete the dialectic of the juridical real. The subject that reproduces will produce its own competition, namely, the subject which is produced. Let us say, for simplicity, that the right of the photographer over his photo produces the right of the photographed over his image.

When I say that the process must be closed, I mean simply that man, in his description of man, is confronted with none other than a privative essence which refers him to himself, and that the private property of the photographer is confronted with none other than the private property of the photographed. I mean that, in the real, which is pre-constituted in private property, private property is incorporated ‘in man himself. Further, I mean that the reproduction of the real re-produces private property as the ‘essence’ of man, and that the historical objectivity of the property is radically suppressed. The juridicity of the real is accomplished as the production of the real in the determination of property itself. I said that the creator process is the process of private property itself. I want to make that more precise. This process becomes total only by producing its competition. Taking this further, this competition is the actual condition of its movement. This has the effect of the process closing itself. And if one studies the movement of the movement, it is a question of a movement which wishes to be immobile, which turns on itself. In other words, the competitor of the reproducing subject in law is the reproduced subject in law, that is, a commodity decomposition of the category of the subject in law, or, if you like, a commodity decomposition of the

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‘essence’ of man. The commodity form of creation produces the commodity form of the subject in law and vice versa. Our first moment described the commodity form of creation. The concept of over-appropriation has taken account of that. It designated the juridical vocation of the real as capable of being over-decomposed in private property. Our second moment, which I am coming to now, signifies the mode of the re appropriation of the real by the subject in law, the moment of the reprise by the subject in law of his ‘essence’ as owner. This second moment is the postulate of an always-already private real, that is, the real which designates man as owner of his production. This moment demands its concept. We propose the concept of the form of the subject in law. In proposing that concept, I am continuing the work roughed out by Pashukanis : I merely assert that it is only as freedom of disposition in the market that property becomes the basis of the development of the legal form, and the category ‘subject’ serves as the best expression of that freedom.1 My scheme needs to be made more precise. What I want to show is that in its very structure the subject in law is constituted on the concept of free ownership of itself. It is that this form, which is the commodity form of the person - the concrete content of the ideological interpellation of the person in the subject in law presents the extraordinary characteristic of producing in itself, that is, in its very form, the relation of the person to itself, the relation of the subject which takes itself as object. This quite amazing characteristic designates the juridical relation of self to self. It designates that man invests his own will in the object which he constitutes, that he is to himself a product of social relations. What I shall describe, in short, then, is the necessity for the human person to take the form of the subject in law, that is, in the last instance, to take the general form of a commodity.2 Qua jurist, I shall apply myself to the juridical conditions of this form and, indeed, to the contradictions which develop within it. For if the discourse of the subject in law on history such as it has been able to be ‘produced’ - and by that I mean the juridical conditions of historical discourse - is recognised as the discourse of the process of private property too, then it is unfolded in the most crucial contradiction. In a single proposition I might say that at the

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same time as man is the owner of his history, the history of man completes and goes beyond private property. Juridical practice registers the contradiction. We shall see how it resolves it.

The form of the subject in law The form of the subject in law is an aporia, which is to say that it poses a problem it cannot resolve. If man is to himself his own capital, the circulation of this capital assumes that he is able to dispose of himself in the name (and at the price) of himself, that is, in the name of the very capital which constitutes him. This aporia can be summed up as follows. At one and the same time man must be subject in law and object in law. The subject has to be realised in the object and the object in the subject. The structure of the form of the subject in law is then analysed as the commodity decomposition of man into subject/essential characteristics. I shall explain this. With man recognised as ‘the essence’ of property,3 all his production is the production of an owner. Better, it is the production of a property which is fruitful and produces rent and profit. The development [mise en valeur] of himself constitutes his capital - not a vulgar money-capital but a capital worthy of the human essence, a ‘moral’ capital. In law, there is no longer any question but that every expression of a personality - whether in private life or in the image of that personality - ‘belongs to the moral patrimony* of every physical person, and constitutes the moral extension of its person’.4 There is no longer any question but that: ‘the photographed possesses over his image and over the use made of it an absolute right of ownership which no one can dispose of without his consent’.5 In short, there is no question but that this is a fundamental fact: the subject is the owner of himself, and if his reflection or his ‘life’ is ‘stolen’, a part of him is stolen for which he must be recompensed. In fact, the law tells us that the subject exists only by virtue of being the representative of the commodity he possesses, that is, by virtue of being the representative of himself qua commodity.6 Through the constitution of a moral patrimony whereby man is to himself his own object, the history of the subject defines its * Patrimoine is the concept of a person’s total assets and liabilities assessed in money. Cf. n.6.

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ground: ‘a very Eden of the innate rights [droits naturels] of man’7 and of the citizen, the site of a true circulation of commodities. In order that these objects may enter into relation to one another as commodities, their guardians must place themselves in relation to one another, as persons whose will resides in those objects, and must behave in such a way that each does not appropriate the commodity of the other, and part with his own, except by means of an act done by mutual consent. They must, therefore, mutually recognise in each other the rights of private proprietors.8 There once more is the stake. The subject in law must place himself in relation with himself. He must sell himself in his ‘conscience’, which is also his own market. He must be both tradesman and commodity in the catch-as-catch-can of freedom. In a word, the subject must be able to take his essential characteristics to market. The subject-capital is in this way constituted by the ‘essential characteristics’ of his personality, that is, by the things that give the subject in law social existence - his name, his moral right, his honour, his image, his private life. And in the same moment that this capital is formed it produces the conditions of its circulation. The human person is the owner of himself and hence of his essential characteristics. Also, when one of those characteristics is snatched from him without his consent, that is, when a third person takes possession of it as an object, the subject is found to be dispossessed of the utilisation made of himself. He has been ‘stolen’. And if he has been ‘stolen’ it is because he has the freedom of himself, his freedom permitting him both to alienate his essential characteristics and to reclaim them. But I want to make the concept more precise here. It [sc. the subject-capital] has its real effectivity only when it also puts the freedom of man into commodity circulation. And we must introduce the ideological exigency which doubles and closes the form of the subject in law. The subject is object in law to himself whilst retaining ‘freedom’ of himself. Freedom is demonstrated through the alienation of the self and the alienation of the self through freedom. I mean by that that the ideological exigency of man’s freedom is developed in the structure of the subject in law constituted as object in law, or again, that it is developed in the

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essence of man ‘who is brought within the orbit [détermination] of property’.9 It is precisely because property appears in the law as the essence of man that man, the object of contract, will take the juridical form of the contract itself which he is supposed to produce freely.10 In other words, by patrimonialising himself, by presenting himself in the form of subject/essential characteristics, man, far from claiming to be a slave to his patrimonialisation, finds his veritable juridical freedom in it, his capacity.* This point can be made more exact. Man is truly free only in his selling activity - his freedom is to sell himself, and selling himself realises his freedom." Freedom is articulated on the will. The explanation of this point is that if someone ‘steals’ my reflection or private life, he does none other than ‘steal’ my consent to the divulging of my reflection or my private life. He has stolen my will to wish to sell myself, or, which comes to the same thing, my consent to wishing to sell myself. This articulation is crucial. The relation subject/essential characteristics is juridically subsumed under the concept of will. The law can then say, in an abstract and humanist language, that the subject in law is a willing subject.12 And the concept is sewn up. Since freedom has been made the will - willing whether or not to divulge my private life or my image - and since the will is nothing more than the will to contract over and with myself, I must appear as owner of myself in my relations with others. If I were not so, then for others I would be incapable, that is, I would be only an object in law in the same way that I would be unable to make myself the owner of that object. The continuance of this relation demands that the owner of the labour-power should sell it only for a definite period, for if he were to sell it rump and stump, once for all, he would be selling himself, converting himself from a free man into a slave, from an owner of a commodity into a commodity.13 To return to this point for a minute, my capacity resides in my freedom to produce myself as object in law. He who is incapable the slave - is an object in law. The subject in law permits the * In French law, persons are either natural or fictitious. Natural persons are either normal persons with unrestricted legal capacité or persons with restricted legal capacité. The second category - les incapables - includes aliens, married women, infants and lunatics. See Appendix 2, pp. 166-7.

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amazing revelation that the juridical production of freedom is the production of oneself as slave. The subject in law is alienated in his own freedom. And I would add that the form of the subject realises, in its concept, the ‘two forms’ of the social relation [lien] which Pashukanis discussed and which are simultaneously presented ‘as the value of goods, and as the capacity of man to be the subject of rights [sujet de droit]’.1* The subject in law realises the ideological interpellation of the law in its very form of the subject in law. To conclude, the free exchange of property in oneself postulates a reproduction of the freedom of oneself and a free purchase of this production.15 It is in this way that freedom finds its juridical effectivity only with respect to the capacity for self-alienation, a capacity which itself rests on freedom. A remarkable ruling posed the fundamental relation will/freedom. The court in question considered that it is impossible to derive possessory actions for the right to the image either from the right of ownership which everyone has over his person, or from the notion of individual or human freedom ... that in this matter it is not possible to invoke a right of ownership under the terms of Article 544 in the Civil Code, since the person is not a business concern and cannot constitute the object of a real right. It is impossible, furthermore, to rely on the notion of individual or humanfreedom, which, briefly, is only the correct expression of the same idea of property and only tends effectively to confirm that the individual is master of his body and his image.16 In the last analysis, the form of the subject in its constitution as subject-object (of itself) refers to a mode of production which determines the very form of a subject capable of selling itself and whose freedom is produced only in the determination of property. This theoretical analysis of the subject in law permits the concrete and complete description of the real. The real is at one and the same time the creation of a subject and lived by a subject.

The crusade of the knights of the law, or the history of a juridical doctrine It is time ‘to do a bit of law’. Together we shall penetrate the

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arcana — I was going to say the entrails - of doctrine. I want to show you how reasoning is done in the ‘ pure theory of law’. I want to show you how reasoning is not done in the university space that is also the political space of a certain knowledge. And you will see displayed the extraordinary and ‘ineffective’ subtlety of the jurists who take their reasonings ... for gospel truth ! What doctrine says defines what doctrine is - the professorial appendix of capital. This sick body must be operated on for its own indigence. In justifying the subject in law, doctrine is looking after number one. The fact that the whole operation stinks doesn’t matter because doctrine thrives on the smell. What doctrine wants to do is to legitimate a subject which has freedom both over its soul and over its body, that is, which is able to sell its body whilst preserving its soul. It is not difficult to see that doctrine itself is also at issue here. Once again we find our Du Guesclin of the Law nicely in position, our ‘sociologist without rigour’, our Knight Carbonnier, without fear and without reproach, clad in the shining armour of Dogmatics. Without batting an eyelid and without giving an inch, the Knight writes that our Law has for a long time rejected the idea that a human being was the owner of his body because this idea implied an absurd confusion between the object in law and the subject in law.17 This rigour within his non-rigour might have come as a surprise to a less seasoned soldier than our Du Guesclin. If I am not the owner of my ‘essential characteristics’, how can I go into business with them ? Du Guesclin doesn’t care ! But let’s be honest - he used not to care, until slicing up the enemy on the battlefield taught him that subjective right is in our viscera. Another knight has entered the lists. He has endorsed the following serious formula: Even in the case of the right of‘dematerialised’ ownership, the value on which the right rests is patrimonial and external to the subject, when the defence of the personality concerns ‘human values’ which are not distinct from the subject in law.18 This is a serious controversy and I shall attempt to unscramble this rigmarole. What are they telling us ? There are two types of values - patrimonial values and moral values. What they do not tell us is that ‘human values’ are sold. In other words, they have divided

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values into ‘human’ and ‘patrimonial’ values and they have then ‘deduced’ from that moralistic division that the soul is not sold. That is because, for our soldiers, the soul is the last place to give the game away. This was discovered latterly by a jurist who ‘does philosophy’. In a lyrical flight, and in fifteen lines, our philosopher traces the idea of the Person from Plato to ... Mounier. Here are the last lines : ‘ Liberalism itself, with its primarily individualistic tendencies, has done much to develop the idea of the Person.’ Wait for it - ‘This notion poses great philosophical problems.’ Look at his references - Metaphysique, by Huisman and Vergez. To continue: ‘Personalism, however, the true founder of which is Mounier, synthesises all the Ideas that have been put forward [all the ideas !] and sees in the person a freedom which is tied in with the world and with other men, so that it embodies eternal values in particular situations.’19 Etcetera! And all that terminal delirium just to come out with the inspired ‘ideological’ deduction that to be unaware of the ‘intimate sphere’ of private life ‘is to render useless, humanly speaking, the said rights of patrimony’.20 Here is the old anthem, all the better for being chewed over again. Proletarians of all countries, your exploitation proves that you have a soul. And everyone knows that that soul is ‘an absolute before which all should bow’.21 The rest is vulgarity, for, in one way or another [the absolute] ‘in some quarter or other touches on matter’.22 And our vicarius dei adds this happy formula: ‘What is the substitution of an amalgam of individuals without constraints for a reunion of spiritually free persons but the replacement of society by the flock?’ Saint Panurge, deliver us! It is true that Saint Panurge does not completely lose his head when he refers to another ‘great jurist’. With the soul of a banker anxious not to confuse the two, Gény advocated ‘ the substitution of thoughtful consideration of serious interests for the deceptive suggestions of a dangerous sentimentalism’.23 I shall now bring this crusade to an end. It could finish only at the Holy Sepulchre of Roman Law. One professor has opportunely recalled the Digeste, which, as everyone knows, said everything and which, more importantly, foresaw what it might have been able to say. Dominus membrorum suorum nemo videtur.24 By doing this, by moving from the Latin of the Lower Empire to the French of the lower storey, Kayser reveals his thought to us. We

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must resolve the question ‘by according to the power of man over his body the character of a right of personality with a view to guaranteeing the protection of the man’s moral and material interests in relation to his body.’25 In plain words, this means that man can sell himself on condition that he does it in the name ... of a right of personality! The mountain has given birth to a mouse. I shall not take this further, for the reader must be exhausted by all these exhumations, and I shall leave all other others - a vast number - to the ‘gnawing critique of mice’. I shall just add two things. The would-be theoretical positions that have been taken up here are contradicted by the most vulgar practice of the law. Suppose someone ‘steals’ my image. Then I have the right to claim it back since he is using me without my consent. The wrong I suffer is juridically analysed as a violation of my consent. In this way the law establishes a necessary relation : consent/wrong. For if man is not the owner of himself, in the name of what could he suffer a wrong which harms him in his own representation of himself? Practice leads to the juridical bulls-eye of an analysis that all the ‘essential characteristics’ of the person are contractually protected rights. As for the ‘evil consciousness’ of Doctrine, it can be located in its latent discourse, which poses the adequation* of the ‘natural right’ of the human person and of the subject in law. The ideological interpellation - every person is a subject in law plunges doctrine into fearful trouble. For if the subject form is indeed the necessary form of man as exchanger and as producer, it is in another respect the form in which freedom and equality must also be realised. And for ‘them’, the dilemma becomes that the subject in law realises his freedom through the sale of himself. These professors have not understood that the category of the subject in law is a product of history and that through it the evolution of the capitalist process realises all the determinations. The subject in law becomes its ultimate product, the object in law. It follows that all legal science becomes ‘impossible’ for them. I shall return to this point.

Adéquation = lit. the process of making adequate or equivalent.

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The figures of the subject in law

The form of the subject in law will produce, if I can put it this way, its own history. At this precise point I am speaking of a subject form which is a product of history but which at the same time claims to produce its own history. This claim is the ultimate claim of all ideology, namely, to treat of an anthropological discourse, that is, to treat of the discourse of eternal man qua individual. It is, in other words, to make the claim that the process of history is none other than its own process and that history is the finished and closed history of private property. It is in this privileged site of the ‘historical autoproduction’ of the subject form that juridical ideology assumes its ultimate function. Here I can pick up what I have already extracted from the birth certificate of juridical ideology. The essence - and here I add the ‘historical’ essence - of man is to be the private owner of his history. The ‘essence’ is redoubled. History is the private property of subjects in law. Here again we find the ‘redoubled speculary structure of ideology’ but this time we find it in its ontological claim. History legitimates the existence of the subject to the exact extent that it reverts to the subject. The subject is the selfhistoricising private property that is distributed among the subjects in history. And if I give the concrete content of this process I can then say that, to the extent that the subject in law is the owner of his history, history is necessarily the property of subjects in law. Through this very process the law both sanctions the relations of production within the individual - and here again is the commodity form of the subject - and reveals the imagined relation of individuals to the relations of production. Private property is ‘really’ the ‘historical essence’ of man. But this imagined relation in its turn becomes effective in practice itself. The individual lives and acts really as if private property were his ‘historical essence’, and the courts ‘demonstrate’ to him that he is right, since he has ‘the right’ [of private ownership]. What I shall tackle now is the historical claim of the subject form. I shall unveil it in three ways, that is, in the three figures in which I have been able to take it by surprise. The first figure of the ballet is a military tattoo, the tattoo of the Amicale des Cadets de

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Saumur.* It will designate the amazing fact of the private appropriation of a historical event. The second figure is more sinister, a dance of death in Haiti. It will designate the even more amazing fact of a subject which is the owner of its politics. The third figure parades under a mystical veil to hide its nudity. It is the dance of the veils, but there lies its very contradiction. For if man is the owner of history, the history of man realises and overtakes private property. We shall see that the mystical veil modestly and juridically adorning the subject was precisely the veil of morality. This will be the final act of‘our drama’, the ultimate metamorphosis of our form. And to bring the process to a definitive close, we will have to demonstrate that in the last instance it is no longer man who signifies property but property that signifies man. The military tattoo The Amicale des Cadets de Saumur demanded the banning of a television broadcast on the battles fought by the officers and the non-commissioned officers of the Saumur military college. It was necessary, it said, to make radical alterations to the script so as not to mislead the public. It was necessary that the French people should know that this episode had been a ‘brave show of arms’ and that there had been killing on the spot ; that the officers had been exemplary, that is, they had been neither philosophers, nor lovers nor perverts, and that as a result it was inadmissible to describe one of them as wielding a riding-whip on a young student officer as well as showing this same student apparently preferring his love to his glorious uniform. It was necessary, finally, that the French people should know that the commanding officer was a first officer whose profile no one had the right to alter. In short, France, that is, the Amicale des Cadets de Saumur, had to protect her history. The tribunal de Paris which sits in judgment ‘in the name of the French people’, awarded the case to French history, revised and corrected by its Amicale. The court wrote a page of history for our elementary schools which is also a ‘brave show of arms’. As I have already said, it is a tattoo where we don’t know if it is the horses that ride the men or the men the horses. Association of students at the Saumur military college.

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The scene of the wielding of the riding whip is inadmissible and ought to be suppressed ... the attitude of young Patrice, who in the first part of the him made various philosophico-political remarks and appeared to prefer his love to his uniform, to the point of giving the impression of being ready to desert, would in the absence of appropriate precautions run the risk of giving the audience a false and pernicious impression ; furthermore the combatants of June 1940 bear witness to the absolute and unanimous pre-eminence among all the Cadets of the spirit of sacrifice to the exclusion of all frivolity or inclination to desert; as to the profile of the commanding officer of the College ... the character remains heroic and most exemplary, his physical difficulties or verbal excesses serving only to put in relief the worth of the important deeds he performed ... And after this, the court ruled that the credit list should be preceded with a notice expressed as follows: The him you are about to see is a mixture of truth and fiction. Within the framework of an exceptional and authentic brave show of arms, the authors have introduced a purely imaginary amorous adventure and they have created various characters whose physical or intellectual features do not reproduce those of living or dead combatants who took part in the event. This is particularly so in the case of the commanding officer of the College who resembles the real commanding officer only through the role’s retention of the qualities of courage, authority, decision, lucidity and competence in military art which were the qualities of the officer in 1940.26 Private life, the ‘essential characteristic’ of the subject, finds the amazing practice of a court sitting in judgment on history whilst signifying history as private property. Since the subject is the owner of his history, he is consequently the owner of the event in which he took part. Such is the redoubling of the subject form. To the extent that, for the good functioning of ideology, history is this subject distributed among subjects, the very movement of history is none other than the perpetual ‘coming and going’ of subjects to the subject and of the subject to subjects. Let us take this further. This speculary ‘coming and going’ is also that of the ‘essence’ of man, that is, of private property. In other words, what is

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functioning here is the movement of private property into the sphere of ideology. And we shall say more than that. If we pose, and this will be demonstrated below, that juridical ideology is none other than the eternalisation of the sphere of circulation, we can deduce that by making history the site of the circulation of commodities (private appropriation of events), the law constitutes history in the teleology of private property. Here ends the first figure of the subject. The dance of death A film made about Haiti described the conditions of life there, and the film-maker made a specific issue of Duvallier’s police regime. Duvallier took offence at these attacks, in particular at certain lines such as ‘Papa Doc is real and the horror is real too’, ‘Papa Doc and his gangsters’, etc. Virtuously, he also took offence at a sequence in the film where simple young girls were seen singing choral songs of praise to the glory of the president on their way to the cemetery to watch capital executions. The courts seized on the count of délit d’offence aux chefs d’Etat étrangers,* Article 36 of the law of 29 July 1881. They decided in Duvallier’s favour, deeming that the ‘scenes summarised above and the aforementioned lines not only made an issue of acts of the head of State but also cast aspersions on his very person’.27 The subject in law directly discloses its political dimension. The subject in history is directly embodied in the political, that is, in the head of State, that is, in the State itself. The Cour de cassation provides us with the principle. If it is in accord with the Constitution to extend the exercise of public freedom of discussion to the discussion of the political acts of the President of the Republic, that freedom ceases where offence against the head of State begins.28 And this same court specifies this magnificently Sybilline formula: ‘An offence which was intended with respect to political acts necessarily has a bearing on the person.’29 Political critique is transformed into a critique of the person, and the critique of the person into censorship of the political critique. The State is the owner of its politics since its supreme representative is the owner of his private life. The State has * Misdemeanor of offence against foreign heads of State.

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become the very subject of the political and at the same time private owner of the political. In other words, the adequation private life of the head of State/ political acts permits the evacuation of the critique of political acts in the name of violation of private life. That is the second figure. The dance of the veils In its third figure the subject is decked out in a mystical veil; it subsumes itself under its double, the moral subject. And immediately we pose the question: what is the ideological meaning of this subsumption ? The debate which for us would be none other than the theoretical and practical debate of the theoretical conditions of ideological struggle, that is, the reprise of the Engelsian reflection of the idea of equality, cannot be conducted in great depth here, so I want to restrict myself to the precise and detailed study of the moral subject as the justification and unveiling of the subject in law. To put the point even more tightly, I want to study the ideological utilisation of the moral as justification of the subject in law, that is, the universal claim of the moral to render service and assistance to a certain bankruptcy of the subject in law. And it is not an innocent thing, of course, that this assistance should be brought to the subject in law, in the site of historical discourse, in the very site which contradicts the existence of that moral. This verifies Engels’s statement that: ‘men, consciously or otherwise, derive their ethical ideas in the last resort from the practical relations on which their class position is based. ...’30 We can therefore pose that the subject in law is subsumed under the moral subject and, better, that the subject of the subject in law is the moral. And we can then say that the moral is the god of the jurists. And this is a god which also conveys the other name, the name of the State, into the Kantian ‘starlit sky’, into the Hegelian realised morality, and into the intrusion of the ‘high’ finance of business into politics. Now, what we want to prove, documents in hand, is the transfer that permits the right hand to give what the left hand takes away. Lambrakis’s wife has a writ brought against Costa Gavras, the director of the film Z and against Vassilikos, the author of the novel from which the him was taken. She maintains that the two works made a specific issue of her private life and violated it. This

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is the juridical site. It is also a historical site. Is it possible to prohibit a historical discourse in the name of a right of ownership? We present you with the grounds of the ruling given by the tribunal de Paris and we will then provide you with a commentary. The grounds of the ruling are of two orders. In the first series, the court sings the death of the subject in law : ‘The life and death of Lambrakis belong to the political history of Greece ... it is a question of events which henceforth belong to history and the narration of which no one has the right to prohibit.’31 To translate, at the same time as man belongs to himself qua subject, he belongs to the ‘public patrimony’, that is, to history. This belonging is not constructed on the concept of property but on the concept of objective history. History is no longer the process of private property, that is, the process of an individual who is no more than the representative of his commodity, but, quite on the contrary, it is the contradictory process of the commodity form of the subject. Here is the second series of grounds. The hero of the him in reality shows a profound and lasting love for his wife; her image follows him in his travels and in the moments preceding his death his thoughts are of her, while Lambrakis’s wife, as projected by the Greek actress, Irène Papas, commands admiration and respect. ... In any case, not only is the character of Z, inspired by Lambrakis, evoked with sympathy, respect and admiration, but also his female companion is described as a model of tenderness and dignity. And the court tells us that the nature of the genre ‘necessarily admits of an element of subjective interpretation.’ We shall try to ‘sketch from life’ the transition from the subject in law to the moral on the very ground where it is produced. The court tells us that since man belongs to history, his life can be utilised and his consent, or the consent of those who have been involved in his life, can be dispensed with. But, in the same movement, it tells us that this consent can be dispensed with on condition that the things are presented in a dignified, respectful way ... otherwise the book, just as much as the him, would have been hit by prohibition.

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In other words, the court reserves itself a right in the name of morality. Morality becomes the source of the law, but the law of which it claims to be the source is the law of morality itself. The commodity form of the subject is double-headed. The first head wears a white hat, the second a black one. And when one has its hat on, the other takes its hat off. The supreme order of the subject is morality, but this morality reverts to man constituted as object in law, that is, in the last instance morality sanctions the commodity form of the subject. At the same time as morality denies man, in this universal site of the moral, morality justifies him in his subject form. The freedom of man, posed as product and producer of history, rediscovers the ground it claimed to make us forget, the ground of the relations of production. What a terrible illusion it is to have to recognise and sanction in the rights of man modern bourgeois society, the society of industry, of universal competition, of private interest freely pursuing its aim, of anarchy, of self-estranged natural and spiritual individuality.32 So exclaims Marx, and nothing more can be said, except that this ‘terrible illusion’ is not an illusion for everyone but that it is a necessary illusion. Our three figures, of course, make up only one, the history of the ‘essence’ of the subject. This essence imposes and realises all apprehension of the real. For the law, the constitution of the real is split into two poles which correspond to each other. On the one hand, over-appropriation permits ownership of matter ‘through the spirit’, and on the other hand, this human or natural matter possesses the same structure as the over-appropriation. It is in this way a question of a bi-polarisation of a real constituted as object in law in which each term is the condition of the other. To conclude, and this is an ending which will take us back to the [legal] sources, we want you to witness the last avatar of our personality. We knew that man signified property but we shall learn, in black and white, that property signifies man, that the ‘essential characteristics’ of man, his ‘emanations’, can be an estate, a house, and walls. Concretely that would mean not only that man re-presents himself in the thing but also that the thing is concretely the essence of man.

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Property leads the dance A painter reproduces a chateau classified as a historical monument. The owner demands that the work be seized. The painter replies that his picture ‘is presented as his personal vision’. That meant that his creation was analysed as an over¬ appropriation. At a first sitting, in summary procedure, the cour de Paris decides in his favour.33 At a second sitting, it revises its position. Now look at the court’s line of argument. The owner first invokes a weighty argument. He says he has carried out repairs, better, that he has restored his chateau, and that this restoration constitutes a creation. The consequence of this would be radical. The thing, already invested with creation, could not be re-produced, under pain of the re-production of an artistic creation. That is forgery. The court rejects this argument. Only rebuilding has taken place. The owner invokes a second means, and it will win him the case. The chateau is his private property; he can use it, enjoy it, ‘abuse’ it. In consequence he can close it and refuse entry. He who can do more can do less, a juridical adage tells us. If he can do more - refuse entry - he can do less - surround visits to the chateau with conditions. Now those conditions exist; they are materialised on the ticket of admission. Let’s read them. ‘Photographs of the estate, as well as sketches and paintings with the estate as subject' done with a view to commercial use of the products obtained are forbidden. The painter thinks he has won the case. If the term ‘reproductions’ is used, it cannot concern ‘a painting where the estate is merely the subject transformed by artistic inspiration’. And if the term ‘commercial use’ is used, that could not apply to the ‘sale of works of art’. The court’s reply is amazing. The owner has restricted ‘permission [to make use of] the image of the chateau to third parties’.34 That means, in good juridical French, that in the same way as a painter or a photographer cannot re-produce the features of a person without his permission, so they cannot re-produce the image of a property. In other words, the thing is treated as a person. There is a [form of] consent [on the part] of the thing, for the thing has its modesty and its honour. As for commercial use, the court replies sharply, in the purest

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common-lawyer style, that the words ‘commercial use’ can only be understood in their common meaning, namely, the use of documents created from the image of the chateau with a view to obtaining, by their sale, by their placement, or by any other contract subject to certain liabilities, financial counterpart, and, in particular, the payment of a sum of money. In short, one must not play the innocent. The painting is an object of commerce. Love leads the dance The thing has become the person, and the structure of the subject has

become the structure of the thing. Property remits to the owner his own reflection. The signifier and the signified are permutated in the abstract sphere of eternal property. We shall see this even more clearly [in the following case]. A professor at the Institut Notre-Dame, the mayor of a village and an educator of young people, was surprised to find that her property had been used as the background for a ‘photo-novel’ pleasantly titled Love Leads the Dance. Virtuously indignant, she demanded that the work be banned. The decision was given in her favour, for: there is no doubt that neighbouring lecturers could hardly fail to identify the places [in the film] and to view with surprise the fact that Mme Lemoiner had given permission for her property to be used as background for the shooting of a novel in the form of a film, the spirit of which is difficult to reconcile with her character.35 Even so, the jurists in Mme Lemoiner’s case are disturbed. Subject to the rights proceeding from the notion of property, is not what is in the view of each and every one in some sense in the public domain?36 There is no fault attaching to the photographing of a private house which is there for all to see, and there is no more fault attaching to the publication of that photo, at least if there is no current possessory action to stop it and if there is no copyright in question.37

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After the first two, a third jurist was more profound but equally mystified : In truth, here is the right to the image making new and exceptional conquests ! Recognised and defended as a right of personality, here is the right to the image insinuating itself into the prerogatives of the right to property and coming to the defence of things, not just of people.38 It is seen clearly enough, but the jurists are decidedly incorrigible. ‘Holding fast’ to the juridical justification, our author then appealed to the notion of abusive exercise of a right of reproduction which would discredit the owner. It is therefore possible to abuse a house as one would abuse ... a woman ! In a word, the adequation man /thing has been posed in such a way that the thing just as much signifies the ‘essence’ of man as the ‘essence’ of man signifies the thing. We have come to the end of our ‘juridical’ analysis. It now seems to us necessary to review the results in order to take them further, that is, in order to situate them in their true site. The introduction of modern techniques of reproduction of the real has allowed us to mark out the functioning of the law on a virgin ground, that is, to describe how a new continent came under juridical sway. We have tried to demonstrate that the constitution of this new object in law, the real, has been effected in the predetermined category of the subject. In other words, the process that has been described has ‘appeared’ as the process of a subject (in law). It is certain that, if we have brought the economic necessity of such a process to the surface, this surfacing is in some way dissolved in the juridical categories. It was necessary to exhibit that dissolution, for it also signified the role of the functioning of juridical ideology. It was necessary to show that everything happened ‘always-already’, and that this ‘always-already’, which in a certain manner is also a ‘coming-and-going’, is the ‘alwaysalready’ of the subject, that is, of private property. In this way a teleology of the subject is outlined, and the law is ‘selfifunctioning as the realisation of the determination of the subject. We see here the thesis developed in Hegel’s Philosophy of Right. But this first work was necessary for me in another connection too. It provided me with the concrete base of a more ambitious analysis, the concrete articulation of the juridico-political on the

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infrastructure. It provided me with the ‘immanent laws of the law’, and I shall return to this shortly. By the ‘immanent laws’ I mean here the necessary forms by means of which the real, as object in law, has been put into circulation. Now, in the course of an objective analysis of jurisprudence and doctrine, it has ‘appeared’ that the putting into circulation of this new object in law revealed the fundamental law that, for the law, every economic process is the process of a subject. And this ‘immanent’ law has seemed to be self-sufficient. I mean that in the same way as it is sufficient for the law to regulate the wagelabour contract with the help of the categories of the ‘free’ employer, the ‘free’ worker, and ‘free’ wages ‘freely’ arranged, in order to ‘judge’ labour, so it has been sufficient for the law, in order to ‘‘produce’ a law of the cinema and photography, to put to work the categories of (literary) property and the essential characteristics of personality, categories which in the last analysis refer to the category of the subject in law. This juridical ‘continuity’ had to be made tofunction on its own ground in order to abstract the laws of its functioning. But it is not enough to state these laws themselves; it is still necessary to explicate the last instance of theirfunctioning. It is necessary to leave that explication in order to return to it. So, I finish here by indicating the ground of my reprise, the theory of value. From the start of the game, I am specifying that on this new ground I shall both refer and not refer to my juridical demonstration, or rather, I shall refer to it ‘in silence’. I shall not resume my analysis as such but I shall presuppose its presence throughout the discourse indicated here. I ask of the reader this effort, and it will be the last.

PART III

Elements for a Marxist theory of law

As I have indicated, for me it is a question of placing my demonstration in the theoretical held that has made it possible. Concretely, it is a question of the articulation of the functioning of juridical categories in the whole process of Capital. When Marx explained that: ‘[Moneybags’] development into a full-grown capitalist must take place both within the sphere of circulation and without it,1 he provided us with our starting point, the sphere of circulation. And he adds in the same paragraph that: ‘The conversion of money into capital has to be explained on the basis of the laws [les lois immanentes] that regulate the exchange of commodities, in such a way that the starting point is the exchange of equivalents.’2 With this he provides us with scientific method. The study of the immanent laws of circulation both hides and reveals the sphere of production, that is, the global process of capital. Now in my description it has ‘appeared’ that everything happened in the law and yet that everything did not happen there. There precisely lies the ‘mystery’ of our law, a mystery which, other things being equal, is of the same ‘nature’ as the ‘mystery’ of money. In fixing the totality of the social relations as they appear in the sphere of circulation, the law at the same time makes production possible. Production appears and does not appear in the law, in the same way as it appears and does not appear in circulation. And in the same way as circulation ‘is in all its aspects a realisation of individual freedom’3, so the law, through the realisation of property, claims to realise freedom and equality. For a fundamental distinction must be made here to which I shall have

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occasion to return. Fixing the forms of functioning of the totality of social relations, the law in the same moment makes effective the juridical ideology which is the imagined relation of individuals to social relations in general. It is in this way that the law assumes the double function of concretely and ‘imaginedly’ [imaginairement] fixing - and it would be better to say that the juridical concrete fixing is at the same time ideological - that totality of social relations. If this had to be made more precise, it could be said that in the law production appears under a double title. On the one hand, it appears in the necessary forms by means of which social relations are fixed, and its very functioning, in the very thing for which they function, only for production. Accordingly, production does not appear also under a double title, on the one hand, because these necessary forms can formally claim self-sufficiency, and, on the other hand, because their functioning is occulted, if I may use that word, in their very functioning, in the very thing for which they function. And if I quickly ‘concretise’ these determinations, I shall say, on the one hand, that it is the form of the subject in law that fixes social relations and allows the real to be put into circulation as an object in law, and, on the other hand, that this form ‘appears’ as an autonomous category, independently of all ‘history’. That leads me to pose two theses. First, the law fixes and assures the realisation as a natural given of the sphere of circulation, and second, in the same moment it makes production possible. The law lives off this contradiction. In making capitalist production possible, in the name of the determinations of property — freedom and equality - property develops its own contradictions and states its nature. Property is the product of the exploitation of man by man.

5 Law and circulation

Theses I. The law fixes and assures the realisation, as a natural given, of the sphere of circulation The sphere of circulation constitutes the site where the dominant social relation is manifested. All individuals are (producers and) exchangers of commodities. It is the site where exchange value rules; better, this site is in itself ‘the movement of exchange value.’1 Here individuals, agents of exchange, are all private owners, that is, free beings who bring the commodity they possess on to the market. For the market is no longer a slave market. On the contrary, it is the site where man realises his threefold nature. He is confirmed as owner, hence free, hence equal to all other owners. And this triple affirmation is noisily admitted and organised by the sphere of circulation which sets it in motion. The product of labour belongs to the labourer. Further, personal labour is the title of original property. This product is universally exchangeable with another product. More simply, when the product of labour has become a commodity - that is, of exchange value, and then of money - it is universally capable of being exchanged with another commodity. This sphere reveals its immanent laws to us in this way. Each individual is an owner (of the fruit of his labour or of his labour power) and his labour is a social labour, even though isolated, that is, a labour which, whilst particular, participates in the universal. ‘Hence by producing for society, in which each labours in his turn for me in another sphere, I produce only for myself.’2 Hegel says nothing different. In spite of individual egoism, the system of needs realises the universality of civil society.* * CF. Hegel’s Philosophy ojRight, §40.

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Now, in the ideology of the law it is possible to affirm that everything takes place within this sphere; that the essential thing is exchanges and that exchanges realise man; that the juridical forms imposed by circulation are the same forms of freedom and equality; that the subject form deploys the reality of its determinations in a concrete practice, the contract; and that circulation is a process between subjects. Deliberately leaving aside what happens in an ‘other place’, in the ‘secret laboratory of production’, what I propose to demonstrate is that the law takes the sphere of circulation as a natural given; that this sphere, taken in itself as absolute, is none other than the ideological notion which takes the Hobbesian, Rousseauian, Kantian or Hegelian name of civil society; that by fixing circulation the law is doing none other than promulgate the decrees of the rights of man and of the citizen ; and that the law puts the marks of property, freedom, and equality on the face of exchange value, but that in the secret ‘other place’ these marks are read as exploitation, slavery, inequality, and sacred egoism. It is therefore the determinations of the sphere of circulation, that is, the concrete/ideological ‘status’ of property, freedom and equality that I shall now tackle. And we shall see that the law fixes this status in a concrete/ideological realisation. I shall take advantage of that to remind the reader of the effort I asked of him to take care not to forget the outcome of our little legal question. In the sphere of circulation, individuals ‘confront each other as subjectivised exchange values, that is, living equivalents, equal values’.3 In other words, they embody and reproduce the same movement as exchange value. Exchange value represents them and they represent exchange value. But, at the same time as the individual, the agent of circulation, takes on the same characteristics of the exchange value that he represents, at the same time as his ‘will’, inhabiting things, takes on the same characteristics of the things he inhabits, that is, at the same time as the individual is envisaged as an owner who is free and equal to other owners, he envisages himself as an owner who is free and equal to other owners. In other words, he takes as ‘gospel truth’ the fact that value, the social expression of the value of his labour, truly realises freedom and equality, in the site where exchange value rules, at the ‘surface’ of the process, and where this ‘surface’ is unaware of the marine depths it conceals.

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Here I want to cite what seems to me a fundamental text for the theory of ideology. I believe that a commentary on this text will allow me adequately to locate the relation between the theory of value and the theory of ideology, so that I can go further and contemplate tackling the law directly. In ‘The Chapter on Capital’ in the Grundnsse, Marx studies the manifestations of the law of appropriation in simple circulation and, more precisely, the determinations of freedom and equality. He makes the following basic remark: Equality and freedom are thus not only respected in exchange based on exchange values but, also, the exchange of exchange values is the productive, real basis of all equality and freedom. As pure ideas they are merely the idealised expressions of this basis ; as developed in juridical, political, social relations, they are merely this basis to a higher power.4 And further on Marx adds : exchange value or, more precisely, the money system is in fact the system of equality and freedom, and ... the disturbances which they encounter in the further development of the system are disturbances inherent in it, are merely the realisation of equality andfreedom, which prove to be inequality and unfreedom.5 In other words, the affirmation of the determinations of property - freedom and equality - in the sphere of circulation is posed at the same time as is posed their being necessarily unknown in the sphere of production where man is concretely exploited by man, where in the very midst of production capital extorts surplus value from the worker. By creating freedom and equality, the process of exchange value in this way produces in the same movement the necessary illusion that freedom and equality are effective really. That is, this ‘illusion’ is none other than the reflection of the real contradictions of the system of exchange value. It cannot produce really a true freedom, nor a true equality. The fact that value is the expression of the social labour contained in the privately produced products itself creates the possibility of a difference arising between this social labour and the private labour contained in these same products. If

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therefore a private producer continues to produce in the old way, while the social mode of production develops, this difference will become palpably evident to him. The same result follows when the aggregate of private producers of a particular class of goods produces a quantity of them which exceeds the requirements of society. The fact that the value of a commodity is expressed only in terms of another commodity, and can only be realised in exchange for it, admits of the possibility that the exchange may never take place altogether, or at least may not realise the correct value. Finally, when the specific commodity labour-power appears on the market, its value is determined, like that of any other commodity, by the labour-time socially necessary for its production. The value form of products therefore already contains in embryo the whole capitalist form of production, the antagonism between capitalists and wage¬ workers, the industrial reserve army, crises. To seek to abolish the capitalist form of production by establishing ‘true value’ is therefore tantamount to attempting to abolish Catholicism by establishing the ‘true’ Pope, or to set up a society in which at last the producers control their products, by consistently carrying into life an economic category which is the most comprehensive expression of the enslavement of the producers by their own product.6 The setting in motion of private property does indeed create a freedom and an equality, but this freedom and this equality are the same as the freedom and equality of private property. In the last instance, all bourgeois ideology consists in the occultation of the immanent contradiction of the freedom and the equality that are stripped to reveal their contrary, slavery and exploitation.7 The circulation of exchange value is none other than the circulation of freedom and equality as determinations of property, and all bourgeois ideology is an idealisation of those determinations. It can be said, therefore, that the ultimate function of bourgeois ideology consists in the idealisation of the determinations of property - freedom and equality - that is, the objective determinations of exchange value. The concrete base of all ideology is exchange value. What did Hegel do when he developed the idea of law if not give the pure expression of the movement of

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value ? And what is the ‘dialectics’ of Hegel’ $ Philosophy ofRight if not the ever more abstract expression of value? For at the final count, the Hegelian idea of law - or, rather the spirit in the Law - is selffulfilling value [valeur en attente d’elle-même]. Since the process of exchange value is the very process of freedom and equality, since individuals are no more than ‘living equivalents’, the process of exchange value becomes the process of the subject, and the process of the subject becomes the process of exchange value. In other words, in the sphere of circulation everything takes place (and does not take place) between subjects, who are also the subjects of capital, the great subject. And, furthermore, as circulation conjures away production (while revealing it), it can be said that all production is manifested as the production of a subject. I can therefore reply to the question opened up by Althusser.* If it is true that all bourgeois ideology interpellates individuals as subjects, the concrete/ideological content of the bourgeois interpellation is that the individual is interpellated as the embodiment of the determinations of exchange value. And I can add that the subject in law constitutes the privileged form of this interpellation to the exact extent that the law assures and assumes the effectivity of circulation. But since, furthermore, circulation can aspire to its reproduction only through subjects, exchange value and its most developed form in capital are posed as the absolute subject which assures itself and legitimates itself in the name of its own redistribution among subjects. This must be made more precise. I am discussing circulation and its ideology, and the concrete/ideological manifestation of capital in this sphere. It is in this perspective that I can propose that it matters little to circulation that capital, in its process, poses labour, this ‘real non-capital’,8 this use value which constitutes ‘the opposite and the complement of money in its character as capital’.9 What appears in this sphere and what is important to it is that capital, the value which develops itself, seems not only to

* In

, in Lenin and Philosophy, and translated by Ben Brewster, London, New Left Books 1971,

‘Ideology and Ideological State Apparatuses

Other Essays,

pp. 160f.

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Elements for a Marxist theory of law

valorise* itself but also to valorise its own process.10 In order to characterise this self-valorisation, Marx uses a metaphor which is not innocent. [Value] differentiates itself as original value from itself as surplus-value; as the father differentiates himself from himself qua the son, yet both are one and of one age : for only by the surplus-value of £10 does the £100 originally advanced become capital, and so soon as this takes place, so soon as the son, and by the son, the father, is begotten, so soon does their difference vanish, and they again become one, £110.11 God duplicates himself and sends his Son to the Earth, as a mere subject ‘ forsaken’ by him ... subject but subject, man but God, to do what prepares the way for the final redemption, the Resurrection of Christ. God thus needs to ‘ make himself a man, the subject needs to become a subject.12 The last judgment, where the subject returns to the heart of the subject, is the £110 sterling - the M of “the formula M-C-M’. The son of capital is surplus value contemplating itself in capital. It is the subject redoubling itself in subjects. The individuals, the agents of circulation, are the subjects that assure the functioning of the Subject. At this point, it is convenient to regroup these different statements in order to make the concrete /ideological base of my demonstration. 1 Bourgeois ideology idealises (pure ideas) the determinations of property (freedom and equality). As a result we can pose : (i) that society ( = ‘civil society’ as the totality of social relations) manifests the totality of the social process in its immanent laws ; (ii) that the members of this society are free and equal among themselves ; (iii) that all production is the production of a free subject; (iv) that the laws which allow the functioning of this society * The equivalent of the term engendrer in Marx, Capital (vol. I, Penguin, 1976 Appendix, p. 1060), is ‘to valorise’. The equivalent of the term autoengendrement in Marx, Grundnsse, ed. cit., p. 254, is ‘self-renewal’. In the interests of consistency I have translated these terms as ‘valorise’ and ‘self-valorisation’ respectively.

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(democracy) to be assured are the natural laws of freedom and equality, that is, the laws of a process which closes in on itself. 2 The law assures the forms of circulation and fixes circulation as a natural giver. As a result we can pose : (i) that the juridical interpellation of the individual, the agent of circulation (= member of‘civil society’), constitutes him as subject of property law, that is, as a person capable of buying and selling; (ii) that equivalent exchange between two subjects in laws is the fundamental juridical relation ; (iii) that all social production of man is the production of a subject in law; (iv) that the law manifests the ‘natural’ laws of freedom and equality as constraining, that is, therefore, it manifests the laws of a process which closes in on itself in the functioning of its categories. This list requires commentary. What I have tried to signify is the relation between bourgeois ideology in general and juridical ideology. Now, it appears that the ground on which they meet is none other than the ground of circulation, that is, the ground of the realisation of exchange value and of its determinations. If bourgeois ideology in general thinks the entirety of the social process through the notion ‘political and economic democracy’, which is only a rehash of the old notion of civil society, it is over this very notion that juridical ideology does battle. We now understand the whole value that the definition of the place of this notion can have in the itinerary of Marx himself. In the Preface to A Contribution to a Critique of Political Economy, Marx recalls his journey: my investigation led to the result that legal relations as well as forms of state are to be grasped neither from themselves nor from the so-called general development of the human mind, but rather have their roots in the material conditions of life, the sum total of which Hegel, following the example of the Englishmen and Frenchmen of the eighteenth century, combines under the name of‘civil society’, that, however, the anatomy of civil society is to be sought in political economy.13

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In The German Ideology Marx gave this definition : Civil society embraces the whole material intercourse of individuals within a definite stage of development of productive forces. It embraces the whole commercial and industrial life of a given stage and, in so far, transcends the state and nation, though, on the other hand again, it must assert itself in its external relations as nationality and internally must organise itself as state. The term ‘civil society’ ... emerged in the eighteenth century, when property relations had already extricated themselves from the ancient and medieval community. Civil society as such only develops with the bourgeoisie ; the social organisation evolving directly out of production and intercourse, which in all ages forms the basis of the state and of the rest of the idealistic superstructure has, however, always been designated by the same name.14 These two texts permit the specification of the notion of civil society which, contrary to first appearance, designates none other than the sphere of circulation. From The German Ideology onwards, Marx describes ‘civil society’ as an ideological notion. Indeed, on the one hand, the term ‘embraces the whole material intercourse of individuals within a definite state of development of productive forces’ ; on the other hand, it also covers ‘the social organisation evolving directly out of production and intercourse’. In other words, production and circulation are reunited under a single category. But, at the same time - and Marx takes account of this in the Preface to A Contribution to a Critique of Political Economy - this notion is a ‘progression’. The notion poses that juridical relations and the State take root ‘in the material conditions of life’. The notion of‘civil society’ is at once true and false. It is true in its cash-register conception of the social process but it is false to the extent that it reduces the social process to appearance, to circulation. Indeed, civil society is itself the surface of the relation of capital. To take the surface of the relation - civil society in its immanent laws - for the totality of the social (economic, juridical, political) process reduces to posing that civil society, as it ‘appears’, is the reality of the social process itself. The best illustration of this is still the ‘system of needs’ as developed by Hegel in his Phibsophy of Right.

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As an ideological notion which therefore claims to take account of the totality of the social process, ‘civil society’ constitutes the site of the meeting between bourgeois ideology in general and juridical ideology. But the site of this meeting is at the same time a site of transition. Indeed, all the categories which are the foundation of the notion of‘civil society’ - private property, subject, will, freedom, equality - are ‘specified’ by juridical ideology. The subject is specified as subject in law, production of the subject as production of a subject in law, and freedom and equality as freedom and equality of every subject in law. But, in the same moment this specification is a constraint. That means that if juridical ideology does nothing but specify bourgeois ideology ‘juridically’, this specification is in the same movement concretely realised by the constraint of the State apparatus. It is in this way that, by imposing the ‘juridical’ - as the real manifestation of juridical ideology - by constraint, the State apparatus imposes juridical ideology and it is in this way that juridical ideology justifies the constraint in turn. The regrouping of these statements permits the specification of the function of the law. By means of the constraint of the State apparatus, the law manifests really/ideologically the determinations of exchange value (property/freedom-equality). We call the real manifestation the juridical, the ideological manifestations juridical ideology, and the whole process the law. Now, what appeared in my juridical demonstration is that the ‘construction’ of a new object in law — the ‘real’ - is entirely effected in the predetermined categories of circulation; that the putting into juridical circulation of new industries - the photo¬ graphic and cinema industries - is produced in the deter¬ minations of value, that is, in the determinations of property; and that these determinations themselves have appeared as determinations of the subject in law. In a reciprocal way, the putting into circulation of the real through the necessary mediation of the subject in law constitutes the subject in law itself. As the condition and the result of the process of circulation, the subject in law has taken the very form of the process it has manifested. In taking this form the subject in law renders effective the process itself. It is in this way that all production (of the real) has appeared as production of a subject (the concept of ‘over-appropriation’)

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which is the embodiment of exchange value (subject form). And if the form of the subject in law, this commodity which sets itself in movement, which takes itself on to the market, this commodity in which the worker is fundamentally embodied, if this form of the subject in law is re-examined, it appears constituted as two poles: on the one hand, the subject pole (consent, will), and on the other hand, the object in law pole (itself qua commodity). The subject form, this abstract form which is produced really by circulation, like the value form of products: ‘therefore already contains in embryo the whole capitalist form of production’.15 For in the last analysis the worker is a specific entity taking himself on to the market, in a juridical form which allows him to sell himself in the name of freedom and equality. In this way the form realises property ‘on the ground’. For, from the moment that the individual is juridically constituted as subject of the process of exchange, he is free, because he possesses the products, and better, his labour power ‘in all propriety’ [propiété*] and because he can exchange them as he pleases. (‘In Roman law, the serous is therefore correctly defined as one who may not enter into exchange for the purpose of acquiring anything for himself ,..’16) Not only that, he is also the equal of every subject in law since a subject is the equal, socially, of another subject. The buyer becomes the seller and the seller the buyer, and this permutation is the very meaning of exchange. Out of the act of exchange itself, the individual, each one of them, is reflected in himself as its exclusive and dominant (determinant) subject. With that, then, the complete freedom of the individual is posited: voluntary transaction ; no force on either side ; positing of the self as means, or as serving, only as means, in order to posit the self as end in itself, as dominant and primary [iibergreifend\\ finally, the self-seeking interest which brings nothing of a higher order to realization.17 I have spent enough time on this, but I can add that the form of the subject in law, qua the most developed and the most abstract juridical form, develops the immanent laws of the Law. It is therefore possible for me now to expound my second thesis. * The play on the three meanings oï propriété- property, property qua characteristic, and propriety - can be only partially reproduced in English.

6 Law, circulation and production

Thesis II. By assuring and fixing the sphere of circulation as a natural given, the law makes production possible It now remains for me to demonstrate how the (juridical) fixing of the laws of circulation make production possible. In other words, what is the relation which holds between circulation and production in the process of capital ? A revolution has been produced in the capitalist relations. Labour power appears on the market as a specific commodity. Circulation is no longer the relatively autonomous region where individuals bring the surplus of their production on to the market. Rather it is the place where the capitalist in person comes to buy what will enable him to increase his capital, namely human labour. I want to make a few comments on this point.* The problem of the role of the law in a determinate mode of production relates to the relation circulation/production. Here is my explanation. Historically, exchange value first appeared only in the sphere of circulation, and to the extent that it does not become the real basis of production it appears as a relatively autonomous and relatively developed sphere. In other words, it appears ‘in advance’ of the relations of production. The law fixes the determinations of exchange value and so takes on a ‘relative autonomy’ in relation to the real basis of production. Here already is an explanation of the ‘miracle’ of Roman law: The various phases of simple circulation are developed in * The next eight paragraphs appeared in the original as Note 1.

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antiquity between more or less free men. This explains why in Rome and in particular in imperial Rome, the history of which is precisely that of the dissolution of the community in antiquity, it was possible to develop the determinations of the juridical person, the subject of the exchange process. That explains why there developed there the right of bourgeois society and why it had to be defended, especially against medieval society, as the right of the rising industrial society.1 This ‘advance’ of circulation permits the analysis both of the political philosophy of the sixteenth, seventeenth and eighteenth centuries and of the role played by the law in a determinate mode of production. Those philosophers of law postulate two natural presuppositions: on the one hand, that circulation is the total process, that is, that law fixes the total process, and on the other hand, that exchange is governed by the ‘natural laws’ of property, freedom and equality. These two presuppositions in the last instance reduce to one: ‘For the philosophers relationship - idea. They only know the relation of “Man” to himself and hence for them all real relations become ideas.’2 Indeed, it is because Roman law had already developed the determinations of the person, the juridical subject, that the rising bourgeoisie was able to take it over. But this ‘reprise’ of Roman law was necessarily accompanied by an ideology of the subject. Indeed, at the same time as the bourgeoisie were making use of it, the philosophers were asking the question of the ‘meaning’ of that use, and they answered that in all civilised eternity there had been private property, there had been contract, and there had been the subject in law. The reprise of the categories of Roman law theoretically justified the category of the subject which accordingly appeared as an eternal category. We see how the ideology of a necessary practice - the reprise of Roman law in its categories - is ‘transformed’ into the theoretical basis of this practice. The reprise of Roman law proves the status of the subject. We see too in respect of what Roman law was able to become the site of the theoretical justification of a necessary practice. Consider Hegel. He abstracts the essential determinations of the subject from the practice of Roman law and turns them back against Roman law. This turning back is worked from the point of

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view of the ‘ free will’, that is, the most abstract point of view of the subject. Against Kant, Hegel poses this fundamental principle: there is no jus reale and no jus personate \ there are only rights of the subject. For Hegel, Roman law became the nascent rationale of the subject which can always be overridden but which is always conserved, and which is perpetuated even into the State, that subject which relates the subject to itself. Legal practice becomes a pure idea, that is, the relation of the subject to the subject. The claim to prove the existence of the subject in the ‘absolute’ practice (the law, the political, the State) transforms that practice into ‘the relation of “Man” to himselF. The subject is proved by the practice of the subject. The process of exchange value therefore appears transfigured in the perenniality of its juridical forms - into the perenniality of the subject. The ‘advance’ of circulation is manifested, then, as the natural/eternal law of the subject. That brings me to the concrete/ideological role played by the law. Its principal role today relates, as I have said, to the relation circulation/production. In the process of capital, circulation is no more than an essential mediation. Marx states this repeatedly. Circulation is the appearance of the relation, the appearance of the total process. I am not saying, of course, that the law creates the path of the total process but that the process produces the law of its process. It is in this way that when it comes on the market labour is governed by the common law of contracts. The exchange between capital and labour at first presents itself to the mind in the same guise as the buying and selling of all other commodities. The buyer gives a certain sum of money, the seller an article of a nature different from money. The jurist’s consciousness recognises in this, at most a material difference, expressed in the juridically equivalent formulae: ‘Do ut des, do ut facias, facio ut des, facio ut facias’.3 And in the same chapter Marx shows how, to the exact extent that they take the form of the money relation, wages make ‘ the actual relation [between labour and capital] invisible, and, indeed, ... [shows] the direct opposite of that relation’.4 To the extent that exchange value has become the real basis of production, the law can play this primeval role of sanctioning the economic relations of the process itself. The role of the law in a

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determinate mode of production relates, therefore, to the relation circulation/production, that is, in the last instance to the relation between exchange value and the real basis of production. [To resume the question of the revolution in the capitalist relation,] circulation accordingly not only appears as the meeting place of capital and labour but has become the essential mediation of the reproduction of capital. This destroys the last vestiges of the illusion, so typical of the relationship when considered superficially, that in the circulation process, in the market-place, two equally matched commodity owners confront each other, and that they, like all other commodity owners, are distinguishable only by the material content of their goods ... Or in other words, the original relation remains intact, but survives only as the illusory reflection of the capitalist relation underlying it.5 Living labour is no more than the means of maintaining and increasing the objective labour and making it independent of him. This form of mediation is intrinsic to this mode of production. It perpetuates the relation between capital as the buyer and the worker as the seller of labour. It is a form, however, which can be distinguished only formally from other more direct forms of the enslavement of labour and the ownership of it as perpetuated by the owners of the means of production.6 In other words, as far as circulation is concerned, the process of capital has only brought it one more commodity, namely labour power, but this new commodity still makes no change to the laws of circulation. Here as before, what matters for circulation is the movement of exchange value, that is, the abstract movement of property. Circulation appears in no way affected, since for circulation it continues to be a question of establishing the relation between a buyer and a seller each of whom owns his commodity. The laws of commodity circulation can in this way make a claim to freedom and equality. What does it matter if the labourer is the owner only ol his labour power? He is the owner. What does it matter if he is obliged to sell it ? He is a buyer and a seller ... of the subsistence goods necessary for the reproduction of his labour

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power. What does it matter, finally, if this sale and purchase are the result of capital itself? It is freedom that is at stake. Circulation abolishes differences. Every subject in law is the equal of every other subject in law. If one contracts, it is because the other has wished to contract too. The ultimate cause of the contract is the very will to contract. The subject in law possesses himself as object in law. He therefore realises the most developed form of the subject, namely, self-ownership. He realises his freedom in the very power to sell himself that is accorded him. I have returned to my starting point, the form of the subject in law, but the return is now the richer. This most abstract category of the law can now reveal its truth - the putting into circulation of man. For us Marxists that means the putting into circulation of labour power. And that putting into circulation is made in the name of property and its determinations, freedom and equality. The contract will permit the exploitation of man by man in the name of these determinations. The contract is the mode of existence of the law, the means by which it exists. Need I repeat it ? The subject in law ‘allowed’ the ‘real’ itself to enter into exchange; it has ‘allowed’ the photographic and cinema industries to exploit artistic workers in the name of their very contracts; it has ‘allowed’ man to be the object of contracts. I can now reach a conclusion on this ground, that is, on the ground of the limits beyond which bourgeois theory of law will not go. This is the same limit as the limit which the category of the subject in law, as the most developed juridical form of property, marks out for itself. This limit is the closed field of private property where nothing but the process of private property ever takes place. Man’s appropriation of nature is an appropriation by a subject in law. So, in Hegel, the humanisation of nature necessarily takes place through the determinations of property. In this way, the totality of the form of the subject can state its determinations, and they will never be anything more than the realisation of private property. The starting point of bourgeois legal science is man, that is, man constituted as subject in law. The point of arrival of bourgeois legal science is immobile. The subject is left behind so as to permit the rediscovery of the subject. The method of exegesis is also like that. The law is left behind so as to permit its rediscovery. The teleology of the subject is the teleology of private

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property and that produces the teleology of the method. In the last instance, nothing ever takes place within the law, that is, nothing ever takes place outside the subject. The ‘other place’ (production) is abolished by the very form of the subject. And this abolition finds its perfect expression in legal technique. The word is that things are so that they shall be. So be it.

Conclusion Law, and ideological struggle

I do not want to end without posing the possibilities of ideological struggle here. When Engels tells us the ‘true history’ of equality, he writes as follows : The demand for equality in the mouth of the proletariat has therefore a double meaning. It is either - as was the case especially at the very start, for example in the Peasant War - the spontaneous reaction against the crying social inequalities, against the contrast between rich and poor, the feudal lords and their serfs, the surfeiters and the starving; as such it is simply an expression of the revolutionary instinct, and finds its justification in that, and in that only. Or, on the other hand, this demand has arisen as a reaction against the bourgeois demand for equality, drawing more or less correct and more farreaching demands from this bourgeois demand, and serving as an agitational means in order to stir up the workers against the capitalists with the aid of the capitalists’ own assertions ; and in this case it stands or falls with bourgeois equality itself. In both cases the real content of the proletarian demand for equality is the demand for the abolition of classes. Any demand for equality which goes beyond that, of necessity passes into absurdity.' And we must not forget that Engels is talking to us about equality with respect to the ‘moral’ inequality of Dühring. Now what exactly does Engels mean by ‘more or less correct and more far-reaching demands’ and, in particular, what does he mean by ‘the real content’ of the proletarian demand? In this text I see the relation between the ideological struggle and class struggle, the relation between the functioning of ideological struggle and class

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struggle, the meaning of the strategy which consists in taking the bourgeoisie at its word, that is, trapping it in its own ideology. For it is this ‘taking it at its word’ that will be ‘more far-reaching’ and that reveals the contradiction of bourgeois ideology. This taking it at its word - which is also a ‘calling to account’ had a meaning, a ‘real content’, an ‘other’ content which did not appear at first sight and which was lurking in the shadows, the abolition of classes. There was, then, in ideological struggle an explicit content and a latent content. There was, then, an explicit content which existed only through its latent content and which expressed it without being acquainted with it. Better, there was an explicit content - bourgeois ideology turning against itself, ‘ taken at its word’ - which was truly revolutionary only because this turning against itself was necessarily going further than a simple turning against itself, even if it still did not know it. And this knowledge in the midst of non-knowledge existed only because it derived from ‘the practical relations on which their class position is based from the economic relations in which they carry on production and exchange’.2 But in the same moment as Engels gives us the meaning of ideological struggle, he gives us the theory of it, its ‘real content’ : the abolition of classes. Every proletarian demand for the bourgeois idea of equality aims in the last instance at the abolition of classes. And it is here that I finally come to the failure of ‘bourgeois legal science’ and to the theory of the theoretical practice of the law. The law, turning against itself, delivers to us the contradictions of its practice and, conjointly, the limits of its ‘science’. In his study of the ‘history’ of classical bourgeois economy, Marx traces its double frontier: the ‘scientific’ frontier and the ‘ideological’ frontier. With respect to the first, Marx writes: In so far as Political Economy remains within [the bourgeois] horizon, in so far, i.e., as the capitalist régime is looked upon as the absolutely final form of social production, instead of as a passing historical phase of its evolution, Political Economy can remain a science only so long as the class-struggle is latent or manifests itself only in isolated and sporadic phenomena.3

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With respect to the second, he writes: In France and in England the bourgeoisie had conquered political power. Thenceforth, the class-struggle, practically as well as theoretically, took on more and more outspoken and threatening forms. It sounded the knell of scientific bourgeois economy. It was thenceforth no longer a question, whether this theorem or that was true, but whether it was useful to capital or harmful, expedient or inexpedient, politically dangerous or not. In place of disinterested inquirers, there were hired prize-fighters; in place of genuine scientific research, the bad conscience and the evil intent of apologetic.4 If bourgeois legal science fills the entire legal space, this political space is the space of class struggle. The law itself reproduces this space in the permanently troubled serenity of its categories. Bourgeois legal science has been a live thing, but with Kant and Hegel it is philosophically dead. Fvery day it is buried in the coffin of its practice, for ‘practice watches at the bedside of all ideologies, at the foot of their cradle and their coffin’.5 I want to finish on the lesson Brecht learned from his experience in the courts. By trying to defend our ‘rights’ in a real and quite precise matter, we have taken at its word a quite precise bourgeois ideology and we have allowed the bourgeois practice of the courts to catch it out. We have conducted a lawsuit by noisily making use of representations which are not our representations but which we had to suppose were the representations of the courts. It is in losing this lawsuit that we have discovered in these courts representations of a new type which are not in contradiction with bourgeois practice in general. They are in contradiction only with the old representations, precisely those representations the totality of which constitute the great classical bourgeois ideology.6 And he specifies that we must understand that the reference to classical bourgeois ideology is ‘ the ideological construction that is called man’.7 Theoretical practice gives us the very historicity of our combat. The critique of the ideological notions of the law carries within itself the death of bourgeois legal science. For the time which is to

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come and which proclaims itself today, militant intellectuals : real initiates, armed with the most authentic scientific and theoretical culture, forewarned of the crushing reality and manifold mechanisms of all forms of the ruling ideology and constantly on the watch for them, and able in their theoretical practice to borrow - against the stream of all ‘accepted truths’ the fertile paths opened up by Marx but bolted and barred by all the reigning prejudices armed with ‘an unshakable and lucid confidence in the working class’ and powerful ‘in direct participation in its struggles’8 must be in the front line, each in his domain, each in his discipline. They must denounce the poverty of the apologetics of the system that makes man a commodity whilst making him believe that he is free. Freedom is the price.

Appendices

Appendix 1 Notes on the functioning of juridical ideology: the election of Algerians to institutions of staff representation

If we pose that the law is not merely the stake but the site of class struggle,1 we are led to pose the following question. How are the political problems posed for law resolved by the law in its functioning? For if, on the one hand, the law is also the site of class struggle, its ideology, on the other hand, must make it unaware of the ground on which it is in action. The juridical expression of the relation between law and the political in this way necessarily implies the dialectic of this contradiction. We have set ourselves the task of elucidating the functioning of the juridico-political instance, that is, of determining the relation of the political and the juridical within this instance. We try to make this elucidation not abstract but concrete in the sense that we shall be analysing the ‘ups and downs’ of a ‘legal question’ which is currently before the courts. According to the terms of Article 7 of the Déclaration de principes des Accords d’Evian [henceforth the Evian agreements], ‘Algerian nationals residing in France, and in particular workers, shall have the same rights as French nationals with the exception of political rights.’ A number of Algerians stood as candidates in the elections to works committees [comités d’entreprise], and the courts were faced with the question of the juridical distinction between political rights and private (social) rights. If, for the State, political refers to participation in the State’s functioning, then, when this ideology is transmitted into juridical ideology, it is not only ‘worked’ through class struggle but is also incapable of resolving the political problems posed it other than in law. It is this contradiction in State ideology to which juridical ideology ‘worked’ in this way refers and which we would like to follow and pursue along the path of the ‘legal question’. In a ‘naive’ formulation of the kind given it by (orthodox)

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juridical doctrine and jurisprudence, the legal question finds no legal solution. In other words, even at the level of its own claims, ‘pure’ juridical reflection will be seen to be inadequate. We cannot know how or by virtue of what we could satisfactorily distinguish political rights and private (social) rights. This inadequacy refers to the question of its own inadequacy. The transition to theory becomes necessary. Only in the light of a real theory of the State will we be able to understand the meaning of this distinction. That is, the theory in which the dialectic of the secondary contradiction between State ideology and juridical ideology appears will permit the explication of the necessary functioning and meaning of juridical ideology itself. After that, we shall be able to advance the certain proposition that, for the State, political refers to participation in the State apparatus. Because the institutions of staff representation are clearly not a part of that apparatus in that they represent only private persons in private (private for the State) activity, it can be said that the rights exercised there are not political rights. We shall see that in the last instance it is a question of nothing less than the determination of the juridical status of labour in the juridico-political instance. In its ultimate formulation the legal question invites the following answer. The juridical expression of labour ( = eligibility to the institutions of staff representation) can be presented in law only under the juridical form of the exercise of occupational rights, and such rights are, in the considered opinion of juridical ideology itself, apolitical ‘by nature’. That is the functioning of the instance that we want to bring into play without losing sight of the extreme importance of the practical question that has to be resolved.

How doctrine and jurisprudence understand the distinction between polidcal rights and private rights (social rights) We said that Article 7 of the declaration of principles relating to economic and financial co-operation under the Evian agreements stipulates that Algerian nationals shall have the same rights as French nationals ‘with the exception of political rights’. This text raises two orders of difficulties arising out of disputes relating to

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the election of Algerians to works committees. The first relates to the juridical nature of the text and the second to the definition of the concept of‘political rights’. If the first issue calls for little commentary, the second makes up for it by requiring detailed analysis.

The juridical nature of the declaration of principles relating to economic and financial co-operation under the Evian agreements In so far as it has been possible to criticise the validity [valeur de traité] of the Evian agreements,* the present critique is no longer concerned with a current issue in that the question has been the subject of rulings in positive law. It will be enough to recall that the Evian agreements were concretised by the publication of eight governmental declarations and became valid, on the one hand, in consideration of the referendum law of 14January 19612 which by reference to Article 55 in the 1958 Constitution accorded Algerians the right to choose their political destiny on the basis of direct and universal suffrage, and, on the other hand, in the referendum in France on 8 April 1962, as in the self-determination poll in Algeria on 1 July 1962. From then on the ratification of the agreement was complete, and the particular procedure followed - governmental declarations approved both by the French and by the Algerians made it possible to say that the symmetry of those approvals conferred on them the status of international agreement.3 That was the position of the ministre des Affaires étrangères,4 the Conseil d’Etat, and the Cour de cassation.5! The juridical nature of the litigious declaration of principles accordingly seems to be posed no more.

The first instance of the distinction between political rights and (social) private rights Faced with the juridical distinction between political rights and *

See Jurisprudence, p. 126, below.

t The equivalents of the Foreign Office, a Council of State, and the Supreme Court of Appeal.

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private rights, doctrine will in some way or other empty it of all meaning whilst transmitting, in a pure and simple way, a distinction within itself. Now the transmission of a distinction of this type explains why it cannot be legitimated. Indeed, if we refuse to allow the possibility of this distinction having to be referred to the question of its meaning and its reality - for only such a referral would permit the ‘discovery’ of the concept presiding over this distinction and only such a referral would be sufficiently operative to take account of its legal nature we are led to pose that to analyse the distinction as a distinction within itself amounts to making the terms of the distinction indeterminate. In other words, it will be possible to say without discrimination that a right is political or social (private). This ‘competency’ is an obstacle to the finding of a legal solution to the problem and correlatively reveals the contradiction of juridical ideology’s being able to solve the political problems posed it only in law. In this way it permits the founding of an opposing of political rights to social rights, the immediate declaration of that opposition’s fallaciousness, and, in the final count, it permits a ‘divide and rule’. On the basis of that, the practical (juridical) consequences that can be drawn are the following. In one way or another, all opposition between these two rights is arbitrary. None the less, the law demands a distinction which henceforth can only be arbitrary. That permits the determination of the content of each of these rights in a contingent manner. Going still further, it would not be impossible for us to be abandoned to the political instance in the name (/juridical technicality itself. Such a solution would be only the ‘possible’ conclusion of a legal game elaborated on the basis of a law which ‘cannot’ acknowledge itself as political.

The public and the private in orthodox doctrine First let us say that this analysis claims only to give a broad theoretical outline of the manner in which the problem has been thought. Let us add that the unity of this doctrine consists in not wishing to pose the problem in ideological terms - in the name of a spontaneous ideology.

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The doctrine of political science For Freund: on the one hand there is the economic and on the other there is the political, and these two essences sustain between themselves dialectical relations of an antinomic order which constitute the social question in its proper meaning.6 Without entering into the controversy, we can already ask how ‘a dialectic of an antinomic order’ can be installed, when the dialectic implies a contradiction which is transcendent! Weber tried to discover criteria which would legitimate these two sorts of right. According to him, public right is ‘the totality of norms which regulate activity relating to the State Institution’ and which suffer the intervention of the hierarchy of command and obedience. In contrast: ‘private right is the [totality of] norms regulating all activity other than that of the State and under which all parties are juridically on an equal footing.’7 In other words, the description is wholly descriptive without its being taken to have a meaning other than the one given it descriptively. For Burdeau, there exists between political and social rights ‘no principle of logical distinction, nor material criterion capable of dividing their field of application.8 Finally, Vedel specifies that for him the term ‘social’ tells us nothing at the etymological level, for if ‘social’ means what relates to ‘society’, social should be the counterpart of‘individual’ and not of‘political’ or ‘economic’.9 But it is Kelsen in his positivist rigour who has shown most clearly the unity of public right and private right and in so doing shown the reality of a juridico-political instance. According to him, the State is nothing but a juridical order, though not the entire juridical order, and the effectivity of the State consists in making effective the entire juridical order. Hence the relative signification of the oppositions public right/private right, political right/private right.10 And he specifies further: The differentiation in principle between a public (or political) and a private (or unpolitical) legal sphere is designed to prevent the recognition that the ‘ private’ right created by the legal transaction of a contract is just as much the theater of the political dominion as the public law created by legislation and administration.11

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But Kelsen gives no precise legitimation of the functioning of the distinction, nor, as a result, of its necessity, its meaning. In short, none of these authors takes account of the reality of the dialectic which is installed between the political and the social (the private), nor, consequently, of the political necessity of their opposition. Juridical doctrine The position of juridical doctrine is fundamentally similar. So, when Lyon-Caen writes: ‘it is equally the case that labour law is not justifiable on the basis of the distinction between private right and public right. It develops apart from that distinction. It is entirely dominated by the reality of the masses’12 he is thereby denying the reality of political ideology and he gives no legitimation for the distinction either. And when the same author considers that the distinction between trade union activity and political activity is ‘metaphysical’, he is effectively failing to recognise the reality of ideological struggle and of the law which is its expression.13 Savatier attempted to place this distinction in a philosophicojuridical context. This author begins with the statement of the ‘publicisation’ of private right.14 For him, State intervention raises the issue of freedom, the determinations of which are none other than the fundamental institutions: family, property, contract, civil liability. It is in this way that public right - the domain of the command and the imperative - is opposed to private right - the domain of free consent - as spirit is opposed to matter.15 When all is said and done, that evolution is none other than ‘the translation on to the juridical front of a veritable reversal of politico-juridical values, to be more precise, of the conception society/individuals’.16 In this way, we see a transition from the reign of society for man to the reign of man for society. The ‘juridical’ critique of that type of conception,17 is no longer of concern to us but what is of particular interest here is the conclusion that can be drawn from it with regard to the respective determination of the content of public right and private right. Indeed, the divergence between this thesis and reality is : so great that in the end we have no idea which concrete objects the author is including under the two terms, public right and

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private right, and as a result we have no idea which objects exactly come under the propositions he states.18 In the last instance, contingency reigns with regard to the determination of the respective content of these two rights.19 As for Eisenmann, he develops a positivist theory of the distinction, and this allies him with Kelsen. We propose to analyse it at length because it is interesting under two heads : first, with respect to the positivist critique which can be formulated and, second, with respect to the limits of positivism itself. In the subject matter, we must begin with two facts: first, the fact that the classification public right/private right designates ‘first the totalities of “branches”, systems of rules and disciplines’ ; second, the fact that we are dealing with a ‘traditional division’ in which we know ‘to the greatest extent the concrete content assigned to this or that notion according to traditional ideas’.20 In other words, the classification presents ‘an essentially practical character: it is a division of objects of study or of teaching’21 and its justification rests on the evidence of the classification itself.22 Two conclusions must be drawn from this analysis. In the first place, a political definition of these two rights cannot be given, because that would be a tantamount to saying that ‘ the right of the State’ and ‘ the right of the individual’ have ends, tendencies, and their own political ideas, all inherent in their essence, tantamount to saying that there is a spirit, a genius of public right, and a spirit, a genius of private right, which are distinct and even opposed.23 In the second place, it is necessary to discard the radically false idea that State intervention, ‘the governing apparatus in its totality, that is, in anyone of its elements’24 is the creator of public right. This formula certainly does not hold for legislative intervention, nor for contentious jurisdictional intervention; neither the Statelegislative nor the State-judiciary as such create a public right, that is create only public right.25 There is not, therefore, a public right and a private right but rather there are public rights and private rights which, far from

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being characterised by ‘a determinate political content’, belong ‘to a plurality of regulations governing relations between the State and private individuals and relations between private individuals’. In other words, these rights ‘are equally public rights or private rights, by the same standard and to the same degree’.26 Indeed, at a fundamental level, the distinction between the two categories of regulations cannot concern the rules of sanctioning law, ‘since the State, possessing in a word the monopoly of sanctions and especially of constraint, is always and everywhere present in private right which, in this sense, always has the character of public right’.27 By regrouping these two theses - the impossibility of a political definition and the fundamental singleness [unicité] of public and private right - Eisenmann constructs the following alternative. Either the conception of a traditional distinction must be given up, or any theory which ‘claims to assign determinate institutions or rules to public right or to private right outside that classical conception’28 must be given up. Now, since we cannot reasonably choose against reality, we must return to the classical theory which is as simple as can be. ‘Rules relating to relations between private individuals’ will be grouped under the heading of private right, and ‘rules establishing the state or governing apparatus and defining relations within it, that is, defining the agents or organs comprising it and the members of the collectivity’29 will be grouped under the heading of public right. The theoretical foundation of this thesis is that in the last instance we are in the presence of a single law, a subject, which governs subjects in a specific manner, in the light of their determinate qualities. Indeed, for Eisenmann, the fundamental juridical relation is the relation between ‘pairs of subjects’. The rule governing relations between private individual subjects will be a rule of private right; the rule ‘ governing relations between two subjects, of which one is not a private individual’30 will be a rule of public right. In other words, it can be argued that ‘the prime-criterion is a quality in the relation governed, a quality which concerns the subjects’.31 The result is that on the one hand no exclusion can be decided, since a rule may well be both a rule of public right and of private right, and on the other hand, as a consequence, the idea of an original public right must be rejected, since the qualification of

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public and private right ‘depends uniquely on who are the subjects at the time in question’.32 On this positive basis the problem of the distinction between public and private right is reduced to its most simple expression. It will be a question of using a single criterion for purposes of formulating a coherent system of comparison between the two domains, or, to put it another way, constructing statements of relations. It is in this way that the relation between these rules can be qualitative. This is to say that we shall study their qualitative ‘objective content’33 in the sense that we shall study the rules’ domain of application,34 taking account of the fact that we must envisage the variations in the qualitative relation35 just as much as in the quantitative relation.36 This in broad outline is Eisenmann’s thesis. It can be seen as a ‘model’ of positivism. In the first place, we must take cognisance of the fact that, in a definitive manner, Eisenmann gives a critique of the thesis of two essentially different rules. In other words, he pose it as a ‘fact’ that our society is governed by a law. This recourse to a juridical unity37 is further characterised by the presence of the State which has the monopoly of sanction and constraint and which ‘ in this sense [ ?] always has the character of public right’.38 What could be the result of this if not that the State is the guarantor, and hence the condition, both of the unity of the law and of its distinction into public and private right? But, to be precise, Eisenmann refuses to analyse the nature of the State. Better, the manner in which he envisages the State’s role does not allow him to study it as such. Indeed, having posed that the State does not create public right but is creator of right,39 he maintains that in certain respects the State possesses in its own regard the character of public right.40 That means that in the last analysis the State does not create public right but is fundamentally of public right at the same time as guaranteeing the very functioning of right, both public and private. It is of public right ‘fundamentally’ in that it has the monopoly of sanction and constraint, that is with respect to the application of the rule of law which will therefore always be public? More precisely, by posing that the State is of public right, that is, that it is in the right, and therefore that there is a right of the

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State as such, it is impossible to pose that the State is at the same time the condition of right. Eisenmann, moreover, is aware of this. (With respect to these points, we must note in passing that the jurisprudence of ‘governmental acts’ is such that the State is ‘above’ the law in certain circumstances.) The above contradiction can be taken up again by posing a different question. How can there be a right of the State when the State has the monopoly of the functioning of the law, the monopoly of sanction and constraint? Or again, if the State is said to be of the public right ‘in this respect’ - sanction and constraint - then every rule of law is of public right, and that makes ‘redundant’ the ‘real’ distinction between public right and private right. In other words, in characterising in law the State monopoly of sanction and constraint, that is, by making it of public right, Eisenmann weakens every real distinction between public right and private right, however convenient and traditional, for want of relying on a theory which takes the State to be ‘above’ the law. It is in this way that this author can say quite evenly: ‘Quite simply, and in accordance with the plainest of good sense, we must maintain that every rule governing the State is a rule of public right even though at the same time it may govern relations of private right.’41 Now this unresolved contradiction implies a non-scientific conception of politics and in the last analysis reduces to an ideology of the subject. Indeed, for Eisenmann the proof of the impossibility of a political analysis of the distinction seems to him to be the failure of every political conception to take account of it. This is the failure of Savatier’s position, that is, the failure of an ideology which is allied in the last resort to a sort of natural right. Starting from that, Eisenmann extrapolates to the point of stating that ‘the description and interpretation of the facts’ must not be ‘confused with his personal “table of values” \42 Taking this further, he states that to give a political definition of these two rights amounts to deeming them antagonistic and thereby breaking the unity of the law. On the one hand, this theory is the very negation of the reality of all ideology, whether or not the ideology of natural law, in so far as it cannot explain the meaning of ideologies’ existence, and, on

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the other hand, the theory itself calls attention to the political inherent in all positivism, in so far as it reduces all the political to a value judgment and in a more precise way denies all relation between the political and the functioning of juridical ideology.43 In the last instance the theoretical possibility is posed of making the law a ‘pure object’ of study, and that study not only finds in itself nothing more than the justification of what is by reference to what is, but also is incapable of taking account of reality.44 This positivism rests on a general philosophy of the subject and is therefore contradicted by historical reality, that is, by the reality of class struggle. Indeed, for Eisenmann, since the law is understood only as a system of relations between subjects, according to the nature of the subject - whether it is private or public - the rule will be either of private right or of public right. In this way, juridical ideology implies in its functioning that everything must take place in the relations of subjects and that a legal relation is none other than a relation between a ‘couple of subjects’. From then on it is appropriate to qualify the members of the couple as private or public so that in consequence we may be in the presence of a rule of public right or of a rule of private right, the second of which is more generally the rule of law, that is, the relation between the law and subjects in law. In other words, it is the existence of a subject (which is what makes the law, that is, the State) that gives coherence and unity to the rule of law, the rule of law having no existence other than through the mediation of subjects in law. Everything takes place as if the State, which has the monopoly of the rule of law, distributed the rule of law to its subjects or to public or private persons - and one must admire that term - in an abstract and eternal juridical space. And, to be precise, it is the spatial position of these subjects that leads to their being qualified as public or private persons. With the State having been made subject, it is pointless - and impossible - to examine its nature because, on one hand, it provides its own justification and, on the other hand, it is ‘creator’ of every rule and ‘creator’ of all eternity. The nature of the State is the nature of the law. The category of the subject that Eisenmann arrives at in the

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name of his ‘realist’ positivism ends up in metaphysics, just like historicism. To justify what is by reference to what is is to give to what is in time a transcendental value in the powerlessness of taking account of the dialectic of what is. Concretely, the result is that for us Eisenmann’s distinctions are no help. Indeed, his system of comparison implies that we are already in the presence of constituted subjects - of‘always-already subjects’, to use one of Althusser’s expressions45 - whether public subjects in law or private subjects in law. But, to be precise, that category is no use to us, since we are enquiring not into whether the institutions of staff representation are or are not public or private persons - for on the evidence they are not public persons in that the State as such does not create them - but into whether there is ‘of the public in them, so that they might be considered public in one way or another. In other words, as soon as reality poses questions for us, the category of the subject shatters and is no more than an empty form. In short, Eisenmann’s thesis cannot be applied to situations which are the very negation of reality.46 In the last analysis, it is by substituting a metaphysical theory of a State subject in law for a real theory of the State that Eisenmann ‘misses the mark’ of the reality of the dialectic public right/private right, and misses the reality of the functioning and meaning of juridical ideology by an even greater margin. Doctrine in its totality must therefore admit its inadequacy. But, as we have said, the law requires this distinction for its (good) functioning. And we added that the temptation to hand ourselves over to an arbiter of this distinction is very strong. Jurisprudence is aware of these waverings, as is the political instance, and it takes account of them through the voice of authority of the ministres des Affaires étrangères and the ministres des Affaires sociales.

The public and the private and the juridico-political instance

Jurisprudence Faced with the texts, jurisprudence has been unable to turn up its nose at the legal distinction. It is a matter of law and evidence that, if it is proper not to make a distinction where the body of law does

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not make one, then a fortiori it is proper to make a distinction where the body of law makes one, assuming juridical technique is not to be made a dead letter. The courts are divided. Some avoid making any judgments by adopting the fundamental strategy of quite simply refusing to accord legislative validity to Article 7 under Title II of the declaration of principle of 19 March 1962.47 In contrast, an entire jurisprudence has developed on the real activity of the works committees and as a result defines the nature of the rights which workers can exercise on those committees. It is in this mode that one court has ruled that the activity of the works committees ‘ is essentially economic and social and that they therefore participate in the management of no more than a private service, namely the service of a private enterprise’.48 Another court deemed that eligibility to works committees constitutes: an occupational, social and non-political right, to the extent that the committees have as their aim co-operation with management in the improvement of staff work and living conditions, control of the management of social works, and liaison between workers and economic management.49 There can hardly be more imprecision. It is not clear why, in fact, an ‘essentially’ economic and social activity should imply the management of a private service, when no criterion is given for distinguishing the economic from the social, nor the social and the economic from the political. Neither is it clear, in particular, why liaison between workers and economic management should in itself constitute an occupational right. More importantly, and at a level above the conceptual imprecision, the conceptions of these courts relate to a position according to which in the enterprise the activity of the workers is occupational, without our having been given a definition of what is political.

The political instance The position of the political instance is quite different. If the administration first considered that Article 7 of the declaration of principles meant that Algerian workers retained the same rights as French workers in the matter of elections and eligibility in the

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election of staff delegates and members of works committees, it must be said that it thought better of it pretty quickly.50 A ‘confidential’ circular dated 2 December 1966 was issued by the ministre des Affaires sociales with the approval of the ministre des Affaires étrangères. It stated quite openly that Algerian workers could be elected as staff delegates but that they could not claim eligibility either for works committees or as union representatives. Most opportunely a ministerial despatch turned up to pose the ‘theoretical’ bases of this at first sight surprising distinction with its institution of a different regime within the various institutions of staff representation. The ministre des Affaires étrangères said that : This text must be interpreted as prescribing the assimilation of Algerian nationals with French nationals with respect to the enjoyment of all private rights, but not with respect to rights of a political character. This last expression must be understood in a wide sense : it embraces the enjoyment and exercise of all civic rights and in a general way the exercise of all functions which either by their nature or their purpose comprise participation in the management of a public or assimilated service.51 We must pay our respects to this administrative battle of words. To say first of all that political rights embrace civic rights merely attests to the Greco-Latin origin of our language. To say that rights having a political character must, in the case in point, be widely interpreted merely relates to what we were saying earlier in connection with the interdetermination of the content of these two rights. Furthermore, according to the ministre, the sphere of the exercise of all participatory functions in the exercise of a public or assimilated service is ‘wider’ than that of civic rights. Why and by virtue of what is participation in such sendees political? This is total conceptual imprecision. Nevertheless, and although the transition from the concept of management of a public service to the concept of the political is not elaborated, the position of the political instance has a certain truth in it: the conjunction of the management of administration in the wide sense - and we might say the management of the State - and the exercise of political rights. But on any hypothesis not only are the concepts put forward imprecise but also, and as a result, they do not permit the

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resolution of the question that has been posed. We cannot know how and in the name of what we might be able to distinguish political rights from social (private) rights. Juridical technique and the political instance As we have stated, the law can be abandoned to the political instance in the name of the law itself. Indeed, in the terms of an unchanging jurisprudence, if the jurisdictions are in no way tied by the administrative doctrine but retain sovereign power of interpretation with regard to legislative or statutory texts subject to their own jurisdiction52 things will be different when the question of interpretation raised concerns a treaty or an international agreement or when the question raised has a bearing on the international public order. On this hypothesis, the courts must declare themselves incompetent and refer themselves to the official interpretation of the ministre des Affaires étrangères.53 In contrast, the courts are recognised as competent in the judicial order in pronouncing on the interpretation of a treaty when the dispute to which the treaty gives rise involves private interests.54 So, the Cour de cassation deemed in recent decisions that a cour d’appel ‘could, without going beyond its competence, base its judgment on the governmental declaration of 19 March 1962 [relating to the indemnification of repatriated Algerians] the application of which, in the event of that dispute, raised no question of national public right.’55 It can be seen that the distinction political rights/private rights is therefore to be found in another instance, the instance of the distinction international public right/domestic right. Let us note here only that in the name of its own rules the law declines its competence in order to be referred to the State, the sole judge of matters relating to international public right. Now it goes without saying that if the Cour de cassation - which has not yet given a ruling on the matter of interest to us - were referred to the political instance, that would mean that the distinction political rights/private rights would be a question with a bearing on the international public order. Better, through the bias of these jurisprudential rules, the political instance, the State, would come to be given the power of deciding in domestic law both what is private and what is not. On such a hypothesis, it

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would appear that an important part of the law - and in particular labour law - would escape the technique of the law, the technique which was protective when acquired by force.56 At the end of this ‘concrete’ analysis we still do not know how and in the name of what we might be able to distinguish political rights and private rights. This inadequacy relates to the inadequacy of the distinction. The transition to theory is now necessary.

The dialectic of law and the political in the juridicopolitical instance As we have stated, the question of the distinction political rights/ private rights must relate to the question of the meaning and reality of such a distinction. The distinction between the public and the private is a distinction internal to bourgeois law, and valid in the (subordinate) domains in which bourgeois law exercises its ‘authority’. The domain of the State escapes it because the latter is ‘above the law’ : the State, which is the State of the ruling class, is neither public nor private ; on the contrary, it is the precondition for any distinction between public and private.57 We can therefore formulate two theses. On the one hand, the distinction political rights/private rights is a political distinction to the extent that it presupposes the existence of a State which is the expression of the dominant class. On the other hand, the law transmits this distinction through and ‘under’ an ideology, juridical ideology, and as a result the law must ‘resolve in law’ the distinction political rights/private rights. But these two theses must themselves be clarified by the dialectic of political ideology and juridical ideology. On the one hand, the State considers participation in its functioning to be political. On the other hand, the law is the site and the stake of class struggle. So if, on the one hand, the law transmits the distinctions of the state (class distinctions), then, on the other hand, class struggle is registered within the law. The result is that there is gradually constituted a law (labour law, for example,) which will be able to ‘embarrass’ political power whilst

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returning to it the class struggle inscribed there. The result is also that the law appears as the ‘protector’ of workers, for example against political power. And it is significant to note that jurists present the law as ‘protecting’ workers when, to be more precise, it is the workers who have created their law. Finally, the result is that a hiatus is established between State ideology and juridical ideology. The protection of (labour) law is none other than the registered, codified and formalised victories of the working class. In its very functioning (juridical technique), it is opposed to the political power seeking to contradict it.58 It seems to us that this dialectic takes account of the concrete problem of the elections of Algerian workers to works committees to the extent that, in a precise way, the sway of the political is itself brought into question. What could be more alien to the political instance than to say that an occupational election is political ? What could be more revealing than the resistance of the law to this ‘abuse’ ?

The State, condition of the distinction political right/private right We have to find in law a criterion which permits the ‘demarcation’ of what counts as political right and what counts as private right. We have posed that this distinction is internal to bourgeois law and presupposes the existence of a State as expression of the dominant class. The result is that the analysis to be undertaken is the analysis of the ideological necessity of such a distinction. This analysis will accordingly permit an understanding of the functioning of juridical ideology itself. And it cannot be said that juridical ideology ‘does not know’ its own foundation, that is, what legitimates it in the last analysis. Whatever the strengths of the juridical ideology which is posed a political problem, it cannot resolve that problem in law. That is its own logic, as we have shown above. For Marxists : The State is, therefore, by no means a power forced on society from without; just as little is it ‘the reality of the ethical idea’, ‘the image and reality of reason’, as Hegel maintains. Rather, it is a product of society at a certain stage of development.59 And Lenin comments :

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The state is the product and the manifestation of the irreconcilability of class anatagonisms. The state arises when, where and to the extent that class antagonisms objectively cannot by reconciled. And, conversely, the existence of the state proves that class antagonisms are irreconcilable.60 This constitution of the State provides the distinction between the public and the private, and that distinction refers to the distinction political right/private right. Dominance in fact takes on the distinct juridic character of publicity with the appearance —side by side with it, and independently of it-of relationships associated with acts of barter [Pacte d’échange]', that is to say of private relationships par excellence. Coming forward as guarantor of these relationships, authority becomes social authority, public authority - authority pursuing the impersonal interest of order.61 Only participation in this ‘ power’ can therefore be thought as political, in that it claims in a precise way to manage the totality of the society. All other participation will be only social, occupational, economic ... but it will in no case be political. In other words, the very ideology of the State leads the State to think that only participation in its own functioning is political and to declare participation elsewhere apolitical. This ‘apoliticism’ which, if admitted to be political, would bring the State into question again - a political strike is accordingly outside the law - is the very guarantee of an order which would see itself as impersonal. But, in addition, this State ideology is transmitted by the other ideological instances (religious, educational, trade union, and cultural instances ...) which, as we have said, present the characteristics of being, as well, the site of class struggle. It is in this way that we can once again bring Althusser’s theses into our account, namely, his distinction between State apparatus (government, administration, police, courts, prisons) which ‘functions “by violence’’ ’ and the ideological State apparatuses which function ‘by ideology' the larger part of which are part of private society.62 The distinction between political rights and private rights therefore rests in the last instance on the distinction between State

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apparatus and private society, and that distinction is itself the site of ideological struggle. In other words, for the State all participation in its management (State apparatus) is political and everything outside that management, that is, the domain of economic exchanges expressed in juridical language, escapes the qualification political. In addition, since the State retains political power, it is itself outside the law, in the site ruled by the State rationale [raison] ‘which does not permit of juridical interpretation’.63 It is this that permits the State to be the ‘guarantor’ of the law. The State is accordingly necessarily led to operate the distinction between the public and the private, a distinction which is transmitted in the law where it is ‘worked’ through class struggle. This distinction, moreover, is taken up by our Civil Code, Article 7 of which provides that ‘the exercise of civil rights is independent of the exercise of political rights, which are acquired in conformity with the constitutional and electoral laws’.64 As for Article 2 of the same Code, it decrees that ‘in France the foreigner will enjoy the same civil rights as those which are or will be accorded to the French by the treaties of the nation to which the foreigner belongs’. The conception of the Civil Code, that is, the conception of the beginning of the eighteenth century, reflects a ‘naive’ ideology in that political rights are thought of only in terms of political participation in the State. (This formal criterion is based on a legislative ‘source’, constitutional and electoral laws.) But in a precise way this conception of the Civil Code has been differently thought when account is taken of the actual evolution of capitalism. It is in this way that we see a ‘privatisation’ of the State, and that, after all, is nothing but the expression of the very nature of the State.65 To take just the example of the public service, it has been observed that: technocratic neo-capitalism goes to the end of the logic of the system, to the ‘American’ conception according to which the public service is in the end nothing but an enterprise like any other, subject to the law of the market, of profitability and of profit.66 As soon as the State apparatus is ‘privatised’, we see an ever sharper contradiction between an apparatus claiming to be the

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sole political being and which none the less is transmitted into the private - by definition ‘apolitical’ for that being. It is this in particular that makes even more ineffective the notion of public subject in law or private subject in law, since the very nature of the State weakens this category.67 The result is that the distinction political rights/private rights is a political distinction which is transmitted in the juridical ideology in which, for the good functioning of the law, it loses its political character. It now remains for us to study the functioning of this ideology which consists in the more or less formal depoliticisation of problems and in their regulation in Law.

The functioning of juridical ideology : the necessity of the resolution in law of the distinction political rights /private rights Taking account of the relation between State ideology and juridical ideology, the law, in an incessant movement, ‘neutralises’ the class struggle of which it is the centre, in the sense that it must be apolitical. This neutralisation - which is the very functioning of the law - explains how the law functions ‘through formalisation’, the most abstract formalisation to the extent that capitalism is the most abstract formulation of property. Now this formalisation implies that the law engages in reasoning only concerning the law and that on any hypothesis every juridical distinction is the preliminary to its functioning. In other words, in order to function, the law must be its own peculiar motor, and it is the meaning of a legal criterion that it should provide its own warrants.68 The result is that the law must be taken seriously, that is, its functioning must be accepted, not only for what it gives but also for what it is, that is, in the last instance, the site and the stake of class struggle.69 It is in this way that by posing the distinction between political rights and private rights the law is in the end doing none other than taking account of an ideology which means that the law can in a precise way pose that distinction.70 In other words, the very necessity of posing the distinction in law stems from the ideological necessity of posing it as such. In the last analysis, our juridical ideology must in its very

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functioning necessarily lead to the political question of the legal distinction political rights/private rights being resolved exclusively in law, that is, in an ‘apolitical’ way. Futhermore, this distinction can rest only on the Marxist analysis of the State. The concrete question of knowing if the elections to works committees and more generally to institutions of staff representation are or are not elections of a political character is reduced to the question of knowing whether the institutions of staff representation are or are not part of the State apparatus, a question which the law must resolve for itself.

The juridico-political status of the institutions of staff representation In considering that the institutions of staff representation are not political but strictly occupational, the law, as we have said, is transmitting the ideology of the State. But since, furthermore, this law is the expression of real class relations and ex hypothesi finds its destination in the enterprise, the enterprise appears at once the site of political neutrality and the site where this neutrality is politically brought into question - the ‘political’ strike. That means that workers’ action can, qua workers’ action, develop political claims within the enterprise. We therefore see the elaboration of a concept of the enterprise as ‘strangely’ crucified. On the one hand, what goes on, class struggle, is occupational, apolitical and, on the other hand, what goes on can be only occupational, short of becoming political and hence illegal. If we take the law according to its letter, we have to say that the law obliges us to consider whether the elections to the institutions of staff representation are occupational. This will be revealed to us by positive law. But, that said, there remains the fundamental question to be posed: what will positive law prove really? Now, to be precise, positive law does none other than take account of the process according to which, on the one hand, class struggle is developed and, on the other hand, it is perpetually neutralised. It is in this way that in the last analysis the distinction political rights/private rights refers to the reality of that process. The enterprise, which is the site of just this process, will

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therefore condition both the level of representativity [:représentativité] of the institutions of staff representation and their mission. Starting with that, we can pose a political equivalence of the institutions of staff representation as much at the national level as at the European level.

The level of representativity of the institutions of staff representation We cannot spend long on this point. Article 1 of the law of 16 April 1946 decrees that ‘staff delegates be instituted in all industrial, commercial and agricultural ... establishments regularly employing more than 10 wage-earners’. Article 1 of the ordinance of 22 February 1945 institutes works committees in the same establishments when they regularly employ 50 wageearners. Article 2 of the law of 27 December 1968 institutes a plant section of the enterprise in all enterprises regularly employing at least 50 wage-earners.71 The fact that the enterprise conditions the level of representativity in this way creates a problem, then, only with respect to the actual concept of enterprise. Now in a precise way the State apparatus tends to become privatised or, if you like, to be ‘commercialised’, to use the heavily meaningful expression of ‘public service of an industrial or commercial character’. This also explains, moreover, the reaction of the political instance to the elections of Algerians to the works committees of similar establishments. The dominant doctrine and the juridical and administrative courts tend, indeed, to consider that the industrial and commercial public services can be seen as applying Article 1 of the ordinance of 22 February 1945. In other words, in this respect they are assimilated into private enterprises.72 This is to say that at this level we find the contradiction between State ideology and juridical ideology to the exact extent of the extension of the concept of enterprise.

The mission of the institutions of staff representation The level of representativity, the enterprise, then, must condition

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the content of representation in a formal way. Indeed, all jurisprudential effort consists in containing the mission of the institutions of staff representation within the occupational limits of the enterprise. But in a precise way the occupational context of the enterprise is constantly brought into question by the very practice of the class struggle. That is because, if the exploited class finds the means of self-expression in the ideological apparatuses, they are swamped by the class struggle. And that is because the class struggle has its roots elsewhere, in the place other than in ideology, namely, in the infrastructure which constitutes the basis of class relations.73 In the very description of positive law, then, we see a confrontation between the functioning of juridical ideology and the practice of the class struggle. So, as far as the staff delegates are concerned - their essential mission being to be the spokesmen for staff in the presence of the employer, the Labour Inspectorate and the works committee - a whole jurisprudence has been formed which tends to enclose them within the framework of the enterprise understood ideologically as neutral, apolitical, ground. The result is that if the staff delegates can in principle absent themselves from the enterprise,74 and if the employer opposes that, and if the employer can be convicted for impeding the staff delegates’ functions,75 then there must still be a connection between the delegates’ absence and their functions. This connection is the strict measure of the occupational and the political, that is, in the end, the strict measure of labour seen as use value and of labour seen as value the production of surplus value.76 What is occupational is that which has a relation to labour qua the (qualitative) production of value and hence to the enterprise as the place of production of value, that is, the place of the subordination of labour to capital.77 As soon as workers seek to make the connection between the subordination of labour to capital and the political which is its expression, the courts state that this relation is political. It is in this way in particular that staff representatives can make contact with union organisations only if the agenda is sufficiently precise and detailed to justify their presence.78 It is in this way, again, that communications with staff can have only an occupational79 and not a political character,80 and that if the employer cannot check those communications beforehand - for

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that would constitute the offence of impeding staff delegates’ functions81 — the refusal of a delegate to take a political communication from the noticeboards can constitute damages with respect to the employer and justify the judicial termination of the labour contract.82 As for the plant section of the enterprise, to the extent that according to the terms of the law it takes on itself the representation of occupational interests, it is sufficient for the delegates to step outside this occupational domain, as we have defined it, for them to be penalised. Under these conditions it was possible for a notice in which a union belonging to the Confédération Générale du Travail took a position on the presidential campaign to be judged illicit and its removal ordered.83 It is therefore possible to understand how the technique of the attribution of civil personality to works committees could be seen to be ‘neutralised’ by the principle of controlling the allocation of their patrimony. Civil personality is accorded them only for specific purposes, and their patrimony and their juridical capacity alike are destined only to facilitate the strict accomplishment of their occupational mission. Hence the existence of judicial control of the allocation of funds;84 hence the position of the Cour de cassation that considered that a works committee was abusing the funds entrusted to it if it used them to help foreigners on strike in the enterprise.85 Jurisprudence is therefore taking account of the very status of labour in the capitalist mode of production by using the ideological distinction occupational/political. Starting from that, we can now pose the political equivalence of the institutions of staff representation.

The political equivalence ofi the institutions ofi staff representation Let it be said immediately that this political equivalence answers the question of the election of Algerians to the works committees. Iqdeed, it is impossible arbitrarily to dissociate what the institutions of staff representation represent, when they are all unified by their being the judicial (occupational) expression of the workers. That would already be to weaken the - political - thesis which consists in saying that the works committees, being charged with the management of a public service, whether industrial or

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commercial, are political organs.86 Indeed, where such committees have been instituted, there is no doubt that to establish discrimination would amount to a violation of the very principle of equality before the law. Now the very functioning of the law prohibits the introduction of qualitative criteria into the law when the law does not provide for them.87 Furthermore, it is appropriate to stress that this political equivalence applies quite as much to the plant sections of the enterprise, thereby throwing into relief the ideological State apparatus character of the unions. Article 10 of the law of 27 December 1968 introduces a compatibility between the functions of union delegates and of works committee representatives. That amounts to saying that at this juncture the union function comprises the same level of representativity as the staff delegates or the works committee representatives, and that all these institutions answer to the same occupational mission. Once again, that contradicts the thesis of the political instance, also taking account of the fact that, since the union delegate can be a foreign worker, compatibility with the institutions of staff representation ought in law to imply the unity of the elective qualification.88 We must note finally the ideological equivalence of the institutions of staff representation at the European level. From 16 August 1961, Article 8, Paragraph 2 of Regulation 15 of the Council of the European Community accorded workers under the jurisdiction of a member State equality of treatment with respect to affiliation to union organisation and the right to vote in representative workers’ bodies in the enterprise. The ministre du Travail interpreted this Article as giving the nationals of member countries a right of election to works committees with no condition of residence or of possession of a card of special residence.89 Regulation 1612/68 of 15 October 1868 has the same provision in its Article 8 but adds the declaration that a worker under the jurisdiction of a member State ‘can be excluded from participation in the management structure of public law and from the exercise of a function of public law. He gains moreover, the right of eligibility to workers’ representative bodies in the enterprise’.90 What can we say if not that we find at the European level the same ideological relations as in France and that the worker is treated differently according to whether or not he is European ?

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This ‘juridical protectionism’ is none other than the refusal to accord to labour its universal value and does none other than acknowledge the general status of labour in our ideology. In the last instance, on the fundamental question of the relation between political rights and private rights, we have been referred to the relation between State ideology and juridical ideology, and further still, to the ‘juridico-political’ status of labour. Only by covering this distance have we been permitted to answer the concrete question posed at the start. The law can envisage elections to the institutions of staff representation only as occupational elections. Consequently, it cannot be a question of political rights. But, as we have said, this investigation has permitted us to make the juridical status of labour appear. In our mode of production, labour, considered solely from the point of view of the production of value, is presented under the form of consumption of labour power. On the one hand, the worker labours under the control of the capitalist, and, on the other hand, for the capitalist, ‘the labour-process is nothing more than the consumption of the commodity purchased. ... The labour-process is a process between things. ... The product of this process belongs, therefore, to him. ’91

The subordination of labour to capital finds its ideological expression in the juridical concept of occupationalisation which has operative value in the properly juridical field.92 But, in addition, class struggle tends to swamp the political neutrality of juridical ideology and develops a secondary contradiction between the political and the juridical, with the juridical ‘trapping’ real class relations in the snare of its juridical formalisation.93 It is in this way that the description of the dialectic between juridical ideology and State ideology within the juridico-political instance can appear to be coherent only in an analysis of the relation capital/labour. After this article was written, the Cour de cassation made a decision in a way which supports my arguments here. Two decisions were given on 18 May 1971 (cf. Revue Critique de droit international privé, 1970, 669, Note, Lyon-Caen, and Journal de droit international, 1972, 578, Note, J.M. Verdier). The Chambre

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criminelle followed suit {Crim. 5 October 1972, Dalloz 1973, 12). It is appropriate to point out that this jurisprudence was confirmed by law No. 72-517 of 27 June 1972 which relates to the electorate and the eligibility of foreigners with respect to the election of members of works committees and of stalf delegates. It has therefore become law that participation in elections in occupational contexts does not constitute the exercise of‘political rights’. But these are not simple matters. In one of the decisions dated 18 May 1971 (cf. the above references) the Cour de cassation ruled in addition that Algerians could not be eligible for the plant sections of an enterprise, appealing to a subtle exegesis which there can be no question of discussing here. The main thing to remember is the prevention of foreign workers qua workers from bringing a national, concrete lawsuit to the extent that the lawsuit can directly contest State policy. Doesn’t the AIE trade union appear in its true colours, not as a simple apparatus of the reproduction of the dominant ideology but as an apparatus which also permits engagement in class struggle?

Appendix 2 Transitions in Kant's The Metaphysical Elements of Justice

If I am not mistaken, this is the first time a jurist has come to the rue d’Ulm to give a complete course of lectures.1 The question you are asking yourselves is why a jurist should come here to talk about the law. The reason why you ask that question is that people are happy for the law to exist, so long as it exists in another place. But if you ask me where this ‘other place’ is, I shall reply that it is everywhere. It is in the factory, in workers’ strikes, in labour contracts, in your family, in your constitution of yourselves as persons, as students, as officials, and as future workers. It is also in the Faculté de Droit, in the courts and in the prisons. You cannot leave this ‘other place’ out of account, because if you do, it will take account of you. That is the first point - a very simple and very obvious point. The negation of the law is the negation of what rules us socially. But we must take care. You may well deny the law but you cannot prevent it from existing. Close the door and it will come in the window. As a preliminary, we must ask why the law does not have ‘rightful access’. We must be clear about this. I am not saying that the law has no rightful access into your concrete life. I am saying that your concrete life is ignorant of the law, even though it is the law that constitutes this life as concrete. And we can indeed ask these questions. What is this system that makes us ignorant of the law and that has an interest in making us ignorant of the law? What is this system that produces this double ignorance: ignorance of the juridical system in general and ignorance of what the law is really for those familiar with the

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‘technique’?* And this double ignorance is sustained under the same sign : ignorance of its own laws. Already it is possible for me to say to you that the real answer to those questions is to be found in the role that the law plays in our system, that is, in the relation that the law maintains with a determinate mode of production. But if I pursue this line of reasoning to its source, I find that I have no illusions about you. You know nothing of the law, and this ignorance is, as always, veiled by contempt. Why should we know something we are ignorant of, since the very fact that we are ignorant of it proves to us that we ought to be ignorant of it ? But, if you know nothing of the law, the law does not merely get by - it thrives on that ignorance. Do you know what labour law is? Or social security law, penal law, civil law, public law, or international law ? Do you know only that you are born subjects in law and that you die subjects in law ? And that your marriage will be between subjects in law, and that you will have little subjects in law who in turn will ... ? Do you also know that your freedom and equality are already pre¬ determined? And that you are free only within the limits of a law that you are ignorant of? Do you know that the State itself is a juridical person operating only through subjects in law? And that the immense and prodigious work of magistrates, legislative bodies, offices and ministries functions logically and imperturbably according to the laws of their functioning? I am talking to you about this ignorance only in order to discover the reasons for it. What makes it a problem is that most of you are philosophers, that is, you are supposed to be equipped with a theory of knowledge which will allow you to discover the laws of the production of man. But what you may know of Hobbes, Locke, Rousseau, Kant or Hegel does not permit you knowledge of the fundamental instance represented by the juridico-political instance, knowledge in the sense of knowing the laws of its functioning. That is a problem, and it is a double one because it reverts to the philosophers. Let us be clear about this. If the problem reverts to the philosophers it is because it derives from the ‘other place’ of their philosophies, even though it also constitutes those philosophies. This ‘derivation-reversion’ is effected in the very heart of * See p. 192 for Edelman’s note on Doctrine and technique.

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political philosophy at the end of the eighteenth century and the start of the nineteenth, or, quite simply, in the philosophy of Kant and Hegel. To explain that, we must pose the relation speculation/political/economic. This relation is expressed in two propositions. The first is that speculative philosophies elaborate their juridico-political system on the ideology of law. The second, however, is that the concrete content of the juridico-political, the last instance of which is the economic, irrupts without their knowledge on the philosophical scene. Let us take the first proposition. The red thread running throught juridical ideology is freedom and equality. Every man is a subject (in law), that is, free and equal with respect to all other subjects (in law). In this way the juridical process is a relation between subjects, and the subject, in Pashukanis’s words, ‘is the atom of the juridic theory: the simplest element, incapable of being reduced further’.2 It follows that the laws which permit and assure the ‘democratic’ functioning of the juridico-political are the natural laws of freedom and equality. To find an example we only need to look at Article 1134 of the Civil Code. It provides that ‘arguments legally arrived at are subject to the law governing the contracting parties’. That means that in the legal structure not only is every man a contractant but also he is the equal of every other. Article 1134 appeals to a theory of will and consent, and although much more might be said about the psychology of the subject in law — remember the importance of ‘political psychology’ in Hobbes, Hume and even Rousseau - I shall not put great emphasis on the Article. The point to hold on to here is the relation between the juridico-political system of speculative philosophy where law and the political are elaborated on reason, that is, on freedom and equality, the relation between that system and the ideology of the juridical in which a system of positive laws legally puts freedom and equality to work. At this first level a perfect concordance can be seen. But this is to move on to the second proposition. At the same time as it takes freedom and equality as natural givens, the juridico-political conveys the concrete content of that freedom and equality and permits their realisation in the market. More simply, law formalises the laws of exchange. This dialectic must be penetrated if we want truly to understand the ‘mystery’ of the law. In the same moment as law regulates the circulation of commodities - buying and selling - it designates

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that circulation as the realisation of freedom and equality. In other words, it is only as buyer or seller that I prove, on the one hand, that I am free, and, on the other, that I am equal to every other buyer or seller. In law, therefore, exchange appears not only as the circulation of private property but also as the circulation of the freedom and equality of every owner. It follows that, at the same time as it elaborates juridical determinations in pure ideas, speculative philosophy conveys its concrete content - property itself. It follows again that if the juridico-political is the mirror in which it contemplates itself then the mirror returns its own deformed image, its own politics. Such is the ruse of the specularia. So, when Kant or Hegel develop their science of law, they are confronted by a concrete content not reducible to any process of abstraction. Kant borrows from Roman law and Adam Smith, Hegel from the Code Napoléon, Say and Ricardo. Speculative virtuosity, the ‘speculative joy’ which Marx discusses in The Holy Family and which consists in discovering the real not in the land but in the ‘ether of the mind’, cannot remove the concrete content of the law - laws, rulings, sentences - and that content ‘contaminates’ speculation itself. Read the declarations of intent in Kant and then pursue them in their concrete demonstrations. They shatter into tiny pieces. Read Hegel’s Philosophy of Right with ‘the eye of the concept’ as Hegel himself recommends and you will very quickly get myopic. In that work you will find that the Objective Spirit is a landlord and that the ‘system of needs’ is a pure description of the market economy. Consider Marx’s profound reflection: ‘This real development unthin the speculative development misleads the reader into considering the speculative development as real and the real as speculative.’3 It can be seen that this reflection is realised in the site of the juridico-political in a privileged way. It is there that the break is principally effected. It is no longer the speculative apparatus that is the support of the juridico-political but the juridico-political that is the support of the speculative. That is why speculative discourse on the political constitutes in a particular way the very reality of its discourse. That is why discourse on the political passes judgment on the politics of discourse. Small wonder, then, that the university is not very worried that would be much too worrying - by the real content of juridico-

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political discourse. Small wonder that The Metaphysical Elements of Justice is so little read, nor that people are restricted to Second Part : Morality in Hegel’s Philosophy of Right. Small wonder, finally, that philosophers concerned with law get scorched by the dizzy evolution of the juridico-political as it gradually fills up all ideological space nor that they deliberately cut themselves off from its practice. On the one side you have pure theory, on the other you have impure practice. We must celebrate, because it is the symptom of a crisis. If you have the time, study Kelsen’s positivism, Amsalek’s phenomenology, Villey’s Thomist Aristotelianism, or Poulantzas’s pseudo-Marxism. You will see them crash into the window pane of legal practice. Too much evidence has made it ‘transparent’ but toughened it all the more. They talk of everything and often they talk of the law but you never see them prick up their ears at the mention of a law, a decision of the Conseil d’Etat or of the Cour de Cassation. What I want to show is that this impotence is political. But it is a difficult task and requires long detours. For example, what do we know of the law when we have read Hegel? In one way, nothing, in another, something. Hegel tells us nothing of the law because he does not allow us to read the documents of juridical practice in their practical effects. There are a number of examples of this. Study all these: the criminal irresponsibility of capital ; the juridical theories of wages ; the juridical status of aesthetic creation; the way the EEC court rules on the categories of the market, of competition, or of monopoly; the public domain or civil servants’ right to strike; the criminal law of business practice; the right to work; literary and artistic copyright; European law; public law. Hegel is no use at all here, precisely on the ground of legal practice where the relation between the functioning of juridical categories and their articulation in the total process of capital is made firm. But in another way Hegel does tell us something. He tells us that the law, or right, qua the determination of the spirit, is punctuated with history. For Hegel: ‘Right in this positive form acquires a positive element in its content ... through the particular national character of a people, its stage of historical development, and the whole complex of relations connected with the necessities of nature.’4 So, it is right that realises the concept of man, that is, freedom. Simplified in the extreme, Hegel tells us that the idea of

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right is realised eminently in the diversity of juridical matter, that man and his freedom are the stake, and that in a quite precise way right puts man and his freedom in question. Better, Hegel teaches us how right achieves this freedom, that is, he teaches us which juridical determinations are the means by which man can call himself free. And when I tackle Hegel more directly, you will see the relation that he establishes between right and freedom. You will see which philosophical categories he puts to work to justify the ‘immanent laws’ of right, and you will see, finally, that these categories are the very same as the ones ideology continues to feed off. We can see already the way the relation between juridical practice and the philosophy of law takes shape. Better, we can see the site of that relation - ideology.

Kant and Hegel on the rights of parents and children We have very quickly determined two sites, and we have done it from the point of view of practice. We have determined the site of idealist philosophy of law and the site ofjuridical practice. They do not seem to correspond. They are indeed two sites: two voices, like different tunes, and two roads, like different perspectives; two monologues in isolation. It is now time to demonstrate concretely all that has been proposed, and it will be done by means of an example. But it is more than just an example, for two reasons: first, because of the way the question will be taken further and second, because of the project in hand. The example I have chosen is drawn from family law, or more particularly, it concerns the relation between parents and children. It was not chosen at random. In the first place, I was influenced by the pertinence of the question. We have all been children, and most of us are or will be parents. In the second place, the problem obsesses Western philosophical thought. In the eighteenth century, people are still dosed up with Roman and feudal law and they ask if the child is really a human person. They ask how this virtual being will by means of education give birth to the future citizen. In the nineteenth century the child has indisputably become a juridical person. Profits are made from children by

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putting them to work in factories from the age of seven. The twentieth century’s obsession comes from another place, psychoanalysis, but it remains possible to pose the relation between this ‘other place’ and what makes it possible, namely, the recognition of the child as a juridical subject. In the third place, finally, I was influenced by the fact that the relation parent/child is one which is tofn between a morality which, if not feudal, is at least archaic and ^he relations of production which make a minor an effective worker and producer. To say all this is to say that the ground appeared very simple but that it is not so easy to reclaim. It is even less easy to reclaim in that I intend to pursue a project which is in one sense a gamble. I want to show that the relation parents/children puts in play ‘paradoxically’ -the relation of subject to property. I also want to show - and show it as a consequence - that the concepts that Kant and Hegel, to take only those two authors, disengage appear to designate this relation. I say ‘appear’ because in the third stage of this demonstration I want to show, from the point of view of practice, that the concepts themselves are ‘designated’ by practice. That is why we are concerned with more than just an illustration. It is a question of a definite break : the break from philosophical discourse by means of juridical practice, and, further, the ‘internal’ break from philosophical discourse by means of the practice which constitutes it. That does not speak for itself, so our procedure needs to be explained. I am going to cite two philosophical texts, one from Kant and the other from Hegel. We shall read them in order to locate them in the specific site of their theox etical production, but we will not rely on the description of this production which is afforded by the concepts that the production has itself produced. A description of an act of theoretical production which is effected in terms of the very concepts produced by it is, of course, no more than a theoretico-rhetorical teleogy. The grounds for our refusal to rely on such concepts is practice, irrefutable practice. It is irrefutable because it exists in a real way in laws, rulings, decisions, because it is put to work in a real way by means of the constraints of the State apparatus, with the aid of police officers and commanders of the armed forces who, in the words of the proud decree of the ‘ executive formula’, must Tend a hand’. It is irrefutable practice, then, that permits a revolutionary

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reading of these texts. But, as a preliminary, that is, before moving on to the ground of this contemporary practice, I want to make the real, and mystic, meaning of these philosophical texts, taken by themselves, appear before you. Indeed, we shall attempt a ma terialist reading of these texts. We shall apply ourselves to the discovery of, on the one hand, what they legitimate, then, on the other hand, the theoretical process by means of which they produce this legitimation, and, finally, the relation between what is legitimated and the necessary forms taken by that legitimation. Kant will appear as a philosopher obsessed by the decomposition of a world - the feudal world - and terrorised by the birth of a new one - the bourgeois world. Accordingly, Hegel will be the philosopher of the triumphant contradiction, resolved in abstracto. In short, I shall return to these texts the things they do not think, the things they suppress, that is, their political project. I do this in order to make it appear that this political project is what constitutes them in the last instance and that their process of abstraction - Kantian reason, Hegelian spirit - in the last analysis reduces to the justification of a politics. In this way, by putting these texts (dare I say it) back on their feet, by referring the abstraction back to its point of departure, their functioning will be revealed through their political silence. By this means, it will be proved that the process of abstraction in speculative philosophy is ideological, ideological to the exact extent that its presuppositions are contained in the politics which it is its task to legitimate. In Part I, Private Law, Of Proprietary Rights in General in External Things, chapter 2, Of the Mode of Acquiring Something External, Section 3, Rights in rem over Persons, 2nd Title, Kant deals with parental rights. He has just defended the strange idea that ‘sexual community (commercium sexuale) is the reciprocal use a man can make of another person’s sexual organs and faculties {usas membrorum et facultatem sexualium alteriusY .5 He has just defended the strange idea that marriage is nothing but the mutual acquisition of persons. I said ‘strange idea’ but there is nothing very strange about it when you think that our Cour de Cassation awarded damages against an adulterous husband who no longer wished to perform his ‘conjugal duties’. In § 29 Kant deals

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with ‘parental right’. Look at this extract: It follows from the fact of the personality of children that they can never be considered the property of parents. This is in spite of the fact that they belong to parents’ mine and thine, since they are like things in parents’ possession and they can be returned from the possession of any other person to the possession of their parents against their will. It also follows that parental right is not a pure7its reale, that it is a right that cannot be alienated (jus personalissimum), and, furthermore, that it is in no way a pur ejus personate. Rather, parental right is jus realiter personate.6 The second text is taken from Hegel’s Philosophy of Right. In § 175 Hegel deals with objective morality and its first moment, the family qua natural objective moral spirit : Children are potentially free and their life directly embodies nothing save potential freedom. Consequently they are not things and cannot be the property either of their parents or others.7 This text reminds us of another text. At the point where Hegel asks what is susceptible of appropriation and where he poses that the person can embody his will only in the thing, he examines the right of paterfamilias-. It was an unjustifiable and unethical proviso of Roman law that children were from their father’s point of view ‘things’. Hence he was legally the owner of his children, although, of course, he still also stood to them in the ethical relation of love (though this relation must have been much weakened by the injustice of his legal position). Here, then, the two qualities ‘being a thing’ and ‘not being a thing’ were united, though quite wrongly.8* I shall show in these texts the practical stake within the theoretical stake and to that extent I shall be able to return to the texts the things they do not think, their politics. And then, but only then, with this painful extraction duly performed, we shall be able to work on concrete juridical practice.

For Edelman’s discussion of this notion of wrongness, cf. p. 188.

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Kant and jura realiter personalia Kant’s classification of rights Kant’s theoretical project is to construct1... a. system derived from reason. Such a system might be called “the metaphysics of justice”.’9 From the start Kant is confronted with practice but he resolves the problem in these terms : the discussion of justice so far as it belongs to the outline of an a priori system will appear in the main text, whereas the discussion of those rights that are related to particular cases arising in experience will appear in the annotations.10 This admission of impotence, the admission that laws cannot constitute the text in which the system of law is to be read in its entirety, should not be emphasised. Rather we must specify Kant’s concern. For Kant the problem is to demonstrate, in the determination of property, how property is acquired and as a consequence how rights over children are acquired. For Kant there exists three objects of property and therefore three property rights : Jus reale The right to make private use of a thing which I possess, either originally or arising out of a contractual agreement, in common with other people.11 Jus personate Possession of the will of another person as the power to determine him through my will to an action according to the laws of freedom.12 Jus realiter personale Right of possession of an external object as a thing and to make use of it as a person.13 Accordingly, it is possible to aquire three types of object: a thing, a promise (obligation), and a person. That is the first point to note. The second thing is that the nature of the right alters with the object acquired. There is a correspondence between the object/thing in law and jus reale, between the object/promise in

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law and jus personate, and between the object/man in law and jus realiter personate. The object (in law) determines the mode of the right and the mode of the right the object. The dogmatic distinction in Roman law between thing and obligation is reproduced exactly. But, at this level, two points must be made. First, Kant innovates in a single domain: jus realiter personate. In spite of being aberrant, this category is ‘modern’ in that, within Romano-feudal dogma, it takes account of a new object in law - man. In AntiDiihring Engels admirably sketches this absence in the ancient world : Among the Greeks and Romans the inequalities of men were of much greater importance than their equality in any respect. It would necessarily have seemed insanity to the ancients that Greeks and barbarians, freemen and slaves, citizens and peregrines, Roman citizens and Roman subjects (to use a comprehensive term) should have a claim to equal political status. Under the Roman empire all these distinctions gradually disappeared, except the distinction between freemen and slaves, and in this way there arose, for the freemen at least, that equality as between private individuals on the basis of which Roman law developed - the completest elaboration of law based on private property which we know.14 The great thing absent from Roman law is man qua object in law. And it is on this absence, of course, that the whole of modern law is constructed: the equality of all private persons, that is, the appearance of the free worker, even if this is, as Marx says, a ‘free for all’. Kant therefore constructs his category of jus realiter personate on this absence. This is tantamount to saying that he includes in it the right to work, even if he includes it under the archaic heading Rights of a Master over his Servant. In passing, note that our Civil Code calls the first section of the chapter on the hiring of work and skills ‘On the Hire of Domestics and Workers’. Although it is not necessary for the moment to emphasise this point, one cannot help noting that the category jus realiter personate is no more than a vulgar combination of the two other large categories : jus reale and jus personate. The effects of this combination will be examined below.

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The second point to be made is that with Kant we are in a juridical structure where the object signifies the subject. In other words, laws, in their mode of existence, derive not from the subject but from the object itself. As I have already said, it is the object (in law) that determines the mode of the right. And remember that in feudalism it is the juridical status of the land that determines the juridical status of the possessor.* In short, the Kantian subject in law appears as a pure form without efficacy, waiting for a content. The relation of man and property can accordingly be defined as ‘a purely de jure union of the Will of the subject with that object’.15 In a reciprocal way, this pure and empty form is at the same time its mode of existence, that is, it allows it to be invested by objects in law. Property is not under the jurisdiction of the subject. And property is not the essence of the subject in that it constitutes it not internally but externally, this for the very good reason that property proceeds from the subject only by a decree of reason: ‘Consequently, it is an a priori assumption of practical reason that any and every object of my will be viewed and treated as something that has the objective possibility of being yours or mine. lb If the subject is free of his possession and influence, he is at the same time bound by the immobility of the relation to the thing.

The problem of transition At this point I want to make a specific study of the strange category ofjus realiterpersonate. Remember the definition : ‘Right of possession of an external object as a thing and to make use of it as a person.’ If we analyse it in terms of relations, the definition produces two types of relations or, if you like, couples. The first couple stays at the level of description and the second designates what that description hides. The first couple relates the juridical category to the object. From that we get the relations possession/ thing and use/person. It appears that a juridical distinction can be made, possession being different from use, and that that distinction has its true basis in the object referred to, the thing being different from the person. The second couple designates the * Cf. ‘The Subject in Law in Hegel’s Philosophy of Right’, p. 171.

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relation of the juridical categories to each other and designates the relation of the objects in law to each other, possession/use and thing/person respectively. Possession is opposed to use, as the thing is opposed to the person. Better, the opposition possession/use justifies the opposition thing/person. What have we learned so far ? We have learned that the juridical distinction possession/use justifies the distinction of reason thing/ man. Possession reverts to the thing, as use reverts to the man. The very fact that one can acquire either a thing or a person justifies the juridical distinction. The distinction working in the mode of acquisition in the last analysis justifies the distinction of the acquired object, and vice verse. In other words, we are faced with a reciprocal justification of law by the object and of the object by the law. To continue, we find that if we examine the distinction possession/use, Kant himself gives us this definition: An object is mine dejure (meumjuris) if I am so bound to it that anyone else who uses it without my consent thereby injures me. The subjective condition of the possibility of the use of an object is [called]possession. [Besitz]11 What this means, when it is spelled out, is that use is the necessary mode of existence of possession, that proof being that if someone does no more than use a thing I possess - without seizing my property - that still harms me in a definite way. It also means that one possesses something only in order to use it. Well, we have known that for ages. But what does possession without use mean ? Strictly speaking, nothing. It is true that I can hire out a thing of which I am the owner, but the very possibility of the hire implies property. I cannot hire out what I do not own. These are banal and daily concerns. If I possess some land, it will be either to work it myself or to lease it; if I possess real estate, it well be either to occupy it in person or to hire it. The realisation of possession is use. Here we have the same evidence as before. Article 544 of the Civil Code provides that: ‘Property is the right to enjoy and dispose of things in the most absolute manner, provided one does not make a use of it which is prohibited by the laws and regulations.’

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And yet the result obtained by Kant is entirely surprising. In the name of a juridical distinction empty of meaning - the distinction possession/use - he justifies a ‘natural’ distinction - the distinction man/thing. Rigorous analysis of the second couple in its juridical part has no pertinence if not to permit the elaboration of the distinction man /thing. But this juridical non-pertinence possesses a meaning. It is the meaning of the first couple and it can be resumed as: I possess the thing, I use the person. In other words, if I dismember this juridical distinction with a view to combining it in the relation between possession/thing and use/person, we shall find that it has a quite different value. It permits a transfer - without transferring - from the thing to the man. For if I dissociate possession from use I thereby dissociate the thing from the man. Or, to be more precise, if I prove that I can use without possessing, I have proved that I can use man while leaving him his freedom, that is, while leaving him the freedom of himself. At the final count, this handling of the juridical categories permits the resolution of the problem of how to make use of a free man. At this point it looks as though the trick has worked. I say ‘looks as though’ because in fact, as we shall see, it has not worked at all. That is for the very good reason that the economic process transmitted by the juridical categories is resistant to hocus-pocus, even Kantian hocus-pocus. We had arrived at the result that the radical opposition possession/use is the justification of the opposition thing/person. But it is at this point that the very objection which had been made void is raised, namely, how use without possession is possible. Note the transition from the theoretical to the practical position. Theoretically the problem is solved but practically it reappears. Here are the two positions. The theoretical position is that use without possession is use of a man while leaving him his freedom. The practical position asks how it is possible to use a man without possessing him. We shall observe a genuinely astonishing reversal. At the very moment of his serene administration of his theoretical propositions Kant puts them back on the terrain of practice, at issue again. The opposition possession/use was thought to have been definitively put in its place, but it was only with a view to

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giving it a better location. The accounts have been settled in theory but in practice the cards are being dealt again. It is clear that Kant is rediscovering the problem he thought he had liquidated, the problem of the fact that in order to use a thing it is necessary to possess it. Even the law of contract is no help, since on Kant’s own admission : A contract by which one party renounces all his freedom to another person, hence ceasing to be a person, and consequently no longer bound to abide by a contract, only bound to recognise force, would be a self-contradictory contract, that is, null and void.18 The theoretical stake is therefore the reconciliation of domination and freedom. The practical stake is about how a servant - a worker can be subordinated at the same time as respecting his freedom. And the issue is a crucial one if you think of the dissolution of feudal relations founded on personal relations and if you think of the rise of the free worker. It is worth remembering that The Metaphysical Elements of Justice was published in 1797. We must therefore study the way Kant begins to resolve the relation theory/practice. We shall see that in a curious way his resolution is a judgment on his theoretical discourse from the point of view of practice. The concrete content that Kant studies rights of women, children and servants - rebounds on his declarations of intent and reduces them to nothing. The Kantian resolution is doubly surprising, first with respect to the solution itself and second with respect to the practical objective the resolution aimed to realise. And we shall see, even there, that in the final analysis it is the objective pursued that conditions the solution and that the objective is itself the justification of a particular economic order. We shall begin with the solution itself. The category of jus realiter personate comprises three sorts of acquisition: women, children and servants. Note, as well, that this is a sort of nostalgic resurrection of Roman and even of feudal law. Note, too, that in Hegel the notion of servant disappears and is replaced by the notion of worker. A reference should be made here to the ‘system of needs’ and to the organisation of corporations. Whàt is Kant’s justification of the mode of jus realiter personate for each of the above three objects in law?

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With respect to conjugal right, Kant says: That this jus personate is nevertheless presented at the same time in a real mode is the foundation for the fact that if one spouse runs away or is put in the possession of another person, then that spouse can always and incontestably be brought under the power of the second spouse as if the first were a thing.19 To this point I would add that, of course, only the wife can run away since her husband is her master: Consequently, that domination has the sole objective of asserting, in the realisation of the common interest of the family, the natural superiority of the husband over the wife and the right to command that has its foundation in that superiority.20 But that is another story. Here is the text dealing with children : It is clear, then, that in theory ofjustice the title of jus realiter personate must of necessity be added to the titles ofjus reale and jus personate. And it is clear that the division which until now has been a received division is not complete, because when parental right over children as part of their house is the issue, parents are not restricted to a mere appeal to children’s duty to return when they run away. Instead they are entitled to seize them as if they were things, as if they were escaped domestic animals, and they are entitled to keep them locked up.21 Finally, Kant justifies the right of the master of the house as follows : Consequently, servants belong to the meum of the master of the house. With respect to form, the state of possession, this is on a par withyttf reale, in that if the servant escapes the master of the house can bring him into his potestas again simply through his will. But with respect to the content, that is, the use he can make of his servants, he does not have the right to behave as if he owned them (dominus servi), because they are in his potestas only as a result of a contract.22 The perfect justification for the relation man/thing is no longer provided by the juridical opposition possession/use but by the

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innocent, seemingly insignificant but essentially significant little words ‘as if. All that weighty juridico-metaphysical construction reduces to the fact that woman, child and servant can be brought under the power of the owner as if they were a thing. The ‘as if recalls the relation essence/appearance. The essence is the freedom of man while the appearance is that he can be treated as a thing. The essence is that man is free in himself and cannot be appropriated as object while the appearance - meaning ‘practice’ - is that he can nevertheless be treated as an object. Note, in passing, that as far as the right of the master of the house over his servants is concerned, his right does indeed rest on a contract - the ancestor of our labour contract - but is realiter personate. That is to say that the contract becomes in substance the juridical category permitting the worker’s being placed under his power realiter. So, the relation man/thing is dealt with in terms of comparison with the innocent little words ‘as if, but it is not resolved. Rather it is subjected to a phantom resolution in which the antinomy is exactly reproduced. I want to spend a little time on the content of this antinomy. It designates the transition from the feudal mode of production to the capitalist mode of production. For the sake of completeness it would be necessary to define the articulation of the juridical on the political in Kant himself, that is, to describe how that transition is signified in Kant’s political discourse, but there is no time for such a diversion. I must emphasise, however, that for Kant political right is founded in private right. Among the juridical attributes connected with the nature of citizenship is : third, the attribute of civil independence that requires that he [the citizen] owe his existence and support, not to the arbitrary will of another person in the society, but rather to his own rights and powers as a member of the commonwealth .. .23 And Kant adds: an apprentice of a merchant or artisan ; a servant (not in the service of the state) ; a minor (naturaliter vet civiliter) ; all women ; and generally anyone who must depend for his support (subsistence and protection), not on his own industry, but on arrangements by others (with the exception of the state) - all such people lack civil personality, and their existence is only in the mode of inherence.24

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You will recognise all the people subject to the category of jus realiter personate. The result is that the Kantian foundation of private law - the combination, in the determination of private property, of the different modes of acquisition of property - determines the foundation of a political discourse, that is, a discourse on power. Political power accordingly appears as the actual guarantee of the structures of private right or, if you like, private property. The right of ownership is determined in political right. I cannot spend any more time on this fundamental articulation, however, so we must return to the antinomy. The decomposition of the feudal mode of production is worked by means of the following contradiction. On the one hand, the development of the productive forces requires the freedom and equality of rights, requires, that is, the appearance of a worker who owns his labour power. On the other hand, the political regime remains largely feudal. Engels has shown how the demand for bourgeois equality permeated a peasantry dominated by the German petty squirearchy that formed Kant’s natural milieu: The demand for liberation from feudal fetters and the establishment of equality of rights by the abolition of feudal inequalities was bound soon to assume wider dimensions, once the economic advance of society had placed it on the order of the day. If it was raised in the interests of industry and trade, it was also necessary to demand the same rights for the great mass of the peasantry who, in every degree of bondage, from total serfdom onwards, were compelled to give the greater part of their labour-time to their gracious feudal lord without compensation and in addition to render other dues to him and to the state. On the other hand, it was inevitable that a demand should also be made for the abolition of the feudal privileges, of the freedom from taxation of the nobility, of the political privileges of the separate estates.25 Now we see how the Kantian ‘as if seeks to resolve in the imagination the contradiction between productive forces and relations of production. And we see how it is only in the imagination that it could resolve the contradiction of a rhetoric satisfactory to the rising bourgeoisie but which none the less allows dying feudalism to survive. And when we examine the concrete objective which Kant wishes to

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realise with the category of jus realiter personate we will find it possible to see the true dislocation of theoretical equality from political inequality even more clearly. If we turn our attention to the end in view, we find an obsession: evasion. And it is this obsession that in the last instance conditions the regime of jus realiter personate. This is tantamount to saying that its content merits profound examination. The evasion has a double meaning. On the one hand, it is flight from a closed space, and on the other hand, it is flight from reality specifically constituted in that closed space designating a dissolving world and a subject foundering in its own contradictions. The dissolving world is the world of the petty German squirearchy: ‘who lived a life of which even the most modest English squire or French gentilhomme de province would have been ashamed’.26 The shabby and parochial petty bourgeois exploited an agrarian structure characterised by: neither parcellation nor large-scale production, and which, despite the preservation of feudal dependence and corvées, never drove the peasants to seek emancipation, both because this method of farming did not allow the emergence of any active revolutionary class and because of the absence of the revolutionary bourgeoisie corresponding to such a peasant class.27 This dissolution is the Kantian obsession - the wife can run away, the child can escape, and the servant can leave. Kant may well admit that it is a matter of persons, free beings, but he admits that only in ‘pure idea’, not in the practice of their freedom. As soon as freedom is postulated it is denied. Women, children, servants, they are all free except in the exercise of their freedom. Look again at the texts we have quoted. The basis ofjus realiter personate is that the wife can run away. The legal category ofjwj realiter personate is necessary because children can escape and because the master must be able to bring servants back under his control. Kant leads the struggle of the German petty bourgeois at the end of the eighteenth century, and he pays the price - the collapse of the pure self-determination of the spirit, the collapse of ‘free will’. Marx and Engels again give us the key to this obsession :

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With the beginning of manufactures there was a period of vagabondage caused by the abolition of the feudal bodies of retainers, and the disbanding of the armies consisting of a motley crowd that served the king against the vassals, the improvement of agriculture, and the transformation of large strips of tillage into pasture land. From this alone it is clear that this vagabondage is strictly connected with the disintegration of the feudal system.28 Accordingly, what is at work in a real mode in the ‘dogmatic’ legal category of jus realiter personate is the struggle between opposites: on the one hand the decomposition of feudalism and, on the other, the rise of the free worker. The struggle takes shape in the contradiction in the juridical category : a right which is both jus personate and jus reale. But, if that category contains in itself those opposites, it does so in immobility. The category fixes the contradiction and immobilises it in an eternal space. So, the servant is at the same time a worker, the patriarchal relation of master and journeyman is at the same time the money relation of the worker and the capitalist, the naturally inferior woman is at the same time a human being, and children are at the same time free beings. This fixed contradiction is also the expression of terror in the political mode: immobilism. When I spoke of evasion as flight into dream, I was thinking specifically of the political dream of immobilism. If Kant designates a lacerated subject, it is an immobile laceration that he designates. ‘To be Stoic is to set one’s face like the beautiful eyes of Narcissus.’29 The flight into the impossibility of a category which miraculously unites opposites ‘once and for all’, the flight into the constitution of a subject half-man, half-thing, a centaur of a subject, half-feudal, half-bourgeois, is realised in the magic of rhetoric, an alchemy of opposites. We can now return to the relation essence/appearance. The contradiction of the Kantian category of jus realiter personate relates to the following problematic. If essence is unknowable and appearance is all that can be known of essence, freedom as essence can be given only in the ‘paradoxical’ manifestation of use of a non-freedom. It is in this way that in the last instance freedom is the foundation of non-freedom, in the same way that man is the

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foundation of the servant, or, to be more precise, in the same way that freedom of labour is the foundation of the exploitation of man, and possession the foundation of use. In the discussion so far we have encountered an absence — the universal subject in law - and a presence - the category of jus realiter personate. The absence plays the essential role of designating the function of the category of jus realiter personate. In other words, it is in the analysis of what constituted the mask of the category, or, rather, what produced the form of the category, that we have been able to determine its function. I want to explain this briefly before closing the analysis of The Metaphysical Elements of Justice with a specific study of the relation parent/child.

On method It is the absence of a universal subject in law that permits the specification of the category ofjus realiter personate. It is in Hegel that such a subject appears. Indeed, from Hegel’s Philosophy of Right onwards Hegel is critical of Kantian doctrine. Accordingly, to the extent that the form of the subject in law is the most developed form of the juridical relation, it makes possible the writing of the history of all previous theoretical-practical juridical forms. In the same way, Marx’s value form as the most developed form of private property makes possible the analysis of all other forms of value in turn. ‘I merely assert that it is only as freedom of disposition in the market that property becomes the basis of the development of the legal form, and the category “subject” serves as the best expression of that freedom.’30 This is the scientific point of view according to which the form of the subject in law is the most developed expression of bourgeois law. As such, on the one hand it postulates that every man is a private owner, if only of his labour power, and, on the other hand, as a result, it postulates that every subject is the equal of every other subject. Starting from this scientific point of view, an analysis is given of the relation between the absence in The Metaphysical Elements of Justice and the presence which made the absence incarnate. Stating from that point, we can delimit the juridico-political

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expression of the transition from the feudal mode of production to the capitalist mode of production. More than that, in the specific analysis of the category of jus realiter personate, we have been able to exhibit the political expression of that transition itself as the immobile struggle between opposites. Remember that the juridico-political expression of that struggle was developed on the very ground of the universalisation of the subject in law. Indeed, that universalisation is also none other than the Kantian theoretical postulate of Freedom. The Kantian conflict between theory and practice also revealed the conflict between the localised subject in law and the universal subject in law. To clarify that conflict and put it in due proportion, the best thing is to cite two passages from the Grundrisse : Equality and freedom as developed to this extent are exactly the opposite of the freedom and equality in the world of antiquity, where developed exchange value was not their basis, but where, rather, the development of that basis destroyed them. Equality and freedom presuppose relations of production as yet unrealised in the ancient world and in the Middle Ages. ... although this legal system [sc. Roman law] corresponds to a social state in which exchange was by no means developed, nevertheless, in so far as it was developed in a limited sphere, it was able to develop the attributes of thejuridical person, precisely of the individual engaged in exchange.31 The conflict between the localised subject in law and the universal subject in law is the same as that between the feudal mode of production, where exchange value is no longer the basis of production, even though it has already developed its determinations in the sphere of circulation, and the capitalist mode of production, where the value form has developed all its determinations, including the form of the subject in law. But we must get back to the point. Remember that ‘civil independence’, the essential attribute of the citizen, was the directly political expression of the theoretical and practical form of the Kantian subject in law. Theoretical recognition justified practical denegation. In order to get back to the content of morality we can begin with the revealing analysis Pashukanis gives: Moral pathos is indissolubly connected with - and is nourished

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by — the immorality of social practice. Ethical doctrines assume to change and to correct the world, whereas in reality they are a distorted reflection of only one side of that real world : that side where the relations of human beings are subject to the law of value. ... A measure [action] - being the genuine and only real embodiment of the ethical principle - comprises within itself a negation of that principle. The big capitalist ‘in good faith' ruins the small capitalist without for a moment encroaching upon the absolute value of his personality. The personality of the proletarian is ‘in point of principle equivalent’ to the personality of the capitalist : this finds expression in the fact of the ‘free’ contract of hiring. Out of this materialized freedom itself, however, flows the possibility of a quiet death by starvation, for the proletarian. This ambiguity of the ethical form is not something fortuitous - it is no defect for which the specific shortcomings of capitalism are responsible : on the contrary it is an essential indicium of the ethical form as such.32 At this stage in the enquiry, a question is posed about the production of a presence, the category of jus realiter personate, by means of an absence, the universal subject in law, and a question is posed about the necessary forms it must take. It is therefore a question of the ideological production of the category and a question of posing the relation between the visible and the invisible. I do not want to spend long on this, but we are already in a position to suggest that this relation has its source in the ideological notion of‘civil society’. Make no mistake, the notion of‘civil society’ is not about to restock the shop with antiques. On the contrary, it has always produced its wares in different guises: free competition, economic democracy, and, closer to us in time, ‘new society’, and even closer, in the statement of a Minister in an ORTF programme called ''Face à face', ‘society of participation’. This question, furthermore, is the expression of another, more fundamental, relation, that of the complex dialectic between the infrastructure and the juridico-political. It is the analysis of the juridico-political in Kant that permits the description of what he occults: the transition. It enables Kant to treat of a discourse which he does not know he treats of, namely, the discourse of feudalism dying in the throes of giving birth to a new world. And, finally, it permitted the situation of the discourse in the discourse

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of the small landed property owner defending the interests of his class. The privileged site constituted by the law now appears much more clearly in the way philosophical discourse is ‘surprised’. For philosophical discourse is indeed surprised by the openness of the categories it thought were immutable and which history passes over. It is indeed here that the importance of these categories appears. It concerns nothing less than the political in that it justifies the power of one class over another. And it is in that way that the juridico-political takes on its efficacy - in its constraining function. Briefly, ‘constraint’ traces the great Kantian boundary between the moral and the law and manifests the ‘natural’ laws of freedom and equality ‘in a juridical way’, that is, with the assistance of the State apparatus - police, courts, prisons. It is against this back-drop that we can now turn to the relation parent/child.

The relation parent/child in The Metaphysical Elements of Justice Remember that the category of jus realiter personate fixes the whole of The Metaphysical Elements of Justice at a crucial point, namely, the juridical relation pertaining to a person theoretically free but practically ‘used’. There are three categories of‘not free’ persons, but the reason for the lack of freedom is specific to each. First, there is the wife, who is structurally not free in essence since she is subject to the ‘natural superiority’ of the husband. Second, there is the servant, who is economically not free. If‘civil personality’ is absent in this case, it is because the servant does not own his means of production. To explain this, Kant poses an instructive comparision. ‘... the smith in India who goes with his hammer, anvil and bellows into houses to work on iron’ is not free ‘in contrast to the European carpenter or smith, who can offer the products of his labor for public sale’33 and who is citizen in full. Finally, there is the child, who is conjuncturally unfree. I refer here to the male child since the female child will become a woman, that is, structurally unfree. A passage from Kant clarifies the ‘paradoxical’ situation of the child. After dealing with the case

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of a servant who has committed a crime, he considers the case of the children of both master and servant: Children, however, and even the children of a man who becomes a slave as a result of a crime, are always born free. It is because every man is born free in that he has not as yet committed a crime, and the costs of his education up to his majority cannot be treated as a debt to be repaid. Indeed, if he can, the slave must also educate his children without claiming the costs from them. Given the slave’s lack of power, the owner of the slave therefore inherits that obligation from him.34 The child is always born free, then, and his non-freedom can only be consequent on his being a minor. What this means in concrete terms is that loss of freedom is ‘acquired’, if I may put it like that, only in two cases - if the child is female or if the child is to become a servant in the broadest sense. We have seen that the category of jus realiter personate which seemed so homogeneous is in fact heterogeneous. The status of women, children and servants appeared to rest on a common essence, but it then became clear that for each of those persons the cause of their incapacity is different. In short, the homegeneity of this category is outlined in a different site, the site of exploitation. And if we only know how to read them, the texts make that perfectly clear. Strictly speaking, there is no relation between a structuralconjunctural incapacity on the one hand and an economic incapacity on the other, nor does the opposition structuralconjunctural sustain a relation. With respect to the first opposition, the first term, structural/conjunctural, concerns ‘nature’ and the second term, economic, concerns ‘culture’. In other words, the real opposition is one of nature to culture, when by ‘culture’ is meant the material conditions of existence, that is, the very notion of civil society. Homo oeconomicus is the producer of commodities, and he alone is the active member of civil society. There remains, of course, the hypothesis about the official who is in the privileged position of being a servant of the State and who is thereby an active citizen. But, in a precise way, that merely reveals the class nature of the Kantian State. With respect to the second opposition, on the one hand, the incapacity of existence - women are incapable for all time - and,

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on the other hand, the conjunctural incapacity, depend on time (the period of minority), sex, and economics (the minor becoming either an owner or a servant/worker) all at the same time. Now this disparity Ends its unity only in the objective of exploitation. It is the index of the problem posed in this way: if we know the instance which justifies the exploitation of the servant by the master - the instance of the economic - we know nothing of the instance which justifies the relations husband/wife and parent/child. When Kant enquires into the basis of parental right, he writes as follows : Just as the duty of man to himself, that is, to the humanity in his own person, gave birth to a right (jus personate) of the two sexes to acquire jus realiter personale over each other through marriage, so procreation in that community gave birth to a duty both to maintain and to take care of its fruits. They [parents] cannot destroy their child as they might their property or as if the child were, so to speak ... the work of their hands, for such a work can in no way be a free being, nor can they abandon the child to chance, for they have not merely produced an object in this state but also a citizen of the world. ... From this duty, there necessarily results the right of parents to take the child in hand ... as much from a pragmatic point of view, so that the child can sustain life and limb, as from a moral point of view, because if they do not do so, they will be blamed for having neglected their child.35 And when he poses the question of the contradiction that can exist between the juridical inequality of the married couple and their equality as individuals, he discusses juridical law in this way: [juridical law] cannot be considered as contradicting the equality of the couple. Consequently, that domination has the sole objective of asserting, in the realisation of the common interest of the family, the natural superiority of the husband over the wife and the right to command that has its foundation in that superiority, a right which can in any case be derived from the duty relating to the unity and equality of the family from the point of view of its goal.36 The foundation of the right of the father is the duty he assumes towards all humanity in the child as citizen of the world. Which

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world ? The ethical world. In that the child and the woman owe their status to morality, it is their theoretico-practical status that is pertinent. Their theoretical status is pertinent, for it is in morality that they must be subjects - the Kantian theoretical freedom is indeed resolved in an ethic - and in the same way their practical status is pertinent, for it is also in the name of compulsion that they are subordinated to father or husband. It is in this way that the general opposition woman or child/ servant takes on an entirely new sense. It is changed into an opposition between the ethical and economic. But we must be careful to remember that this opposition is internal to the category of jus realiter personate and that the object of this category is to justify subordination to the master. In other words, if I consider this category only from the point of view of its practice, the realised concrete objective, some important effects emerge. The Kantian ethic possesses the same class content as its, shall we say, ‘economic’ objective. As Engels wrote: men, consciously or unconsciously, derive their ethical ideas in the last resort from the practical relations on which their class position is based - from the economic relations in which they carry on production and exchange.37 But we must take this further. A justification in terms of morality of the subordination of woman and child poses a problem. Why should the economic justify the relation master/ servant in the one case but the ethical justify the family relation in the other case ? The briefest of answers can be given, especially if we make use of Marx. In the semi-feudal economy which was Kant’s natural milieu, women and children were not engaged in the process of production. In his analysis of mechanisation, large-scale industry and, in particular, factory legislation, Marx writes: So long as Factory legislation is confined to regulating the labour in factories, manufactories, etc., it is regarded as a mere interference with the exploiting rights of capital. But when it comes to regulating the so-called ‘ home labour’, it is immediately viewed as a direct attack on the patria potestas, on parental authority.... The force of facts, however, compelled it at last to acknowledge that modern industry, in overturning the

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economic foundations on which was based the traditional family, and the family labour corresponding to it, had also unloosened all traditional family ties.38 The ethical justification is a symptom of the functioning of the ethical. Kantian morality justifies, in law, the subordination of women and children, but the duplicity of this is already admitted in its practice, in its objective, even if that practice is that of a dying feudalism incarnate in the trinity of the father, husband and master, the trinity to be unleashed in capitalism. In short, in that very site, Kantian morality makes a bridge between the absence of a universal subject in law - a concept which will make women and children the reserve army of capitalism in the nineteenth century - and the development of the productive forces even then heralding the arrival of that subject.

Appendix 3 The subject in law in Hegel's Philosophy of Right

On a break and its effects In the course of the article on Kant, I posed as a preliminary that the relation parent/child put into play the relation of the subject to property. That meant that family relations are determined in the last instance by relations of production. And we have seen that Kant brought the right of parents under the category of jus realiter personate, the category which is directly born of the decomposition of the feudal world. So, it appeared that the relation of the subject to property determined the relation of the subject to the subject. That was the true point of departure. Now in Kant this point of departure is inscribed only in a dotted outline. In Hegel it will become fully outlined. Indeed, when Kant began the main part of The Metaphysical Elements of Justice, he gave his exposition this title : The General Theory of Justice first part Private Law Of Proprietary Rights in General [Du mien et du tien en general] in External Things first chapter of the mode of having something external as one’s property1 In other words, he posed as irreducibly different the myself and the mine. The Kantian point of departure is that difference, and I have analysed at length the way that difference is rooted in

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material conditions of existence at the close of the eighteenth century. If we take this further, we can say that the Kantian difference between the myself and the mine is elaborated on the difference between the / and the thing. Kant gave us the ‘juridical’ translation. There is, he said, '’sensible possession and intelligible possession’, that is, ‘physical possession’ and ‘purely de jure possession’.2 This means that the thing possesses a reality which is external to the subject and that the subject is able to appropriate it only in the name of a decree of reason. So: ‘Consequently, it is an a priori assumption of practical reason that any and every object of my will be viewed and treated as something that has the objective possibility of being yours or mine.’3 The thing [the estate] ‘ appears as the inorganic body of its lord’.4 At the speculative level the status of the thing determines the status of the subject, although it is necessary to specify the meaning of this domination. If, then, the subject is in the last instance identified with the thing, it follows that in that identification the thing is the subject and the subject is its predicate. The domination of the land as an alien power over men is already inherent in feudal landed property. The serf is the adjunct of the land. Likewise, the lord of an entailed estate, the first-born son, belongs to the land. It inherits him. ... The state is individualised with the lord : it has his rank, is baronial or ducal with him, has his privileges, his jurisdiction, his political position, etc.5 We now see why the Hegelian break has its site in the very structure of the subject, because the development of the forces of production demanded both that man be liberated from the land and the land from man, both that man become for himself his own owner and that the land become the commodity that can circulate freely. So, when we say that the Hegelian break has its site in the very structure of the subject, that does not mean that the subject is the objective site of the break but, quite simply, that at the speculative level it could have its site only there. That deserves some explanation.

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On the Hegelian point of departure As I have already had occasion to point out, bourgeois ideology in general designates the totality of the social (economic, juridical, political) process under the notion of ‘civil society’. Now this notion covers none other than the sphere of circulation, that is, the sphere in which commodity relations are produced. This is the sphere, remember, that is the site of the reign of exchange value, that is, the site where individuals, the agents of exchange, are all private owners, free beings who bring on to the market the commodity they own. And it is precisely in this sphere that the subject can deploy its concept: freedom. Better, this sphere appears as a ‘creation’ of the subject, in the sense that all creation can be only the creation of a private owner. The Hegelian break could appear only in the imperialism of the subject, a member of ‘civil society’. But that break overlapped with another, the transition from feudalism to capitalism. It is now possible to expose that break in Hegel himself. But what has to be emphasised and what seems to me fundamental is that the break is in some way anterior to Hegel’s Philosophy of Right and that at the very moment Hegel begins his exposition the break has already been produced. So, what Hegel will demonstrate is in no way what leads up to the break - its genesis - but the effects of a break already consummated. That is the main point, for it is possible to see in that the recognition of a latent impotence, the impotence of the theorisation of the transition.6 I shall return to this point. The reading of the very first paragraphs of the First Part, Abstract Right, gives us the key not to the break but to its effects. Indeed, the whole of the extraordinary Hegelian enterprise is resolved in the very simple given that property is a determination of the subject. But this position, this postulate, reopens the Kantian problematic of the difference between the I and the thing. Hegel loosens the immobilism of Kantian categories locked in the struggle between jus ad personam and jus ad rem, arguing that all right derives from the person. And that unsettles two relations the relation subject/thing and the relation subject/subject. I have just said that that would unsettle two relations, but the unsettling is in fact even more radical. The postulate that all production is production of a subject encloses that double relation

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in itself. Indeed, since all production is production of a subject, then on the one hand the thing is produced, humanised by the subject, and on the other hand man encounters none other than the production of man. In other words, this postulate produces principally the practical effect that every (juridical) encounter of two individuals is the encounter of two private owners who are the owners of commodities. The result is that, in posing ab origine the category of the subject (or, to be more precise, the category of person), Hegel poses all its determinations. Better, the category of person, given as origin, already contains all the determinations in itself to the extent that it is indeed original. Whereas with Kant we have been the audience of hard conceptual labour in order to ‘do the trick’ of making use of a person without possessing him, with Hegel the trick has already been done as a curtain raiser. And now that the curtain has gone up and we have had the three traditional knocks, it is time to enter the philosophical scene. Hegel gets into position for his first appearance. He does it in his very own style, that is, with brilliance and obscurity. I now cite this debut without, I hope, surrendering to the obscure but dazzling performance : The absolutely free will, at the stage when its concept is abstract, has the determinate character of immediacy. Accordingly this stage is its negative actuality, an actuality contrasted with the . real world, only an abstractly self-related actuality - the inherently single will of a subject.7 That means that the first concrete determination of and for the objective spirit is the will of the subject. That means, then, that the idea of right is none other than the development of the concrete content which the category of the subject already conceals in itself. Once again we must pause here, and it will be in no way a waste of time. What I have just stated, namely, that the idea of right is none other than the development of the concrete content of the category of the subject, poses a problem. How can that category, which conceals in itself its entire ultimate development, be posed as the origin of a process? To put in another way, how can a category which is the result of a process be posed as the debut of that same process ? Here we are putting our finger on the question of the speculative process itself.

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Indeed, one can perhaps pose the following question. I said before that the form of the subject in law permitted the explanation of all the earlier theoretical/practical juridical forms, and I say now that to pose this same subject (in law) as the origin of the whole dialectic of Hegel’s Philosophy of Right reveals its speculative character. Now in a precise way this question very exactly covers the distinction Marx makes between ‘concrete thought’ and ‘abstract determination’ in the Introduction to A Contribution to the Critique of Political Economy. We need not spend long on this question because when the point has been elucidated the rest of the demonstration will follow of itself. So, what appears to be a detour will be recognised as a short cut. When Marx deals with the method of political economy in the Introduction he opposes the methods of the seventeenth-century economists who began with ‘the living organism, the population, the nation, the State, several States’8 to those of the eighteenthcentury economists who isolated ‘a few decisive abstract, general relations, such as division of labour, money and value’ and ‘advanced to categories like State, international exchange and world market’.9 Marx writes: The concrete concept is concrete because it is a synthesis of many definitions, thus representing the unity of diverse aspects. It appears therefore in reasoning as a summing-up, a result, and not as the starting point, although it is the real point of origin, and thus also the point of origin of perception and imagination. The first procedure alternates meaningful images to abstract definitions, the second leads from abstract definitions by way of reasoning to the reproduction of the concrete situation.10 And Marx adds the crucial thing which will permit the resolution of our problem, a resolution made out of fragments : Hegel accordingly conceived the illusory idea that the real world is the result of thinking which causes its own synthesis, its own deepening and its own movement ; whereas the method of advancing from the abstract to the concrete is simply the way in which thinking assimilates the concrete and reproduces it as a concrete mental category. This is, however, by no means the process of evolution of the concrete world itself.11

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Now it is precisely that ‘illusion’ that I would like to pursue, to track in Hegel’s Philosophy of Right. When Hegel begins with the category of subject, it is indeed a question of a category constituting ‘the synthesis of many definitions’. Hegel is therefore not in the position of the seventeenth-century economists who began, remember, with a ‘living organism’. In a very exact way he is concerned with the correct scientific method. It consists in starting with the most simple element in order to take account of the concrete itself. I said ‘he is concerned with’ but it would be more exact to say ‘it is tempting to believe that the Hegelian point of departure is the true point of departure’. It is tempting to say that his point of departure is scientifically correct. It is therefore precisely the status of this point of departure that is in question, that is, the status of the category of subject in the treatment it undergoes. Indeed, in Hegel that category - the result of a process of thought - is given as the origin of the real process. The Hegelian ‘confusion’ is the confusion of idealism itself: taking the result of a process of thought for the ‘process of evolution of the concrete itself. This last process accordingly appears as the development of the process of thought. Concretely, property in this way becomes a production of the subject rather than the subject’s being the concrete/ideological reflection of the evolution of property. The result is that all the dialectic deployed in Hegel’s Philosophy of Right can be presented as a dialectic having consciousness of its own concept, that is, of its freedom, and that the concrete determinations of the subject can be taken for the development of the will. We can make this more precise. When we proposed before that the form of the subject in law gave us the key to all earlier forms of the law, we meant that, qua ultimate concrete/ideological expression of the juridical relations of bourgeois society, qua ‘the most advanced and complex historical organisation of production’,12 the form of the subject in law permitted the comprehension of the historical genesis of juridical forms. That comprehension does not, however, consist in an identification. On the contrary, it consists in a specification of the different forms that juridical forms have been able to take in history. Better, it consists in the theoretical definition of the site of the law, through the concrete/ideological expression of the form of the subject in

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law. And by ‘site’ I mean the place and the role which the law occupies in a given mode of production. In this way it can be seen that the Hegelian debut is big with consequences.

Subject in law and thing-in-itself The structure of the Hegelian subject (in law) is astonishingly simple. It is summed up in three givens which, in a way, comprise only two. (1) Personality essentially involves the capacity for rights and constitutes the concept and the basis (itself abstract) of the system of abstract and therefore formal right. Hence the imperative of right is : ‘ Be a person and respect others as persons’.13 (2) The unconditional commands of abstract right are restricted, once again because of its abstractedness, to the negative : ‘Do not infringe personality and what personality entails’.14 (3) As immediate individuality, a person in making decisions is related to a world of nature directly confronting him, and thus the personality of the will stands over against this world as something subjective. For personality, however, as inherently infinite and universal, the restriction of being only subjective is a contradiction and a nullity. Personality is that which struggles to lift itself above this restriction and to give itself reality, or in other words to claim that external world as its own.15 The internal constitution of the subject determines the two relations subject/nature and subject/subject. But those two relations are already realised by the very constitution of the subject. Indeed, Hegel is merely deducing the consequences of his postulate. On the one hand, the posing of personality necessarily implies the means of this personality - its capacity - and the means of personality have no other utility than the posing of personality. The right of the subject is resolved in the subject in law. On the other hand, the subject enters into a relation with the thing, the non-subject, and in order to assume a real existence it

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invests it with personality. In other words, the thing has a real existence only through the subject which conquers it; it is defined only through the existence of the subject itself. I want to emphasise that in its Hegelian demonstration the relation subject/nature appears as a consequence of the formation of personality; it is deduced from its capacity. It is not that the relation to the thing makes the subject conscious of itself. It is consciousness of self that will pose the specific relation to the thing. In setting the relation ‘on its feet’ Marx and Engels could write : The first premise of all human history is, of course, the existence of living human individuals. Thus the first fact to be established is the physical organisation of these individuals and their consequent relation to the rest of nature. ... Men ... begin to distinguish themselves from animals as soon as they begin to produce their means of subsistence, a step which is conditioned by their physical organisation. .. ,16 In this way we see how the conquest of nature is related to the activity of the subject. And when Hegel criticises the notion of the thing-in-itself in Kant, he does so in the name of the activity of the subject : The so-called ‘philosophy’ which attributes reality in the sense of self-subsistence and genuine independent self-enclosed existence to unmediated single things, to the non-personal, is directly contradicted by the free will’s attitude to these things.17 This is quite extraordinary - the postulate of an owning subject which is in essence private and which shatters the famous Kantian thing-in-itself! For what does ‘the free will’s attitude to these things’ mean? In a very exact way it means that : A person has as his substantive end the right of putting his will into any and every thing and thereby making it his, because it has no such end in itself and derives its destiny and soul from his will. This is the absolute right of appropriation which man has over all ‘things’.18 In other words, the comportment of the free will is a comportment of an owner, and it is in the name of this

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comportment that Hegel can state that there is no thing-in-itself. Again, this means that the ‘mystery’ of the thing-in-itself is resolved - by means of the right of ownership ! This in turn throw's astonishing light on the thing-in-itself. Indeed, if the demonstration is pushed further, the thing-in-itself is elaborated on the difference between the I and the thing, a difference which was itself ‘juridically’ given by the distinction between the myself and the mine, that is, by a feudal property which dominated man. In the last instance, the thing-in-itself was even here none other than the expression of a property which was immobile, fettered, and congealed in archaic relations of production. At the first attempt Hegel has put his finger on the right question. If the subject produces private property and at the same time is produced by it, there is no longer a thing-in-itself. There is only the activity of an owning subject.

Hegel and jura realiter personalia In the passage I am going to deal with now', Hegel directly criticises the Kantian category ofjus realiter personals. Before dealing directly with the relation parent/child, I wrant to show howT the Hegelian point of departure, the subject, is proved in action. This is a key text in that we shall witness the transition from the localised subject in law to the universal subject in law. In Paragraph 40 Hegel treats of the immediate forms by means of which freedom is given in its immediacy. It is necessary to stress, though, the ‘formality’ in the Hegelian sense of the term of this immediacy. For what is meant by the immediacy of a concept the subject - which is in itself already the ‘synthesis of many determinations’ ? And this positing of the immediate permits the elaboration of the dialectic of consciousness ; the immediate is an immediate of a process of thinking. Further, when Hegel claims to give us the immediate forms of freedom, he also gives us the actual determinations of the subject in law: ‘... possession, which is property-ownership. Freedom is here the freedom of the abstract will in general or, eo ipso, the freedom of a single person related only to himself.’19 It is in this text, then, that Hegel criticises the division^ ad personam/jus ad rem. What is the key to this critique? It aims

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rationally to prove that all right derives from the person, to prove that there is not a right deriving from the thing and a right deriving from the person but that all right is a determination of the subject. In a later paragraph Hegel further specifies his project in this extraordinary formula: ‘Since property is the embodiment of personality, my inward idea and will that something is to be mine is not enough to make it my property; to secure this end occupancy is requisite.’20 The formula is amazing because it shows that possession itself is a determination of property. It is property that creates possession. Now this free owning subject structure contradicts the Roman/ Kantian distinction jus ad personam /jus ad rem [and jus personate /jus reale]. It must also be added that this emergence of the universal subject in law carries with it the appearance of the free worker and, in a correlative way, the liberation of property. In this way, then, Hegel takes the critique just where it is needed. There is, he tells us, an extraordinary confusion in the above distinctions. Everything gets mixed up. Rights relating only to ‘abstract personality as such’ are mixed up with rights which ‘presuppose substantial ties, e.g. those of family and political life’. And he goes on to say: Here this much at least is clear: it is personality alone which can confer a right to things and therefore jus ad personam in its essence in jus ad rem, rem being taken here in its general sense as anything external to my freedom, including even my body and my life. In this sense, jus ad rem is the right of personality as such.21 This is the first level of the critique. There is a second. Hegel will re-establish the truth of the Roman jus ad personam and allow the specification of the nature of the right of the person [droit de la personne]. So: Hence in Roman law, even personality itself is only a certain standing or status contrasted with slavery. ... The Roman jus ad personam is therefore not the right of the person as person but at most the right of a person in his particular capacity.22 And Hegel draws the following conclusion : rights of whatever sort belong to a person alone. Objectively

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considered, a right arising from a contract is never a right over a person, but only a right over something external to a person or something which he can alienate, always a right over a thing.23 This text must be analysed at two levels. First, I want to show you the dissolution of the category jus ad personam I jus ad rem in favour of the new category ‘right of personality’ [droit de personality. Second, I want to show how Hegel thinks this extract. Then it will be possible to deal directly with the relation parent/child.

Right of personality That there should be a jus ad rem and a jus ad personam imposed two necessary types of contradiction: first, that the thing could be opposed to the subject and, second, that the person could be reified. Take the two Hegelian conclusions : first, that jus ad personam is in essencejm ad rem, so thatjwj ad rem is right of personality as such, and, second, that rights of whatever sort relate to a person, so that right arising from a contract is right over something external to a person. The above two conclusions can be understood as follows. There is no right that exists over a person as such. There is only right that exists over the production of the subject. In other words, only the thing can be juridically apprehended, where the thing is understood as the production of the subject. Hence the revolutionary definition of the thing as the materialisation of the activity of the subject. I say ‘revolutionary definition’ advisedly because, to the exact extent that the activity is defined by labour, labour itself becomes the source of wealth. Think of what Marx said when he opposed the mercantilist and physiocrat theories to the theory of Adam Smith: ‘The abstract universality which creates wealth implies also the universality of the objects defined as wealth : they are products as such, or once more labour as such, but in this case past, materialised labour.’24 And relate that to the Hegelian theory of use, the essential negative act by means of which man destroys the immediacy of the object so as to elevate it, through labour, to the rank of general

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equivalent. Here is the fundamental fact. It is through labour that the thing acquires its mark, its value. And even if this value merely gives the abstract relation between need and satisfaction, it is none the less true that it is value that renders the thing universally definable. Indeed, by ‘value’ Hegel means: the quantitative terms into which that qualitative feature has been translated. One piece of property is thus made comparable with another, and may be made equivalent to a thing which is (in quality) wholly homogeneous. It is thus treated in general as an abstract, universal thing or commodity.25 It is in his departure from the bourgeois category of the subject, therefore, that Hegel begins to close in on the notion of value as the representation of human labour in general. Remember Kant and his paralysis in the face of the thing. Remember his inordinate and sterile efforts at the liberation of human activity, the liberation of labour. Remember the servant, the half-thing, half-man hybrid. The land - understand here the historic mode of production, feudalism, that is based on a certain type of landed property — is a burden to man. And look at Hegel. The thing has undergone an absolutely fantastic mutation. It has become the objectification of the activity of the subject. Everything can be sold, except the subject-in-itself. Man is free. He is free ... from everything, Marx will say, though we are not yet in that state. The practical effects are considerable. They contain in embryo the entire theory of the free worker, that is, of the individual that owns his labour power. So, when Hegel deals with the alienation of personality, the example he gives us is slavery, corporeal property, the inability to become an owner or freely to dispose of one’s property.26 And so he writes: Single products of my particular physical and mental skill and of my power to act I can alienate to someone else and I can give him the use of my abilities for a restricted period, because, on the strength of this restriction, my abilities acquire an external relation to the totality and universality of my being. By alienating the whole of my time, as crystallized in my work, and everything I produced, I would be making into another’s

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property the substance of my being, my universal activity and actuality, my personality.27 In other words, at the same time as the thing is none other than the materialisation of the activity of the subject, the subject is fulfilled only in the actual exercise of its production. We are a very long way from the Kantian ‘as if and its fantastical resolution. Here we are at the immovable theoretical positing of the Hegelian point of departure, the subject. It is the very status of the subject - and that point of departure was at the same time a revolutionary break - that demands its own conservation as personality, that is, as capable of ownership. And we must specify that the external status of human activity also contains in embryo the entire theory of alienation, the reprise of which the young Marx was able to effect. In short, the right of personality dissolves both the opposition subject/thing and the opposition subject/subject. In their activity individuals continue to work only on the activity of the other.

Hegel and the transition from the Roman jus ad personam to right of the person We must now understand how Hegel thinks the trans¬ ition from the Roman jus ad personam to the right of the person. The understanding of this transition is important since it is a matter of theorising the displacement of a category - the category of the subject - from the ancient mode of production to the capitalist mode of production. I make no claim here to give an exhaustive account of this displacement. It is enough to make explicit the Hegelian transition in the way that he was necessarily led to pose it. Finally, we shall try to provide the real perspectives which might permit the scientific treatment of the question. Hegel tells us that in Roman law man must be considered to have a certain status in order to be considered a person. Personality is itself a rank. That means that, in Roman law, property, freedom and equality are reserved for only a small number - free men. Better, Hegel tells us: ‘The Roman jus ad personam is therefore not the right of the person as person but at most the right of a person in his particular capacity.’28 It is therefore because of its

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‘localisation’ that Roman law was unable to achieve completeness, to liberate its principle. Personality accordingly appears as a state, a social rank, which is defined through the juridico-political framework. To be more precise, since personality is a state in virtue of its being opposed to slavery, it is slavery that constitutes personality as a state, and only the suppression of slavery will permit personality to achieve universalisation. Concretely, that means that only the constitution of men as subjects permits the true establishment of the right of the person. For a better understanding of the transition, here is another of Hegel’s texts. It is the one relating to the distinction use/ ownership. In this text Hegel devotes himself to a veritable indictment of the consequences of feudalism. Through his writing we are able to see by virtue of what Hegel launches this attack and the actual interplay of which it is the expression. My merely partial or temporary use of a thing ... is therefore to be distinguished from ownership of the thing itself. If the whole and entire use of a thing were mine, while the abstract ownership was supposed to be someone else’s, then the thing as mine would be penetrated through and through by my will... and at the same time there would remain in the thing something impenetrable by me, namely the will, the empty will, of another. As a positive will, I would be at one and the same time objective and not objective to myself in the thing - an absolute contradiction. Ownership therefore is in essence free and complete.29 This exordium is brilliant in its reference to the struggle against feudality : ‘ not in the restricted sense of the right of feudalists but as the notion of economic and social history defined by a historic mode of production based on landed property.’30 And in 1776, in his pamphlet on the disadvantages of feudal rights, Boncerf was already writing: ‘You ask for the source of such barbaric laws and rights and you ask why each owner of a fund does not have complete ownership of it, however burdened he may be?’31 Hegel places himself in the direct line of the liberation of the land. A thing cannot both be mine and belong to another. A thing cannot be subject to a perpetual life interest, to hereditary dues, on pain

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of contradicting the very principle of property. The red line of this claim is the abolition of all feudal privileges. All this is quite clear, and I shall economise on Hegel’s arid discussion of the distinction between dominium directum and dominium utile, a distinction which leads to the demonstration that the essence of property is income. It is enough to read the final justification of his fight, or, rather, the legitimation. This is fascinating: It is about a millennium and a half since the freedom of personality began throughout the spread of Christianity to blossom and gain recognition as a universal principle from a part, though still a small part, of the human race. But it was only yesterday, we might say, that the principle of freedom of property became recognized in some places. This example from history may serve to rebuke the impatience of opinion and to show the length of time that mind requires for progress in its self-consciousness.32 In other words, the liberation of property, condition of freedom of the person, is accomplished by the actual progression of the spirit. So, if‘the true subject of history is indeed movement’, that is, ‘the transition from the particular to the universal in each epoch’,33 then this movement is the very' movement of the freedom of property. That conclusion is explained by the double movement of the spirit: It is because the Principle is transformed that reality must be transformed (transition from one epoch to another), but it is also because reality is transformed under the action of men that the taking of consciousness becomes possible. In this way the study of objective conditions enables Hegel to make unacknowledged concessions to materialism.34 It is therefore in starting from the subject (in law) as a modern category that, by restricting himself to setting out its determinations (property/freedom-equality), Hegel ‘rediscovers’ the reality of the transition from Roman law to the person. But, in a precise way, he rediscovers it in the very postulate of the subject, in this predetermined bourgeois category in which neither break nor revolution is ever produced but only that concretely

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ineffective dialectic of consciousness. The ‘need’ of the spirit in this way becomes the actual pertinence of the transition. In short, the displacement of the category of the subject is given as the transition from a lesser to a greater subject, a transition effected in the actual consciousness of the subject. Marx and Engels have dealt with the problem of the ‘reprise’ of Roman law by the bourgeoisie in many texts. From The German Ideology onwards they were arguing: With the Romans the development of private property and civil law had no further industrial and commercial consequences, because their whole mode of production did not alter ... first in Italy and later in other countries, the highly developed Roman civil law was immediately adopted again and raised to authority.35 And Marx makes the point in a more specific way in ‘The Chapter on Capital’ in the Grundrisse: Equality and freedom are thus not only respected in exchange based on exchange values but, also, the exchange of exchange values is the productive real basis of all equality and freedom. As pure ideas they are merely the idealized expressions of this basis ; as developed in juridical, political, social relations, they are merely this basis to a higher power. Equality and freedom as developed to this extent are exactly the opposite of the freedom and equality in the world of antiquity, where developed exchange value was not their basis, but where, rather, the development of that basis destroyed them. Equality and freedom presuppose relations of production as yet unrealized in the ancient world and in the Middle Ages. ... It is, consequently, equally clear that although this legal system [tc. Roman law] corresponds to a social state in which exchange was by no means developed, nevertheless, in so far as it was developed in a limited sphere, it was able to develop the attributes of thejuridical person, precisely in the individual engaged in exchange, and thus anticipate (in its basic aspects) the legal relations of industrial society, and in particular the right which rising bourgeois society had necessarily to assert against medieval society. But the development of this right itself coincides completely with the dissolution of the Roman community.36

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In other words, in Rome the category of the subject is, if one may use the expression, ‘ahead of the mode of production. That explains both the fact that the category had a ‘local’ character and that it had a content opposed to the basis of production. In addition, when the rising bourgeoisie effects a ‘reprise’ of Roman law it does so in a different respect and in a different way: in a different respect because it is in a mode of production which tends to make exchange value the basis of production, and in a different way in that it is as a dominant category. In Rome the subject (the person, the citizen) is subordinate to an all whereas in the rising bourgeoisie the subject expresses dominant relations of a lessdeveloped all. The subject, the subordinate category, becomes the dominant category. I can only quote Marx : One may, nevertheless, conclude that the simple categories represent relations or conditions which may reflect the immature concrete situation without as yet positing the more complex relation or condition which is conceptually expressed in the more concrete category.37 What this amounts to is that the reprise of Roman law by the bourgeoisie is a reprise which develops in the subject what was already there in embryo, namely, the determinations of exchange value: property/freedom-equality. And this is precisely the evolution of the productive forces operating this qualitative leap. It is the exigency of the birth of the free worker separate from the means of production. So the Hegelian ‘transition’ is both true and false. It is true in that it poses the subject as determinant, false in that what appears as determinant is none other than a category which is itself the expression of a mode of production. No doubt I have said too much or not enough on this question. But it is certain that the problems raised by the displacement of the categories are on today’s philosophical agenda. With Hegel we have arrived at the revolutionary result that every man is a subject in law. We shall study the effects of that on the relation parent/child. A preliminary word - to tackle the relation parent/child is to depart from any obviously simple statements made by Kant and Hegel. For in the course of my study it has emerged gradually that the issue relates to a whole juridico-political system. To simplify, I am saying that it has been necessary to elucidate the status of the

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subject. Now, that is problematic. Why should an examination of the family put the entire juridical edifice at issue? Why should this entirely privileged site be constituted ? In answer to those questions, I propose a theoretical indication, and for the moment the reader is not obliged to ‘believe’ it. I suggest that the bourgeois family is constituted, in the last instance, on the transmission of patrimony, and that the transmission of patrimony is none other than the juridico-political form of capital. Again, it is in the family that there is developed the ‘alwaysalready’ ideological subject represented by the child. Now this double function of the bourgeois family - hereditary transmission and constitution of the subject - would permit the opening of new and rich perspectives on psychoanalysis, even if we are not well enough equipped today to explore them scientifically. After that brief word we can now pursue the study of Hegel’s text.

The family in Hegel’s Philosophy of Right For Hegel the family constitutes the first substantial position of the Spirit. For the first time the individual person lives in an all which goes beyond him. For the first time the subjective is united with the objective. We know the other two moments of this union : civil society and the State. Right from the start I would like to denounce the truly delirious character of this construction. Indeed, from First Part: Abstract Right onwards, all the determinations of the subject are posed, and we now know in what way this is done. Hegel will take up these determinations again at another level, namely, the social conditions of the concrete life of the subject: the family, civil society, and the State. But not only are these determinations the same as those of bourgeois society but also they are deduced from man’s acquisition of consciousness of his concept. It is because the person has consciousness of his pure existence and then of the ineffective absoluteness of himself in the good and in moral certainty that man decides to live ‘concretely’, that is, ‘socially’, that is, again, ‘in a bourgeois way’. Objective or realised morality is in this way presented as a social enrichment of the subject, or, if you

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prefer, as a hallucinated re-distribution of the juridico-political by means of the concept. In other words, the concept which has played us the nasty trick of disorganising the social all now plays us the nasty trick of re-organising it around itself. And the concept, here, is the subject of market society. This gives us the line of force of family relations. It is a matter of describing the bourgeois family. The child has finally become a subject in law. ‘Children are potentially free and their life directly embodies nothing save potential freedom. Consequently they are not things and cannot be the property either of their parents or others.’38 From the start children are beings destined for ownership, that is, destined for ‘self-subsistence and freedom of personality’ and destined for ‘the level on which they have power to leave the natural unity of the family’.39 The child, the subject in law, is the subject of exchange. It is with this conception as his starting point that Hegel can pass judgment on Roman law. What was the effect of that? Well, in Roman law, children were ‘from their father’s point of view “things”. Hence he was legally the owner of his children, although, of course, he still also stood to them in the ethical relation of love.’40 In this way, Hegel tells us, ‘the two qualities “being a thing” and “not being a thing” were united, though wrongly.’ This wrongness [anti¬ juridique] is differently characterised by Hegel. For him it is a question of‘an unjustifiable and unethical proviso’, a ‘gangrene of the ethical order at the tenderest point of its innermost life’.41 And later Hegel tells us of‘the harsh and unethical legal system of Rome’.42 But to have the final word on the matter, look at the text where Hegel treats of the evolution of Roman law. He reminds us of how the son passed out of his father’s potestas after three manumissions and three sales and, in particular, of how the daughter could inherit from her father. In two words he shows how the Roman rights of succession passed from the agnatic family to the cognatic family, that is, from descent in the male line, which could extend to members of the gens, to natural kinship resting on consanguinity. And Hegel qualifies this transition when he says : ‘Later, with the growing feeling for rationality, the unethical provisions of laws such as these and others were evaded in the course of their administration.’43 And in the very same text Hegel attacks the consequences of feudal rights of succession : exclusion

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of daughters from inheriting, right of the eldest child, substitutiones, and jideicommissa. (Cf. Article 896, Civil Code: ‘Substitutions are prohibited. Any disposition by means of which the donee, the appointed heir or the legatee, will be charged with holding for or rendering to a third party will be null.’) He justifies his struggle in this way : ‘ The institution ... is an infringement of the principle of the freedom of property. ... And besides, such an institution depends on an arbitrariness which in and by itself has no right to recognition. ,..’44 So, we now know what is at issue - freedom of ownership. The family relations of Rome are ‘unethical’ and feudal family relations are ‘arbitrary’ and irrational because they are obstacles to the mobility of landed property. Liberation of property is the correlate of family freedom. In their study of the division of labour, Marx and Engels said that the division of labour: was originally nothing but the division of labour in the sexual act, then the division of labour which develops spontaneously or ‘naturally’ by virtue of natural predisposition (e.g. physical strength), needs, accidents, etc.etc.45 Following this they argue: The division of labour in which all these contradictions are implicit, and which in its turn is based on the natural division of labour in the family and the separation of society into individual families opposed to one another simultaneously implies the distribution, and indeed the unequal distribution ... of labour and its products, hence property ... the first form of which lies in the family, where wife and children are the slaves of the husband. This latent slavery in the family, though still very crude, is the first form of property, but even at this stage it corresponds perfectly to the definition of modern economists, who call it the power of disposing of the labour-power of others.46 This gives us the true key to Hegelian ‘rationality’. It gives us the political significance of his attack. The category of the subject in law determines family equality, as it does the equality of all labour. I apologise for quoting at length from famous texts, but,

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as Hegel himself used to say, what is well known is not well known precisely because it is well known. In opposing the capitalist mode of production to other modes of production, Marx and Engels write: From the first point, there follows the premise of a highly developed division of labour and an extensive commerce; from the second, the locality. In the first case the individuals must have been brought together, in the second they are instruments of production alongside the given instrument of production. ... In the first case, that of the natural instrument of production, individuals are subservient to nature ; in the second, to a product of labour. In the first case, therefore, property (landed property) appears as direct natural domination, in the second, as domination of labour, particularly of accumulated labour, capital. The first case presupposes that the individuals are united by some bond : family, tribe, the land itself, etc. ; the second, that they are independent of one another and are only held together by exchange. In the first case, what is involved is chiefly an exchange between men and nature in which the labour of the former is exchanged for the products of the latter; in the second, it is predominantly an exchange of men among themselves.’47 There is an extraordinary richness in this text and we see once more all the Hegelian couples, all the relations which were fixed by Kant but which are now liberated: universal/local man-thing/separation of the worker from the means of production (subject) subordination of man to nature/subordination to the product of labour domination of landed property/domination of accumulated labour union of the individual in the family, the tribe, the earth/ independence of individuals man-nature exchange/exchange between men The shattering of the family through the universal subject accordingly appears to us as the necessary expression of capitalist relations of production. It would only remain to show how rising

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capitalism has made of the family one of the privileged sites of the reproduction of relations of production and to take up again the ruthless analysis Marx and Engels engaged in, ruthless because scientific.

Notes and references

Chapter 1

The reasons for an absence

1 E. B. Pashukanis, ‘The General Theory of Law and Marxism, in Soviet Legal Philosophy, Cambridge, Mass., Harvard University Press, 1951, vol. II, p. 131. 2 V. I. Lenin, ‘Explanation of the Law on Fines Imposed on Factory Workers’, Collected Works, London, Lawrence & Wishart, vol. 2, pp. 33f. 3 Ibid., p. 34. 4 ‘Doctrine’ in law designates an original corpus, constituted both by commentaries on the laws and rulings of legal proceedings (the texts of decisions) and by ‘theoretical’ works on law. It can be said that here it is a question of the privileged site of juridical ideology where ideological discourse is structured and where the defence and illustration of the law is elaborated. I say the ‘privileged site’ because it is also the site of the collusion between juridical teaching and practical juridical production. It provides the law student with his daily bread, the magistrate with a confirmation of his jurisprudence, and the professor with his justification. 5 Marx/Engels, The German Ideology, Collected Works, London, Lawrence 8c Wishart, 1976, vol. 5, I Feuerbach [12. Forms of Social Consciousness], p. 91. 6 Ibid., Ill Saint Max, 5 [B. My Intercourse] [1 Society] 5. Society as Bourgeois Society, p. 363. 7 Ibid., I Feuerbach [12. Forms of Social Consciousness], p. 92. 8 M. and R. Weyl, ‘Idéologie juridique et lutte des classes’, La Nouvelle Critique, January 1972 no. 49. 9 Ibid. 10 Marx/Engels, The Holy Family, Collected Works, London, Lawrence 8c Wishart, 1975, vol. 4, Ch. VI Absolute Critical Criticism, ... 2b) The Jewish Question No. 2 Critical Discoveries on Socialism, Jurisprudence and Politics (Nationality), p. 97.

Notes and references to pages 25-30

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11 Ibid., Ch. IV Critical Criticism as the Tranquillity of Knowledge, ... (4) Proudhon, Critical Comment No. 1, p. 32. 12 Marx, Capital, London, Lawrence & Wishart, vol. I, part I, ch. I, section 4, p. 76. 13 Marx/Engels, The Holy Family, op. cit., p. 33. 14 Cf. Appendix I, where I demonstrate that in the very privileged matter of labour law the actual process of juridical ideology consists in ‘depoliticising’ political problems.

Chapter 2

The birth certificate of juridical ideology

1 Man’s freedom is realised through the ‘private’ appropriation of every object. It is the ‘unassailable’ postulate that functions both in legal practice and, in its abstract expression, in idealist philosophies of right. The whole of the extraordinary Hegelian endeavour is resolved into the very simple given that property is a determination of the subject. So, for Hegel : A person has as his substantive end the right of putting his will into any and every thing and thereby making it his, because it has no such end in itself and derives its destiny and soul from his will. This is the absolute right of appropriation which man has over all ‘things’. Hegel’s Philosophy of Right, translated with notes by T. M. Knox, Oxford, 1965, § 44. 2 Zdewek-Krystufek, ‘Signification historique de la fiction du droit naturel’ Archives de philosophie du droit, Lib. Sirey. 1969, p. 309. 3 L. Althusser, ‘Ideology and Ideological State Apparatuses’, in Lenin and Philosophy and other essays, translated from the French by Ben Brewster, London, New Left Books, 1971, p. 160 and note 15. 4 Marty, and Raynaud, Traité de droit civil, Librairie générale de droit et de jurisprudence, vol. I, no. 141. 5 Planiol, and Ripert, Traité de droit civil, vol. I, no. 6. 6 Ibid., no. 7. 7 Ibid., no. 7, note 1. 8 Since the question of subjective right will be our constant concern, it is important briefly to indicate what is at issue in this category. This is the question of how the derivation of every right from the person (subjective right) constitutes the privileged ground of every idealist philosophy of right. What is at issue in this category is both juridical ideology in its conception of all juridical production as the production of a subject (in law) and juridical practice in its functioning on this ‘form already prepared and given in advance’. E. B. Pashukanis, ‘The General Theory of Law and Marxism’, in Soviet Legal Philosophy,

194

Notes and references to pages 30-3

Cambridge, Mass., Harvard University Press, 1951, IV Goods and

9 10 11 12 13 14 15 16 17

Subject, p. 161. In the same way as the wealth of capitalist societies ‘presents itself as an immense accumulation of commodities’ and as ‘the analysis of a commodity’, the elementary form of this wealth, constituted the starting point for Marx [Marx, Capital, London, Law'rence Sc Wishart, vol. I, ch. 1, p. 35], so the immense legislative and jurisprudential edifice of these same societies is presented for its greater part as a prodigious development of the subject in law, the simplest and the most complete element of the juridical relation. Savigny, Traité de droit romain, 1840, vol. I, pp. 326-7. Savigny, L’Esprit du droit romain, 1878, vol. IV, p. 319. Jhering, L’Esprit du droit romain, p. 326. Michoux, Théorie de la personnalité morale et son application au droitfrançais, Librairie générale de droit et de jurisprudence, vol. I, p. 70. Ibid. Planiol, Traité élémentaire de droit civil, 1956, part I, nos 4, 648. Carbonnier, Flexible droit, ‘Pour une sociologie sans rigeur’, Librairie générale de droit et de jurisprudence, 1969. Ibid., p. 107. Ibid., p. 108.

18 ‘A dog who sees a bone in the power of another dog stands aside only if it feels too weak. Man, however, respects the right of the other man to his bone ...’, Marx/Engels, The German Ideology, Collected Works London, Lawrence Sc Wishart, 1976, vol. 5, III Saint Max, 5 [B. My Intercourse] [1 Society] 5 Society as Bourgeois Society, p. 362. Marx is sarcastic about Stirner’s remark: Certainly, no dog has ever made phosporus, bone-meal or lime out of a bone, any more than it has ever ‘ got into its head’ anything about its ‘right’ to a bone ; equally, it has never ‘entered the head’ of Saint Sancho to reflect whether the right to a bone which people, but not dogs, claim for themselves, is not connected with the way in which people, but not dogs, utilise this bone in production (Ibid., p. 363).

19 20 21 22

Our national saint pulverises Saint Sancho, after more than a century of reflection: the dog was indeed ‘thick’ to think it had a right over his bones ... like the wolf over the lamb. Carbonnier, op. cit., p. 108. Ibid. Althusser, op. cit. Ibid., p. 168.

23 Marx and Engels show us the movement by means of which juridical concepts ‘are looked upon as mysterious forces’.

Notes and references to pages 33-8

195

The hitherto existing production relations of individuals are bound also to be expressed as political and legal relations. ... Within the division of labour these relations are bound to acquire independent existence over and against the individuals. All relations can be expressed in language only in the form of concepts. That these general ideas and concepts are looked upon as mysterious forces is the necessary result of the fact that the real relations, of which they are the expression, have acquired independent existence. Besides this meaning in everyday consciousness, these general ideas are further elaborated and given a special significance by the politicians and lawyers, who, as a result of the division of labour, are dependent on the cult of these concepts, and who see in them, and not in the relations of production, the true basis of all real property relations. Saint Sancho, who takes over this illusion without examination, is thus enabled to declare that property by right is the basis of private property, and that the concept of right is the basis of private property, after which he can restrict his whole criticism to declaring that the concept of right is a concept, a spectre (Marx/ Engels, The German Ideology, pp. 363—4).

Chapter 3

The commodity form of creation

1 It is appropriate here to specify two things. On the one hand, every creature can, as he goes along, come across this ‘real’ which is already invested with property. I am thinking of all the jurisprudence which relates to the novel, according to which the courts convict the author who presents a ‘real’ person in an unfavourable light. The specificity of photography and the cinema, however, consists in a ‘mechanical’ re-production of the ‘real’ and in the fact that what was merely latent becomes explicit. It is in this way, and this is the second point, that simply taking pictures of a road makes the character of communal private property - that is, the character of a property which belongs to everyone - ‘appear’ in the determination of private property. 2 This process is illustrated by Maihofer. He uses Ernst Bloch’s concept of Gesellschaftlische Materie according to which a superstructure of social consciousness corresponds to a concrete structure of social existence. He writes: In the social material of the world, the social existence of man is ‘produced’ as a permanent process of the objectivisation of the subject engaged in an external social world through his existence

196

Notes and references to pages 38-43 and as a permanent process of the subjectivisation of objects of the social material in the internal social consciousness of the subjects so engaged (‘ Droit et nature des choses dans la philosophie allemande du droit’, Ann. Fac. Droit, Toulouse, 1964, vol. XII, column 1, p. 130).

3 4 5

6

7 8 9 10 11 12 13

It can be seen that the total process is thought as the process of a subject, that is, in the very determination of the subject. Neither the articulation of the subject on the infrastructure nor, therefore, the content of the subject can be analysed. The ship of the subject has embarked on a voyage over the seas of natural right. Pouillet, Traité théorique et pratique de la propriété littéraire et artistique, Paris, 1894, p. 9. Morillot, Traité de législation comparée, Paris, 1877, p. 454. H. Balzac, Note du 3 mars 1841 à la Comm. Parlem. sur la révision de la loi sur la propriété littéraire, quoted in Potu, Revue trimestrielle de droit civil, 1910. Marx/Engels, The German Ideology, Collected Works London, Lawrence 8c Wishart, 1976, vol. 5, III Saint Max, 5 [B. My Intercourse] [1 Society] 5. Society as Bourgeois Society, p. 363. Lakanal, rapporteur of the 1793 law. Le Chapellier, rapporteur of the 1791 law. Speech to the Chambre, 1841. To the Conseil d’Etat, 30 September 1849. H. Balzac, op. cit. Paris, 8 December 1853, Sirey, 1954, part II, p. 109. Pouillet, op. cit.

14 Trib Paix, Narbonne, March 1905, D 1905, 2 389. 15 Tribunal de commerce, Seine, 7 March 1861, DP 3.32. 16 Pataille, Code internationale de propriété industrielle artistique et littéraire, 66 135, Paris, 1865. 17 Tribunal de grande instance, Paris 6 January 1969, Revue internationale des droits d’auteur, July 1970, p. 148. 18 Chambéry, 18 May 1962, Dalloz, 1962, p. 599. 19 Here is one example. The judges who refuse to confer a good on one or other of the persons claiming it commit a denial of justice (Civil Code, Article 4), even if the pretext put forward is that neither party has proved the superiority of his right (Cassation civile, 16 April 70 D 70 474, Note, Contamine-Raynaud). As the annoteur remarks, this is a departure from the postulate ‘that the good necessarily belongs to someone’ and that the right of ownership cannot be lost, only transferred’. This decision echoes Pashukanis’s work: Accordingly, bourgeois (capitalist) property ... becomes an absolute and constant right, which follows the thing

Notes and references to pages 43-7

19 7

whithersoever chance may bear it, and which (since the time when bourgeois civilization asserted its dominance over the entire earthly sphere) is defended in every quarter thereof by statutes, by the police, and by the courts (E. B. Pashukanis, The General Theory ofLaw and Marxism, in Soviet Legal Philosophy, Cambridge, Mass., Harvard University Press, 1951, IV Goods and Subject, p. 165). 20 Lamartine, Cours familier de littérature. Entretiens sur Léopold Robert, vol. VI, p. 140, 1848 edn. 21 Ibid. Cf. also the declaration signed at the time by the members of the Institute: Considering that photography reduces to a series of wholly manual operations which no doubt require some competence in the manipulations involved, but considering that the resulting proofs cannot under any circumstances be assimilated to works [of art], the fruit of intelligence and of art study. ... 22 ‘In a modern state, law must not only correspond to the general economic condition and be its expression but must also be an internally coherent expression which does not, owing to inner contradictions, reduce itself to nought.’ Engels, Letter to Conrad Schmidt, 27 October 1890, Marx/Engels, Selected Correspondence, Moscow, Foreign Language Publishing House, p. 504. 23 Tribunal de commerce, Turin, 25 October 1861, quoted in Potu, ‘La Protection des oeuvres photographiques en droit français’, Revue trimestrielle de droit civil, 1910, pp. 723f. 24 Tribunal de commerce, Seine, 7 March 1861, Dalloz-périodique, 1861, part 3, p. 32. 25 Findings of avocat impérial Thomas, in Annales de la propr. ind., 1855, p. 405. 26 Copper, L’Art et la loi, No. 23, p. 45. 27 Tribunal de Commerce, Turin, in Potu, ‘La Protection des oeuvres photographiques en droit français’. 28 Tribunal de commerce, Seine, 7 March 1861: 29January \862, Dallozpériodique, 1862, part 3, p. 8; Paris, 10 April 1862, Sirey, 1863, part 1, p. 4L 29 Savatier, ‘Le Droit de l’art et des lettres’, Lib. gén. de droit et de jurisprudence, 1953, nos 96, 99. 30 Pau, 18 November 1904, Dalloz, 1010, part 2, p. 81. 31 Tribunal civil, Seine, 10 February 1905, Dalloz, 1905, part 2, p. 389; cf. also Meignen and Dumouret, Code du cinéma, 1924: ‘In origin the cinema is photography; in short, a film is nothing more than the joining of photographs the succession of which on the screen gives the illusion of movement and life.’

198

Notes and references to pages 44-52

32 Léglise, ‘Histoire de la politique du cinéma français’, Lib. gén. de droit et de jurisprudence, 1970, p. 9f. 33 Tribunal de simple police, Marseille, 30 January

1913, Dalloz,

Sommaire 23. 34 Elie Faure, ‘Fonction du cinéma’, Médiations, p. 123. 35 Ibid, p. 124. 36 18 October 1912, Bull. Spec, des Just, de Paix, 1913, p. 27. 37 Telegram from the ministre de l’Intérieur, quoted in Léglise, op. cit., p. 60. 38 Demichel, ‘Les Pouvoirs du maire en matière du police du cinéma’, Ann. Université Lyon, Etudes économiques et politiques, 1960, column 20, 39 40 41 42 43 44 45

p. 8. Léglise, op. cit., p. 65. Duhamel, Scènes de la vie future, p. 58. Potu, Revue trimestrielle de droit civil, 1910, no. 2. Ibid., no. 10. Bulloz, La Propriété photographique et la loi française. Copper, op. cit. Cour de cassation, 28 November 1862, Annales de la propriété industrielle,

1862, p. 140. 46 Bruno Meyer, Dos Neue Photographische Schutzgesetz nach dem Regierungsentwurfe, 1903. Cf. also Pouillet, De la protection des oeuvres photographiques en France, vol. II, p. 55: ‘It is of small importance that the execution should be the result of purely material and mechanical labour, since the labour is only the means of making perceptible the creation, the production of the spirit.’ And for Ferrara, ‘all artistic production still constitutes a labour which has the same nature and which gives birth to the same rights’. La Concezione economica dei diritti su beni immateriali, Naples, 1910. 47 Cours familier de littérature, ‘Entretien 37’, p. 25, 4; Lyons, 5 February 1954, Juris-Classeur périodique, 1955, part 2, 8 564. The author has right to protection, seeing that ‘thanks to his technical and professional attainments ... he knows how to create a new original work’. 48 Cour de cassation, chambre civile, I, 23 June 1959, Dalloz, 1959, p. 384. 49 Cour de cassation, chambre criminelle, 7 December 1961, Dalloz, 1962, p. 550. 50 Seine, 31 May 1944, Dalloz, 1946, p. 117. 51 Cour de cassation, chambre civile, 23 June 1959, op. cit. 52 Seine, 3 March, 1943, Dalloz, 1946, p. 117. It is appropriate to say that the law itself teeters about in the ambiguity of the concept of investment of the real by personality when it declares that ‘ photographic works of an artistic or documentary character ... are

Notes and references to pages 52-5

199

in particular considered to be works of the spirit ’ (Article 3, law of 11 March 1957). That implies a ‘double’ relation (artistic or documentary) to the real. It goes without saying that the juridical dispute on the issue of what is to be understood by ‘artistic’ or ‘documentary’ is live. Here are two examples. On the question of the photograph of the Morane-Saulnier apparatus which had been used on a postage stamp, the Paris tribunal administratif gave the ruling of 20 February 1962 that this photographic work by virtue of the technical competence necessary to its execution, the manner in which the main features of the reproduced object are brought to light, and the value of the information which was the result of those operations, bears the personal imprint of the author to whose knowledge that imprint is due and assumes a documentary character.

53 54 55 56 57 58 59 60 61 62

This means that the documentary character exists only by virtue of the personality of the author. But the Conseil d’Etat was to give a contrary ruling after the ministre had made the observation that the documentary character exists only in so far as it is an ‘extension’ of artistic character and it is not a question of the simple ‘impersonal’ reproduction of an object, deeming that the negative ‘which presents no artistic character could no longer be regarded as a work of documentary character’. (26 April 1963, Findings, Chardeau, and Note, Desbois, Dalloz, 1964, p. 124). Industry and commerce became confused after the Cour de Paris, in a decision of 26 April 1969 (JurisClasseur périodique, column 4), accorded the documentary character to a pressiometer photograph in so far as it illustrates the text and, furthermore, in so far as ‘the negative has been used for a publication with commercial purposes in view, which demonstrates the interest attaching to the document’. There again, the reversal is striking. The test of the documentary character was to reside in none other than its commercial use. Marx, Capital, London, Lawrence & Wishart, 1962, vol. Ill, part VI, ch. XXXVII, p. 601, n. 26. Brecht, ‘Sur le cinéma’, L’Arche, pp. 220-1. Mercillon, Le Cinéma américain, p. 51. Ibid., p. 3. Huret, Droits d’auteur et cinéma, thesis, Paris, 1945. German Supreme Court, 1st Civil Division, 16June 1923, quoted by Brecht, op. cit., p. 197. Mercillon, op. cit., p. 197. For greater detail, cf. ibid., p. 133. Ibid. Cinéma et idéologie, Ed. Sociales, 1971, p. 89.

200 63 64 65 66 67

Notes and references to pages 5 5—63 Ibid. Léglise, op. cit., p. 140. Brecht, op. cit., p. 205. Ibid., p. 207. Douai, 3 April 1930, quoted by Daburon, Le Réalisateur de l’oeuvre cinématographique, thesis, Paris, 1961, p. 381.

68 Huret, op. cit., p. 10. 69 Mercillon, op. cit., p. 163. 70 Dullac, Rapport au comité 71 72 73 74 75 76 77 78 79

directeur

de

la

Chambre

syndicale

cinématographique française, 29 June 1927. Paris, 16 March 1939. Dalloz hebdomadaire, 1939, p. 263. Parent, Le Film, 17 January 1942. Seine, 24 May 1938, Gazette du Palais, 1938, part 2, p. 509. German Supreme Court, decision, op. cit. Seine, 24 May 1938, op. cit. Seine 10 May 1935, Gazette du Palais, 1935, part 2, p. 62. Olagnier, Le Droit d’auteur, 1934. Paris, 10 February 1936, Gazette du Palais, 1936, part 1, p. 691. Daburon, op. cit., p. 41. Cf. also: Scrutiny of the theoretical writings at this time would easily cause the appearance of a surprising convergence in conceptions : the image is like the word, the sequence is like a phrase, and a sequence is constructed of images as a phrase is constructed of words, etc. By placing itself on this ground, the cinema proclaims its superiority but is condemned to an eternal inferiority. In the face of a subtle language (verbal language), the cinema defined itself as a coarser double without knowing it. There was nothing left for it but to sport its commonality in a jaunty way ... secretly terrified of its thoroughbred elder brother (Christian Metz, ‘ Le Cinéma: Langue ou langage’, Communications IV, 1964, p. 66).

80 In Brecht, the rhetoric of the subject is discharged by the very discharge of subject speech. Cf also: ‘it is not the words that produce this critique, but the internal balances and imbalances of forces between the elements of the play’s structure.’ Louis Althusser, For Marx, translated by Ben Brewster, London, Penguin, 1969, p. 143. 81 Findings, Lecourtier, in Paris, 20 January 1971, Dalloz, 1971, p. 307. 82 Ibid. 83 Brecht, op. cit., p. 216. 84 Paris, 20 January 1971, op. cit. 85 Brecht, op. cit., pp. 205-6. 86 German Supreme Court, op. cit. 87 Becquet, Le Droit d’auteur en matière cinéma, 1947, no. 49.

Notes and references to pages 63-7

201

88 Lyon-Caen and Lavigne, Traité du cinéma, LGDJ, 1965. 89 Paris, 14June 1950, Dalloz, 1915, p. 9. 90 Paris, 13 May 1964,Juris-Classeur périodique, 1964, part 2, 13 932; Cour de cassation, chambre civile, 1, 22 November 1966, Dalloz, 1967 p. 485. 91 Pleynet, ‘Le point aveugle’, Cinéthique, no. 3. 92 Ibid. 93 94 95 96

Comolli Pleynet, Comolli Pleynet,

and Narboni, in Cahiers du cinéma, no. 216. in Cinéthique, nos 9-10, pp. 55f. and Narbonni, op. cit. op. cit.

97 Gaudel-Gruyer, ‘La Réalité, source spécifique de la création télévisuelle’, Revue internationale desdroits d’auteur, April 1970. 98 Ibid. 99 Tribunal de grande instance, 28 April 1971, Revue internationale des droits d’auteur, July 1971, p. 95. 100 Aff. Times inc. Qpoted by Ringer, ‘Evolution de la jurisprudence aux Etats-Unis en matière de droit d’auteur’, Revue internationale des droits d’auteur, January 1971. 101 It is interesting to compare this decision with another given by the appeals division of the New York Supreme Court. This decision has a bearing on the use of language: Whichever it may be, a title or a name, if it is isolated from its subject, it is composed of ordinary words and cannot become the property of anyone. Dissociated from the work, this title or name consists only of simple words and all the words in our language belong in the public domain ; whoever speaks or writes has the ‘ inherent right’ [droit naturel to use all words comprising the English language, as with all the combinations the language allows if the use of language is ever to be legitimate (O’Hara v. Gardner Advertising). Language itself appears as structured on private property. Linguistic enquiry has to take cognisance of the juridical dimension of language, that is, of its social effectivity. We propose to elaborate this given in subsequent works. The problem of the appropriation of information is also posed. It is a question of facts which both belong to everyone and are none the less the ‘property’ of press agencies. In a subtle judgment jurisprudence has decided that the appropriation of information could take effect in advance of its being divulged but that after it has been divulged ‘everyone has the right to profit from it’. Req. 8 August 1961, Dalbz, 1962, part 1, p. 136; Tribunal de grande instance, 17 December 1968, Revue internationale des droits d’auteur, 1970, p. 91.

202

Notes and references to pages 6 7 71 -

102 For purposes of this ‘little’ history, I must add that this same judge refused to sanction the theft of these photographs since they had not been taken in bad faith, recognising ‘the public interest in the availability of the greatest amount of information on the assassin that is possible’, and above all recognising the fact that it was not a case of serious competition since the man had done nothing about the commercial distribution of the protected work. What an honourable way of putting it! 103 Brecht, op. cit., p. 220.

Chapter 4

The commodity form of the subject

1 E. B. Pashukanis, The General Theory of Law and Marxism, in Soviet Legal Philosophy, Cambridge, Mass., Harvard University Press, 1951, IV Goods and Subject, p. 160. 2 Of the commodity form, Marx writes: ‘a society in which the great mass of the produce of labour takes the form of commodities, in which, consequently, the dominant relation between man and man, is that of owners of commodities.’ Marx, Capital, London, Lawrence 8c Wishart, vol. I, part I, ch. 1, section 4, p. 60. 3 Marx, Economic and Philosophic Manuscripts of 1844, Collected Works, London, Lawrence 8c Wishart 1975, vol. 3 [Third Manuscript] p. 291. 4 Paris, 6 July 1965, Gazette du Palais, part 1, p. 39. The formula is repeated relentlessly. 5 Tribunal de commerce, Seine, 26 Lebruary 1963, ‘Summary’, p. 85. 6 It must be stated ... that patrimony is the container of all pecuniary or non-pecuniary rights which come to be founded in the subject; their reciprocal influence is too great for certain elements in them to be dissociated (Mazeaud and de Juglard, Leçons du droit civil, 4th edn. 1970, vol. I, no. 622). And these authors write this magnificent sentence: Lrench law compensates moral damage and in almost all cases it requires this compensation to be made in money; how would we conceive the introduction of pecuniary value as compensation, in patrimony, if it were not to replace another value which, whether it is pecuniary or moral, has disappeared ...[!] In effect, they are saying that if moral damage is compensated by money it means that the moral loss is money lost just as money lost is a moral loss! 7 Marx, Capital, ed. cit, part II, ch. VI, p. 176. 8 Ibid., part I, ch. II, p. 84.

Notes and references to pages 72-5

203

9 Marx, Economic and Philosophic Manuscripts of 1844, ed. cit. 10 ... both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will (Marx, Capital, ed. cit., part II, ch. VI, p. 176). 11 ‘Production does not simply produce man as a commodity. ... Its product is the self-conscious and self-acting commodity ... the human commodity ... ’ Marx, Economic and Philosophic Manuscripts of 1844, ed. cit., [Second Manuscript], p. 284. Juridical thought can be compared with what Marx said about primitive communism. Marx said that, as the complete realisation of private property qua the generalisation of private property, primitive communism: ‘since it negates the personality of man in every sphere ... is but the logical expression of private property, which is this negation.’ Ibid. [Third Manuscript], p. 295. 12 ‘The will is the active element of subjective right.’ Martin, ‘Le Secret de la vie privée’, Revue trimestrielle de droit civil, 1959, no. 10. ‘An attack on one’s private life can be justified only by the consent of the victim.’ Badinter, ‘Le Droit au respect de la vie privée’,Juris-Classeur périodique, 1968, part 1, 2 136, no. 16. 13 Marx, Capital, ed. cit., part II, ch. VI, p. 168. 14 E. B. Pashukanis, op. cit., p. 163. 15 ‘By alienating the whole of my time, as crystallized in my work, and everything I produced, I would be making into another’s property the substance of my being, my universal activity and actuality, my personality.’ Hegel’s Philosophy of Right, London, OUP, 1976, § 67. One juridical author, who has certainly read neither Marx nor Hegel, spontaneously discovers the same relation: ‘forever to abandon his private life ... would be as contrary to the freedom of the individual as it would be for him to give up his labour for life.’ Badinter, op. cit. 16 Tribunal civil, Yvetot, 2 March 1932, Gazette du Palais, 1932, part 1, p. 855. 17 Note, tribunal correctionel, Grasse, 8 February 1950, Dalloz, 1950, p. 712. 18 Nerson, Revue trimestrielle de droit civil, January-March 1971, p. 119. 19 Martin, op. cit., p. 231, n. 7. 20 Ibid., p. 232. 21 Vienne, ‘Preuves et atteintes à la personne’, Juris-Classeur périodique, 1949, part 1, p. 758. 22 Ibid. 23 Des Droits sur les lettres missives, vol. II, no. 209. 24 Digeste, 9, 2, Ad. leg. aquii, 13, p. 2. ‘No one knows how to be master of his own members.’

204

Notes and references to pages 76-92

25 ‘Les Droits de la personnalité. Aspects théoriques et pratiques’, Revue trimestrielle de droit civil, July-September 1971, p. 461. 26 Tribunal de grande instance, 15 June 1970, Juris-Classeur périodique, 1970, part 2, 16 550. Although he is first advocate [avocat général to the Cour de cassation, Monsieur Lindon is quite disturbed by this consequence: ‘When it is not a question of respect for private life, when it is a question of the character of a historical event, it can be asked if in French law it is forjudges to say what is “shocking” and what is not ’ 27 Tribunal de grande instance, 20 March 1970, Dalloz, 1970, p. 487. 28 Cour de cassation, chambre criminelle, 21 December 1966, Bulletin des arrêts de la Cour de cassation, no. 33, p. 699. 29 Ibid. 30 Engels, Anti-Dühring, London, Lawrence 8c Wishart, 1969, part I, ch. IX, p. 114. 31 Tribunal de grande instance, Paris, 30 June 1971, Dalloz, 1971, p. 678. 32 Marx/Engels, The Holy Family, Collected Works London, Lawrence 8c Wishart, 1975, vol. 5, ch. VI, 3 (c) Critical Battle against the French revolution, p. 122. 33 Tribunal de grande instance, 17 March 1970, Revue internationale des droits d’auteur, January 1971, p. 182. 34 Tribunal de grande instance, 10 February 1971; ibid., April 1971, p. 327. 35 Seine Tribunal, 1 April 1965, Juris-Classeur périodique, 1966, part 2, 14 572, Note, R.L. 36 Ibid. 37 Revue trimestrielle de droit civil, 1966, p. 293. Comments, Rodière. 38 Ibid., p. 317, Comments, Bredin.

PART III

Elements for a Marxist theory of law

1 Marx, Capital, London, Lawrence 8c Wishart, vol. I, part II, ch. V, p. 166. 2 Ibid. 3 Marx, Contribution à la critique de l’économie politique, Ed. Sociales, p. 220. [Cf. Marx, Grundrisse, Harmondsworth, Penguin, 1974, notebook II, the chapter on capital, p. 249.]

Notes and references to pages 93-8 Chapter 5

205

Law and circulation

1 Marx, Contribution à la critique de l’économie politique, Ed. Sociales, p. 212. [Cf. Marx, Grundrisse, Harmondsworth, Penguin, 1974, notebook II, the chapter on money, p. 238.] 2 Ibid., p. 214. [Cf. Marx, Grundnsse, ed. cit., the chapter on capital, pp. 243-4.] 3 Ibid., p. 221. [Cf. Marx, Grundrisse, ed. cit., pp. 241, 243.] 4 Ibid., p. 224. [Cf Marx, Grundnsse, ed. cit., p. 245.] 5 Ibid., p. 225. [Cf Marx, Grundrisse, ed. cit., pp. 248-9.] 6 Engels, Anti-Dühring, London, Lawrence 8c Wishart, 1969, part III, ch. IV, p. 368. 7 It is in this way that the demand for equality by the proletariat in the economic and social domain necessarily proceeds by the abolition of classes, that is, by the abolition of the separation of man and the means of production. Cf. Engels, op. cit., part I, ch. X, p. 128. I shall take this point up again in the Conclusion when I deal with ideological struggle. 8 Marx, Contribution à la critique de l’économie politique, ed. cit., p. 251. [Cf. Marx, Grundrisse, ed. cit., p. 256.] 9 Ibid. 10 It valorises it just as really not only by producing Capital but also by ever more extensively reproducing the material of capital, the growing mass of labour. Marx revealed this in particular in an unpublished chapter of Capital. [Marx, Capital, Harmondsworth, Penguin, 1976, vol. I, Appendix: Results of the Immediate Process of Production, III Capitalist Production is the Production and Reproduction of the Specifically Capitalist Relations of Production, p. 1060f. ] What differentiates ‘the autonomy of money, which must appear both as the prior condition and the result of production’ (Marx, Contribution à la critique de l’économie politique, ed. cit., p. 245. [Cf. Marx, Grundrisse, ed. cit., ‘The Chapter on Capital’, pp. 254-5.1 from the autonomy of capital is that the process of capital is a total process. In other words, its process is the process both of use value (labour, non-capital) and of exchange value, that is, the very process of the real transformation of use value into exchange value. ‘Labour produces the conditions of its production in the form of capital, and capital produces labour, i.e. as wage-labour, as the means towards its own realization as capital.’ [Marx, Capital, ed. cit., vol. I, pp. 1061-2.] When money takes account of the autonomy of value only in the closed process of circulation, capital is value as total process. That is why capital appears not merely to valorise itself but also really to valorise the conditions of its production. Man is really subject to capital, since capital really produces him. At the same

206

Notes and references to pages 98-106

time man lives the laws of capital as ‘natural laws’. Capital becomes ‘a very mystic being since all of labour’s social productive forces appear to be due to capital rather than labour as such. ...’ Marx, Capital, Moscow, Foreign Languages Publishing House, 1962, vol. Ill, part VII, ch. XLVIII, p. 806. 11 Marx, Capital, London, Lawrence 8c Wishart, 1965, vol. I, part II, ch. 4, p. 154. 12 Althusser, ‘Ideology and Ideological State Apparatuses’, in Lenin and Philosophy and other essays, London, New Left Books, 1971, p. 167. 13 Marx, Preface to A Contribution to the Critique of political Economy, Marx/ Engels, Selected Works in one volume, London, Lawrence 8c Wishart, 1970, p. 181. 14 Marx/Engels, The German Ideology, Collected Works, London, Lawrence 8c Wishart, 1976, vol. 5, p. 89. 15 Engels, Anti-Dühnng, ed. cit., Engels specifies the relation between the law of value and the idea of equality : And finally the equality and equal status of all human labour, because and in so far as it is human labour, found its unconscious but clearest expression in the law of value of modern bourgeois political economy, according to which the value of a commodity is measured by the socially necessary labour embodied in it (ibid., part I, ch. X, p. 126). And he adds: ‘This derivation of the modern ideas of equality from the economic conditions of bourgeois society was first demonstrated by Marx in Capital.' 16 Marx, Contribution à la critique de l’économie politique, ed. cit., p. 220. [Cf. Marx, Grundrisse, ed. cit., p. 245.] 17 Ibid. [Cf. Marx, Grundrisse, ed. cit., p. 244.]

Chapter 6

Law, circulation and production

1 Marx, Contribution à la critique de l’économie politique, Ed. Sociales, p. 224. [Cf. Marx, Grundrisse, Harmondsworth, Penguin, 1974, notebook II, ‘The Chapter on Capital’, pp. 245-6. 2 Marx/Engels, The German Ideology, Collected Works, London, Lawrence 8c Wishart, 1976, vol. 5, p. 91 [marginal note by Marx]. 3 Marx, Capital, London, Lawrence 8c Wishart, 1965, vol. I, part VI, ch. XIX, p. 540. 4 Ibid. 5 Marx, Capital, Harmondsworth, Penguin, 1976, appendix, Results of the Immediate Process of Production, pp. 1062-3. 6 Ibid., pp. 1063-4.

Notes and references to pages 109-120 Conclusion

207

Law and ideological struggle

1 Engels, Anti-Dühring, London, Lawrence 8c Wishart, 1969, part I, ch. X, p. 128. 2 Ibid., ch. IX, p. 106. 3 Marx, Capital, London, Lawrence 8c Wishart, vol. I, Afterword to the Second German Edition, p. 14. 4 Ibid., p. 15. 5 Brecht, ‘Sur le cinéma’, L’Arche, p. 206. 6 Ibid. 7 Ibid. 8 Althusser, For Marx, Harmondsworth, Penguin, 1969, p. 24n.

Appendix 1 Notes on the functioning of juridical ideology : the election of Algerians to institutions of staff representation 1 Althusser, ‘Ideology and Ideological State Apparatuses’, in Lenin and Philosophy and other essays, London, New Left Books, 1971. 2 Journal officiel, 15 Lebruary; Gazette du Palais, 1961, I.L., p. 108. 3 Silvera, in Dalloz, 1968, p. 678, at the Conseil d’Etat, 27 March 1968. 4 Cf. the ministerial advice on the interlocutory question of the Conseil d’Etat, 31 January 1969, Dalloz, 1969, p. 326. 5 Moraly, 31 January 1969, Cour de cassation, chambre civile, 23 April 1969, Gazette du Palais, 20 May, 1969. 6 Lreund, L’Essence du politique, Sirey, 1965, p. 284. 7 Weber, Rechtssoziologie, 1960, p. 87; cf. also Vincent, ‘Remarques sur Marx et Weber comme théoriciens du droit du l’Etat’, Archives de Philosophie du droit, Lib. Sirey, 1967, p. 229f. 8 Burdeau, Traité de science politique, book I, pp. 250, 254. 9 Vedel, ‘Démocratie politique, démocratie économique et sociale’, Droit social, May 1947, pp. 40-7. 10 Hans Kelsen, Pure Theory of Law, translated by Max Knight, Berkeley and Los Angeles, University of California Press, 1967, ch. VI, p. 283. 11 Ibid. 12 Lyon-Caen, ‘Manuel de droit du travail et de securité sociale’, LGDJ, p. 27. 13 Lyon-Caen, ‘Syndicats et parties politiques’, Droit social, February, 1970. One ought rather to say that it is ‘metaphysical’ to make out that union struggle and class struggle are identical. One might also cite that position taken by Maurice Cohen. He is quite happy saying that the expression ‘with the exception of political rights used in the text ‘relates only to participation in political elections. The legislative has never used the term “political rights” to designate the

208

Notes and references to pages 120-1 right to vote in and be eligible for professional elections.’ ‘Le Statut des délégués du personnel et des membres des comités d’entreprise’,

LGDJ, 1968, pp. 192-3. 14 Savatier, ‘Du Droit civil au droit public, à travers les personnes, les 15

16

17 18 19

20 21 22

23

24

biens et la responsabilité civile’, LGDJ, Paris, 1950. Ibid,, ‘Vive la liberté ou, en d’autres termes, vive le droit civil !’, pp. 103, 130, 143. Cf. also D. Rivero, 1947, chr. 69. Rivero argues that ‘Private right appears in its essence as a right of free consent, and all nineteenth-century analysis developed it in the sense of autonomy and will.’ On the other hand, public right is the domain of constraint ‘ in which the standard procedure is that of an executive decision by means of which the Administrative forces the decision of the person under its jurisdiction and commands him’. Cf. at a more general level: Savatier, ‘Droit public et droit privé’, d. 1946, chr. 25; Mazeaud, ‘Défense du droit privé’, d. 1946, chr. 17 ; Rippert, Le Déclin de Droit, and in particular ch. II ‘Tout devient droit publique’. Librairie Générale, 1949. Cf. also Travaux de l’Association Henri-CapitarU pour la culture juridique française, book II, 1946, and Dalloz, 1948. Eisenmann, ‘Droit public, droit privé’, Revue de droit public et de la science politique en France et à l’étranger, October/December 1952, p. 903f., no. 16. Ibid. Ibid., no. 53; cf. also Flour, ‘Rapport préparatoire sur l’influence du droit public sur le droit privé’, Travaux de l’Association Henn-Capitant. Cf. Eisenmann, op. cit. It can also be said that all these studies are pertinent to the 1950s, that is, after Liberation at a moment when there was ‘everything to fear’ from the legislative and the State. Ibid., no. 20. Ibid., no. 53. Ibid., no. 54. ‘Hence a perfectly normal, natural division - or rather a grouping - but one without great bearing or importance, over which there was no time for delay or further meditation.’ Ibid. The jurists’ error is to have tried to make ‘two different types ... out of two series of political rights on the basis of their primeval characteristics ... and to make two contrary, if not antagonistic, worlds out of two hemispheres of the same world.’ Ibid., no. 55. Ibid., no. 56. So, by marrying private right and natural right, Savatier appeals to an ideology of the Napoleonic Civil Code. Eisenmann adds that ‘the jurists’ mistake is to claim to discover a profound import, in particular an ideological significance, in what was conceived and adopted only as a simple division’. Ibid. It is rare to see the jurists charged with being involved in politics. Ibid., no. 40.

25 ‘This is the same mistake as thinking the degree of State intervention

Notes and references to pages 121 -5

209

as the measure and extent of public right in relation to private right.’ ibid., no. 47. 26 Ibid., no. 56. 27 Ibid., no. 60. It seems that for the author there is a ‘determinant right’ the object of which is to state the domain of application of each rule, and a sanctioning right relating to the State in the last instance. The dichotomy relates to the positivist distinction: public right/private right. It relates to the unity of the two rights and the practical - or ‘juridical’ (?) - determination of their domain. 28 Ibid., no. 56. 29 Ibid., no. 57. 30 Ibid. 31 Ibid., no. 58. 32 Ibid., no. 59. 33 Three hypotheses are possible : first, the identity of the rule of public right and private right so that public persons and private persons will always be subject to the same rule relative to the situation in question; second, there will always be two different rules which will govern the situation concerning two private individuals and the same situation concerning a private person and a public person; third, the application partly of the same rule and partly of a different rule. 34 First, in the absence of any advantage to be gained, this relation does not hold if the two rules are fundamentally identical ; second, in the case of totally different rules the qualitative relation will result from the numerical importance relative to the two groups of subjects; third, in the case of a partly common and partly different rule, there is no question of a problem of comparison stricto sensu, since the rule is both of public right and of private right, though it is in a general way presented as such a problem. For example, there are investigations into the extent to which the administration is governed by private right (liability for breach of contract) and the extent to which it is governed by public right. 35 Increase or diminution of the degree of similarity or difference of the two rights. 36 Transfer of the category of subjects, that is a change of regime. For example, such freely assumed activity is taken over by the State. 37 Eisenmann, op. cit., nos 40, 56, 61. 38 39 40 41 42 43

Ibid., Ibid., Ibid., Ibid., Ibid., Ibid.

no. 60. nos 40, 47. no. 60. no. 61. no. 56. Right and the political constitute ‘radically heterogeneous

210

Notes and references to pages 125-6

materials’. Because it considers only what is and does not seek to understand the existence - in the Hegelian sense - of what is, positivism contradicts itself in the case of history. The least of these ‘paradoxes’ is that Eisenmann can accordingly consider the right to be a ‘fact’ but not the political! 44 Hegel in his time produced a definitive critique of juridical positivism. The positive science of law examines only its own positivity [positivité'] since it does not provide itself with the true titles of examination. It can therefore establish only its positivity, and its establishment is nothing but the establishment of its establishment. The result is that, the source of knowledge of positive law being a question of law, the science of positive law [la science juridique positive] is a science ‘with authority as its guiding principle’. Hegel’s Philosophy of Right Oxford Univer sity Press, 1976, § 212, remark. The consequence of this is that the positivity of the law does not take account of the concept [of law] in that it cannot answer the question: ‘Is such a juridical rule rational?’ For us, the positive science of law does not answer the question: ‘In respect of what is such a juridical rule the expression of a given mode of production?’ 45 Althusser, op. cit. Cf. also my articles: ‘Esquisse d’une théorie du suject: l’homme et son image’, Dalloz, 1970, ‘Chronique XXVI’; ‘Esquisse d’une théorie du sujet : liberté et création dans la propriété littéraire et artistique’, Dalloz, 1970, ‘Chronique XLT. 46 Let us take as an example the famous decision of Monpeurt, Conseil d’Etat 31 July 1942, DC 42-1-38, findings, Ségalat. Having set up a provisional organisation for industrial production, the law of 16 August 1940 had to that effect instituted committees responsible for the management of that service. The question of the juridical nature of those committees was posed. The Conseil d’Etat deemed that, with regard to the prerogatives that had been conferred on them (production and manufacture programmes, binding rules to be imposed on the enterprises a role of authority and direction), these organisation committees, whilst not being public establishments, ‘are required to participate in the execution of a public service, and that the decisions they are led to take in the sphere of that service’s powers, whether by way of regulations or arrangements of an individual order, constitute administrative acts’. Now, what is amazing in this decision is that we see the creation of a professional organism which is placed ‘at the frontier of public right and private right, retaining the prerogatives of public power of the first and borrowing modes of management from the second.’ Findings, Ségalat, op. cit. What, then, is the essence of a half-public, half-private subject ? So much for Eisenmann’s whole thesis that it is the relation public

Notes and references to pages 126-30

211

person/private person that permits one to see if one is in the public or private domain! It is certainly not possible to maintain that there is a common rule, a different rule, or a partially different rule! That is because it is the very notion of public or private subject that is shattered. That really makes null and void a static system which does not permit the apprehension of what the Commissaire du gouvernement called ‘an entirely new institution which cannot be integrated into the old juridical frameworks’. Ibid. In our terms, the real question posed by this fundamental decision is the following. What is the nature of a State which can delegate certain of its powers to its private individuals, when the Commissaire du gouvernement himself admits that, on the one hand, the State is guided in its action by the sole interests of the nation and, on the other hand, the private individuals to whom these powers have been delegated ‘personify peculiar interests distinct from those of the State’ ? It is true that, as the same Commissaire du gouvernement emphasised, ‘the orders are exhausted, the primary materials rare and the capitals distrustful’. 47 Tribunal d’instance, Argenteuil, Dalloz, 1970, ‘Summary’, p. 109; tribunal d’instance, Nancy, 23 October 1969; tribunal d’instance, 48 49 50 51 52

Gonesse, 22 October 1969. Tribunal d’instance, Lyon, 20 January 1970, Dalloz, p. 420. Tribunal d’instance, Nanterre, 12 November 1969. Cohen, ‘Le Statute des délégés’, p. 102. Qpoted by the tribunal d’instance, Lyons, Dalloz, p. 420. On the power of judicial jurisdictions with respect to the ministerial memoranda, see Cour de cassation, chambre civile, 22 December 1931, Dalloz, 1932, part 1, p. 131; Sirey, 1932, part 1, p. 257; findings,

Mather. 53 Cour de cassation, 9 June 1966, Juris-Classeur périodique, 1966, 11, 15814. 54 Cour de cassation, Assemblée plenière 11 March 1953,Juris-Classeur périodique, 1953, 11, 7673. 55 Cour de cassation, chambre civile, 23 April 1969, Gazette du Palais, 17-20 May 1969, p. 6; ibid., 19 March 1963, Dalloz, 1963, p. 529, statement by Malaurie; Cour de cassation, chambre commerciale, 7 November 1969, Bulletin des arrêts de la Cour de cassation, III, 274, p. 547. In this last case the court set aside a decision which had made an automatic application of the interpretation given by the ministre des Affaires étrangères of certain clauses of the Evian agreements, even when it was within its competence to interpret them. The decision is quoted in the Rapport de la Cour de cassation, 1969—70, p. 65. 56 Such a consequence clearly escapes Cohen, who justifies the fact that

212

Notes and references to pages 130-4 the opinion of the ministre des Affaires étrangères was not sought solely by reference to ‘the urgent character of the electoral dispute’,

op. cit., p. 325. 57 Althusser, op. cit., pp. 137-8. 58 It is true that certain types of law, commercial law for example, or civil law to a certain extent, can appear as protectors only of their own functioning, but this functioning itself relates to a given mode of production. This is the problem of the more or less relative autonomy of each ‘branch’ of the law. This is the real perspective for the proper study of the technical relations between different branches of the law. (This is also the case with the problem that bothers specialists in labour law, namely, the relation between the technique of civil law and the technique of labour law.) 59 Engels, The Origin of the Family, Private Property and the State, in Marx/ Engels Selected Works in one volume, London, Lawrence 8c Wishart, 1968, ch. IX, p. 576. 60 Lenin, The State and Revolution, Moscow, Foreign Languages Publishing House, ch. I, 1, p. 12. 61 E. B. Pashukanis, ‘The General Theory of Law and Marxism’, in Soviet Legal Philosophy, Cambridge, Mass., Harvard University Press, 1951, p. 183. 62 Althusser, op. cit. 63 Pashukanis, op. cit. 64 We can note already that this article contradicts the thesis of the political instance. 65 The double movement of the ‘privatisation’ of the State and of the ‘publicisation’ of the private exactly takes account of the class nature of the State. Only now are jurists beginning to be aw are of this ‘privatisation’ of the State. 66 Demichel, ‘Vers le self-service public’, Dalloz, 1970, chr. XVI. 67 Let’s take Monpeurt’s decision up again. As we said, it shatters the notion of the subject in law, and the State - or rather the State apparatus - is thought as capable of delegating its powers to private persons. It is in this way that these private persons, whilst remaining in their private capacity, can manage. State services. At bottom, one might say that the ‘privatisation’ of the State is, for the State, nothing but the fact of giving, in a certain manner, w hat it has received, in the same manner. 68 ‘(But the science of positive law ... begins in the first place by stating what is legal,)’. Hegel’s Philosophy of Right, ed. cit., §2. We are here formulating only general themes which claim only to give a real orientation to the investigation of the juridical norm. 69 As with all ideology, the law has as its function the masking of real relations. But, on the one hand, the deciphering of this function is

Notes and references to pages 134-7

213

privileged to the very extent of the formality of the law, and, on the other hand, the contradictory relation it has with the State reveals the specificity of the juridico-political instance which belongs both to the State apparatus and to the system of ideological State apparatus. Cf. Althusser, op. cit., p. 137, n. 9. 70 To the extent of the ‘apoliticism’ of private society. 71 Despax, ‘L’Exercice du droit syndicale dans les enterprises’, JurisClasseur périodique, 1969, part 1, 2276. 72 Opinion of the Conseil d’Etat of 17 June 1947, nos 241-9, quoted byCohen, op. cit., p. 85; Conseil d’Etat, Toledo, 26 March 1958, Rec., p. 200; Conseil d’Etat, 2 May 1959; syndicat générale du personnel d’Air France, Droit social, 1956, p. 25, findings, Chardeau; Cour de cassation, chambre sociale, 19 February 1949, Bulletin des arrêts ... , no. 153, p. 204; tribunal civil, Seine, 12January 1959 ; Droit ouvrier, 1959, p. 180; Paris, 3 November 1955, ibid., 1956, p. 25, findings, Rolland; Brèthe de la Cressaye, ‘La Réforme des comités d’entreprise’,JurisClasseur périodique, 1946, part 1, p. 570. This author writes in particular that the position of the industrial and commercial public services ‘is, moreover, analogous to that of the big capitalist enterprises, in the sense that they are subordinate to an impersonal and distant [tic!] direction’. He continues by putting emphasis on the fact that the nationalisation of the enterprises ‘aims at permitting workers to participate in the management ... ’. Cf. findings, Chardeau, op. cit. The institution of the works committees in the whole ot the industrial and commercial public service, whatever their mode of management, answers to the wish of the legislator and to the evolution of social legislation which tends increasingly to place these services and all the private industrial establishments under a uniform regimen. 73 Althusser, op. cit., p. 140, n. 11 ; cf. Marx, A Contribution to a Critique of Political Economy, London, Lawrence & Wishart, 1971, Introduction. 74 Cour de cassation, chambre sociale, 4 December 1952, Juns-Classeur périodique, 1954, 11.7903. 75 Cour de cassation, chambre criminelle, 2 March 1961, Dalloz, 1961, p. 476. 76 Marx, Capital, London, Lawrence & Wishart, 1965, vol. I, part III, ch. VII, sections 1, 2, passim. 11 Ibid., section 1, p. 184. 78 Cour de cassation, chambre sociale, 15 March 1957, Dalloz, 1957, p. 730; ibid., 3 May 1962, Dalloz, 1962, p. 491. 79 Cour de cassation, chambre sociale, 5 April 1954, Droit social, 1954, p. 408. 80 Cour de cassation, chambre sociale, 2 March 1960, Bulletin des arrêts ...

214

Notes and references to pages 13 7-4 0 part 4, p. 184; Cohen, op. cit., pp. 413f. ; Suet, Comités d’entreprise et

délégués du personnel, nos 511 f. 81 Cour de cassation, chambre criminelle, 8 May 1968, Dalloz, 1968, p. 564, note, Verdier. 82 Cour de cassation, chambre sociale, 2 March 1960, Bulletin des arrêts ... part 4, p. 184. 83 Tribunal de grande instance, Lyon,

12 June 1969, Juris-Classeur

périodique, 1969, part 2, 16 028. 84 Cour de cassation, chambre sociale, 8 October 1953, Droit social, 1954, 85 86

87 88 89 90 91 92

93

p. 342. Cour de cassation, chambre criminelle, 27 October 1955, Bulletin des arrêts ... , p. 426. So too with Régie Renault, the SNEP, and the nationalised banks. The hesitation and resistance of the political instance over the application of the law should be noted. Cf. Cohen, op. cit., pp. 76-83. To take just one example, the protocol of an agreement relating to works committees in the coal-basin collieries was concluded on 11 July 1947 and colliery committees were instituted accordingly. The agreement was thrown out, however, at the time of the November/December 1947 strikes, and it was replaced by a general decision of 16 October 1950 which instituted works commissions in which the delegates were not even elected and in which the agenda was drawn up by the president who was also the director of the group, etc. Ibid., pp. 79-80. We therefore see that the ‘privatisation’ of the State apparatus is a contradictory process in that the State, whilst privatising some of its services, refuses them the application of common labour law. Cf. findings, Chardeau, op. cit. Sinay, ‘L’Exercice de droit syndicale dans les entreprises’, Dalloz, 1969, chr. 12. Ministère du Travail, JOAN, 17 May 1963, p. 2 955, no. 1867. Lyon-Caen, ‘La libre circulation des travailleurs’, Juris-Classeur périodique, 1969, I, 2222. Marx, Capital, London, Lawrence 8c Wishart, 1965, vol. I, part III, section 1, p. 185. On the importance of the ‘Comités des fabrique en URSS’ [factory committees in the USSR], cf. Notes et Etudes documentaires, 12 May 1969, no. 2 664; ‘Situation syndicale en URSS’, BIT, 1960; Romachkine, Principes du droit soviétique, Moscow, 1964. Cf. the notion of the ‘illegal’ political strike which becomes ‘legal’ only when it is an appeal against the government; Cour de cassation, chambre sociale, 19 June 1963, Dalloz, 1963, p. 686; JurisClasseur périodique, 1963, 11, 13428, note, Sinay. This was the case in the disturbances of 1 February 1960 and 14 April 1961.

Notes and references to pages 142-60

Appendix 2

215

Transitions in Kant’s The Metaphysical Elements of

Justice 1 This article is the seminar paper or, to be more precise, part of the seminar paper I gave at the Ecole normale supérieure in the rue d’Ulm in November 1972. I have retained the form of the spoken word for this account, even though that means that certain propositions appear rather quickly in the text. The main aim is to stimulate thought and discussion on the problems raised. 2 E. B. Pashukanis, ‘The General Theory of Law and Marxism’, in Soviet Legal Philosophy, Cambridge, Mass., Harvard University Press, 1951, IV Goods and Subject, p. 160. 3 Marx/Engels, The Holy Family, Collected Works, Lawrence 8c Wishart, 1975, vol. 4, ch. V “‘Critical Criticism” as Mystery-Monger, or “Critical Criticism” as Herr Szeliga’, 2) The Mystery of Speculative Construction, p. 61. 4 Hegel’s Philosophy of Right, translated with notes by T. M. Knox, London, OUP, 1976, Introduction §3. 5 Kant, Doctrine du Droit, I, II0 sect, Ch. Ill, I, §24. 6 Ibid., §29. 7 Hegel’s Philosophy of Right, part 3: Ethical Life, §175. 8 Ibid., part 1 : Abstract Right, §43 Remark. 9 Kant, The Metaphysical Elements of Justice, Preface, p. 3. 10 Ibid., p. 4. 11 Kant, Doctrine du Droit, I, II0 sect. Ch. I. §11. 12 Ibid., I, T sect. Ch. II, §18. 13 Ibid., I, W sect. Ch. Ill, §18. 14 Engels, Anti-Dilhnng, London, Lawrence & Wishart, 1969, part I, ch. V, pp.124-5. 15 Kant, The Metaphysical Elements of Justice, part 1, Private Law, §7, p. 62. 16 Ibid., §2, p. 53. 17 Ibid., §1, p. 1. 18 Kant, Doctrine du Droit, I. II0 sect. Ch. III. 3, §30. 19 20 21 22 23

Ibid., Ibid., Ibid., Ibid., Kant,

I. II0 sect. Ch. Ill, L §25. §26. §29. §30. The Metaphysical Elements of Justice, part 1 Public Law, §46, p. 79.

24 Ibid. 25 Engels, Anti-Dühring, ed. cit., p. 127. 26 Marx/Engels, The German Ideology, Collected Works, Lawrence &: Wishart, 1976, vol. 4, III Saint Max, 1. The Unique and His Property, 6. The Free Ones, A. Political Liberalism, p. 194. 27 Ibid.

216

Notes and references to pages 161-77

28 Ibid., [IV] [3. Further Division of Labour. Separation of Commerce and Industry. Division of Labour between the Various Towns. Manufacture], pp. 68-9. 29 René, Charles, Feuillets d’Hypnos, no. 4. 30 E. B. Pashukanis, The General Theory of Law and Marxism, ed. cit., IV Goods and Subject, p. 160. 31 Marx, Grundrisse, Harmondsworth, Penguin, 1973, notebook II, ‘The Chapter on Capital’, pp. 245-6. 32 Pashukanis, op. cit., VI Law and Morality, p. 199. 33 Kant, The Metaphysical Elements of Justice, §46 remark. 34 Kant, Doctrine du Droit, I. II0 sect. Ch. III., 3.§30. 35 36 37 38

Ibid., Ch. III., 2.§§28, 29. Ibid., Ch. Ill, l.§26. Engels, Anti-Diihring, ed. cit.. part I, cch. IX, p. 114. Marx, Capital, London, Lawrence &: Wishart, 1965, vol. I, part IV, section 9, p. 489.

Appendix 3

The subject in law in Hegel’s Philosophy of Right

1 Kant, The Metaphysical Elements of Justice, translated with an Introduction by John Ladd, Bobbs-Merrill, New York, 1965, p. 51. 2 Ibid., §1. 3 Ibid., §2. 4 Marx/Engels, Economic and Philosophic Manuscripts of 1884, Collected Works, London, Lawrence & Wishart, 1975, vol. 3, Rent of Land, p. 206. 5 Ibid. 6 In this connection, and for a discussion of the concept of ‘displacement’, cf. the as yet unpublished thesis by N. E. Thévenin: ‘Dialectique et théorie du passage chez Hegel et Marz’, 1971. 7 Hegel’s Philosophy of Right, translated with notes by T. M. Knox, London, OUP, 1976, part 1: Abstract Right, §34. 8 Marx, A Contribution to the Critique of Political Economy, London, Lawrence 8c Wishart, 1971, Introduction, I, 3, p. 206. 9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid., p. 210. 13 Hegel’s Philosophy of Right, ed. cit., §36. 14 Ibid., §38. 15 Ibid., §39. 16 Marx/Engels, The German Ideology, Collected Works, London, Lawrence

Notes and references to pages 177-90

217

17 18 19 20 21 22 23

8c Wishart, 1976, vol. 5,1 [I] [2. Premises of the Materialist Conception of History], p. 31. Hegel’s Philosophy of Right, ed. cit., §44. Ibid. Ibid., §40. Ibid., §51. Ibid., §40 remark. Ibid. Ibid.

24 25 26 27 28 29

Marx, A Contribution to the Critique oj Political Economy, ed. cit., p. 209. Hegel’s Philosophy of Mirui, Oxford, Clarendon, 1971, §494. Hegel’s Philosophy of Right, ed. cit., §66 remark. Ibid., §67. Ibid., §40, remark. Ibid., §62.

30 Soboul, ‘Sur le féodalisme’, CERM, Ed. Soc., p. 79. 31 Boncerf, ‘Sur les inconvénients des droits féodaux’, quoted in Soboul, op. cit. 32 Hegel’ s Philosophy of Right, op. cit., §62, remark. 33 Thévenin, ‘Dialectique et théorie du passage chez Hegel et Marx’, op. cit., p. 31, nn. 10, 11. 34 Ibid., n. 9. 35 Marx/Engels, The German Ideology, ed. cit., [IV] [11] The Relation of the State and Law to Property, pp. 90-1. 36 Marx, Grundrisse, Harmondsworth, Penguin, 1974, notebook II, the chapter on capital, pp. 245-6. 37 Marx, A Contribution to the Critique of Political Economy, ed. cit., pp. 207-8. 38 Hegel’s Philosophy of Right, ed. cit., part 3: Ethical Life, §175. 39 Ibid. 40 Ibid., part 1 : Abstract Right, §43 remark. 41 Ibid., part 3: Ethical Life, §175 remark. 42 Ibid., §80, remark. 43 Ibid. 44 Ibid. 45 Marx/Engels, The German Ideology, ed. cit., [II] [3. Primary Historical Relations ... ], p. 44. 46 Ibid., [4. Social Division of Labour ... ], p. 46. 47 Ibid., [IV] [1. Instruments of Production ... ], p. 63.

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