Harald Haslbauer (2016)
On the necessity of legal subjectivity
1. (To what extent) Are right and law bourgeois issues?
The designation „bourgeois law“ is common parlance and generally accepted as an adequate characterization of our actual law (in general and not just, as for lawyers, of the civil law alone). Its advocates take this bourgeois phenomenon to be an achievement and therewith the law to be accomplished to its very core. Its critics on the other hand take “bourgeois law” to be the expression of what is unjust, a law still lacking its true realization as right proper. The aim here is twofold: firstly, to clarify whether this well-kown designation of the law as bourgeois is justified and if so to what extent; secondly to explore how a more detailed and in depth determination of the law as bourgeois could lead to a judgment as to its true content.
Property and person – as elements of the will – are highly regarded as what is absolutely essential to this law, together with contract, recognition, wrong, jurisdiction … and, in the end, the ought of this law: justice. These basic components of our law are claiming to express and include all kinds of social relations. Yet for all of these fundamental elements of the legal will generally no reason can nor will be given or ever so much as sought.
In this legal system the subject-object-relation called p r o p e r t y stands for a mode of having something at one´s disposal that entails a relation of will to objects whereby the former designates or attributes the latter to itself; not in the sense of the will´s thus containing all modes of having; rather in an abstract way for itself and completely absolved from all material having and willing by human subjects, a kind of having that is somehow alienated from the living human being, a purely “ideal” (Fichte) or “just ... intelligible possession” (Kant), strangely indifferent but also unconditional.
In this system of law, being a p e r s o n means the human being explicitly not as the human being – thus contradicting the perceptions of everyday life. In law, the person is rather a subject abstracted from their very human being, a self-referring subject not of flesh and blood – but a being for itself, having barely any relation at all to the in itself volitionally active human being nor to the world: As person the human being is considered (by theirself as by other persons) as a static and one-dimensional entity only and as such the focus of rights. This focus is not altered by the moral appeal that an individual as mere human being should have the valid claim to be esteemed as a person – the difference is already supposed and affirmed. This is evident above all in the appreciation of the individual as person even when this recognition comes with socially intended harming even to the point of ruination of a human existence – as in the case of private or penal legal acts.
This kind of subject – one-dimensional, naked and unintentional – also turns out to be the subject of the way of possessing that presents itself as property. Moreover this subject – identical with itself and like all other subjects of its kind – is the subject of legal relationships concerning other persons. So the social relations are not only doubling as human and legal ones. As these combined social relations, especially when they are brought into question, gain reality and permanence just by a third subject, a just legally formed, law making, law adjudicating and law administering entity, the state.
Accepting these legal subjects and their relations to the world as categories of law is a well established practice; they are applied to all social relations without considering their particular qualities or even their reason. Merely remotely and philosophically, and beyond its profane and daily execution, people wonder about this phenomenon: that apart from all lively subjectivity pertaining to the human being another subjectivity exists, one that is isolated, abstract, and confined within its own sphere, notwithstanding that, with or without Marx, everyone is in some sense familiar with this twofold existence of the bourgeois human being in everyday life. However merely wondering about the various elements of bourgeois law does not necessarily impel anyone to search out the foundation of this law and its willing categorization. Such an approach would imply that the reason for such bizarre acts of will could never lie in themselves.
For these legal categories – being ones of the will – this would be a monstrosity: Even being elements of will, for their special form and mode of will a fundamental subordination is supposed, a founding in something else but their free self-determination. Such acts of will would be a contradiction in themselves, would be relativised in their very own determination as free.
Our religious past knew all social doing and its regulation to be the execution of divine commandments fulfilled finally and consequently within an ought, a will subordinating itself along with the subordination of deviating wills: right and law were regarded as unique and unilateral acts of the governing will, as representative of god. The bourgeois revolution took up the cause of the free legal subjectivity of all human beings. To identify the reason for this juridical subjectivity of the individual human being as to their nature in general weakened somehow the liberation of the will in law.
Hegel is aware of this weakness of the idea of natural law, and sets out an alternative, deriving the legal subjectivity from the particularity of the will itself, thus from its nature. Not only does he know of the categorial subjects of law in their very abstract quality:
“The universality of this consciously free will is abstract universality, the self-conscious but otherwise contentless and simple relation of itself to itself in its individuality, and from this point of view the subject is a person.” (Rph § 35)
"The abstract will, consciously self-contained, is personality." (Rph § 35, Addition)
But Hegel also realizes that in the execution of this abstract law something other than the profane materially interested will of human beings takes up room and obtains validity:
“If emphasis is placed on my needs, then the possession of property appears as a means to their satisfaction, but the true position is that, … , property ... is in itself a substantive end.” (Rph §45, Remark)
Hegel does not want to accept this constellation as a given nor to negatively reject it as this natural given. The same cannot be said for theorists nowadays. Hegel is behoven to specify a positive reason for these legal relations abstracted from the human beings. He finds these categories of abstract law well-founded in the will in general. But his logical sequence from the general determination of the will to person and furtheron to property is not convincing at all.
In his argument beginning with the will (that is free in any case and already for itself) leading up to the abstractly (and also for itself) free will (i.e. person) Hegel absolves the specific quality of the real will, its self-determination in respect to a certain finite content, presupposing rather that this will pursues its freedom merely as an idea:
A will cannot be a will without its designated content, which means the content determined as its own, fully to the point of the existence of the content falling into the will itself. This also includes the known reasons for the volitional decision, as they become and then are its own reasons. A will containing only itself thus has the determination, not to contain all other designated contents, in which it realizes and in which it is just able to realize itself, but then has the determinacy by the will itself as its content.
To gain and preserve this determinacy of the will, not all determination as act of the will can be abandoned. A will that claims this determinacy apart from itself and its acts, must have other reasons for this than the mere will.
This restriction to itself may be primarily just one possible and additional sort of a will, ignoring all of the other varied contents still maintained. The decision for this new content is exclusive and the content for itself poor: the will wants to be something extra and apart from that what it in any case and already is. So in no way can freedom be the content of this special kind of will, because the content is chosen not at all freely and with reasons therefor, but is preset more than any other contents by the will in itself. All other determination of the will Hegel judges to be limitation of the will in its quality as will, or of its freedom. Just in the will to will does Hegel see freedom arriving at its destination.
On the other hand Hegel is well aware of this and consequently concludes necessities therefrom. And he knows that this kind of freedom of the will culminates in the formation of a superordinated and even commanding will: that of law and state.
The necessity of the second step, that of the thus represented complete person, i.e. of the self-related will, towards the content property, is not comprehensible either:
“A person must translate his freedom into an external sphere in order to exist as Idea. Personality is the first, still wholly abstract, determination of the absolute and infinite will, and therefore this sphere distinct from the person, the sphere capable of embodying his freedom, is likewise determined as what is immediately different and separable from him.” (Rph §41)
That such a self-related will – as it is already determined as an ideal and real legal will by Hegel – is not satisfied with what it is, is not reasonable. Primarily because – according to Hegel – such a will has emancipated itself from all external contents – and this was the celebrated achievement overcoming the otherwise (and finite) determining kinds of will. A necessity to anything else from such a kind of abstract and (nearly) empty will can never be derived out of itself. Even more irrational is that such a self-restricting, one-dimensional will – according to Hegel – should therefore aim at everything as content that is different from itself, taking it absolutely as its own.
An I or an integral will referring to something different from itself, could also retain this object as such an external entity; and referring theirself to other subjects could lead to handle the objects cooperatively with the other human beings. But even for such an abstract will it is not rational at all to designate all the will-less entities as being totally and only its own.
This reasoning about this kind of abstract will nevertheless neither denies the ability of the spirit to abstract in this way nor the existence of the will in this abstract form, but very much the necessity for it out of the will itself.
With his theory of political economy Marx claimed to have given substance to the bourgeois character of our society materially. But Marx´s determinations are characterized by explaining just the objective economic nature of this society; its social contents are determined as ones beyond will and consciousness of the human beings who are nevertheless executing them. But Marx not only wanted to determine an essence to believe in, however an essence which emerges in and explains secular phenomena of the will. The volitional elements of this society, as the law, implicitly or confessionally are taken as “superstructure” by the successors of Marx (á la “existence determines consciousness”).
The claimed determination by the economic contents is not proved principally, nor is a judgement on the law in general passed. Very often when explaining the law it is rather thought to reveal its partiality for the bourgeois interest, only to introduce an alternative i.e. a better and fairer type of law. If it is not possible to explain its general nature, then the law has to be taken as a just given – maybe natural – human habit, the existence of which are also to be found in non-capitalist societies.
The occasional efforts to explain certain categorial contents of the legeal will as a consequence of the capitalist mode of production turn out as desolate:
A very common one is for example the notion that capital is already the same as property. Another one is that legal subjectivity is just a deceit, its true realization being thwarted. Efforts referring mor to the author Marx tend to copile preferably early citations of Marx concerning legal cases current at that time, in order to present them as his theory of law. Even theorists taking as point of reference his magnum opus "The Capital", usually fail to identify a logical explanation of the relation between capital and law because the volitional element of the law are not distinguished from the Marxian categories. The human subject of the social content of the capital then directly coincides with the character mask as extension of commodity and valorization of value. Even when a difference between objective elements of capitalist essence and its human subjects is seen, for the latter there is not shown any specific necessity for their legal determinations, but only retold that with them and as a result capitalist valorization is really executed. About the relation between economy and law nothing is communicated but that they are related and harmonize somehow, a judgment so apparently true and banal that it is to anybody´s consent.
Even judgements that are damning the law fundamentally and universally (as in anarchism) are only able to stress the negative position of the law towards the human beings – either created by other people or the state – , and hardly refer to the positively desired legal subjectivity.
In all these theoretical efforts the forms of the law stay alien and indifferent to capital, even when the law is seen as a useful means for it – and thus possibly harmful to the human beings. Neither about the forms of law for themselves is reasoned any longer, nor are they considered to be a logical consequence of capital.
2. Is legal subjectivity a logical consequence of the commodity or its circulation?
There is one exception from these traditions of marxological deficiency: The commodity often is conceived as a logical basis of the legal subjectivity. But most advocates of this position content themselves with the mere coincidence of commodity and property, that means the existence of property in connection with commodity is already regarded as sufficient proof of property because of the commodity.
Nevertheless the statement that the commodity contains elements leading to law in its bourgeois forms has to be examined in itself.
2.1. Evgeny Pashukanis1
Generally the Soviet legal theorist Evgeny Pashukanis is regarded as the crown witness for the logical affiliation of commodity and law. He is the unique theorist dedicating himself argumentatively to this judgment in “The General Theory of Law and Marxism”2.
Pashukanis takes the legal entity as the basic element of the law: "A subject is the atom of legal tehory, its simplest, irreducible element." (109, Chapter 4, “Commodity and the Subject”). He claims “that the genesis of the legal form should be sought in the relations of exchange”(43) and that he therefore accepts “the existence of law only in bourgeois society” (44, Preface to the second Russian edition).
Considering his intention to show the necessity of law because of the commodity it is remarkable that Pashukanis proves the subordination of the law to the commodity just with a variety of analogies.
„In as much the wealth of cpitalist society appears as ´an immense collection of commodities´, so this society itself appears as an endless chain of legal relations." (85, Chapter 3, "Norm and Relation")
„It (law) has a parallel, real history which unfolds ... as a specific set of relations... Man becomes a legal subject by virtue of the same necessity which transforms the product of nature into a commodity complete with the enigmatic property of value." (68, Chapter 1 “Methods of Constructing the Concrete in the Abstract Sciences”)
Against the above explications (and many others containing comparisons such as “corresponding”, “according to”, “as … as “ etc.) it is to be argued3 that they state only simultaneousness, similarity or parallelism in the development of the commodity and the law. An analogy alone does not suffice to explain such a causal relationship, that one phenomenon has to be looked upon as the logical consequence of the other. The elements are just equal in relation to the structural feature in question, and therefore explicitly no priority is and can be given to either at all.
Since Pashukanis (and his followers) nevertheless insists on the causal relationship between commodity and law, his additional efforts to explain his view have to be judged.
2.2. Possessing relations and subjectivity concerning the commodity
For the volitional reference to the commodity Marx chooses divergent denominations. Sometimes he calls it possession, sometimes property, even the term of herding is used. Neither Marx´s circumscription of the issue nor the context of such terms are qualifying the possessing relation of the commodity in any specific way.
The inner determinations of the commodity i.e. use value and exchange value cannot influence the quality of the possessing act either, because both qualities are present in the material body of the commodity only. This natural substance of the commodity in its specific qualities embodies the prospective use value for other people, who are excluded from the object, and do not have any possessing relation to it. On the other hand this use value may not be one of any use for the actual owner, nevertheless it is his in the existing object to be exchanged. The exchange value as well does not exist in any other form than in the material body of the commodity itself. The fact that it is or becomes a comodity does not result in a special way of possessing it. The sitting on it may be sufficient, also the remote guarding of it, even a very distanced as well as unconditional volitional relation may be possible, but it is not at all necessary. The same is true for the completed exchange: The buyer has gained both the use value as well as the exchange value (in a different form) in the object itself.
The core of the commodity, the value, which Marx identified (in quality and indirectly also in quantity) as the socially necessary work performance, has all the more no impact on the way of having: As it is no content of the consciousness it cannot be the object of nor the reason for the owner´s will. The quintessence, Marx´ discovery rather consists in, is that the value of the object for the human beings appears just in the material body of the exchanged thing (and finally also of the money).
From the commodity itself and its determinations does not emerge any necessity for a kind of possessing that even in the slightest is connected to a legal, that means to an abstract property relation. The kind of possessing which is sufficient for the simple objectivity of the commodity can already be seen in its presentation on the market: The manifest and direct having of an object of exchange or money is enough for initiating a bargain. With respect to the social totality, to possess things legally may be supposed and required, in relation to the real having as its beginning and end, the legal having is and stays apart from the real having and is only added to it.
The subject having the (material body of the) commodity, is not determined either. On the one hand we can imagine the human being litterally sitting on the object, or guarding it, or the like. On the other hand we can think of the subject of the comodity being the legal subject. The fact that the total bourgois society takes the latter view, does not mean that the commodity for itself is logically responsible for this special legal subject.
2.3. Property by the act of exchange?
The above mentioned logical deficiencies are not explicitly named by the protagonists of these conceptions. Nevertheless implicitly they are well conceded, as beyond the determinations of the commodity the act of exchange itself is presented as the true source of legal property. But even based on this modification the claimed logical affiliation of commodity and law is not proved at all:
Marx´s famous statement in “The Capital” reads as follows:
“In order that these objects may enter into relation with each other as commodities, their guardians must place themselves in relation to one another, as persons whose will resides in those object, 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.” (Capital, Volume One, Chapter 2)
This passage generally is cited to suggest that the property relation as well as the legal person are consequences of the commodity. But when neither property nor a person in the abstract-legal sense, within the will of man, are necessary consequences of the commodity itself and the will related to it, the mere exchange act of the commodity is seen as a reasonable answer. In this case the volitional relation of the trading subjects becomes the explaining element. Marx himself presents the behaviour of the guardians of the commodities in the exchange act as an explanation, especially the act of mutual “recognition” of the guardians of the commodities.
Against this concept can be argued that the recognition of the human guardians of the commodities can only refer to the factual kind of possessing, and not necessarily and not at all to its abstract form. As effective guardians of the commodities, thus indeterminately “having” the goods, to recognize each other ”as” private proprietors does not generate additionally and nevertheless an abstract possessing relation; nor does it create such abstract subjects.
To recognize them nonetheless as such abstract subjects, is not only a mistake concerning cognition. Taking them as legal-abstract proprietors, an act of recognition of this kind rather is an act of ignorant violence against the real guardians of commodities, as they themselves, concerning their own content of will, are not yet such ones. According to this notion their existence as legal proprietors and subjects would fall entirely into the recognizing act of the non-proprietor.
How erroneous such an assumption is, is revealed by the consequences of property relations constructed in such a way: Up to this concept the non-possessor is creating and determining the property relation of the factually possessing subject. Consequently the negation of the property relation through the exchange act would totally fall into the will of the non-possessor, and just and not at all into the will of the factually possessing subject. In a contract about this transaction, the supposed “agreement” of both wills, not the factually possessing man would be the subject, but the man who is – according to the commodity determination – just (and still) excluded from possessing.
With such a concept of property, to be a subject (in the property relation referring to the traded thing as well as the other trading subjects) is totally denied to the possessing man – counter-factual to all volitional reality. On the other hand to the non-possessing subject of exchange an empowerment is attributed which neither is possible nor present with his range of motivation. Such a theory conceives the social omnipotence in private property relation as just a pretended one. And an anonymous and ulterior social content is invented, which ignores and has completely excluded the factual will of the possessor himself as well as of the non-possessor.
Pashukanis also emphasizes that the volitional relation of man (as human being) concerning things never can contain an abstract possessing of things:
„Considered in the abstract, the relationship of a person to a thing is totally devoid of legal significance.“ (122, Chapter 4)
However, Pashukanis believes that the commodity status of the things changes this relation totally:
“At the same time, the legal form too, in its purest and simplest form, acquires a material basis in the act of exchange.” (122)
“If, however, the object has a function as an exchange value, it becomes an impersonal object, a purely legal object, and the subject disposing of it becomes a purely legal subject.” (123, Chapter4)
“The market relation provides a specifically legal illustration of the contradiction between subject and object. The object is the commodity, the subject is the owner of the commodity who disposes of it in acts of appropriation and alienation. It is in the exchange transaction in particular that the subject figures for the first time in all the fullness of its definitions.” (117)
Pashukanis ignores that the guardian of the commodity as a shere human being is able to possess the object and to present himself as such a possessing subject on the market. But he does not ignore it totally, as he thinks that the reason for the abstraction of legal property is only to be found in the execution of exchange.
“... private property: only the aspect of free alienation fully reveals the fundamental nature of this institution”, 44f, Preface to the 2nd Russian edition)
“In the act of alienation, abstract property right materialises as a reality.” (123, Chapter 4)
Pashukanis´ denial of the concept of a property that is and has to be presupposed to the exchange act, consequently results in an artificial construct of the legal property relation, not being found real in itself nor in the positive relation to the object, but in its abandonment, so just in its negation.
2.4. Legal subject by social recognition 4?
The concept of creating a legal person in other human beings by the mere act of recognizing them as legal ones on the one hand is logically faulty since one can only recognize something that already exists. On the other hand this recognizing act is by no means the concern of the subjects of a commodity exchange. A commodity exchange does not exceed the particular having or giving away of a particular object. Being a subject beyond this possessing, just as a self-relation is not within the scope of such a subject.
Recognition may concern the other guardian of a commodity as one just materially having the object. It ends with the execution of the exchange because then the character as a commodity does not exist any more. That human beings indeed “behave” as legal persons in the very act of exchange can never be initiated by and based on the exchange act.
For Pashukanis the possession and the circulation of the commodities is not a reason that is in any way sufficient for legal subjectivity, they just count as one of the conditions, bearing a mere potentiality for the legal person in themselves. An additional condition in his reasoning is that the legal subject is completely realized through statehood.
"These real conditions are ... the growing force of social organisation, ..., which culminates in the "well ordered" bourgeois state. At this point the capacity to be a legal subject is separated from the living concrete personality, ceasing to be a function of its effective conscious will and becoming a purely social function. The capacity to act is itself abstracted from the capacity to possess rights. The legal subject acquires a double in the shape of a representative, and itself attains the significance of a mathematical point, a centre in which a certain number of rights is concentrated." (115, Chapter 4)
It can be conceded that the legal person as a pure position of the will gains its validation by legal entities, up to the real power of a material state separated from the very volatile subjects. But the given subject – supposed to become “definite” by these acts – for Pashukanis is and stays for itself a just possible subject. It has to be considered if Pashukanis really wanted to deduce the abstract person as a subject in itself, complete in quality and in all necessity – including all freedom which contains the act of the will. 5
3. Legal subjectivity as a logical consequence of the
sources of revenue 6!
His theoretical objective, to prove a logically stringent connection between capitalist production and law Pashukanis and his followers have failed to achieve, insofar as it is based on the category of the commodity as well as its circulation.
3.1. The source of income and the way of having it
Paschukanis´ objective can however be achieved by employing other elements of the Marxian system of categories.
The objective, therefore not willingly executed categories of “The Capital” do not only result logically in the kind of human subject owning the commodity – an economic category anyway logically distant from the production of surplus value. In the third book of “The Capital” emerges another type of a human subject, the so-called owner of the sources of revenue – finally inferred from the very production of the surplus value. Concerning their economic objects these subjects behave in a totally different way than the simple owner of a commodity. They may present themselves also as owners of objects and may look for arrangements with other members of society, and thus execute the economic process. They may have in common with the subjects of the commodity to pursue their well-being when socially deploying the objects they possess. But their way of a volitional relation to their objective means as well as their giving them away is completely different from that concerning the commodity:
The possession of all objects being sources of income (and therefore resulting from the valorization of value) not only can but has to be free from any material approach and likewise persistent as well as universal, i.e. abstract: Money as money is not exchanged for objects containing use value, but money is given away for money as interest, on the basis that it is completely refunded. Land and nature are let for rent, with claim of preservation and restitution. Man gives himself under the command of the entrepreneur for money, and having been used gets himself periodically back for living his own life. The entrepreneur – although he does not lend out any ojects – does not handle the factors of production himself, but authorizes the living production factor man to act materially on them, for the process of production to result in profit.
The bourgeois sources of income requires the separation the material possession of objects from pure volitional having of them; the plain material possession then has to be let to others. Only thus they are and can be sources of revenue. As long as the same objects (money, nature, man …) are possessed in concreto (which is possible since they are things), they are no sources of revenue at all. Concerning the sources of revenue an abstract having separated from a material having is (not only possible as with the objects of the commodity, but) necessarily a particular kind of having. This way of having as a pure volitional relation to the object is initiated and preserves itself with the material transaction of the object: it´s hiring. With the volitional act of hiring the relation of the subject to the object also transcends the robinsonadian view of an isolated having as well as a just act of recognition, it gains the status of a common, thus a social volitional relation.
3.2. The subject of the income source human being
Whereas the act of lending out results in the volitional reference to the object as a not materially possessed one, an abstract subject is not generally and per se required. Man as plain human being who materially possesses the objects, as for example goods but also money or nature when giving them away in a lending procedure, does not undergo any transformation. However when lending out oneself, i.e. when the human being is the source of income, this human subjectivity becomes obsolete:
The subject of work in general is the integral human being dealing with nature which is not directly his own. So it is the natural human being, as subdued to as well as administering the natural laws, in his impact on things. Also as a subject of wage labor man works according to these laws, but he executes them for the entrepreneur, under his command and as his means. But even in this service and towards the entrepreneur using and possessing him the wage labourer remains a subject.
By beginning his systematization with the commodity Marx finds the character of a commodity – historically – also in wage labour7. Accordingly not work itself is sold but the power for labour, the ability to work, as an ideated anticipation of the real work, prospective labour. This solution – generally accepted by his followers – allows Marx the logical explanation of the production of surplus value. However it contains inconsistencies: To qualify the selling of labour power as one “during time” is already conspicuous, as this turns out as just another denomination for lending, is in its content a transaction of lending. Furthermore the ability to work does not include any limitation of the sold content: It can be the ability to work for a lifetime, but also only for a day; its underlying substance, the living human being is not even touched by an act of selling this ability. On the other hand an act of lending always contains a dimension of time as well as a limitation on the use of the lent object, excluding (principally) its consumption.
Additionally it has to be mentioned that the systematization of Marx derives all other sources of revenue by the lending of an object simultaneously selling its power: Power of valorization when lending money, power of nature when leasing land. But when the object of transaction concerns the wage labourer Marx and all his successors only speak of the selling of a force.
In a lending procedure however, the object of transaction has to be conceived in a different way to harmonize the content of wage labour as a selling of labour power with the other form of transaction and thus preserve it. A lending of labour-power as well as of labour itself does not come into question (neither does the selling of labour). The solution is that it is the whole man, the human being in its physical and mental entirety as being lent. Just because of this there has to be a singular, premised as well as unconditional exception: The will to be a man who is given away but still is his own works only if an abstract volitional subject of the object human being is exempted from the transaction.
This substantial abstractness of a subject is unequivocally and inevitably necessary only in the lending procedure of the human being, as it is in the case of the wage-labourer: The wage-labourer has to create an ideal subject apart from himself as a human being, standing back from his human nature and positioning himself to it in an indifferent way.
Only a subject that is abstracting from its existence as primary object of possessing and therefore from its materially as well as temporally always changing substance is able to embody a legal subject, being and staying identical with itself, to which rights as well as obligations can be reliably assigned. Only such a bare subject is able to be subject of any thing as well as of the other sources of revenue during all changes in the course of time. The indifference to the materiality of the things possessed on the other hand turns them into bare items as well which can be handled arbitrarily and therefore just legally.
Only a subject thus reduced in quality may let himself be represented by others, starting from an individual, to social organizations and political parties, through to the nation. Such representative bodies are able to act as artificial persons, i.e. as “juristic” entities.
Even if the abstract will of the bourgeois subject leads an independent existence in these entities, and in spite of the obliging quality of the law there a volitional element, a certain possibility of choice nontheless survives: The right, e.g. of property, may be accepted as an offer or not; even infringing the rules given in the law, albeit morally condemned, is not prevented but only avenged by the execution of the law.
Volitional reference of such abstract subjects is no longer one between human beings as integral individuals, let alone with contents consciously social and as such ones maybe controversially disputed. Such abstract persons necessarily just refer to objects, and then – mainly through those objects – also to other abstract persons. In this way such subjects are as well equal as indifferent, and yet alien to each other, exactly as legal subjects and their relations are. And as such persons they are and want to be recognized by the state that in the end enforces their respective wills materially.
Our society appreciates the legal subjectivity, the very own element and categorial basis of the law, just for its volitional quality, thus for the freedom people gain in it. Contrary to this unanimous appraisal, legal subjectivity has to be looked upon as a matter not so absolute and freely chosen at all, but rather a consequence of unknown circumstances which predetermine the content of that highly acclaimed will.
This legal will is not only confined to what and how little in particular it achieves concerning things of the world (property) as well as with respect to other people (rights). The crucial limitation does already exist in itself, because of its abstract one-dimensionality. Furthermore and independent from that and in general the legal will is limited since it is predeterminated by an objective hostile to the human being, an objective which is not at all present in the law itself nor the conscience of this will.
This prosaic relativization of the legal will is not just an opining prejudice, but in fact a withering assessment of its volitional quality; for which an objective reason can be found in the bourgeois economy.
In contrast to the prevailing conception the logical base of legal subjectivity is to be found neither in the sphere of commodity as the manifestation form of capitalist wealth nor in the circulation of the commodity. The qualities of the commodity and the act of its circulation do not at all compell human beings to establish volitional contents which even approximately match the fundamental elements of legal subjectivity such as property and person. Nor does the volitional act of recognition itself which takes place in everyday legal life create legal subjectivity in man.
But for all that it is the capitalist society which is able to deliver an explanation for this kind of will. It is founded by a social substance not at all reasonable, but by a principle which is even hostile to man: The valorization of value – resulting in incomes, i.e. sources of revenue and their owners – has to be looked upon as the necessary reason for the abstract possessing form of property as well as for the self-referring subject which as the legal person then acts in a social sphere totally of its own.
Human beings take and form this abstract way of being a subject as their means, and cultivate it in the pursuit of their well-being, as well as relativise both sides of their being a subject against each other; they maintain these legal personal relations apart from natural social ones, and bethink themselves of being legal subjects only in case of doubt and of necessity derived from their deeds against each other; this legal subjectivity may be claimed from their fellow beings and from the state. Despite the still remaining volitional substance a necessity for this specific subjectivity of the law nevertheless exists. This necessity does not at all derive from social interaction in general nor is it implanted by the state, but it results from bourgeois society and its greed for surplus work.
1 An extensive critical evaluation of Paschukanis´ theory of law is given in H.Haslbauer: „Zur Begründung der
Kategorien des Rechts bei Paschukanis“ 2013; http://www.eigentum-und-person.de/8.html
2Evgeny B.Pashukanis, Law and Marxism. A General Theory. (Edited an Introduced by Chris Arthur), London 1978, cited pages), also available, but differing in pages and translation in Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.32-131; and with deficits in: https://www.marxists.org/archive/pashukanis/1924/law/
3 As Karl Korsch already did in his preface of the German edition
4 „Recognition“, the social respect for other human beings, their will and as subjects has gained a certain importance as
a well honoured category of emancipation, a concept referring to Hegel and to the above cited remarks of Marx. It
may be generally known that the recognition of the entire human being is not really valid, but only one of the legal
person. Only in ethical discourses a recognition of the entire human being is taken into consideration. But this does
not at all result in any effort to determine a concept of the legal element on its own. Rather it fosters a would-be
transcendence of an ideal of recognition as well as of the law (Honneth, Forst...)
5 This doubtful and ambivalent approach of Paschukanis may contribute to the explanation of his leading as well as
tragic role in the construction of the Soviet system of law and justice.
6 See exhaustively Harald Haslbauer: Eigentum und Person. Begriff, Notwendigkeit und Folgen bürgerlicher
Subjektivierung, Münster 2010;
7 “The possessor of money does find on the market such a special commodity in capacity for labour or labour-power.“
(Chapter 6 in https://www.marxists.org/archive/marx/works/1867-c1/ch06.htm) („Und der Geldbesitzer findet auf
dem Markt eine solche spezifische Ware vor – das Arbeitsvermögen oder die Arbeitskraft.“, MEW 23, 181); without
any logical deduction of the commodity in its specific character! This is an argument against Marx´ systematization
beyond the well-known transformation problem.