By Etienne Balibar
Law, Property, Politics
A rejoinder to Mikhail Xifaras’ “The Role of Law in Critical Theory”
It is a great pleasure to take part in the discussion of Mikhail Xifaras’ remarkable paper on “The Role of Law in Critical Theory”, but it is not an easy task, because this paper is rich and complex (I am not saying too complex), and because the very object of the discussion has multiple aspects and relies on multiple references. The original “contract” was to use the provocative and influential formulas in Michael Hardt’s and Antonio Negri’s (henceforth HN) introductory chapter to their volume Commonwealth as a starting point for a discussion about the importance, limits, difficulties of a juridical practice of critique in the debate about “property” and “the common”, which is both social and political, and encompasses at the same time an understanding of the contradictions of contemporary capitalism and the invention of a radically emancipatory alternative. This has led to a threefold process of enlargement and complexification. In the first place, because Mikhail Xifaras (henceforth MX) has found it necessary to address the question at a very radical level, returning to the very roots and the meaning of what he calls the “antijuridism” (or anti-juridical bias) prevalent, in his view, in much of the “critical” tradition (Marxist, for sure, but not only), tracing the effects of this antijuridism in HN’s discourse, and opposing to this, in order to demonstrate the possibility of a different attitude, what is in fact nothing short of a full critique of property (or the “law of property”) on different bases. This raises of course many problems of interpretation, but, first of all, it calls for a new mapping of the disciplinary domain we are approaching here (in which, needless to say, I am not a specialist, although I have a long-time interest in the questions raised). Then, there was the fact that (owing in particular to the generous reaction of Michael Hardt to my demands) that the questions discussed in Commonwealth, our point of entry in the debate, have been elaborated again in the subsequent volume, Assembly, particularly the chapter 6 “How to open property to the common”, where many of the references used by MX in his own paper are also present and discussed, which gives to the confrontation an almost dialogical character, while of course adding to the tension and the complexity of the problem (my feeling, to put it briefly, being that, because the terrain of discussion is so clearly common, the sharpness of the divergence is even greater, as are its political stakes). Finally, there is the fact, for which I am largely responsible, that we felt it necessary to increase the amount of “secondary readings”, bringing in some of the key texts which are referred to both by HN and by MX, plus some others (including, I must admit, some of my own papers/interventions). What we hope is that this ensemble of texts and references (which remains open, and in fact could proliferate in various directions) will serve as a starting point for a longer study, both personal and perhaps collective, that participants in the seminar would want to carry on.
Needless to say, in this rejoinder, which must be short, I will not follow the same inflationist course, but I will try and address two key issues: the philosophical question raised by MX of immanent critique vs external critique, as illustrated and intensified by the specific case of “law”; and the genealogical question concerning the concept of “property” which serves as a basis for current vindications of “the common” (particularly in the case of HN, who are largely recognized as pioneers in this respect, even if they are also challenged by other theorists on their own terrain).
Immanence and exteriority: the topology of the critique
As we know, MX has centered his discussion on three main theses, which together create a “circle” in which we will have to find our trajectory. One is negative: for the most part, the “critical” tradition has considered that “law” (which certainly is not a simple notion, as becomes apparent when we observe the fluctuations of the terminology articulating institutions, practices, norms, categories from one language to another) is neither on the side of the means of critique, even less on the side of its sources, but always on the side of its objects, which means that law is “bad”, absolutely or relatively, i.e. either in its principles, its objectives (the “injustice of the law”), or its implementation, its uses on behalf of power relations, forms and forces of domination (the “consequences”). This is roughly what he calls the antijuridism of critique. The other two are positive, or assertive. One, which can easily become adopted in a materialist and/or a dialectical tradition (but not necessarily in a “messianic”, or “deconstructive” tradition, for which critique involves some sort of interruption, or transcendency, which can be called “justice”, interestingly a kind of normative antithesis of the law), says that very genuine (strong, effective) critique is immanent, meaning that it must express and realize tendencies which are to be found within the object (field, domain) of critique. This is usually called the “world”, which most of the time is understood as the social world. Therefore critique is “secular”, in the etymological sense of the word. And the second positive thesis says that “there is no outside” of the law (remember Derrida: il n’y a pas de hors-texte, or there is no outside of the text). Taken together, they imply the following conclusion: if we want to keep the possibility of critique, we must renounce antijuridism, ceasing to locate law univocally on the “bad” side (the object, the enemy), because there is no place outside the realm of law where a critical point of view, or a critical force, or agency, could establish itself in order to “change the world”. However, looking at things more closely, and particularly learning more about the actual practices, the history, the antithetic functions of law, instead of staying with an abstract (philosophical) idea of law, we discover that this is not a restriction or a resignation, rather, it provides a whole set of more effective critical instruments. For what purpose, that is of course the question.
Let me take these three theses in reverse order. The idea of “no outside” is pleaded for by MX in a subtle manner. He doesn’t say that everything, every action or social relation is legally codified. But he says, more dialectically (a dialectics reminiscent of Fichte rather than Hegel), that it is always the law itself that identifies, or delimitates its other, or its remainder. As a consequence, any critique of the established order which aims at transforming the totality must address the dominant term, which sets the rules of the game, and this is law itself. Let us note two things, however. First, there is a “weak” version of this idea (which probably Marx would not reject): every action or social relation is always represented or codified in juridical/legal terms. Not only this version does not involve that critique will be legal itself (immanent to the law), on the contrary it seems to call for a removal of the legal representation in the first place, in order to tackle the “thing itself”. But there is also a “strong” version (which is clearly adopted by MX): legal forms are constitutive of all social practices (in the past, the present and the future), so that a critique can only “work through” their contradictions and conflicts. I suspend the question whether Marx ignored this idea (or I suggest without demonstration that he comes close to it when he proposes a “dialectics” of the “expropriation of expropriators”, at least in some versions of the idea). To this second interpretation I will add a complement, which is not there (explicitly) in MX’s argument, because he is so focused on the question of legal critique and critique of the law, but I hope he would not reject. This is the striking parallelism between the discussions about law and the discussions about political economy. It could be argued in a very similar manner that “the economy has no outside”, and this would pose the same dilemma for the idea of critique: “immanent critique” that remains inside the economic logic, or “grammar”, or “external critique”, that believes to be able to identify a (subversive) non-economic factor (e.g. the labour-force, the proletariat itself, or even the “common” in HN’s understanding). This parallel is all the more interesting because we want to discuss no “law” in general, but the “law of property”, or property as the foundation of law. Property, in fact, is the hybrid category, or boundary concept that, in modern times, articulates law and economy, or translates one grammar into the other. I conclude that MX has a very strong argument, especially if he agreed to take into account an economic complement. This would not amount to make the “economy” an outside of the law, however, returning to the representation where law is just an instrument or a representation for something else. On the contrary, it would suggest that law and economy are coextensive and mutually constitutive. Let us note that this is not very different from what HN call the “republic of property”, in its general sense. But it is also not incompatible with much of what Duncan Kennedy and the “Critical Legal Studies” school (explicitly drawing on the legacy of the “realist” school in legal theory) seems to do in practice. Therefore it strengthens MX’s critique, without necessarily destroying all of HN’s perspective.
Yes, but… logically speaking, MX’s argument of the “no outside” seems to me to rely on a very “Aristotelian” use of the negation, and the negation of the negation. This is where the problem of “topology” I referred to comes into play. To explain that nothing is outside the realm of the law, if only by implication, leads to the conclusion that everything is within the realm of the law, or must take a legal form, or act legally, only if not (not A) = A, in other terms, if there exists nothing that, while not lying outside the legal realm (or the economic realm), can nevertheless be non-legal, be heterogeneous with respect to the legal forms, as a kind of “internal exclusion”, or “internal otherness”. How if, in fact, the possibility of critique (and especially radical critique) rested precisely on that “counter-intuitive” possibility, on that discovery of a topology where the interior and the exterior are not juxtaposed (and counterposed) in a simple manner? I believe that this is crucial, both for the understanding of critique and its aporias in general, and for the discussion about the critical use of law. On the side of critique, it seems to me that we could say that, from Kant and Hegel onwards, to Marx, to Lukacs and the Frankfurt School, but also to “deconstruction” and to Deleuzian “becoming other” (from which HN draw much of their inspiration), the problem (perhaps unresolved) was always the same: to “twist” immanence, so that something heterogeneous, irreducible to the existing order, conditions, tendencies, even transformations, emerges from inside, not being “imported” or “revealed”. And on the side of the critical use of law, this seems to be the whole question whether you can pass from something like a “legal defense” (of the people and the interests, even the principles that the legal order in its massive “injustice” crushes or destroys or subjugates) to something like a “legal subversion” (perhaps an institution of the common, or in my own jargon a realization of equaliberty) – with perhaps in the middle a “counter-law” (un contre-droit), which at some point not only makes use of what MX calls the “flexibility” or the “variability” of the legal language, but amounts to changing the “rules” themselves, the “’grammar” or the “language game” itself (I use on purpose Wittgensteinian categories). I suspend this speculation here, while adding only three commentaries:
1) I would very much agree with the idea that the fate of the idea of critique in this moment – the possibility of renewing our philosophical understanding of the question of immanent heterogeneity (or break with the existing order) (you may call it “revolution”) – directly depends on our capacity to find a critical use and even meaning of the law, because we have come to realize that capitalism is constituted as a legal order as much as an economic order (perhaps we could say: an economic order that is legally constituted and regulated). Again, HN’s “republic of property” seems to be meaning exactly that. However, it would seem that the aporia is very real, because – to put it brutally – whereas MX often gives the impression that his examples are examples of “intra-capitalist” reforms (e.g. the “copytheft”) (some of my friends also invoked in this spirit, some years ago, the P2P exchanges of music, images, etc.), HN on their side give the impression that they resolve the problem through a utopian leap into the imagination of a kingdom of democracy where conflicts are suppressed because capitalism has collapsed… But it is very interesting that, in their new development (Assembly), they direct their critique at precisely what supports MX’s argument for the critical effectivity of legal practice, namely the reforms and transformations of property which push the legal grammar to its “extreme” possibilities…
2) it would be important to return to the genealogy of what MX (rightly) describes as the antijuridical orientation of critique. As his references to the Enlightenment (and particularly to Kant) indicate, this comes essentially from a reversal of the opposite idea, which made law and the juridical principles (“natural law”, translated as “ideology” in both the Marxist and the legal positivist tradition) the core of any process of emancipation (of course Habermas remains strongly attached to this today). And what is even more interesting is the fact that Marx’s first departure from this idealist vision consisted, not in straightforward antijuridism (whether based on “economy” or “politics”), but in a remarkable attempt at building a counter-juridical practice (in his 1842 articles on the defense of “communal property”, which clearly inspire some of MX’s formulations). Why did Marx renounce that point of view? Or did he? It periodically surfaces again, as in his description of the “protracted civil war” waged by labour unions against capitalist entrepreneurs on the labor day, etc.). And conversely, on the side of Foucault (as justly quoted by Kennedy), whereas he began with radical antijuridism in the name of “transgression”, his practical attitude seems very different at the time of “governmentality” …
3) The strength of MX’s position is that – combining something that comes from Marx and something that comes from Foucault with a practical understanding of law, not the “law of philosophers” but the “law of jurists” which is an extended concept of jurisprudence, as opposed to a “deductive” (or “mechanical”) notion of the application of law (very “Roman”, or perhaps very French) – he describes the realm of law as a field of generalized conflict, therefore permanent relations of forces. Conflict and law are not opposites, they are inseparable. However, this raises two questions, which are probably two faces of the same question. First: are there different orders (or levels) of conflict? More precisely: are there conflicts which are waged within the existing rules (which we may call litigations), and others whose stakes are the rules themselves (what, in a not so distant past, epistemologists called a “change of paradigm”)? And second, if such conflicts exist, which are the forces, or the combination of forces, which, in a given situation, make it possible (inevitable) to cross the threshold, rise from the interpretation of the rules to their change? Is that the Supreme Court? Or the political movements? Or the social classes? It seems that, in fact, we are back to the question of the “topology”, from a more practical point of view. I am tempted to say (having in mind civil rights, abortion, social legislation…): the “force” is a non-legal combination of legal agents and actions. But this is just a formula…
Property and the Commons
This is not the place to examine the current debate on the idea of the “new commons” (or, in the singular: the “common”), both from without and from within the communist tendency (to which HN, but also their rivals Dardot and Laval, undoubtedly belong). I want to remain within the (already very complex) range of questions which arise from the virtual dialogue between HN and MX. Let me begin by returning to the question of “reformism” versus “revolution”, by stressing the fact that, nevertheless, their perspectives are in good part convergent. At least they agree in the identification of a strategic (and very concrete) field in which the imposition of a concept of property as absolute subjective right granted to “individuals” (who can be physical individuals or corporate persons) is rapidly becoming incompatible with both technological possibilities and social tendencies: this is the field of intellectual property and the exchange of immaterial instruments of learning or innovation which are reproducible and variable in “real time” through their collective use. However, their genealogies of the conflictual situation arising within the economic-legal order are diametrically opposed. This is, where, in particular, the introduction of HN’s more recent chapter (from Assembly), brings a lot of clarity. HN and MX roughly identify a similar origin for the vicissitudes of a property right whose fundamental substance is the exclusion of others from the use, or the administration of a property (which is essentially a capacity, or a power, as the Roman category dominium, to which I will return, perfectly expressed, but becomes “reified”, or identified with the thing itself: this house, this machine, this office is “my property”, hence not yours…). This origin (however complex its actual history and codification) is to be identified with the “classical” moment in which modern capitalism becomes the dominant mode of production in our (Northern, Western) societies. Therefore it also coincides with the “bourgeois” revolutions which impose a legal system (e.g. the French “civil code”) where the protection of private property as the cornerstone of the whole social edifice and the prototype of all “subjective rights” is established. From this origin, however, they draw opposite lines into the present. I simplify, but let’s say that, for MX, the evolution is a continuous (although of course conflictual, with moments of acceleration, which are in fact political) deviation from the origin: this can be summarized with the idea that property is less and less substantial, and becoming more and more relational, i.e. it incorporates in its definition (which is a practical definition, before it becomes theorized by the legal “realists”, and more recently in the work of Felix Cohen, Thomas Grey, etc., as a “bundle of rights”) limitations, dependencies, capacities distributed over a plurality of “subjects” (who, for that reason, are no longer “sovereign”). Philosophers are mostly unaware of this real transformation (especially Marxist philosophers), but it has in fact changed the content while keeping the name, and this is what brings to the threshold of a situation in which – albeit of course not without conflict – property will play a role which can no longer really appear as “private”. On the contrary, for HN, the evolution is one that essentially preserves the same “law of property”, while constantly modifying its modalities of application and its “ideological” justifications, according to technological changes and political reforms. There is an invariant in all the changes, and this invariant is, of course, the bourgeois-capitalist mode of production, of which the legal forms are expressions and instruments, not real transformations (a clear form of antijuridism, according to MX). What is likely to bring about a real change is the fact that, independent of the legal form, and in fact outside its grip, which, even if constantly changing its detail to adapt to the new cultural environment, has become increasingly artificial compared to the “social” (collective, common) character of labour (and more generally “activity”, increasingly “intellectualized”). This change will not take the form of a new (legal) regime of property, it will take the form of a farewell to “property” in general, whether private or public, which is incompatible with the emancipation of the common.
It is not my intention to try and produce a “balance sheet” of judgments on these antithetic discourses. I want rather to display some of their political and historical implications. I believe that MX would be ready to admit that the likely effect of social and technological changes which make exclusive appropriation increasingly difficult, if not impossible, in the realm of “immaterial production”, is not a simple evolution towards “socialized” or “cooperative” forms of use, where the diversity of “legal prerogatives” listed by Hohfeld will find a renewed application. It is rather an acute conflict, fought on economic as well as legal terrain, between opposite transformations of the “law of property” (or the concrete web of property rules), whereby, in particular, capitalist corporations tend to shift the point of application of their “exclusive right” from one level (one type of “objects” or “actions” or “interaction”) to another, which commands the use of the former, or controls its circulation (as we see today with the “platforms”, Uber, Facebook, etc.). And I am tempted to ask: is this not the typical form in which, as MX indicates, the “neoliberal revolution” (a typical revolution “from above”, or “conservative revolution”) has produced the “return of property” or the “re-privatization” of the commons, the social property, etc., albeit – as MX rightly indicates – not in the form of a “return of the same”? If such a conflict exists, it will also indicate why NH are wrong in believing that, however violent the resistance of private property against the historical tendency towards socialization, it remains a rearguard fight which creates nothing new in history, because the new is entirely on the side of the multitudes. To this we can add another strong point in MX’s argument, which concerns the institution of the common, including its legal forms (on this point, MX explicitly refers approvingly to HN’s adversaries in the communist camp: Dardot and Laval, whose massive but interesting treatise is scheduled to appear in English in January of 2019), therefore not the present but the future (or the “to come”). This is the idea that, more than ever, an institution of the common (or a communist society) will need a juridical system of categories and rules, because it will need to regulate the distribution of moments (part of life), activities, and use values between the collective and the proper (or the individual). This amounts to anticipating a meta-level in the definition of “property”, which has essentially an ethical (or anthropological) function, but which must be formulated in the language of law, or in a legal grammar. One has to admit that, on this point, HN seem to simply produce an act of faith in the virtues of “democracy” and even “mutual love” among humans, which cannot not prevail when the oppressive weight of capitalist dispossession is lifted (and doesn’t, in fact, address the most difficult issue, marginally evoked in Marx, namely the question of what “individuality” becomes beyond individualism, if it is not “collectivizable”).
On the other hand, it seems that, with all his insistence on the conflictual nature of legal transformations, or bifurcations, MX is not very concerned with the processes of appropriation and expropriation which are the other side of every use of the category “property”, whether subjective or relational – not “outside the law”, but on the economic side of the law. HN push this articulation to the extreme, i.e. they explain that “property” is always just the name of expropriation. This idea is profoundly rooted in a strange, but highly revealing, character of their “genealogy”, which comes from the fact that, if their explicit reference regarding the constitution of the “republic of property” is the bourgeois revolution of the classical age, the implicit reference (although quickly indicated in passing in their chapter on “the multitude of the poor”) is a Franciscan opposition of “property” and “poverty”, more precisely dominium and usus, which is of course communist, but pre-bourgeois. On this point, read the essay and the extraordinary chapter by Janet Coleman, which clearly shows that a discussion of “property” and its transformations or invariants cannot begin with the bourgeois theorists of the classical age or the liberal period, but also not simply return to “Roman law”, but must precisely examine the medieval conflict between upholders of a “natural” right of appropriation and upholders of a (theologico)political limitation of property in the name of its negation, which is not “expropriation”, but “use” (therefore sharing). My feeling is that, while HN seem (or believe) to be discussing a story that begins with classical (philosophical) definitions of property and leads to the “new commons” of the age of communications, they are in fact reenacting the medieval conflict between the Dominicans and the Franciscans, to which, unsurprisingly, they grant an eschatological function. On his side, MX is right to insist on the fact that property has a history, therefore its transformation cannot be imagined independent of its past and ongoing tendencies of change. But he is – apparently – interested exclusively in the modern history, the “bourgeois” history which is purely secular, not in the fact there is a premodern “theological” history (no less juridical for that), which remains a determinant of our present, particularly when it comes to the normative foundations of individualism.
Perhaps it is not too absurd to ask the question: where would Marx stand in such a discussion? I am interested in the fact that he combines three different discourses (at least) (as I tried to show in the little essay on “Expropriation of expropriators”). One is a representation of the “perpetual war” fought in the field of the organization of labour individually and collectively, which has a legal face as well as an economic one (the distribution of value by means of the wage form). This is absolutely compatible with MX’s representation of conflict in the legal language, provided we admit that it has a “substance” provided by the economy. Another discourse is eschatological and, although it is not fought in the name of “poverty” as such, it rejoins the idea that capitalist appropriation can only become suppressed through a complete reversal of its principle. But the most interesting for our discussion, perhaps, is the third one, because it is more technical: this is the idea (mainly to be found in Capital, Volume One, section 7 on the “process of accumulation”, where it is shown that profits (and surplus-value) are distributed among different “classes” of proprietors according to their mode of appropriation (or type of “prerogative”, in Hohfeldian idiom) over the means of production; and above all that the continuity of the process of accumulation is made possible by the fact that the surplus-value can be appropriated on one side only of the social relation of production. This means that an “exclusive” owner is needed, although this owner is not necessarily an individual, it is any “entity” which bears the title of property (and this entity is more normally a “corporate” or “social” entity, it is an individual by accident). This leads Marx to explaining that the monetary capital after a sufficient number of productive cycles is entirely composed of unpaid (surplus) labour, but this is not a theft, because the appropriation has continuously taken place according to the law of property. It seems to go in the direction, not of an “invariant” right, but of an irreducible core of “exclusion” (or appropriation-expropriation) inherent in every form of property that is compatible with capitalism. This was also the question I was asking when interpreting the “return to property” in the neoliberal era as a transposition or transference of the means of control of the profitable activities onto a different level. Therefore, it takes us back to the question abstractly asked in my first part: which forces, or political combination of forces, are likely to legally displace the point of “absolute” resistance to socialization that is present in every regime of property, however transformed with respect to the classical (and pre-classical) dominium? I have no doubt that, as MX explains, a new “legal imaginary” is required for that, which is a cultural phenomenon (if not a “cultural revolution”), but the legal imaginary must also become a “material force”, in Marx’s words from 1844. One traditional answer is: the State. Another traditional answer is: the Mass (or the multitude, or the proletariat). Fusing the two gave: the State in the “hands” of the proletariat. We seem to be in search of new proposals.
 For reasons of place and time, I leave aside now the question of a possible displacement of the terms of the discussion, linked to the necessity of articulating more explicitly the question of the role of law with the question of the role (and the transformations) of the state, which appears inevitable if we extend our discussion beyond the issue of property, also to questions of international law and international politics (such as the question of “hospitality”). This may arise in the oral discussion.