A. Bandt. Monash University, doctoral dissertation, (2008)
Karl Marx, and later the Soviet jurist, Evgeny Pashukanis, both argued that the legal subject arises from exchange relations peculiar to capitalism. This is usually misunderstood as a 'commodity form' theory of law, whereby the equivalence of the exchange relation leads to the abstractly equal legal subject of liberalism. This is a wrongheaded approach that has led Marxist legal theory down any number of dead-ends, and renders it unable to comment on contemporary inquries into the force of law, the grounds of law's authority or the attack on the fiction of the unified subject. However, by taking the point of departure not as the exchange relation per se, but rather the exchange that takes place in the relations of production characteristic of capitalism - the wage relation, which masks the extraction of surplus - Marx and Pashukanis yield riches for the analysis of law. For the work of both writers embodies a fundamental Hegelian point: control over labour is itself a source of law's force. By beginning from here and placing labour at the centre of the analysis, three themes that pervade contemporary critiques of law - Gewalt, authority and subjectivity - are each opened up to new readings. In considering each of these three themes, the fundamental focus of interrogation is the configuration of the relationship between labour and the economic, on the one hand, and law, the state and the political on the other. The critique of Gewalt thereby becomes one of demonstrating that the force inherent in the labour relation is neither a-legal nor reducible to state sanctioned force, and as such, is imbricated in law's complex relationship with force/violence. As to authority, labour is found to dissolve any clear distinction between sovereign command and employer command, and the structure of authority that permeates both private and public law is intimately linked with the question of value. The subject, as the site of the separation of citizen and labour, opens itself up to an historical and theoretical enquiry. As well as regenerating Marxist legal theory, this approach also enables labour to be moved back into view in contemporary debates over law, sovereignty and exceptionality. It becomes apparent that the taking of emergency measures was a question of meeting the potentially law-founding violence of labour. Authority is intimately connected with guarantee, especially the guarantee of value. And the subject reduced to 'bare life' is found to be premised on an unacknowledged separation of labour, a misrendering of subjects as unproductive. By conducting the analysis in this manner, it is argued, the rise of emergency measures and the decline of the guarantee of rights are linked to the decline in abstract labour, a 'real abstraction' of modernity essential to the fictive equality of the legal subject. It is only by taking control over labour - not mere exchange - as the starting point that one can get from 'work' to 'rule' and offer this contemporary critique in the spirit of Pashukanis and Marx.