{"id":4355,"date":"2018-12-31T10:57:50","date_gmt":"2018-12-31T15:57:50","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/praxis1313\/?p=4355"},"modified":"2018-12-31T10:57:50","modified_gmt":"2018-12-31T15:57:50","slug":"john-finnegan-the-laws-bundles-in-hardt-and-negri","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/praxis1313\/john-finnegan-the-laws-bundles-in-hardt-and-negri\/","title":{"rendered":"John Finnegan | The Law\u2019s Bundles in Hardt and Negri"},"content":{"rendered":"

By John Finnegan<\/strong><\/p>\n

The fifth iteration of our seminar series saw a rich discussion of what, exactly, Michael Hardt and Antonio Negri in their books Commonwealth<\/em> (2009) and Assembly<\/em> (2017) are saying about the Law writ large. In their vision of \u201cBecoming Prince,\u201d (\u201cthe multitude learning the art of self-rule and inventing lasting democratic forms of social organization\u201d)[1]<\/a> what role does the law have to play, if any?<\/p>\n

Mikha\u00efl Xifaras kicked off the discussion by arguing that Hardt and Negri view law largely as the \u201cbad guy,\u201d a blinder that prevents the multitude from overcoming capitalist domination. But, this, Xifaras argued, is the wrong way to see law\u2014law is a playground, or a battlefield, a space that can be shifted and changed based upon the work of legal actors.<\/p>\n

The other panelists seemed to be largely in agreement over this point\u2014we shouldn\u2019t throw out the \u201cbaby with the bathwater\u201d in the process of \u201cBecoming Prince\u201d\u2014rather, 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 \u201cinfinitely malleable,\u201d 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.<\/p>\n

But, broadly speaking, after leaving the seminar the panelists appeared to be, as Harcourt notes in his \u201cEpilogue,\u201d in agreement over three key premises: that \u201claw is indeterminate, malleable, and can be pushed into radical directions from within, both right and left\u201d that \u201c\u2018the common,\u2019 should it emerge, will be a fully regulated space\u201d and that economics and law are intertwined and complement each other.[2]<\/a> A question that remains is whether Hardt and Negri agree with those premises.<\/p>\n

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<\/em> where the duo argues that \u201cthe common advances without legal mediations and emerges as a multitude,\u201d[3]<\/a> asking what that could mean. If they\u2019re 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, \u201cNegri and Hardt do not think they need a theory of property, they think that legal systems are just \u2018formal\u2019 and the real alternatives are to be found \u2018beyond the legal context,\u2019 in the sphere of \u2018real practices,\u2019 mainly social movements,\u201d[4]<\/a> not in the law.<\/p>\n

But for Harcourt, Hardt and Negri\u2019s aversion to the language of the law does not imply a \u201cpassage beyond the law,\u201d just the usage of \u201cdifferent expressions to speak of the democratic regulation and management of the common.\u201d[5]<\/a> Claiming that the common will \u201cadvance without legal mediations\u201d doesn\u2019t actually mean that law will be absent in Hardt and Negri\u2019s vision, because they admit that some form of regulation will still exist in the common, some kind of governance. That, Harcourt argues, is \u201cwhat others, lawyers, call \u2018law,\u2019\u201d regardless of whether Hardt and Negri themselves recognize it at such.[6]<\/a> The conflict between the two and Xifaras, then, becomes only \u201ca question of terminology\u201d\u2014they\u2019re 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]<\/a><\/p>\n

In thinking about this, however, I\u2019m not convinced that it is only a question of terminology, or, if it is, that this question is inconsequential. I\u2019m drawn back to Jason Frank\u2019s remarks at the seminar, where he called upon the panelists to question the \u201ccapaciousness of this discourse of the law\u201d in the presentations, to focus upon law\u2019s \u201cspecificity\u201d in order to engage satisfactorily with the \u201cemancipatory potentials and limitations of this discourse.\u201d And I\u2019m hesitant to discard Hardt and Negri\u2019s own words that the common is not<\/em> \u201csimply a third form of property\u2026 [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.\u201d[8]<\/a> And, again, earlier, their admonition that \u201cThe common\u2026 is not a new form of property but rather nonproperty<\/em>, that is, a fundamentally different means of organizing the use and management of wealth.\u201d[9]<\/a> These words are no longer a product of the authors\u2019 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\u2019s creation: \u201cnow we need finally to take the leap beyond.\u201d[10]<\/a><\/p>\n

In other words, my reading of Assembly<\/em>\u2014and thus, Commonwealth<\/em>\u2014hews closer to Xifaras\u2019 than Harcourt\u2019s. Hardt and Negri do seem to think that creating or excavating the common will \u201cinvolve a passage beyond the law,\u201d[11]<\/a> something that \u201cleap[s] beyond\u201d the projects of critical legal studies into a presently unknown territory. The argument that Xifaras advances\u2014that law is a key battlefield, one that should not be ceded in the struggle to create the common\u2014appears to have been considered by Hardt and Negri and rejected in Assembly<\/em>. They noted that similar contributions had been made by critical legal scholars: \u201cthe recognition\u2026 that law\u2026 is a weapon of power\u2026 opens law as a field of struggle, one in which hierarchies can be challenged effectively.\u201d[12]<\/a> But, rather than take up Xifaras\u2019 call to contest that field of struggle, Hardt and Negri view such moves as insufficient, mere reformism: \u201cCLS scholars do not extend the implications of their arguments toward an abolition of property but instead strive to reform property from the inside\u2026\u201d[13]<\/a><\/p>\n

Perhaps this rejection of the critical contributions reflects only a misunderstanding on the part of the authors, as Xifaras argued at the seminar (\u201cThey\u2019ve totally missed the idea of the bundle of rights\u2014we don\u2019t need a definition of property, we need to ask \u2018what does property do, how does that work.\u2019\u201d). If that\u2019s the case, then the disagreement between the panelists and the authors disappears.<\/p>\n

But I find it unlikely that the authors have simply missed the point of critical contributions surrounding property and the utility of the \u201cbundle of rights\u201d for creating the common. They note the same legal strategy Xifaras emphasizes\u2014the invention of the copyleft\u2014as an example where \u201cone can recognize how the assertion of plural rights serves to combat the sovereign powers of owners while maintaining the paradigm of property,\u201d[14]<\/a> 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 \u201cmalleability\u201d of the law as discussed at our seminar and an understanding of the battleground nature of property rights. Thus, I don\u2019t think it\u2019s a misunderstanding that drives this disagreement between the authors and the panelists, but rather something more fundamental.<\/p>\n

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 \u201ccommon\u201d 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 \u201cin contrast to property, both private and public.\u201d[15]<\/a> A property stripped of its exclusive nature\u2014as Xifaras points out can and has been done, \u201cexcluding the exclusion\u201d[16]<\/a>\u2014becomes, in the eyes of Hardt and Negri, nonproperty, it \u201ctransform[s] into the common.\u201d[17]<\/a> Property thus seems to have an essential character to it in Hardt and Negri\u2019s 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.<\/p>\n

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\u2014the only differences are illusory, resulting from a confusion of terms.<\/p>\n

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<\/em> of these terms. The authors\u2019 rejection of the language of law and property in describing their vision implies to me a rejection of the \u201cspecificity\u201d 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\u2014even if that appears to be emphatically the case, as the seminar discussion and posts revealed\u2014Hardt and Negri seem to be taking a stance that language matters on its own. That what we call these things\u2014property vs. the common, the law vs. \u201cdemocratic decision-making\u201d\u2014makes a difference; otherwise why spend time emphasizing the conceptual distinctions, declaring that the common shall \u201cadvance[] without legal mediations\u201d[18]<\/a>?<\/p>\n

How does it make a difference? I\u2019m not entirely sure\u2014but I think that it might have to do with the authors discussion, back in Commonwealth<\/em>, of what \u201crevolution\u201d entails. As they laid out towards the end of the book, \u201c[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\u2026 the struggle involves not only destroying the corrupt institutions but also constructing new ones.\u201d[19]<\/a> Perhaps, in order to construct these new institutions, we must use new names, the old ones being tied too deeply to past historical contexts\u2014to past \u201cspecificity\u201d\u2014to 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\u2019 piece,[20]<\/a> 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.<\/p>\n

[1]<\/a> Hardt and Negri, Commonwealth<\/em> viii (2009).<\/p>\n

[2]<\/a> Harcourt, \u201cEpilogue: On the Political Economy of (Big) Law\u201d (Dec. 6, 2018).<\/p>\n

[3]<\/a> Hardt and Negri, Assembly<\/em> 100 (2017).<\/p>\n

[4]<\/a> Xifaras, \u201cThe Role of the Law in Critical Theory\u201d (Dec. 3, 2018).<\/p>\n

[5]<\/a> Harcourt, \u201cEpilogue.\u201d<\/p>\n

[6]<\/a> Id.<\/em><\/p>\n

[7]<\/a> Id.<\/em><\/p>\n

[8]<\/a> Hardt and Negri, Assembly<\/em> at 100.<\/p>\n

[9]<\/a> Id.<\/em> at 97.<\/p>\n

[10]<\/a> Id.<\/em><\/p>\n

[11]<\/a> Harcourt, Epilogue.<\/p>\n

[12]<\/a> Hardt and Negri, Assembly<\/em> at 88.<\/p>\n

[13]<\/a> Id.<\/em><\/p>\n

[14]<\/a> Id.<\/em> at 89.<\/p>\n

[15]<\/a> Id.<\/em> at 97.<\/p>\n

[16]<\/a> Xifaras, \u201cThe Role of Law in Critical Theory.\u201d<\/p>\n

[17]<\/a> Hardt and Negri, Assembly<\/em> at 97.<\/p>\n

[18]<\/a> Id.<\/em> at 100.<\/p>\n

[19]<\/a> Hardt and Negri, Commonwealth<\/em> at 370.<\/p>\n

[20]<\/a> Camille Robcis, \u201cRadical Psychiatry, Institutional Analysis, and the Commons\u201d (Dec. 4, 2018).<\/p>\n","protected":false},"excerpt":{"rendered":"

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… Continue Reading →<\/span><\/a><\/p>\n","protected":false},"author":2166,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[38965],"tags":[],"class_list":["post-4355","post","type-post","status-publish","format-standard","hentry","category-resources-5-13"],"_links":{"self":[{"href":"https:\/\/blogs.law.columbia.edu\/praxis1313\/wp-json\/wp\/v2\/posts\/4355","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.law.columbia.edu\/praxis1313\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.law.columbia.edu\/praxis1313\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/praxis1313\/wp-json\/wp\/v2\/users\/2166"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/praxis1313\/wp-json\/wp\/v2\/comments?post=4355"}],"version-history":[{"count":0,"href":"https:\/\/blogs.law.columbia.edu\/praxis1313\/wp-json\/wp\/v2\/posts\/4355\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.law.columbia.edu\/praxis1313\/wp-json\/wp\/v2\/media?parent=4355"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/praxis1313\/wp-json\/wp\/v2\/categories?post=4355"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/praxis1313\/wp-json\/wp\/v2\/tags?post=4355"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}