Whether one believes that law is provided by God (Natural Law), is created by human intellect (Positivism), a gendered institution perpetuating patriarchy (Feminism) or the maintainer of the status quo against marginalised groups (Critical Legal Studies), undergirding those beliefs is the assumption that law is autonomous. In its autonomy, law operates as an impartial arbiter of “right”. Law sustains society through universal regulation. Law is considered autonomous because it is considered to have a “mind/logic” of its own. However, for Pashukanis and Commodity-Form Theorists such as Isaac D. Balbus and China Miéville law slaves for Capitalism.
The state as an organization of class domination, and as an organization for the conduct of external wars, does not require legal interpretation and in essence does not allow it… . Authority as the guarantor of market exchange not only may be expressed in terms of law, but itself appears as law and only law, and is merged entirely with the abstract objective norm. Therefore, every juridic theory of the state which wishes to embrace all the functions of the latter, necessarily appears inadequate. It may be a true reflection of all facts of state life, but gives only an ideological, i.e. distorted reflection of reality.1
Under the conventional perspectives of Law, law is a grand judge sitting on a cloud deciding our fates. Sometimes law is a supernatural entity who knows more than we do. Sometimes law is just like us and makes mistakes and only knows as much as we do. Sometimes law is a man who only thinks like a man and is missing the intelligence of a woman. Sometimes law is a selected person from the ruling-class who only knows to rule by class. In all of these scenarios law is above the world and rules it without much input from the world. Commodity-Form Theory argues that law is a product of capitalism and acts as a commodity for the exchange of political interests; capitalist interests.
Universal Political Equivalent and Legal Form
Marx notes that out of all of the commodities, over time, arises one commodity which can be used in exchange for all other commodities.2 This commodity, whatever it is, is perceived by all others in society (and eventually the world for whatever reason) as equivalent in value (given a certain amount of it) to any other commodity. For example, gold may be used to purchase anything in the world because that gold can be taken and used to purchase anything else. We call this commodity the money-commodity.
Due to the money-commodity’s exchangeability with all other commodities it has universal appeal. That universal appeal is in relation to commodities. Commodities are economic products. Therefore, we say that the money-commodity (money) is the ‘universal economic equivalent’3 of all other commodities.
Just as money is the ‘universal economic equivalent’, law is the ‘universal political equivalent’4. Pashukanis argues that law must run in relation to capital (money circulating commercially) to further commodity-production. Money is a commodity. Capital is money in use for the production of commodities with the ultimate aim of making more money. Law arises as a means to the end of generating capital.
Unlike other perspectives of law, which look to some form of social contract, Commodity-Form Theory views law’s origin as a history birthed by commodity-production. In the liberal/neo-liberal State the dominant political economy is capitalism. We know that, as a result of colonialism, the world is under the capitalist regime. Thus, the laws of liberal/neo-liberal States are products of capitalism, international law is a product of Capitalism and arguably (as the logic suggests) even countries which purport not to be capitalist (due to the hegemony of capitalism globally) have laws which, in their response to capitalism’s reach, have been transmuted into products of capital. Law’s authority does not, therefore, come from reason.
Instead, law’s authority comes from the capitalist class. Pshukanis goes as far as to posit that theories of the State develop after the practice of State-making has already been developed as a way to rationalise the legitimacy of government.5 Hence, what we know about law is always ‘a posteriori’.
Under Capitalism, the world inherently lives by ex post facto law. From this point-of-view, there is no material demarcation between the logic of capitalists and the logic of law. That is to say that the law is a mirror image of capitalist rules.
Law is law because it is universally applied. Every human interest in society is a political interest. Law is used to mediate interests. By having a capitalist logic, law inherently mediates along capitalist lines.
Hence, the law on theft is interpreted along private property lines (a mechanism of capitalism) and not, for example, in the logic of Amerindians (who had no concept of private property). If the law, incorporated the logic of multiple social actors, the law of theft may incorporate a ban on the commodification of water since Amerindians would have seen privatising water as inherently against communal principles.
Other perspectives consider law to be law (and not just mere rules) because they believe it to be autonomous. What gives law its legal form is its autonomy. However, if law is indeed a by-product of capitalism it cannot be said to have an actual legal-form. Commodity-Form Theory argues this thing called law has no legal form. Law, is therefore, a set of rules imposed upon the population through the violence of capital.
Legal-Form, Base and Superstructure
To test Commodity-Form Theory’s argument that law is not only inextricably linked to capitalism but a product of it, one may query whether the law would be different in character if capitalism never existed. This question appears to have an obvious answer; that being “Yes”. One may argue that the question is silly but it is not. If law were truly autonomous its character would transcend material paradigms.
One may argue that law’s equality component (that law all people in society are subject to the same law) makes law autonomous but that argument, from Commodity-Form Theory’s perspective, is flawed. If the law states that all people in the country cannot eat in public but there are those without private dwellings or the means to utilise private spaces (such as restaurants) for consuming food then this equal application does serve one and not the other. The person with means need not consider the law because he or she has access to private space. Under Capitalism, law is equally applied to social relations but its impact is unequal due to the economic advantages each person, household and entity holds. Law, therefore, is equally inequitable by its very nature.
Law sits above capital only to reinforce capital. Laws are used in ways which reinforce the inequalities capitalism produces. Legitimacy comes through the faux impartiality of law. If the product of impartial application is a partial outcome the application itself is a hollow shell for bias. Therefore, Capitalism is the base of what is considered “law”.
Another example of the masked inequity of law through faux autonomy to meet capitalist ends can be found in international law. Under Mercantilism, trade barriers were law. This was the time of colonialism when capitalists considered protecting domestic markets as key to profit. As capital saturated domestic markets, capital needed to find new markets and free-trade was introduced (at the time that colonies became independent States). The new States who under mercantile Capitalism would have had the space to develop via protectionism were subjected to the new rule of free trade.
The inequity of free-trade law becomes apparent when one considers the reality that young markets lack the capital to fend off large influxes of capital competition into their markets. The reality is apparent when one considers the destruction of Jamaica’s milk industry and subsequent use of the international monetary funds first structural adjustment programme constructed by the United States of America which would see much of Third World being forced into similar “agreements”.6
Commodity-Form Theory sees nothing autonomous about law. There is no legal form to law. That is not to say that law is not legal. To say that law is not legal is to suggest that there is an institution which forms Standards which we can call law.7 Instead, law is part of the superstructure, just like culture, education and whatever else, responding to capitalism’s needs.
Fetishism
It is easy to find appeal in the idea that we are all equal under the law. This sense of equality makes humans believe that they relate to each other socially as equals. In other words, if we are equal under law we are equal politically.
Commodity-Form Theory argues that the sense of social equality produced by legal equality produces a fetishistic fixation with law. Just like any other commodity we become fixated with law because it appears to alleviate the power imbalance of economic inequality. The common person believes himself or herself equal to any other person because he or she can bring a lawsuit against another. Any person can sue another but a suit costs money. Without means a suit is unlikely to get off of the ground or get very far if it does take flight. Generally, in the case of crime, the legal action belongs to the government which may deny you the right you believe yourself to have. It, therefore, becomes quite difficult to say that law alleviates economic power imbalances.
Balbus argues that it is the ignorance of the origins of commodities as human ideas that results in Fetishism.8 It is the belief that law is a self-created phenomenon which precludes change upon the law in a manner that makes law reflective of the reality of inequity. Commodities are believed to have a life of their own but in reality they do not. They are but material spawns of mental copulations.
Fetishism causes the common person to advocate for perpetuating a money-system even to their disadvantage because equal access to money gives the illusion of social equality. The legal system is deified because it is believed to give (a false sense of) social security. However, one can have access to redress in order to secure property rights but not the property upon which to make property claims. Often, “rights” are legally real and socially fictitious.
Conclusion
Commodity-Form Theory allows us to more materially understand the underlying politico-economic forces underpinning law. For those who are interested in the social ramifications of legislation and legal interpretation this theory is a vital component of a the mental toolkit. Pashukanis’s thought may enable us to better appreciate what “change” really means in terms of not only law but other political institutions. Commodity-Form Theory deserves wider scrutiny in order to harness its full potential as an explainer of social interaction and humans relations to the products of their own ideas.
William M. A. Chandler is a Barbadian and Caribbean Philosopher currently enrolled as a Doctoral Candidate in Law at Queen’s University Belfast.
Notes
- ↩Evegny Pashukanis, The General Theory of law and Marxism (Pluto Press, 1987) Chapter 5
- ↩Karl Marx, (Capital Volume 1, Penguin 1990) Chapter 3.
- ↩Isaac D. Balbus, “Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law” [1977] 11 Law & Society Review 3, 573.
- ↩Ibid, 584.
- ↩Pashukanis [1987] Chapter 5.
- ↩Life and Debt (2001).
- ↩Susan Marks, “International Judicial Activism and the Commodity Form Theory of International Law” [2007] 18 The European Journal of International Law 1, 206-208.
- ↩Balbus [1977] 582 -584.