Bernard E. Harcourt | Introduction to Praxis 5/13 on “The Common”

By Bernard E. Harcourt 

“The Common” takes us back to the material roots of praxis—to Marx, to capital, to private property, to the idea of the common. It does so, though, by once more flipping the master on his head. The return to political economy here places the law of private property at the very heart of the analysis. Law, rather than being merely superstructural and epiphenomenal, moves center stage—and not any kind of law, not the usual public or constitutional law, but private law, the law of private property and of commercial transactions.

In turning to the work of Michael Hardt and Antonio Negri in Praxis 5/13, we thus make a double move: first, one might say, from Giorgio Agamben back to Marx, but second and more importantly, from Marx forward to Critical Legal Studies and beyond. In effect, in this seminar, we turn to the praxis of legal transformation or revolution.

Perhaps the best way to understand the praxis at the heart of Praxis 5/13 is to draw on the secondary connotation of the term “common.” Rather than focus on the shiny, glittering objects of sovereignty, of states of exception, of counterrevolutions, we focus here instead on the more common and pervasive forms of domination today: relations of property ownership that determine our daily existence. We focus on what is more commonly oppressive and omnipresent, namely the ubiquitous milieu of property law within which we daily live and breathe.

This represents a two-step movement or corrective for many of us—at least those of us (I include myself here) who increasingly focus on the ongoing controversies over the growing American Counterrevolution that is taking place today, the menacing threat of fascism and white supremacy, and the dangers of the Trump administration.

The first corrective is the return to Marx and political economy: to return to the core considerations of capital, private property, modes of production, and material interests. Not that we failed to talk about economic theory or neoliberalism elsewhere—those were significant dimensions in our discussion of Bernie Sanders’ Guide to Political Revolution and we discussed the market and neoliberalism thoroughly in Praxis 4/13 on “Critique & the Alt-Right” (video starting at 1:08:18); nevertheless, with Praxis 5/13 we place property relations squarely at the heart and center of the debate.

This first corrective resonates elegantly with the theme of this year’s 13/13. It was, after all, the failure of German Idealism to confront the material conditions of existence that fueled Marx’s dialectical materialism. The shift from contemplation to action—from theoria to praxis, from interpreting the world to changing it—was grounded, for Marx, on the first imperative to privilege political economy.

So this is the first corrective, and one hears it loudly in Michael Hardt and Antonio Negri’s Commonwealth (Harvard 2009) and Assembly (2017): We must displace our obsession with sovereignty, fascism, and states of exception, Hardt & Negri argue, and return instead to the more fundamental problems of opening property to the common.

For Hardt & Negri, we need to move away from Agamben, and return to Marx: “Just as Kant sweeps away the preoccupations of medieval philosophy with transcendent essences and divine causes, so too must we get beyond theories of sovereignty based on rule over the exception, which is really a holdover from old notions of the royal prerogatives of the monarch. We must focus instead on the transcendental plane of power, where law and capital are the primary forces.” (Commonwealth 6) Their constant refrain is that all the talk of “states of exception” and “fascism” hides the more fundamental way in which power operates in society: the focus on violence and sovereign power “eclipses and mystifies the really dominant forms of power that continue to rule over us today—power embodied in property and capital, power embedded in and fully supported by the law.” (Id., 4) Also, the obsession with sovereignty and violence means that we become politically disengaged and disarmed by the weight of the state. We lose the very ability to resist, reform, and transform when the domination becomes too oppressive. “There can be no political engagement with a sovereign fascist power,” Hardt & Negri write, “all it knows is violence.” (Id., 5) We need to focus instead on the common forms of power: “The primary form of power that really confronts us today […] is not so dramatic or demonic but rather earthly and mundane.” (Id., 5).

The second corrective is to Marx, or perhaps later Marxism: the praxis interventions here, centrally related to property relations and modes of production, do not relegate law to a superstructural place in society. Law is not outside, nor are we outside law. Everything happens here within a space that is constituted by laws. In this debate, law and capital are integrally intertwined, such that the core of praxis may well become legal praxis. For Hardt & Negri, the term “the republic of property” at the heart of their Commonwealth inextricably intertwines law and capital. Their critique, they write, “must show how capital and law intertwined together—what we call the republic of property—determine and dictate the conditions of possibility of social life in all its facets and phases.” (Id., 8)

If indeed Marxists relegated law to the margins—if, for instance, Pashukanis is properly interpreted as hostile to the emancipatory potential of legal reform, as he often is—then we are now in a very different place, as evidenced especially by the deployment in Hardt & Negri of Critical Legal Studies and by Mikhaïl Xifaras’s essay.

In Chapter 6 of Assembly, Hardt & Negri urge us to take the final leap beyond CLS: “Legal projects to reform property and limit its power have certainly had beneficial effects, but now we need finally to take the leap beyond.” (97) To those, like Thomas Grey, who believe that the law of property evolved, especially through American Legal Realism, toward a conception of “bundles of rights” that might eventually “dissolve” on their own (91), Hardt & Negri argue that it will not happen on its own, and therefore that we need to take the final and decisive step to create the common as “nonproperty.” (97)

But is that nonproperty then outside the law, or, more exactly, what is the role of law or legal agents or legal transformation after that final step? What are the “more expansive democratic experiences that are open to others” and the “new, fuller form of democracy” that Hardt & Negri propose, and how do they relate back to the sphere of legal relations that still today represent the most common form of domination?

In other words, how does the common relate to a juridically regulated space? Hardt & Negri journey through the intellectual path carved out by Critical Legal Studies in the 1970s and discuss concrete forms of the common, including for instance code and immaterial property—intellectual property. Others, however, such as Mikhaïl Xifaras, place lawyers and law reform more centrally in the process of social transformation, not to say the revolutionary process. As Xifaras writes, “The wish, or the project, I make here would be to reconcile political radicality with concrete practice, by getting politically radical critical theories to better speak the language of the law, or, to put it another way, to better articulate internal and external critique of the Law.”

This then raises important puzzles about how critical legal praxis differs from, on the one hand, the democratic processes that Hardt & Negri describe, and, on the other hand, the militant liberal progressive legal transformation that for instance a hard-hitting ACLU lawyer would engage in. What is “critical” in radical critical legal practice? Can the deployment of legal liberal tools against mere legal liberalism be critical? And how can the multitude be brought into this juridical project.

Situating Our Seminar

At our seminar, we will be jumping into a conversation that has been going on now for several decades between, on the one hand, advocates of “the common,” such as Hardt & Negri or Dardot & Laval, who come to the question of the common from a communalist or communist political theoretic background, and, on the other hand, leftist critical legal scholars who, from the American Legal Realism of the 1920s to the Critical Legal Studies movement of the 1970s and beyond, have sought to reconstruct property relations from within law along more egalitarian dimensions.

Before we launch into what is really the fourth iteration in this complex debate—in order to make sure that everyone is on the same page, here, online, and for future viewers—I’d like to rapidly map the terrain where we have been, before turning with Mikhaïl Xifaras’s first intervention, to the fourth moment in the debate.

For our purposes, the first salvo was Hardt & Negri’s 2009 book, Commonwealth, where they spell out a notion of “the common” drawing predominantly on early modern conceptions of the law of private property—from Grotius and Locke. They argue there for a notion of the common that differs from both private property and public property in that it, by contrast to those other two forms, does not figure predominantly within the realm of the legal tradition. “The common is that which is not property,” Hardt states; in other words, the common is the negative of property as “monopoly over use,” implying equal access; and the negative of property as “monopoly over decision-making,” implying democratic decision-making, democratic management. (Let me emphasize the singular use of “the common” here, we are discussing the concept of the shared use of goods under democratic decision-making, not the metaphor of the public commons).

After the publication of their book, Hardt & Negri were confronted by critical legal scholars, especially Duncan Kennedy, for having failed to engage more contemporary understandings of the law of property—property not as a substantive thing, but as a bundle of rights, as Hohfeld and the realists and critical legal scholars established in their tradition of leftist internal critique of law. Kennedy accused Hardt of both a conceptual error, not to think of property as a substance or single thing, but as a bundle of rights that pertains to many or allows for different non-exclusivity rules; and also of a political error:  progressive legal theory and action must work from within property law to advance certain rights over others. The struggle against property, Kennedy argued, is naïve and counter-productive. Instead, we need to reform from within.

In a very honest and admirable way, Hardt recognized that he and Negri had used an inadequate foil for their first project in Commonwealth, and Hardt admitted, admirably I think, that, in his words, “I was a couple of centuries behind in my reading.”

And so, in their more recent book, Assembly, from 2017, Hardt & Negri respond to critical legal scholars and reformulate somewhat their proposal for the common—which may not differ that much from the original version except to address specifically the question of the internal and the external of the law. The fastest way to bring you up to speed on all this is to listen to Hardt’s lecture here.

As Hardt & Negri make clear in Assembly, and as Hardt explains, their conception of the common remains beyond property, “only one step further of the bundle of rights theory”; but they emphasize that any notion of the common must propose ways of managing the common goods: there must be democratic mechanisms for determining its use—which would be a form of regulation. So the common remains fully regulated, but regulated through democratic forms—democratic management, rather than in a monopolistic manner. Open and equal access, and democratic decision making—as we saw at Zuccotti Park. Examples of the common include the sharing of music, and creative production; resistance to patents and copyrights; the metropolis as a common space, thus neither private property, nor public property.

It is about here that we are in the debate, including the important passages in Commonwealth on institutions and institutional design that Camille Robcis discusses in her essay. To help us address these questions, we are delighted to receive a remarkable panel of brilliant critical theorists at Praxis 5/13: Étienne Balibar of Columbia University, Camille Robcis of Columbia University, and Mikhaïl Xifaras of Sciences Po, Paris, in conversation with Katharina PistorCamila VergaraDaniele Lorenzini, and others.

Let’s turn now first to Mikhaïl Xifaras, second to Etienne Balibar, and then to Camille Robcis!

Welcome to Praxis 5/13!