III. THE LOGIC OF THE LEGAL FORM
Although Marx never developed a full-fledged theory of the legal form, it is nevertheless possible to reconstruct from his early writings on law and the state /…/ an analysis of the logic of the legal form which, in its essentials, completely parallels his more systematic, fully developed analysis of the commodity form. /…/
If, in a capitalist mode of production, products take on the form of individual commodities, people take on the form of individual citizens; the exchange of commodities is paralleled by the exchange of citizens. A citizen, in turn, is every bit as “mysterious,” twofold, and in fact contradictory a reality as a commodity. An individual citizen, to begin with, is a qualitatively distinct, concrete subject with qualitatively distinct human needs or interests. /…/
At the same time, however, individual citizens are not only, and not immediately, subjects with needs but also and rather objects of exchange who exist in order to represent, and be represented by, other individual citizens. The existence of political exchange or representation thus requires that qualitatively distinct individuals with otherwise incommensurable interests enter into a formal relationship of equivalence with one another, i.e., that the qualitatively different subjects become what they are not: equal. This relationship of equivalence, in turn, is made possible by the law which, with the development of capitalism, becomes the universal political equivalent by means of which each individual is rendered equal to every other individual, so that any one individual can represent any other. The fully developed legal form thus entails a common form which is an abstraction from, and masking of, the qualitatively different contents of the needs of subjects as well as the qualitatively different activities and structures of social relationships in which they participate. Thus the legal form, in Marx’s words, “makes an abstraction of real men” which is perfectly homologous to the abstraction that the commodity form makes of “real products.” /…/
And, just as the commodity form “replaces” use-value and concrete labor with the abstractions of exchange-value and undifferentiated labor-power, the legal form “replaces” the multiplicity of concrete needs and interests with the abstractions of “will” and “rights,” and the socially differentiated individual with the abstraction of the juridical subject or the legal person. Pashukanis was perhaps the first Marxist after Marx to specify what might be called the common mode of substitution underlying both the commodity form and the legal form:
In the same way that the natural multiformity of the useful attributes of a product is in commodities merely a simple wrapper of the value, while the concrete species of human labor are dissolved in abstract labor as the creator of value – so the concrete multiplicity of the relationships of a man to a thing comes out as the abstract will of the owner, while all the specific peculiarities distinguishing one representative of the species homo sapiens from another are dissolved in the abstraction of man in general as a juridic subject.
Similarly, the “individuality” established and protected by the legal form is illusory insofar as it is established in and through an abstraction from the concrete, social bases of individuality and is thus a “pure, blank individuality” (Marx, 1843:481) bereft of any qualitative determinations and differences. /…/
The only form of individuality common to all members of a capitalist society, moreover, is the individualism and egotism of commodity exchangers, which is in fact the real (and thus “false”) content of the formal individuality produced and guaranteed by the legal form. The indifference to qualitatively different needs “announced” in and through the abstractions of “will” and “rights” parallels, and is made possible through, a system of commodity exchange whose individual agents are necessarily indifferent to reach other’s reciprocal needs and are rather obliged to treat each other as a mere means to their own purely “private” ends. /…/
Thus the commitment of the legal form to individuality is ultimately illusory, because the individuality it recognizes and presupposes is in fact an alienated form of individuality – individualism.
Thus the legal form both produces and reinforces illusory, rather than genuine, forms of equality, individuality, and community. At the same time, as I have suggested, these illusory forms contribute significantly to the persistence of a capitalist system which necessarily precludes the realization of genuine equality, individuality, and community. For both reasons, the legal form is a specifically “bourgeois” form; those who would simultaneously uphold this form and condemn the capitalist mode of production which “perverts” it simply fail to grasp that part they uphold is inextricably tied to the very system they condemn /…/
To put it another way, the emergence of human need as the basis of social production and intercourse necessarily entails the transcendence of that form – the legal form – which, as we have seen, carries out a systematic, bloodless abstraction from human needs. /…/
The foregoing analysis has important implications for a theory of the “legitimation” and/or “delegitimation” of the legal form, and thus, of the capitalist state. Those who would argue that delegitimation can result from the failure of law to live up to its “promises” (i.e., from the gap between its promises and its performance) fail to understand that the legitimation of the legal order is not primarily a function of its ability to live up to its claims or “redeem its pledges” but rather of the fact that its claims or pledges are valued in the first place. /…/
Consider, for example, legal practices that systematically and obviously violate the principle of “equality before the law” /…/
Such practices may in fact delegitimate particular judges and particular court systems, but they will not delegitimate the legal order itself, insofar as the delegitimation of the former does not call into question, but rather is based on the affirmation of, a central criterion of the legal order, equal treatment irrespective of class position. /…/
D. The Fetishism of the Law
The legal form is normally not called into question, I would argue, because the form itself ordinarily precludes the possibility of performing this critical operation. The calling into question of the legal order presupposes individuals who conceive themselves as subjects evaluating an object which they have created and over which they have control. It is just this presupposition, however, which is nullified by the perverse logic of the legal form; this form creates a fetishized relationship between individuals and the Law in which individuals attribute subjectivity to the Law and conceive themselves as its objects or creations. Under these conditions, the calling into question and subsequent delegitimation of the legal order is literally “unthinkable.”
The fetishism of the Law of which I am speaking appears in many guises. /…/ The most frequent /…/ is the common refrain: “If we didn’t have the Law everyone would kill each other.” All these instances, and many others, are simply variations on the common theme of legal fetishism, in which individuals affirm that they owe their existence to the Law, rather than the reverse, inverting the real causal relationship between themselves and their product. /…/ When Society is held to be a result of the Law, rather than the Law to be a result of one particular kind of society, then the Law by definition is unproblematical.
Commodity fetishism and legal fetishism are thus two inseparably related aspects of an inverted, “topsy-turvy” existence under a capitalist mode of production in which humans are first reduced to abstractions, and then dominated by their own creations.
Isaac Balbus: “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law” (1977)