On the critique of rights

Marx, Marxism, Foucault

Marx’s ambivalence

• Rights as social form of the modernsubject

• Rights as mere semblance concealingclass exploitation

Equal right and exchange• Although individual A feels a need for the

commodity of individual B, he does notappropriate it by force... owners ofcommodities recognise one anotherreciprocally as proprietors, as persons whosewill penetrates their commodities... thejuridical moment of the Person enters here…all inherent contradictions of bourgeoissociety appear extinguished ... and bourgeoisdemocracy even more than the bourgeoiseconomists takes refuge in this aspect.(Grundrisse:243, 251)

Freedom, equality and Bentham

• The sphere of commodity exchange is ‘a veryEden of the innate rights of man – the realmof Freedom, Equality, Property and Bentham:Freedom because both buyer and seller of acommodity ... are determined only by theirown free will.... Equality because each entersinto relations with the other as with a simpleowner of commodities and they exchangeequivalent with equivalent. Property becauseeach disposes only what is his own. AndBentham because each looks only to his ownadvantage. (Capital 1: 280)

Formal and social equality

• ‘Equal right is a right of inequality in itscontent like every right’ (Critique of theGotha Programme).

• ‘if one grows impoverished and the othergrows wealthier then this is of their ownfree will.’

Worker and capitalist

• ‘a worker who buys a loaf ofbread and a millionaire who doesthe same appear in this act assimple buyers ... all other aspectsare extinguished’ (Gr: 251).

Right to the product of one’s labour• ‘Originally, the rights of property

seemed ... grounded in man’s ownlabour… Now, however, propertyturns out to be the right on the part ofthe capitalist to appropriate theunpaid labour of others or its productand the impossibility of the worker ofappropriating his own product.’

Right of Alienation

• ‘The separation of property fromlabour becomes the necessaryconsequence of a law that apparentlyoriginated in their identity.’ (Capital 1:729)

Inversion

• the law which presupposes that weown the products of our labour turns...through a necessary dialectic into anabsolute divorce of property andappropriation of alien labour withoutexchange (Gr: 514).

Marx’s Life project

• ‘the connection of political economy with thestate, law, morality, civil life, etc. is only dealtwith in so far as Political Economy itselfprofesses to deal with these subjects’.(Engels)

• project : to ‘present one after another acritique of law, of morality, politics, etc. ... andthen finally ... to show the connection of thewhole’.

Form and Semblance

• Marx contrasts value as ‘real appearance’with rights as ‘mere semblance’

• What difficulties and misinterpretationsdoes this lead to?

Splits within Marxism

Evgeni Pashukanis Law andMarxism 1924

•

Pashukanis' central claims

• Social foundation of law lies in commodityexchange

• Law as expression of bourgeois socialrelations

• Law as a historically specific and transitoryform of authority

Social foundation of law incommodity exchange

• a) subject of rights (juridical subject) asowners of commodities

• b) legal relation between subjects asexpression of exchange relation betweencommodity owners

• c) fetishism of legal subject alongsidefetishism of commodities

• d) legal regulation required for societybased on conflict between private interests

Rights as bourgeois socialrelation

• a) inequality: formal equality presupposes socialinequality

• b) fetishism: social relations between peopleappear as subordination to an impersonal power

• c) abstraction: abstraction of legal subject asfree and equal person from social relations

• d) competition: rights premised on mutualconflict between isolated legal subjects

• e) alienation: law really becomes impersonalpower above society

• f) mystification: rights veils class basis of society

Law as transitory form ofauthority

• Development of law with generalised commodityproduction and capitalist society

• Primitive forms of law go back deep into history -defence of rights through vi et armis

• In capitalist society technical base is constructed forcommunal, non-legal relations– e.g. solidarity of labour and cooperative labour in factory

• Transcendence of law in communist society– replaced by technical forms of authority

• Technical regulation is based on identity of interestsamong members of collectivity seeking same goal

Critique of Pashukanis

• Social base of law not in commodityexchange but in commodity production

• Legal formalism - neglect substance of law- homogenise different forms of law

• Inadequate conception of relation betweenlaw and the state and of technicalregulation

Edward Thompson

• Social historian Warwick University Inc• Whigs and Hunters 1975

Thematics

• Critique of legal nihilism dressed up asMarxism

• Critique of bureaucratic statism dressedup as Marxism

• Base and superstructure metaphor breaksup unity of experience

• Rule of law as an unqualified human good

EP Thompson - Marxism andactivism

• In the 1970s and '80s Thompson polemicizedagainst threats posed to civil liberties anddemocratic rights by modern governments:branches of the `liberty tree‘ lopped off one byone and `free-born Englishman' was becomingchattel to the state.

• Thompson identified `muggers of theconstitution' not as `criminals, terrorists andsubversives' but as the state itself

Reconstructing Marxism

• against drift to authoritarian statism essential forMarxism to put its own house in order

• Not dismiss law as instrument of class rule.• If human rights were merely an illusion, then the

only significance of their loss would be to clarifythe class struggle.

• If all states were inherently authoritarian and allinhibitions on power were `tricks to provide itwith ideological legitimation', then movementfrom one state form to another would make noessential difference.

Cynical reason

• This `Marxist' rhetoric was in fact anexercise in cynical reason

• Dulls the `nerve of outrage‘• In the 20th century `even the most

exalted thinker‘ able to notedifference between a state based onthe rule of law and one based onarbitrary, extra-legal authority.

Theoretical reconstruction

• Marxist essentialism substituted `Platonicnotion of the true, ideal capitalist state' foractual capitalist states;

• Marxist functionalism defined idea of rightsexclusively in terms of class domination;

• Marxist reductionism turned rights intomere confirmation of existing propertyrelations.

Theorising rights

• Rights should be seen as form ofmediation

• impose `effective inhibitions on power'• Defend citizen from `power's all-inclusive

claims‘• If law is to be effective as legitimation,

then rulers must to some degree live up toits universal and egalitarian standards.

Michel Foucault

• Rights and power

Images: After the revolution

Bentham’s Panopticon

Bentham’s Panopticon

Bentham’s Panopticon

Pentonville

Pentonville

Pentonville

Prison chapel

Contrasting regimes

The old form of power• 1757 Damiens the regicide condemned "to make amende

honorable before the Church of Paris“• conveyed in a cart, wearing nothing but a shirt, holding a

torch of burning wax weighing two pounds• flesh will be torn from his breasts, arms, thighs and claves

with red-hot pincers,• his right hand, holding the knife with which he committed

the parricide, burnt with sulphur• Where flesh torn away, molten lead, boiling oil, burning

resin, wax and sulphur melted together will be poured• body drawn and quartered by four horses and his limbs

and body consumed by fire, reduced to ashes and hisashes thrown to the winds”

And the new form of power• The prisoners' day will begin at six in the morning in winter and at

five in summer. They will work for nine hours a day throughout theyear. Two hours a day will be devoted to instruction. Work and theday will end at nine o'clock in winter and at eight in summer.

• Rising. At the first drum-roll, the prisoners must rise and dress insilence, as the supervisor opens the cell doors. At the second drum-roll, they must be dressed and make their beds. At the third, theymust line up and proceed to the chapel for morning prayer. There isa five-minute interval between each drum-roll.

• The prayers are conducted by the chaplain and followed by a moralor religious reading. This exercise must not last more than half anhour.

• Work. At a quarter to six in the summer, a quarter to seven in winter,the prisoners go down into the courtyard where they must wash theirhands and faces, and receive their first ration of bread. Immediatelyafterwards, they form into work-teams and go off to work, whichmust begin at six in summer and seven in winter.

Foucault’s observation• We have, then, a public execution and a time-

table… they each define a certain penal style.Less than a century separates them.

• the entire economy of punishment wasredistributed.

• a time of great scandals for traditional justiceand innumerable projects for reform.

• a new moral or political justification of the rightto punish

A new age of penal justice

• Russia, 1769;• Prussia, 1780;• Pennsylvania and Tuscany, 1786;• Austria, 1788;• France, 1791, 1808 and 1810• UK ?

Foucault’s question• why the disappearance of torture as public

spectacle?

• attributed too readily to a process of"humanization” - to rise of human rights ?

Foucault’s answer

• Not result of a growth in human rightsbut of new organisation of power

• or rather growth in human rights wasexpression of new organisation ofpower

New organisation of power

– Micro-physics of power (detail)– Docile bodies (training)– Torture of the soul (guilt)– Infra-law (law within the law)– Secrecy (walls keep public out)– Power as a social relation (mutual

inspection)– Power/knowledge nexus (science and

power)

Critique of liberal rights theory

• trapped in traditional ways of viewingpower

• In our thinking not yet cut off the king’shead

• Against Marxism: power not property ofclass or state

• Against liberalism: rights about power, notfreedom

Critique of Foucauldian approachto rights

• View the world through prism of power andinterest – is there not more to socialrelations than power and interest?

• Prioritises one side of bourgeois reformover other, utilitarian over humanitarian,but both were co-present

• Devalue idea of humanity as illusion ormechanism of power, but is this notreductive?