John Finnegan | The Law’s Bundles in Hardt and Negri

By John Finnegan

The fifth iteration of our seminar series saw a rich discussion of what, exactly, Michael Hardt and Antonio Negri in their books Commonwealth (2009) and Assembly (2017) are saying about the Law writ large. In their vision of “Becoming Prince,” (“the multitude learning the art of self-rule and inventing lasting democratic forms of social organization”)[1] what role does the law have to play, if any?

Mikhaïl Xifaras kicked off the discussion by arguing that Hardt and Negri view law largely as the “bad guy,” a blinder that prevents the multitude from overcoming capitalist domination. But, this, Xifaras argued, is the wrong way to see law—law is a playground, or a battlefield, a space that can be shifted and changed based upon the work of legal actors.

The other panelists seemed to be largely in agreement over this point—we shouldn’t throw out the “baby with the bathwater” in the process of “Becoming Prince”—rather, law can and will continue to play a role in the project envisioned by Hardt and Negri, the common that emerges will be regulated (democratically) in some way that we might call law. There was some disagreement about whether law is malleable enough to encompass this kind of regulation: Bernard Harcourt took the stance that law is “infinitely malleable,” while Etienne Balibar argued that law likely retains some restraints on its operation, and Jason Frank in a timely intervention sought to hone in on what we mean in specific terms when we use the concept of law.

But, broadly speaking, after leaving the seminar the panelists appeared to be, as Harcourt notes in his “Epilogue,” in agreement over three key premises: that “law is indeterminate, malleable, and can be pushed into radical directions from within, both right and left” that “‘the common,’ should it emerge, will be a fully regulated space” and that economics and law are intertwined and complement each other.[2] A question that remains is whether Hardt and Negri agree with those premises.

Xifaras staked out rather clearly during the panel that he thinks they do not, at least with regards to whether the common will be regulated by law. He points to a passage in Assembly where the duo argues that “the common advances without legal mediations and emerges as a multitude,”[3] asking what that could mean. If they’re serious about that statement, Xifaras argued, then Harcourt reads Hardt and Negri too charitably as being in agreement with the notion that the common will be regulated by law. As he argued in his paper, “Negri and Hardt do not think they need a theory of property, they think that legal systems are just ‘formal’ and the real alternatives are to be found ‘beyond the legal context,’ in the sphere of ‘real practices,’ mainly social movements,”[4] not in the law.

But for Harcourt, Hardt and Negri’s aversion to the language of the law does not imply a “passage beyond the law,” just the usage of “different expressions to speak of the democratic regulation and management of the common.”[5] Claiming that the common will “advance without legal mediations” doesn’t actually mean that law will be absent in Hardt and Negri’s vision, because they admit that some form of regulation will still exist in the common, some kind of governance. That, Harcourt argues, is “what others, lawyers, call ‘law,’” regardless of whether Hardt and Negri themselves recognize it at such.[6] The conflict between the two and Xifaras, then, becomes only “a question of terminology”—they’re admitting that some framework will exist to regulate the common, but not calling it the same thing, although it is, in fact, the same.[7]

In thinking about this, however, I’m not convinced that it is only a question of terminology, or, if it is, that this question is inconsequential. I’m drawn back to Jason Frank’s remarks at the seminar, where he called upon the panelists to question the “capaciousness of this discourse of the law” in the presentations, to focus upon law’s “specificity” in order to engage satisfactorily with the “emancipatory potentials and limitations of this discourse.” And I’m hesitant to discard Hardt and Negri’s own words that the common is not “simply a third form of property… [it] stands in contrast to property in a more radical way, by eliminating the character of exclusion from the rights of both use and decision-making, instituting instead schema of open, shared use and democratic governance.”[8] And, again, earlier, their admonition that “The common… is not a new form of property but rather nonproperty, that is, a fundamentally different means of organizing the use and management of wealth.”[9] These words are no longer a product of the authors’ oversight regarding contemporary legal scholarship. Instead, they are a direct response, having read and reviewed that literature, rejecting its contributions as insufficient for the common’s creation: “now we need finally to take the leap beyond.”[10]

In other words, my reading of Assembly—and thus, Commonwealth—hews closer to Xifaras’ than Harcourt’s. Hardt and Negri do seem to think that creating or excavating the common will “involve a passage beyond the law,”[11] something that “leap[s] beyond” the projects of critical legal studies into a presently unknown territory. The argument that Xifaras advances—that law is a key battlefield, one that should not be ceded in the struggle to create the common—appears to have been considered by Hardt and Negri and rejected in Assembly. They noted that similar contributions had been made by critical legal scholars: “the recognition… that law… is a weapon of power… opens law as a field of struggle, one in which hierarchies can be challenged effectively.”[12] But, rather than take up Xifaras’ call to contest that field of struggle, Hardt and Negri view such moves as insufficient, mere reformism: “CLS scholars do not extend the implications of their arguments toward an abolition of property but instead strive to reform property from the inside…”[13]

Perhaps this rejection of the critical contributions reflects only a misunderstanding on the part of the authors, as Xifaras argued at the seminar (“They’ve totally missed the idea of the bundle of rights—we don’t need a definition of property, we need to ask ‘what does property do, how does that work.’”). If that’s the case, then the disagreement between the panelists and the authors disappears.

But I find it unlikely that the authors have simply missed the point of critical contributions surrounding property and the utility of the “bundle of rights” for creating the common. They note the same legal strategy Xifaras emphasizes—the invention of the copyleft—as an example where “one can recognize how the assertion of plural rights serves to combat the sovereign powers of owners while maintaining the paradigm of property,”[14] and then immediately transition into a discussion of how the bundle of rights can be used to enhance the exclusivity norm. That shows a recognition of the “malleability” of the law as discussed at our seminar and an understanding of the battleground nature of property rights. Thus, I don’t think it’s a misunderstanding that drives this disagreement between the authors and the panelists, but rather something more fundamental.

From my reading of Hardt and Negri, they appear to be unwilling to view the bundle of rights construction of property as sufficiently malleable to support the “common” they want to construct, and even if they were to accept that the framework was malleable enough to support their vision of the common, they would be averse to using such a framework. They have defined the common “in contrast to property, both private and public.”[15] A property stripped of its exclusive nature—as Xifaras points out can and has been done, “excluding the exclusion”[16]—becomes, in the eyes of Hardt and Negri, nonproperty, it “transform[s] into the common.”[17] Property thus seems to have an essential character to it in Hardt and Negri’s scholarship: the core of exclusion cannot be stripped from it even in the bundle of rights construction, because without said exclusion it is no longer property. Because they view property as unable to support their project, they then seek to discard the notions of law that prop up property in favor of other forms of regulation.

Is this again, then, just a matter of terminology? Hardt and Negri seem to agree with Xifaras that property can be stripped of its exclusive nature, they just call it something different: the common. If indeed it is just terminology, then we answer the original question of this blogpost (are there disagreements among the authors and panelists?) with a strong no—the only differences are illusory, resulting from a confusion of terms.

Even if it is the case that no functional distinction can be found between these terms, I still think we find some differences in how the panelists versus the authors view the usage of these terms. The authors’ rejection of the language of law and property in describing their vision implies to me a rejection of the “specificity” surrounding these concepts as called into the open by Jason Frank. By refusing to acknowledge that the common will function as property, or that the common will be mediated by law—even if that appears to be emphatically the case, as the seminar discussion and posts revealed—Hardt and Negri seem to be taking a stance that language matters on its own. That what we call these things—property vs. the common, the law vs. “democratic decision-making”—makes a difference; otherwise why spend time emphasizing the conceptual distinctions, declaring that the common shall “advance[] without legal mediations”[18]?

How does it make a difference? I’m not entirely sure—but I think that it might have to do with the authors discussion, back in Commonwealth, of what “revolution” entails. As they laid out towards the end of the book, “[p]art of revolutionary activity, then, is the destruction of what we called earlier the institutions of the corrupt forms of the common, such as the family, the corporation, and the nation… the struggle involves not only destroying the corrupt institutions but also constructing new ones.”[19] Perhaps, in order to construct these new institutions, we must use new names, the old ones being tied too deeply to past historical contexts—to past “specificity”—to function effectively in the new context of the multitude and common. Rather than view the institutions of law and property as malleable enough to be subject to the kind of institutional psychotherapy laid out in Camille Robcis’ piece,[20] Hardt and Negri want to throw out all terms associated with those institutions and imagine new ones. Thus, a property without exclusion becomes the common; a law without the juridical framework familiar to us all becomes something else entirely, yet to be named with such precision.

[1] Hardt and Negri, Commonwealth viii (2009).

[2] Harcourt, “Epilogue: On the Political Economy of (Big) Law” (Dec. 6, 2018).

[3] Hardt and Negri, Assembly 100 (2017).

[4] Xifaras, “The Role of the Law in Critical Theory” (Dec. 3, 2018).

[5] Harcourt, “Epilogue.”

[6] Id.

[7] Id.

[8] Hardt and Negri, Assembly at 100.

[9] Id. at 97.

[10] Id.

[11] Harcourt, Epilogue.

[12] Hardt and Negri, Assembly at 88.

[13] Id.

[14] Id. at 89.

[15] Id. at 97.

[16] Xifaras, “The Role of Law in Critical Theory.”

[17] Hardt and Negri, Assembly at 97.

[18] Id. at 100.

[19] Hardt and Negri, Commonwealth at 370.

[20] Camille Robcis, “Radical Psychiatry, Institutional Analysis, and the Commons” (Dec. 4, 2018).