balbus isaac commodiy form

8/3/2019 Balbus Isaac Commodiy Form

1/18

COMMODITY FORM AND LEGAL FORM:AN ESSAY ON THE "RELATIVE

AUTONOMY" OF THE LAWISAAC D. BALBUS

Prefatoy NoteAfter a good deal of thought I have decided not to responddirectly to Professo r Trubek's exhaustive review of The Dzalectlcsof L egal Repression, but will rat her leave it to rea der s of my book todetermine for themselves the adequacy of his description, analysis,and evaluation of the material contained therein. However, Insofaras Professor Trubek also refers briefly In his essay to my "morerecent," and until now unpublished, work, it seems appropriate toprese nt a sample of thls work, especially since Trub ek himself ar -gues that it entails a "major refinement" which "allows Balbus toexplain what remains unexplained in The Daalecttcs." Indeed, zncertazn respects the following essay constltutes an autocritique ofthe theoretical analysis in my book, and a comparison of th e two willthus permit th e read er to assess indirectly the extent of my agree-ment wlth Trubek 's critlque At the sam e tlme, what follows alsoconstltutes an implicit and. at times explicit. crltique of Trubek's

own effort to elaborate and apply an alternative to my position, theeffort he calls "critlcal social thought about law "I. INTRODUCTION

In this essay I attempt to outline the essentials of a Marxiantheory of law. This theory, as we shall see, entails a simultaneousrejection of both an instrumentalist or reductionist approach,whlch denies t hat the legal order possesses any autonomy from thedemands imposed on i t by actors of the capitalist society in whichit is embedded, and a formalist approach, which asserts an abso-lute, unqualified autonomy of the legal order from this society.The inst rumental~s t approach-whether pluralist or crude-Marxist-conceives of the law as a mere instrument or tool of thewill of domlnant social actors and thus fails even to pose theproblem of the specific form of the law and the way in which thisform articulates with the overall requirements of the capitalistsystem in which these social actors function.' The formalist ap-1. Despite their obvious opposition, there is no theoretzcal d lfference be-tween a Pl uralist and a n Instrumentalist-Marxist approach to law Bothbypass entirely the problem of the form or struct ure of the legal orde r inorder to concelve it as a direct reflection of consciously arhculated andorganized pressures. Thus the dlffe rence between them is merely empir-lc al Pluralists deny tha t there 1s a systematic bias to the Interplay ofpressures; Instrumentalist Marxists ar ue that this interplay is domi-nate d by specifically ca; !'.. t in terests.%or a powerful crltlque of LegalPluralism, see Tushnet . : ' l . ). For an influential crltlque of Instrumen-talist Marxlsm, which conr r~bute d ignificantly to its rejection, by nowalmost universal, see Poulantzas (1973). The debate between NlcosPoulantzas and Ralph Miliband, which has been carried out over the


2/18

216 Sociological Perspectives on Lab I572 11 LAW & SOCIETY / WINTER 1977proach, on the other hand, locates and describes the specificity ofthe legal form but, insofar as it treats thls form as a closed,autonomous system whose development is to be understood exclu-sively in terms of its own "internal dynamics," is likewise unableeven to conceptualize the relationship between the legal form andthe specifically capitalist whole of which it is a part.2 In short,neither approach is capable of explaining why a specifically legalform of the exchange of people is inextricably intertwined with aspecifically capitalist form of th e exchange of products. It is pre-cisely tha t problem to which thi s essay is addressed.

The deba te between the instrumentalists and the formalists-which has dominated legal theory for at least two hundred yearsand continues to flourish today-has always been extraordinarilymisleading. I t is characterized by a false dichotomy which arisesfrom an inadequate starting point shared by both approaches, i.e.,the assumption that the law must be judged "autonomous" to theextent that i t functions and develops independently of the will ofextralegal social actors. Given this common conceptual terrain.their di spute is necessarily and merely a dispute over the "facts;"formalists "discover" that the law is independent of the will ofsocial actors, and thus conclude that it is "autonomous," whereasinstrumentalists "find," to the contrary, that the law is directlyresponsive to the will of these actors and thus conclude that thelaw is "not autonomous."'Neither understands tha t the answer tothe question whether the law is independent of the will of socialactors in no way disposes of the question whether the law isautonomous from the capitalist system of which these actors arethe agents. Even more: the formulation that to the degree tha t thelaw does lzot respond directly to the demands of powerful soczalactors i t is autonomous, in the sense that i t functions an d devetopsaccording to its own internal dynamics omits the possibility thatthe law is not autonomous from, but rather articulates with andmust be explained by, the systemic requirements of capitalismprecisely because it does not respond directly to the demands ofthese actors. In other words, it is one thing to argue that the legalorder is autonomous from the preferences of actors outside thisorder, but quite another to argue that it is autonomous from thecapitalist system (unless one were to commit the "voluntarist"error of equating the preferences of actors with those activitiesthat must be performed if the system in which they function is to

past decade In the pages of New LeftReview,is also instructive, as 1s thecritique of Marxlst Instrumentalism developed by Claus Offe (1972), aswell as the analysis of David Gold, Clarence Lo, and Erlk Wright (1975)2. Tushnet (1977) occasionally lapses into t h ~ s ormalist pos it~on n hisotherwise excel lent cr~ tlque of Lawrence Friedman's PluralistInstrumentallsm


3/18

Soclologlcal Perspectives on Law IBALBUS 57 3

survive). Indeed, I will try to demonstrate that it is preciselybecause the law is autonomous in the first sense that it is notautonomous in the second or, to put it another way, that therelative autonomy of t he legal form from the will of social actorsentails at t he same time an essential identity or homology betweenthe legal form and the very "cell" of capitalist society, the com-modity form. Thus the Marxian theory of the "relative autonomy"of the la w, which I am proposing, cannot be understood as acompromise between the instrumentali st and formalist positions;rather i t purpor ts to transcend the opposition between these posi-tions by rejecting the common conceptual terrain on which theyare based and elaborating a wholly different theoretical terrain.This requires a brief summary of Marx's analysis of the logic of thecommodity form.

11. THE LOGIC OF THE COMMODITY FORMThis logic, Marx tells us in the firs t chapter of Volume I of

Capital, is that of a "mysterious," twofold and, in fact, contradic-tory reality. A commodity, to begin with, is a use-value: it is aqualita tively distinct object which exists to fulfil1 a qualitativelydistinct, concrete human need and has been brought into existenceby a qualitat ively distinct form of labor, which Marx calls "con-crete labor." In their role as use-values different commodities arethus not equal to one another; their inequality corresponds to theunequal labors that produced them. At the same time, however, acommodity is also an object of exchange, or an exchange-value: i texists and is valued not only, and not immediately, because it isused but also and rather because it can be exchanged for anothercommodity. The existence of exchange-value, or what Marx sim-ply calls value, thus presupposes that qualitatively distinct andotherwise incommensurable commodities enter into a formal rela-tionship of equivalence with one another , i.e., tha t qualitativelydifferent objects become what they are not: equal. This relation-ship of equivalence, in turn , is facilitated by the existence of aparticular commodity, money, which with the development ofcapitalism becomes the universal economic equzvalent by meansof which the value of every other commodity can be expressed.Money, in other words, permits all products to assume a formalidentity so that they can become, in Marx's suggestive phrase,"citizens of t hat world [of commodities]" (1967:63), that is, theycan all s tan d for or be represented by each other. The fully devel-oped commodity form, or the money form, thus entails a commonform which is a n abstraction from, and masking of, the qualita-tively different contents of the objects and the concrete human


4/18

218 Sociological Perspectives on Law I574 11 LAW & SOCIETY / WINTER 1977needs to which they correspond: "The memory of use-value, asdistinct from exchange-value, has become entirely extinguished Inthis incarnation of pure exchange-value" (Marx, 1973:239-40).

This abstraction from, and masking of, the content or qu al ~t yof the object is only made possible by a prior abstraction from, andmasking of, the concrete labor that produced it. The common formthat is exchange-value can only exist as the expression of the oneform that is common to all the qualitatively different labors thatbring objects in to existence, i.e., of labor-power understood as anabstrac t, undifferentiated expenditure of energy over a givenperiod of time, or what Marx calls abstract labor. Thus, in orderfor commodities to become equal to one another, i.e., in order forexchange-value to exist, concrete, qualitatively different laborsmust become what they are not: equal. The result is that the"memory" of concrete labor is "extinguished" along with that ofuse-value.

The logic of the commodity form is thus tha t of a doublemovement from the concrete to the abstract, a double abstractionof form from content, a twofold transmutation of quality intoquantitg. The transformation of commodities from unequal toequal objects parallels, and is made possible by, a transformationof the labor which produces them from unequal to equal. In orderfor commodities to be what they are , both the unequal objects andthe unequal labor which has produced them must become whatthey are not, i.e., equal. Thus the commodity form has its origin inconcrete human needs and creative labor, but it "possesses thepeculiar capacity of concealing its own essence horn the humanbeings who live with it and by it" (Lefebvre, 1969:47), .e., byvirtue of the double mystification inherent in the commodity form,human beings necessarily "forget" tha t commodities owe theirexistence to human needs and to the activity in which people haveengaged both to produce and fulfil1 these needs. The commodityform, in other words, is an economic form that necessarily func-tions independently of. or autonomously from, the will of thesubjects who set it in motion. Thus the fetishism of commodities:the masking of the link between commodities and their humanorigin gives rise to the appearance, the ideological invers~on,ha tcommodities have living, human powers Products appear to takeon a life of their own, dominating the very human subjects who infact bring them into existence but who no longer "know" this.Commodity fetishism thus entails a profound reversal of t he realcausal relationship between humans and their products: humans,the subjects who create or cause the objects, become the object,i.e., are "caused" by the very objects which they have created and


5/18

Soc~olog~ca lerspectives on Law I 219BALBUS 575

to which they now a ttrib ute subjectivity or causal power. Humanlife under a capitalist mode of production becomes dominated bythe passion to possess the commodity's living power, especially thepower of that one commodity, money, that makes possible thepossession and accumulation of a ll other commodities. Thusmoney is transformed from a means of exchange into the very endor goal of human li fe itself.

111. THE LOGIC OF THE LEGAL FORMAlthough Marx never developed a full-fledged theory of the

legal form, it is nevertheless possible to reconstruct from his earlywritings on law a nd the state in The Critique of Hegel's Philosophyof the Stat e and the essay On the Jewish Question, as well as fromhis later, more fragmentary treatment of the same subject inCapital, The Grundrisse, and the Critique of the Gotha Program,an analysis of the logic of the legal form which, in its essentials,completely parallels his more systematic, fully developed analysisof the commodity form.3 Thus, with the a id of these writings, Ishall argue that the logic of the legal form and the logic of thecommodity form are one and the same.

If, in a capitalist mode of production, products take on theform of individual commodities, people take on the form of indi-vidual citizens; the exchange of commodities is paralleled by theexchange of citizens. A citizen, in turn, is every bit as "mysteri-ous," twofold, and in fac t contradictory a reality as a commodity.An individual citizen, to begin with, is a qualitatively distinct,concrete subject w ith qualitatively distinct human needs or inter-ests. In this aspect of their existence, then, individual citizens aremanifestly not equal to one another, an inequality which corres-ponds to t he uniqueness of the human activities and the networksof social relationships from which their needs or interests derive.At the same time, however, individual citizens are not only, andnot immediately, subjects with needs but also and rather objects ofexchange who exist in order to represent, and be represented by,other individual citizens. The existence of political exchange orrepresentation thus requires tha t qualitatively distinct individualswith otherwise incommensurable interests enter into a formal re-lationship of equivalence with one another, i.e., that the qualita-tively different subjects become what they are not: equal. Thisrelationship of equivalence, in turn, is made possible by the law3. Thls reconstruction has proflted from my encounter wlth the work ofLefebvre (1969), as well as t hat of Jean-Jo seph Go ux (1972). At the r isk ofa ce rtaln redundancy at points in this reconstruction I have deliberatelyemployed language tha t is virtually identical to language In the previoussect~onThe ldentlty of language is designed to underscore the Identity In

loglc between the two forms


6/18

220 SociologicalPerspectives on Law I57 6 11 LAW & SOCIETY I WINTER 1977which, with t he development of capitalism, becomes the universalpolitical equivalent by means of which each individual is renderedequal to every other individual, so that any one individual canrepresent any other. The fully developed legal form thus entails acommon form which is an abstraction from, and masking of, thequalitat ively different contents of the needs of subjects as well asthe qualitatively different activities and structures of social rela-tionships in which they partic ipate. Thus the legal form, in Marx'swords, "makes an abstraction of real menM4which is perfectlyhomologous to the abstraction that the commodity form makes of"real products." Let u s look more closely at the legal form in orderto clarify the way in which it is able to perform this abstraction, aswell as the consequences of this operation.A. The Law a s Universal Political Equivalent

The formality, generality, and "autonomy" of the law-cap-tured in Weber's concept of "formal legal rationality" and sum-marized by Professor Trubek in this issue and elsewhere (1972)-preclude the qualitatively different interes ts and social origins ofindividuals from entering into the calculus of political exchange,just as the formality, generality, and "autonomy" of money pre-clude the qualitatively different use-values of commodities, andthe unique labor tha t produces them, from being recognized in thecalculus of economic exchange. The "blindness" of the legal formto substantive human interests and characteristics thus parallelsthe blindness of the commodity form to use-value and concretelabor, and if the commodity-form functions to "extinguish" the"memory" of use-value and concrete labor, so too the legal formfunctions to extinguish the memory of different interes ts and so-cial origins. As Marx puts it:

The [legal] state abolishes, a fter ~ t sashlon, t he distinctions estab-lished by blrth. social rank, education, occupation, when it decreesthat birth, social rank, education, occupation are non-polztzcal dis-tinctions; when it proclaims, without regard to these distinctions,that every member is an equal partner In popular sovereignty.[1972a.31]

The legal form thus defines distinctions of interest and origin outof polit ical existence, just as the commodity form defines distinc-tions of use and labor out of economic existence. And, just as thecommodity form "replaces" use-value and concrete labor with theabstractions of exchange-value and undifferentiated labor-power,the legal form "replaces" the multiplicity of concrete needs andinterests with the abstractions of "will" and "rights," and thesocially differentiated individual with the abstraction of the jurid-ical subject or the legal person. Pashukanis was perhaps the first4. Quoted in Lefebvre (1969.127).


7/18

Sociological Perspectives on Law IBALBUS 577

Marxlst after Marx to specify what might be called the commonmode of substitution underlying both the commodity form and thelegal form:

In the same way that the natural multiformlty of the useful attri-butes of a p roduct is in commodities merely a simple wrappe r of thevalue, while the co ncrete species of huma n labor are dissolved Inabs tra ct labor a s the crea tor of value--so the concrete multlpllcityof the relationsh ips of a man to a thlng comes out as the abst ract willof the owner, while all th e speclfic peculiarities distingulshlng onerepres entat ive of the species homo saptens from another are dlssol-ved in the abstraction of man in general as a juridic subject.[1951.16315

The subject of "equal rights" subs titu tes for the concrete subjectof needs, and the abstract legal person substitutes for the real,flesh-and-blood, socially differentiated individual. Thus we are inthe presence of the same double movement from the concrete tothe abstract, the same twofold abstraction of form from content,tha t characterizes the commodity form.B. Equality, Individuality, and Comm unity

The "equality" established and protected by the legal form isthus purely formal insofar as it is established in and through anabst ract ion from the real social inequalities of cap italist, classsociety, which nevertheless continue to exist, of course, even ifdenied "political" recognition. Thus "the political suppression ofprivate property not only does not abolish private property, [but]actually presupposes its existence" (Marx, 1972a:31). The formali-ty of legal equality, however, does not prevent it from havingsubstantive consequences which a re anything but equal and ar e infact repressive. On the one hand, the systematic application of anequal scale to systemically unequal individuals necessarily tendsto reinforce systemic inequalities; this, of course, was the force ofAnatole France's famous, ironic praise of "the majestic equali ty ofthe French law. which forbids both rich and poor from sleepingunder the bridges of the Seine." Thus Marx argues that th e right of"equality" guaranteed by the legal form is "a right of inequality,in its content, like every other right" (1968:324). On the otherhand, and probably even more importantly, legal equality func-tions to mask and occlude class differences and social inequalities,contributing to a "declassification" of politics which militatesagainst the formation of the class consciousness necessary to thecreation of a substantively more equal society Thus the "political5 Only after "working out" the homology between the commodity formand the legal form d ~ d discover that Pashukanls had developed essen-tlally the same analysis roughly fifty years ago! Almost all subsequentMarxist work on the la w IS, unfortunately, a regression from the stand-ard established by Pash ukanis 's pioneering effort The concept "modeof substitution" derlves fro m Goux (1972).


8/18

Soc~ologicalPerspectives on Law I578 11 LAW & SOCIETY / WINTER 1977suppression of private property"-legal equality-makes it thatmuch harder to eliminate private property and its attendant classinequalities, since it works to prevent "property" and "class" fromentering into the universe of political discourse.

Similarly, the "individuality" established and protected bythe legal form is illusory insofar as i t is established in and throughan abstraction from the concrete, social bases of individuality andis thus a "pure, blank individuality" (Marx, 1843:481) bereft ofany qualitative determinations and differences. Just as the com-modity form divorces the concrete use-value existence of the com-modity from it s formal existence as exchange-value, recognizingonly the lat ter as constitut ive of the "individuality" of the com-modity, so the legal fo rm splits off the concrete social existence ofthe individual from his or her existence as a formal object ofpolitical exchange and recognizes only the latte r as definitive ofhis or her individuality. And a form that defines individuals asindividuals only insofar as they are severed from the social tiesand activities that constitute the real ground of their individualitynecessarily fails to contribute to the recognition of genuine indi-viduality.

The only form of individuality common to all members of acapitalist society, moreover, is the individualism and egotism ofcommodity exchangers, which is in fact the real (and thus "false")content of the formal individuality produced and guaranteed bythe legal form. The indifference to qualitatively different needs"announced" in and through the abstractions of "will" and"rights" parallels, and is made possible through, a system of com-modity exchange whose individual agents a re necessarily indiffer-ent to reach other's reciprocal needs and are rather obliged to treateach other as a mere means to their own purely "private" ends(1973:242 , 245 ) . The juridical person, in other words, is merely thepolitical persona of the individual whose social existence is instru-mental, self-interested, and alienated; the individual, in short,who fails to act as a social individual aware of the inseparablerelationship between his or her development and the developmentof every other individual.

Political emanc~patlons the reduction of man, on the one side, tothe egolstic member of clvll society, to the egols t~c , ndependentindividual, on the other side to the cltlzen, to the moral person[1972a.44I66 . The legal state, llke monotheistic rellglon, presupposes an individual who1s incapable of actlng as a social belng in his or her everyday li fe"Political democracy is Christian in the sense that ma n. .every man, 1sthere considered a sovereign being; but lt IS uneducated unsoclal man. man as he has been corrupted, lost to hlmself, alienated, subjected tothe rule of Inhuman conditions . . . by the whole organization of oursociety-in short man who 1s not yet a real specles-belng" (1972a.37).


9/18


Thus the commitment of the legal form to individuality is ulti-mately illusory, because the individuality it recognizes and pre-supposes is in fact an alienated form of individuality-individual-ism. The commitment becomes doubly illusory, moreover, once werecognize the contributions of the legal form to the persistence ofthe very capi talist mode of production which makes genuine indi-viduality impossible.

Much the same can be said about the land of "community"produced by the legal form. Insofar as the legal order establishesits universality, and it s citizens define their communality, throughan abstraction from the real social differences and interests thatseparate the members of capital ist society and set them againstone another, Marx argues that it entails an "illusory community"(1972b:159) which "satisfies t he whole of man in an imaginarymanner" (1969.127).

In the [legal] st ate . the indlvidual . . I S the Imaginary membe r ofan imaginary sovereignty; he is robbed of his real indlvidual l ~ f endfilled w~ t h n unreal universal ity [1972a'321In order to be a real c~t~zennd have pol~tical ignif~cance ndefflcaclty, he must leave h ~ soclal reallty, abstract himself from itand r eturn f rom its whole organization into hls indlvlduallty, for theonly existence that he f inds for h ~ sitizenship IS his pure, blankindlviduallty. [l843 4941

The community of citizens is thus purely formal, i.e., bereft of realcontent . because the real content of life in capital ist society isoverwhelmingly particularistic, rather than universalistic, incharacter. As such, the community produced in and through thelegal order is as "imaginary" as that produced by religion, it is a"heavenly" sphere which "soars or seems to soar above . . thelimitat ions of t he profane world" (Lefebvre, 1969:129-30). Indeed,Marx argues that the legal form is, in essence, a religious form:

Up to now, the p ol~t lcal onstltutlon has been the rellgious sphere,the religion of the people's life, the heaven of th elr universality Incontrast to the particular mundane existence of the actuality[l843 4361The individual leads, not only in thought, In consciousness, but inreality, a heavenly and an earth ly life, a life In the political commu-nity wherein he coun ts as a member of the community, and a llfe Incivll soclety, where h e is actlve as a prlvate pe rson, regarding othermen a s means, degrading hlmself as a means a nd becomlng a play-thing of allen powers The polttical sta te is related to ctvtl soctetaas sptt-t tual istt cally as heaven as to ea rth L1972a.32, emph asisadded]"

Thus the "community" produced by the legal form is no more realthan the "heaven" produced by a religious system.

Notwithstanding its purely formal, imaginary character, how-ever, this "community" entails substantive consequences of the7. Thus , as Go ux (1972) has noticed, Marx ar ues tha t the monotheistic

rellgious form as well as the legal form, isaomolog ous with the com-mod~tyorm "Money is . . the god among commodities" (1973.221)


10/18

224 Sociological Perspectives on Law I580 11 LAW & SOCIETY I WINTER 1977highest order. If citizenship is at bottom a religion, then it is anopiate in t he twofold sense both of dulling and distorting percep-tion of reali ty, and providing a substitu te gratification which com-pensates for the misery of reali ty and makes it bearable. On theone hand , membership in the illusory political community blursthe perception of the real, mundane class-based and thus par-ticularistic communities in which people live, providing the basisfor appeals to an abstract "common interest" or "public interest"which militate against the recognition of class interests. On theother hand, the political community provides individuals with acompensation for the absence of communal relationships withintheir everyday existence in the same manner that the perfection of"heaven" compensates for, and thus allows the believer to bear,the imperfections of earthly existence. For both reasons, the "com-munity" produced by the legal form contributes decisively to thereproduction of the very capitalist mode of production whichmakes genuine community impossible.

Thus the legal form both produces and reinforces illusory,rat her than genuine, forms of equality, individuality, and commu-nity. At the same time, as I have suggested, these illusory formscontribute significantly to the persistence of a capitalist systemwhich necessarily precludes the realization of genuine equality,individuality, and community. For both reasons, the legal form is aspecifically "bourgeois" form; those who would simultaneouslyuphold this form and condemn the capita list mode of productionwhich "perverts" it simply fail to grasp tha t pa rt they uphold isinextricably tied to the very system they condemn (Marx,1973:245, 248-49). It follows, therefore, t hat the legal form cannotbe the basis for a fully developed, genuine socialist or communistsociety.

There is another way of stating the incompatibility betweenlegalism a nd socialism. Legal obligations in no way transcend theconcrete part icularisms of capitalist society, but must rather beunderstood as abstract unzversals which owe their existence tothose concrete particularisms. If a truly socialist society meansanything, it means a society in which the split between the con-crete particularisms of alienated self-interest and the abstractuniversalism of legal obtigation is thoroughly transcended, suchtha t individuals act as social individuals who are bound by neitherinterest nor obligation but rather by the concrete universal ofsocial need.s To put i t another way, the emergence of human need8. For readers unfamiliar with the Hegel~anerminology employed in th ~ sparagraph, I offer the follo w~ngranslation. In the context of our discus-sion, a "concrete particularism" is an internal want or desire that IS,

however, a-social; an "abstract universal" is a demand that is social in


11/18

Sociological Perspectives onLW 225BALBUS 581

as the basis of social production and intercourse necessarily en-tails the transcendence of that form-thelegal form-which, as wehave seen, carries out a systematic, bloodless abstraction fromhuman needs. Indeed, this is precisely what Marx envisions in the"higher phase of communist society . . . [in which] the narrowhorizon of bourgeois right [is] crossed in its entirety and societyinscribe[s] on its banners: From each according to his ability, toeach according to his needs" (1968,324-25)C. "Legitimation"

The foregoing analysis has important implications for a theoryof the "legitimation" and/or "delegitimation" of the legal form,and thus, of the capitalist s tate. Those who would argue tha tdelegitimation can result from the fa ilure of law to live up to its"promises" (i.e., from th e gap between its promises and its per-formance) fail to understand t hat the legitimation of the legalorder is not primarily a function of i ts ability to live up to itsclaims or "redeem i ts pledges" but rather of the fact that i ts claimsor pledges are valued in the f irs t place. As long as "formality,""generahty," and "equality before the law" are seen as genuinehuman values, even gross and systematic departures from thesenorms in practice will not serve to delegitimate the legal order as awhole, but will at most tend to delegitimate specific laws andspecific incumbents of political office who are responsible forthese laws. Consider, for example, legal practices that systemati-cally and obviously violate the principle of "equality before thelaw," such a s those that result in rich individuals receiving morelenient treatment tha n poor individuals who have been convictedof comparable crimes. Such practices may in fact delegitimateparticular judges and particular court systems, but they will notdelegitimate the legal order itself, insofar as the delegitimation ofthe former does not call into question, but rather is based on theaffirmation of, a centra l criterion of the legal order, equal treat-ment irrespective of class position In other words, those whowould object to the rich individual receiving more lenient treat-ment th an the poor, on the grounds tha t the law should be indiffer-ent to the distinction between rich and poor-that rich and pooralike should receive the same penalty for the same crime--would,in tha t very condemnation of the judges and courts responsible forthe d ifferentia l treatment , be affirming the legitimacy of the legal

nature but externally Imposed, and a "concrete universal" IS an Internalwant or deslre that is soclally directed. Thus " soc~ al eed" 1s a concreteuniversal because ~tcreates a bond among lndivlduals for whom sociall-ty is an inner deslre rather than e~ ther mean s to a self-interested end oran obl~gationhat limits the pursult of self-interest


12/18

226 Sociologrcal Perspectives on Law I582 11 LAW & SOCIETY I WINTER 1977order, ~ h u s "critical analysis of the relat ionship between claimand reality," pace Trubek, is no t , in "itself a source of possiblechange towards a more humane society," unless and until this"critical analysisv also entails a critique of the legitimacy of thevalue underlying the claim itselfQ

In other words, the objection that the rich receive more lenienttreatment than the poor would only delegltimate the legal order asa whole, and thus the capitalist mode of production on which itrests and which i t helps sustain, if this objection were grounded onthe principle that the rich, given both their greater ability to paythe penalties resulting from conviction and also to avoid the neces-sity of committing crimes in the first place, should receive moresevere penalties than the poor who have committed comparablecrimes. In this case a central tenet of the legal order would becalled into question an d rejected-the legitimacy of the recogni-tion of social class origins would be asserted-so that even if thisorder were subsequently able to make good its promise to provideequal treatment for all it would be found wanting. Delegitimationthus presupposes a fundamental break wlth the values and (for-mal) mode of rationality of the legal form itself, a break whlchpresupposes, in turn, at least an embryonic articulation of a qual-itatively different set of values and mode of rationality. An ade-qua te theory of legitimation andlor delegitimation would there-fore have to explain why the logic of the legal order as such, incontrast to particular laws or legal practices, is ordinarily accept-ed as unproblematical, and is not called into question in the nameof a radically different logic.D. The Fetishism of the Law

The legal f onn is normally not called into question, I wouldargue, because the form itself ordinarily precludes the possibilityof performing this critical operation. The calling into question ofthe legal order presupposes individuals who conceive themselvesas subjects evaluating a n object which they have created and overwhich they have control. It is just this presupposition, however,which is nullified by the perverse logic of the legal form; this formcreates a fetishized relationship between individuals and the Lawin which individuals attribute subjectivity to the Law and con-9. In argulng tha t the gap between "ideals" and performance in and of itselfcan be delegltlmatlng, Trubek appears to misund~rstandHabermas'saccount of the posslblllt les of a ' , ;.t~ mati on risls The latter requires"a quest~oning . . of the norms ~il at . underhe. . . actlon," and notmerely a demonstration that these norms are violated In practlce(1975 69) Habermas, on the other hand, falls to develop a theory offetishism, proposed In the following sectlon of this essay, which wouldaccount for why this "questioning" ordinarily does not and cannot takeplace.


13/18

Socrologrcal Perspectrves on Law IBALBUS 58 3

ceive themselves as its objects or creations. Under these condi-tions, the calling into question and subsequent delegitimation ofthe legal order is literally "unthinkable."

The fetishism of the Law of which I am speaking appears inmany guises. The most sublime is probably the formalist theory oflaw itself, insofar as this theory conceptualizes the law as an"independent," "autonomous" reality to be explained according toits own "internal dynamics," i.e., conceives it as an independentsubject, on whose creativity the survival of the society dependsThe most ridiculous is undoubtedly the celebration of "Law Day,"during which we are asked to pay homage to the God-Law. Themost frequent, if it is possible to judge from the numerous discus-sions I have had with undergraduate students over the past de-cade, is the common refrain: "If we didn't have the Law everyonewould kill each other." All these instances, and many others, aresimply variat ions on the common theme of legal fetishism, inwhich individuals affirm that they owe their existence to the Law,rather than the reverse, inverting the real causal relationship be-tween themselves and their product. And all these instances thuspreclude the possibility of evaluating the legal form, since it isimpossible to evaluate an entity which is conceived of as theindependent source of one's existence and values. When Society isheld to be a result of the Law, r ather than the Law to be a result ofone particu lar kind of society, then the Law by definition is un-problematical. Or, to put it another way, the answer to the legiti-mation question-why do citizens support the legal order?-is,above all, the fact tha t the citizens of this ord er ordinarily do notand cannot ask this question.

Thus under conditions of legal fetishism the legal order ap-pears not as an object of rational choice undertaken by autono-mous subjects, but rather as an autonomous subject itself, whosevery existence requi res that individuals "objectify" themselvesbefore it. According to Marx, the legal State is a power

which has won an existence independent of the individuals . . asoclal power . . . [which] appears to the individuals. not as theirown united power, but as an alien force existing outside of them, ofthe origin and goal of which they are ignorant, whlch they thuscannot control, and which on the contrary passes through a peculiarseries of phases and stages independent of the will and the action ofmen, nay even being the prlme governor of these.1Here Marx is arguing that legal fetishism parallels commodityfetishism, th at the legal form, like the commodity form, necessari-ly functions independently of, or autonomously from, the power10. The Gennan deology , quoted in Ollman(1971.219).Ollman's conceptionof the State as a "value relation" was an Insightful contribution to myeffort to work out the homology between legal form and commodityform.


14/18

228 Soczological Perspectives on Law I584 11 LAW & SOCIETY I WINTER 1977or will of the subjects who originally set i t in motion but do notknow, or have forgotten, that they have done so. And, as in the caseof t he commodlty form, the "deification" of the universal equiva-lent rests on the obfuscation of "origins" produced by the abstrac-tion of the legal form. Just as the masking of the link betweencommodities and the ir human origins in use-value and concretelabor necessarily gives rise to the appearance or ideological inver-sion that commodities, and especially their universal equivalent,money, have living, human powers, so the abstraction from andmasking of th e different human needs and social origins carriedout by the legal form necessarily produces the illusion that theLaw-as the universal political equivalent-has a life of its own.The corollary to human relationships becoming abstract andreified (thing-like) is that things-be they material products orlegal "productsw-become personified, i.e., take on human charac-teristics. Commodity fetishism and legal fetishism are thus twoinseparably related aspects of an inverted, "topsy-turvy" exist-ence under a capitalist mode of production in which humans arefirst reduced to abstractions, and then dom inated by their ow ncreations.E. The Semiotics of Formal Rationality

The "rationality" or logic of both the commodity form and thelegal form can be grasped as a specific mode of encoding reality, aspecific language for which a linguistic or semiotic analysis cantherefore be developed." On the most general level, the homologybetween legal form and commodity form can be schematicallyexpressed in the following semiotic formula:12

In both cases, the same semiotic process is a t work. A Signifier ($,the Law) is ultimately related to, and brought into existence by, aSignified (Use-Value and Concrete Labor, different social inter-ests and origins). In both cases, however, the peculiarly abst ractcharacter of the Signifier functions to mask or obfuscate the orig-inal Signified, so that meaning is systematically distorted and11 Marx himself occasionally speaks of the "language" of the commodityform, and H enri Lefebvre (1966) and J ean Baudrillard (1972) have eachdeveloped fro m these hlnts a llnguistlc or semlologlcal analysis of thecommodlty.12. Readers unfamiliar wlth semiological termlnolo y should note that an ysoclal practlce tha t IS slgn-ificant or "meanlngfuy" ca n be understood asa language whose constituent elements are s tgns. The slgn. in turn,whether ~t be verb al, economic, legal, e tc . can be understood as theassoclation or relationship between a signifier and a slgnif~ed,he for-

mer functioning to express or re fer to the content of the latter.


15/18


los t , to the point where the original Signified slips from view or isbarred from discourse (thus the diagonal bar above) and the Sig-nifier appears able to call into existence an entirely new Signified("commodities," "individual citizens"). The abstract, formal "lan-guage" of both the commodity form and the legal form is thus animpoverished, duplicitous language which simultaneously pro-hibits qualitatively different human needs and activities from be-ing encoded, or recognized, and appears to possess powers of"speech" completely independent of, or autonomous from, thehuman beings whom it addresses.

Thus the comprehension of both the commodity form and thelegal form requires an identical decoding. This decoding reunitesthe abstract and the concrete, Signifier and (original) Signified,thus overcoming the abstraction and reversing the reversal thatcharacterize the perverse "language" of both forms. In the processmeaning is restored and individuals can recapture the powers of"speech" of which they have been deprived. The "decoding" inwhich I have engaged, then, is no mere "academic" exercise. In-sofar as the delegitlmation of the legal form and the capitalistmode of production to which it is tied presupposes precisely thecapacity of individuals who are dominated by this mode of pk-o-duction to perform such a decoding operation, my effort to developsuch a decoding purports to contribute to the delegitimation ofboth the legal form and th e capitalist mode of production, a de-legitimation which is a necessary condition for the creation of aless abstract, more concrete, i.e., more human, society.

IV. CONCLUSIONIt should now be clear why the "relative autonomy" of the law

does not preclude, but ra ther necessarily entails, an essential iden-tity or homology between the legal form and the commodity form.The homology between the legal form and the commodity formguarantees both that the legal form, like the commodity form,funct ions and develops autonomously from the preferences of so-cial actors an d that it does not function and develop autono-mously from the system in which these soclal actors participate.Stated otherwise, the autonomy of the Law from the preferences ofeven the most powerful social actors (the members of the capitalistclass) is not an obstacle to, but rather a prerequisite for, the capac-ity of the Law to contribute to the reproduction of t he overallconditions th at make capitalism possible, and thus its capacity toserve the interests of capital as a class .

The demonstration of the homologous relationship betweenthe legal form and the commodity form which I have provided,


16/18

230 Soczologzcal Perspectives o n Law I586 11 LAW & SOCIETY I WINTER 1977however, is a theoretical starting point which in many ways hasalready been historically surpassed. The transformation fromcompetitive, laissez-faire capitalism to monopoly, State-regulatedcapitalism has resulted in a partia l transformation of the contentof the homology between economic and poli tical exchange. On theone hand, the growing role of the Sta te as a "productive force"entai ls the increasing production of use-values-welfare, medicalservices, infras tructure, etc.-which do not take on the direct formof exchange-values, i.e. , which a re not produced as commodities.This includes the production of labor-power itself, insofar as thelaw of value is increasingly superceded by the political negotiationof wages as the determinant of the cost of this most central of alluse-values. To this extent, it is possible to a rgue that the unchal-lenged supremacy of the commodity form is in decline, and that weare in the presence of a certain kind of restoration of the contentand quality from which the commodity form abstracts.13 On theother hand, the development of State-regulated, monopolycapitalism has also witnessed an erosion of the rule of Law and theemergence of less formalistic, more instrumentalis t and techno-cratic modes of social and political control; the Law as universalpolitical equivalent gradually gives way to a series of relatively adhoc techniques which, by their very nature, recognize specificinterests and specific social origins.14 For example, whereas for-mal rationality in the criminal justice system precludes the con-sideration of the individual's motive or social class position fromentering into the determination of guilt and punishment, theseconsiderations necessarily come to the forefront in technocratic-rehabilitative modes of criminal justice. In short, technocraticmodes of social control imply a certain reemergence of the contentand quality from which the legal form abstracts, and thus parallelthe restoration of content and quality entailed in the increasingpolitical production of use-values. Thus one could argue that ahomologous relationship continues to exist between the exchangeof products and the exchange of human beings, but that the termsof the relationship have assumed values different from those theypossessed during the period of competitive capitalism.

The demonstration of this "new" homology, however, is only astart ing point. I t does not and cannot tell us why the values of the13. Claus Offe (1973) develops this thesis of "decommodit~fication It shouldbe emphas~zed, owever, that this "restoration of quality and content"only surfaces within a cont~nuing ramework of domination and thus inno way constitutes the emergence of socialism.14 This trend is by no means complete, and has from the very beginningbeen accompanied by the apparently contradictory extension of thelegal form to a range of activities to which ~t did not apply in thenineteenth century; see Galanter (1976)


17/18

Socrologrcal Perspectrves on Law IBALBUS 587

two terms (economic and political) have changed, i.e., why wehave witnessed a st ill incomplete transformation from competitivecapitalism-legalism to monopoly capitalism-technocracy, or wha tthe values of the two terms of the relationship will be in the future .It does not, in other words, explain how and why human beingscame to create th is new homology or, for that matter, how and whythey came to create the earlier one I have outlined in this essay;nor does it tell us how and why they might further transform themin the course of his tory. Thus the demonstration of structural orsynchronic homologies is not intended as a subst itute for an analy-sis of praxzs which would serve to reunite siruc ture and history,synchrony and dlachrony.15 It merely suggests that such an analy-sis would have to proceed from the understanding tha t the task isto explain how one social whole with a distinctive logic originatesand how it transforms itself into a different social whole withanother, distinctive logic; that is, from the understanding, inHegel's words, tha t "the tru th is the whole."

REFERENCESBAUDR ILLAR D, Jean (1972)Pou r u ne Critzque d e 1'Economze Politzque duSigne. Parls Galllmard.ESPING -ANDE RSON, Gosta, Roger FRI EDLAND and Erik Olin WRIGHT(1976) "Modes o f Class Struggle and the Capltalist State " 4-5 Kapztalr-state 186 (Summer).GAL ANT ER, Marc (1976)"Theories o f Legallzatlon and Delegallzatlon " Pa-per presented to the Annual Conven tion of the Amerlc an Pol~tlcal ci-ence Association. Chicago. Septembe r 2-5.GOLD , Davld A., Clarence Y.H L 0 and Erik Olln WRIGH T (1975) "RecentDeve lopmen ts In Marxlst Theories o f he Capltalist State," 27(5)Month-ly Review 29 (Octob er),27(6)Mon thly Revzew 36 (No vem ber )GOU X, Jean-Joseph (1972) Freud, Man!. coq om~e t Symbolique ParlsHABER MAS, Jurgen (1975)Legzt tmation Cmszs Boston. Beacon Press.LEF EBV RE, Henrl (1966)Le L anguag e e t La Soczbrr? Parls. Galllmard- 1969) The Sociology of M um . New Y or k: Vlntage BooksMA RX , Karl(1843) Th e Cmtzque of Hegel's Phtlos ophy of th e State, ME GA Ii ( 1 )481.---- 1967) Caprtal, vol I . New York: International Publishers.- 1968)"Critique of the Gotha Program," in Karl M u m asd FrederlckEngels, Selecte d Works, v01 I New Y or k. New World Paperbacks----- (1972a) O n the Jewlsh Question," in Robert C Tdcke r ( e d )TheMam-Engels Reader. New York Norton.

(197213)"T he Germ an Ideology," In Robert C T uck er (ed ) The Mars-Engels Reader New Yo r k Norton.- 1973)Gr un dn sse Founda tion o rhe Cnraque of Polatzcal EconomyBooks lIranslated b y Martln Nlcolaus. armondsworth, England: Penguin

OFFE, Claus (1972) Class Rule and the Polztical S yst em. On the Selec tme-ness of Polactcal Institutions. Unpclbllshed.- 1973)"T he Abolition o f Market Control and th e Problem o f Legltlma-cy," l Ka ptta lzst ate 109, 2 Kapztalzsrate 7315 For a n analysls that mak es a start in this dlrectlon b y conceptualizing thestate both as a fo rm which condltlons stru, and as an object ofstruggle itself, see Esping-Anderson et al. (15 10,


18/18

Sociological Perspectzves on Law I588 11 LAW & SOCIETY I WINTER 1977OLLMAN, Bertell(1971) Alzenatzon Marx's Conceptzon of Man zn Capztal-ist Soczety. Cambridge: Cambridge Unlversity Press.PASHUKANIS, E.B. (1951) "The General Theory of Law an d Marxism," InHugh W. B abb (trans. an d ed ) Sovzet Legal Phalosophy Cambridge,Mass Harvard Unlversity Press.POULANTZAS , Nlcos (1973) "The Problem of the Capltal lst State," In RoblnBlackburn (ed ) Ideology i n Soc tal Sczence. New York. Vintage Books.TRUI :!'I.:. Davld M (1972) "Max Weber on Law and the Rise of Capi tahs m,"

[: :-'.' Wisconsin Law Revzew 720.TUSHIVET, Mark (1977) "Perspectives on the Development of Amer lcanLaw A Crit~calRevlew of Frledman's 'History of Amer~canLaw,"'[1977(1)] Wzsconstn Law Revzew (forthcoming).

balbus isaac commodiy form

Documents