It is a great pleasure to take part in the discussion of Mikhail Xifaras\u2019 remarkable paper on \u201cThe Role of Law in Critical Theory<\/a>\u201d, but it is not an easy task, because this paper is rich and complex (I am not\u00a0<\/em>saying too complex), and because the very object of the discussion has multiple aspects and relies on multiple references. The original \u201ccontract<\/a>\u201d was to use the provocative and influential formulas in Michael Hardt\u2019s and Antonio Negri\u2019s (henceforth HN) introductory chapter to their volume Commonwealth<\/a>\u00a0<\/em>as a starting point for a discussion about the importance, limits, difficulties of a juridical practice of critique\u00a0<\/em>in the debate about \u201cproperty\u201d and \u201cthe common\u201d, 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 \u201cantijuridism\u201d (or anti-juridical bias) prevalent, in his view, in much of the \u201ccritical\u201d tradition (Marxist, for sure, but not only), tracing the effects of this antijuridism in HN\u2019s 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 \u201claw of property\u201d) 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<\/em>, our point of entry in the debate, have been elaborated again in the subsequent volume, Assembly<\/em>, particularly the chapter 6 \u201cHow to open property to the common\u201d<\/em><\/a>, 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 <\/em>the terrain of discussion is so clearly common, the sharpness <\/em>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 \u201csecondary readings<\/a>\u201d, 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<\/em>, 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.<\/p>\n 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<\/em>, as illustrated and intensified by the specific case of \u201claw\u201d; and the genealogical question concerning the concept of \u201cproperty\u201d which serves as a basis for current vindications of \u201cthe common\u201d (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).<\/a>[1]<\/p>\n As we know, MX has centered his discussion on three main theses, which together create a \u201ccircle\u201d in which we will have to find our trajectory. One is negative: for the most part, the \u201ccritical\u201d tradition has considered that \u201claw\u201d (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\u00a0<\/em>of critique, even less on the side of its sources<\/em>, but always on the side of its objects<\/em>, which means that law is \u201cbad\u201d, absolutely or relatively, i.e. either in its principles, its objectives (the \u201cinjustice of the law\u201d), or its implementation, its uses on behalf of power relations, forms and forces of domination (the \u201cconsequences\u201d). This is roughly what he calls the antijuridism\u00a0<\/em>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 \u201cmessianic\u201d, or \u201cdeconstructive\u201d tradition, for which critique involves some sort of interruption, or transcendency, which can be called \u201cjustice\u201d, interestingly a kind of normative antithesis <\/em>of the law), says that very genuine (strong, effective) critique is immanent<\/em>, meaning that it must express and realize tendencies which are to be found within <\/em>the object (field, domain) of critique. This is usually called the \u201cworld\u201d, which most of the time is understood as the social world. Therefore critique is \u201csecular\u201d, in the etymological sense of the word. And the second positive thesis says that \u201cthere is no outside\u201d of the law (remember Derrida: il n\u2019y a pas de hors-texte<\/em>, 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<\/em>, ceasing to locate law univocally on the \u201cbad\u201d side (the object, the enemy), because there is no place outside the realm of law\u00a0<\/em>where a critical point of view, or a critical force, or agency, could establish itself in order to \u201cchange the world\u201d. 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 <\/em>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.<\/p>\n Let me take these three theses in reverse order. The idea of \u201cno outside\u201d is pleaded for by MX in a subtle manner. He doesn\u2019t say that everything, every action or social relation is legally codified. <\/em>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<\/em>, or its remainder<\/em>. 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 \u201cweak\u201d version of this idea (which probably Marx would not reject): every action or social relation is always represented\u00a0<\/em>or codified\u00a0<\/em>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\u00a0<\/em>of the legal representation in the first place, in order to tackle the \u201cthing itself\u201d. But there is also a \u201cstrong\u201d version (which is clearly adopted by MX): legal forms are constitutive\u00a0<\/em>of all social practices (in the past, the present and the future), so that a critique can only \u201cwork through\u201d 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 \u201cdialectics\u201d of the \u201cexpropriation of expropriators<\/a>\u201d, at least in some versions of the idea). To this second interpretation I will add a complement, which is not there (explicitly) in MX\u2019s 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<\/em>. It could be argued in a very similar manner that \u201cthe economy has no outside\u201d, and this would pose the same dilemma for the idea of critique: \u201cimmanent critique\u201d that remains inside\u00a0<\/em>the economic logic, or \u201cgrammar\u201d, or \u201cexternal critique\u201d, that believes to be able to identify a (subversive) non-economic factor\u00a0<\/em>(e.g. the labour-force, the proletariat itself, or even the \u201ccommon\u201d in HN\u2019s understanding). This parallel is all the more interesting because we want to discuss no \u201claw\u201d in general, but the \u201claw of property\u201d, or property as the foundation of law. Property, in fact, is the hybrid category, or boundary concept\u00a0<\/em>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 \u201ceconomy\u201d an outside of the law<\/em>, 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 \u201crepublic of property\u201d, in its general sense. But it is also not incompatible with much of what Duncan Kennedy<\/a> and the \u201cCritical Legal Studies\u201d school (explicitly drawing on the legacy of the \u201crealist\u201d school in legal theory) seems to do in practice. <\/em>Therefore it strengthens MX\u2019s critique, without necessarily destroying all of HN\u2019s perspective.<\/p>\n Yes, but\u2026 <\/em>logically speaking, MX\u2019s argument of the \u201cno outside\u201d seems to me to rely on a very \u201cAristotelian\u201d use of the negation, and the negation of the negation. This is where the problem of \u201ctopology\u201d I referred to comes into play. To explain that nothing is outside the realm of the law<\/em>, if only by implication, leads to the conclusion that everything is within the realm of the law, <\/em>or must take a legal form, or act legally<\/em>, only if not (not A) = A, in other terms, if there exists nothing that, while not lying outside the legal realm <\/em>(or the economic realm), can nevertheless be non-legal<\/em>, be heterogeneous <\/em>with respect to the legal forms, as a kind of \u201cinternal exclusion\u201d, or \u201cinternal otherness\u201d. How if, in fact, the possibility of critique (and especially radical critique) rested precisely on that \u201ccounter-intuitive\u201d 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 \u201cdeconstruction\u201d and to Deleuzian \u201cbecoming other\u201d (from which HN draw much of their inspiration), the problem (perhaps unresolved) was always the same: to \u201ctwist\u201d immanence, so that something heterogeneous, irreducible to the existing order, conditions, tendencies, even transformations, emerges from inside<\/em>, not being \u201cimported\u201d or \u201crevealed\u201d. 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 \u201clegal defense\u201d (of the people and the interests, even the principles that the legal order in its massive \u201cinjustice\u201d crushes or destroys or subjugates) to something like a \u201clegal subversion\u201d (perhaps an institution of the common, <\/em>or in my own jargon a realization of equaliberty) \u2013 with perhaps in the middle a \u201ccounter-law\u201d (un contre-droit<\/em>), which at some point not only makes use of what MX calls the \u201cflexibility\u201d or the \u201cvariability\u201d of the legal language<\/em>, but amounts to changing the \u201crules\u201d themselves, the \u201c\u2019grammar\u201d or the \u201clanguage game\u201d itself (I use on purpose Wittgensteinian categories). I suspend this speculation here, while adding only three commentaries:<\/p>\n 1) I would very much agree with the idea that the fate of the idea of critique in this moment \u2013 the possibility of renewing our philosophical understanding of the question of immanent heterogeneity <\/em>(or break with the existing order) (you may call it \u201crevolution\u201d) \u2013 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\u00a0<\/em>as much as an economic order (perhaps we could say: an economic order that is legally constituted and regulated). Again, HN\u2019s \u201crepublic of property\u201d seems to be meaning exactly that. However, it would seem that the aporia is very real, because \u2013 to put it brutally \u2013 whereas MX often gives the impression that his examples are examples of \u201cintra-capitalist\u201d reforms (e.g. the \u201ccopytheft\u201d) (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\u2026 But it is very interesting that, in their new development (Assembly<\/em>), they direct their critique at precisely what supports MX\u2019s argument for the critical effectivity <\/em>of legal practice, namely the reforms and transformations of property which push the legal grammar to its \u201cextreme\u201d possibilities\u2026<\/p>\n 2) it would be important to return to the genealogy of what MX (rightly) describes as the antijuridical <\/em>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\u00a0<\/em>and the juridical principles (\u201cnatural law\u201d, translated as \u201cideology\u201d 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\u2019s first departure from this idealist vision consisted, not in straightforward antijuridism (whether based on \u201ceconomy\u201d or \u201cpolitics\u201d), but in a remarkable attempt at building a counter-juridical practice <\/em>(in his 1842 articles on the defense of \u201ccommunal property\u201d, which clearly inspire some of MX\u2019s formulations). Why did Marx renounce that point of view? Or did he? It periodically surfaces again, as in his description of the \u201cprotracted civil war\u201d 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 \u201ctransgression\u201d, his practical\u00a0<\/em>attitude seems very different at the time of \u201cgovernmentality\u201d \u2026<\/p>\n 3) The strength of MX\u2019s position is that – combining something that comes from Marx and something that comes from Foucault with a practical\u00a0<\/em>understanding of law, not the \u201claw of philosophers\u201d but the \u201claw of jurists\u201d which is an extended concept of jurisprudence, <\/em>as opposed to a \u201cdeductive\u201d (or \u201cmechanical\u201d) notion of the application\u00a0<\/em>of law (very \u201cRoman\u201d, or perhaps very French) \u2013 he describes the realm of law as a field of generalized conflict<\/em>, 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\u00a0<\/em>(which we may call litigations), and others whose stakes are the rules themselves <\/em>(what, in a not so distant past, epistemologists called a \u201cchange of paradigm\u201d)? And second, if such conflicts exist, which are the forces<\/em>, 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 \u201ctopology\u201d, from a more practical point of view. I am tempted to say (having in mind civil rights, abortion, social legislation\u2026): the \u201cforce\u201d is a non-legal combination of legal agents and actions. <\/em>But this is just a formula\u2026<\/p>\n This is not the place to examine the current debate on the idea of the \u201cnew commons\u201d (or, in the singular: the \u201ccommon\u201d), both from without and from within the communist\u00a0<\/em>tendency (to which HN, but also their rivals Dardot and Laval<\/a>, 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 \u201creformism\u201d versus \u201crevolution\u201d, 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 <\/em>granted to \u201cindividuals\u201d (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 \u201creal time\u201d 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\u2019s more recent chapter (from Assembly<\/em>), brings a lot of clarity. HN and MX roughly identify a similar origin <\/em>for the vicissitudes of a property right whose fundamental substance is the exclusion of others\u00a0<\/em>from the use, or the administration of a property (which is essentially a capacity, or a power, as the Roman category dominium<\/em>, to which I will return, perfectly expressed, but becomes \u201creified\u201d, or identified with the thing\u00a0<\/em>itself: this house, this machine, this office is \u201cmy property\u201d, hence not yours\u2026). This origin (however complex its actual history and codification) is to be identified with the \u201cclassical\u201d moment in which modern capitalism becomes the dominant mode of production in our (Northern, Western) societies. Therefore it also coincides with the \u201cbourgeois\u201d revolutions which impose a legal system (e.g. the French \u201ccivil code\u201d) where the protection of private property as the cornerstone of the whole social edifice and the prototype of all \u201csubjective rights\u201d is established. From this origin, however, they draw opposite lines into the present. I simplify, but let\u2019s 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<\/em>: this can be summarized with the idea that property is less and less substantial, and becoming more and more relational<\/em>, i.e. it incorporates in its definition (which is a practical definition, before it becomes theorized by the legal \u201crealists\u201d, and more recently in the work of Felix Cohen, Thomas Grey<\/a>, etc.,\u00a0 as a \u201cbundle of rights\u201d) limitations, dependencies, capacities distributed over a plurality\u00a0<\/em>of \u201csubjects\u201d (who, for that reason, are no longer \u201csovereign\u201d). Philosophers are mostly unaware of this real transformation (especially Marxist philosophers), but it has in fact changed the content while keeping the name<\/em>, and this is what brings to the threshold of a situation in which \u2013 albeit of course not without conflict \u2013 property will play a role which can no longer really appear as \u201cprivate\u201d. On the contrary, for HN, the evolution is one that essentially preserves the same \u201claw of property\u201d<\/em>, while constantly modifying its modalities of application and its \u201cideological\u201d justifications, according to technological changes and political reforms. There is an invariant <\/em>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<\/em>, 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<\/em>, which, even if constantly changing its detail to adapt to the new cultural environment, has become increasingly artificial compared to the \u201csocial\u201d <\/em>(collective, common) character of labour (and more generally \u201cactivity\u201d, increasingly \u201cintellectualized\u201d). This change will not take the form of a new (legal) regime of property, it will take the form of a farewell to \u201cproperty\u201d in general, whether private or public, which is incompatible with the emancipation of the common.<\/p>\n It is not my intention to try and produce a \u201cbalance sheet\u201d 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\u00a0<\/em>increasingly difficult, if not impossible, in the realm of \u201cimmaterial production\u201d, is not a simple evolution towards \u201csocialized\u201d or \u201ccooperative\u201d forms of use, where the diversity of \u201clegal prerogatives\u201d listed by Hohfeld will find a renewed application. It is rather an acute conflict<\/em>, fought on economic as well as legal terrain, between opposite transformations of the \u201claw of property\u201d\u00a0<\/em>(or the concrete web of property rules), whereby, in particular, capitalist corporations tend to shift the point of application of their \u201cexclusive right\u201d\u00a0<\/em>from one level (one type of \u201cobjects\u201d or \u201cactions\u201d or \u201cinteraction\u201d) to another, which commands the use of the former<\/em>, or controls its circulation (as we see today with the \u201cplatforms\u201d, Uber, Facebook, etc.). And I am tempted to ask: is this not the typical form in which, as MX indicates, the \u201cneoliberal revolution\u201d (a typical revolution \u201cfrom above\u201d, or \u201cconservative revolution\u201d) has produced the \u201creturn of property\u201d or the \u201cre-privatization\u201d of the commons, the social property, etc., albeit \u2013 as MX rightly indicates \u2013 not in the form of a \u201creturn of the same\u201d? 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\u00a0<\/em>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\u2019s argument, which concerns the institution of the common<\/em>, including its legal forms (on this point, MX explicitly refers approvingly to HN\u2019s 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 \u201cto come\u201d). This is the idea that,\u00a0more than ever<\/em>, an institution of the common (or a communist society) will need a juridical system of categories and rules, because it will need to regulate\u00a0<\/em>the distribution of moments (part of life), activities, and use values between the collective and the proper\u00a0<\/em>(or the individual). This amounts to anticipating a meta-level <\/em>in the definition of \u201cproperty\u201d, 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 \u201cdemocracy\u201d and even \u201cmutual love\u201d among humans, which cannot not prevail when the oppressive weight of capitalist dispossession is lifted (and doesn\u2019t, in fact, address the most difficult issue, marginally evoked in Marx, namely the question of what \u201cindividuality\u201d becomes beyond individualism, <\/em>if it is not \u201ccollectivizable\u201d).<\/p>\n 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\u00a0<\/em>which are the other side of every use of the category \u201cproperty\u201d, whether subjective or relational \u2013 not \u201coutside the law\u201d, but on the economic side of the law. HN push this articulation to the extreme, i.e. they explain that \u201cproperty\u201d is always just the name of expropriation. This idea is profoundly rooted in a strange, but highly revealing, character of their \u201cgenealogy\u201d, which comes from the fact that, if their explicit\u00a0<\/em>reference regarding the constitution of the \u201crepublic of property\u201d is the bourgeois revolution <\/em>of the classical age, the implicit <\/em>reference (although quickly indicated in passing in their chapter on \u201cthe multitude of the poor\u201d) is a Franciscan opposition\u00a0<\/em>of \u201cproperty\u201d and \u201cpoverty\u201d, more precisely dominium\u00a0<\/em>and usus<\/em>, which is of course communist, but pre-bourgeois. On this point, read the essay<\/a> and the extraordinary chapter<\/a> by Janet Coleman, which clearly shows that a discussion of \u201cproperty\u201d 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 \u201cRoman law\u201d, but must precisely examine the medieval conflict between upholders of a \u201cnatural\u201d right of appropriation and upholders of a (theologico)political limitation of property in the name of its negation, which is not \u201cexpropriation\u201d, but \u201cuse\u201d (therefore sharing). My feeling is that, while HN seem\u00a0<\/em>(or believe<\/em>) to be discussing a story that begins with classical (philosophical) definitions of property and leads to the \u201cnew commons\u201d 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, <\/em>therefore its transformation cannot be imagined independent of its past and ongoing tendencies of change. But he is \u2013 apparently \u2013 interested exclusively in the modern history<\/em>, the \u201cbourgeois\u201d history which is purely secular, not in the fact there is a premodern \u201ctheological\u201d history (no less juridical for that), which remains a determinant of our present, particularly when it comes to the normative foundations of individualism.<\/p>\n 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 \u201cExpropriation of expropriators<\/a>\u201d). One is a representation of the \u201cperpetual war\u201d 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\u2019s representation of conflict in the legal language, provided we admit that it has a \u201csubstance\u201d provided by the economy. Another discourse is eschatological and, although it is not fought in the name of \u201cpoverty\u201d 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<\/em>, Volume One, section 7 on the \u201cprocess of accumulation\u201d, where it is shown that profits (and surplus-value) are distributed among different \u201cclasses\u201d of proprietors according to their mode of appropriation <\/em>(or type of \u201cprerogative\u201d, 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\u00a0<\/em>of the social relation of production. This means that an \u201cexclusive\u201d owner is needed, although this owner is not necessarily an individual, it is any \u201centity\u201d which bears the title of property (and this entity is more normally a \u201ccorporate\u201d or \u201csocial\u201d 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\u00a0<\/em>(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 \u201cinvariant\u201d right, but of an irreducible core\u00a0<\/em>of \u201cexclusion\u201d (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 \u201creturn to property\u201d 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 <\/em>the point of \u201cabsolute\u201d resistance to socialization that is present in every regime of property, however transformed with respect to the classical (and pre-classical) dominium<\/em>? I have no doubt that, as MX explains, a new \u201clegal imaginary\u201d is required for that, which is a cultural phenomenon (if not a \u201ccultural revolution\u201d), but the legal imaginary must also become a \u201cmaterial force\u201d, in Marx\u2019s 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 \u201chands\u201d of the proletariat. We seem to be in search of new proposals.<\/p>\n <\/a>[1] 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\u00a0<\/em>with the question of the role (and the transformations) of the state<\/em>, 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 \u201chospitality\u201d). This may arise in the oral discussion.<\/p>\n","protected":false},"excerpt":{"rendered":" By Etienne Balibar Law, Property, Politics A rejoinder to Mikhail Xifaras\u2019 “The Role of Law in Critical Theory” It is a great pleasure to take part in the discussion of Mikhail Xifaras\u2019 remarkable paper on \u201cThe Role of Law in… Continue Reading Immanence and exteriority: the topology of the critique<\/h1>\n
Property and the Commons<\/h1>\n
Note<\/h1>\n