Exploitation, Marxism, and Labour Law (Part Two)

This is the second in a series of three posts in which Joe Hayes and Pearl Ahrens translate Alexis Cukier’s “Exploitation, marxisme et droit du travail”, originally published in Contretemps. Revue de critique communiste. The original text is available here. The first post is available here.

The Three Models in Twentieth-Century Marxist Theory

A. First Model

The first model is a radical critique of all forms of bourgeois right, including employment rights, which are considered to constitute an ideological reflection of the capitalist mode of production, and therefore an inseparable companion of exploitation. Evgeny Pashukanis’ The General Theory of Marxism and Law remains the classic work of this type, developing a Marxist theory of right and a “critique of juridical concepts” in which the content and form of law have a character just as “fetishized” as that of the commodity-form [la forme de la marchandise] in political economy.

The law in capitalist societies is, therefore, a weapon of the exploiting class:

In bourgeois society, as opposed to the societies built on slavery and servitude, the juridical form acquires a universal significance: that the juridical ideology becomes the ideology par excellence, and that the defence of the exploiters class interests appears, with ever more success [sans cesse croissant], as the defence of the abstract principles of juridical subjectivity.⁽¹⁾

Certainly, this passage does not speak strictly about exploitation, but rather about what Lukács called “reification” (which also aims at “the formal rationality of Right,”)⁽²⁾ and so permits us here to critique right: according to Pashukanis, the individual becomes, in effect, a “simple incarnation of a juridical subject, abstract and impersonal, a pure product of social relations”.⁽³⁾

However, Pashukanis recognizes that the historical evolution of rights “does not accomplish itself in a linear manner, nor bearing the consequences of logical deduction”.⁽⁴⁾ In his thesis, The Nature of Things and the Law: An Essay on the Dialectic of Fact and Value, Nicos Poulantzas builds on Pashukanis’ analysis, yet also searches to “respect the specific internal structures of a juridical order and to study their relations with infrastructure”.⁽⁵⁾ From this perspective, one cannot ignore the social rights won in post-war France, and indeed the entire construction of the French Labour Code:

We know that work is, today, in economically developed countries, based on certain so-called social rights which aim to protect it: these positive rights are, in France, notably: the principle of union freedoms, the right to strike, the principle of workers’ control of firms, the right to collective negotiation of working conditions.⁽⁶⁾

This is why employment rights, inasmuch as they oppose the principle–at once ontological and political according to Poulantzas–of work and worker against that of capital and the individual owner, cannot be submitted to the same critique as the Rights of Man, for example. This is because labour law contains a strictly social dimension, centred on work, which is in fact a counter-power to economic relations.

B. Second Model

The second model is an analysis of employment rights as an issue and instrument of class struggle. I will refer to the specific perspective of Karl Korsch in the pedagogical Arbeitsrecht für Betriebsräte [Employment Rights for Workers’ Councils], which simultaneously proposes general arguments on the function of employment rights in the class struggle and concrete propositions inspired by the experience of workers’ councils with respect to employment rights constitutive of the project of “Industrielle Demokratie” that he defended.⁽⁷⁾

In general, Korsch’s industrial democracy implies:

Not being content anymore with affirming, in an abstract manner, that all specific rights in capitalist societies are class rights, but of finally conceiving, from a methodological point of view, the juridical domain in its concrete totality from the point of view of class struggle.⁽⁸⁾

It is from this perspective that we should understand the proposition to include juridically the participation of the worker, as a member of a firm, in decisions concerning the rule-making [réglementation] and industrial choices of their firm: this transitional demand would develop labour law “to a higher level”.

Korsch analyzed employment rights as a transitional tool in the class struggle, as a way for the proletariat to progressively re-appropriate political power for itself, in that they permit “the proletariat to transform itself in acquiring the historic function of operator of the positivity of rights”.⁽⁹⁾ Here is what we call a “class struggle within rights”: on the one hand, that which conceives of private rights (of owners) and of labour relations as an exchange between those property owners; on the other hand, social rights (of workers), according to which labour relations are conceived as social relations founded on cooperation at work. For Korsch the example of legislation for workers’ councils shows that work does not involve a purely juridical dimension, but rather that the class struggle encompasses a juridical dimension. What exactly is this question, which the author picks up again and again, of “the social view on employment rights”?

In Arbeitsrecht für Betriebsräte, Korsch proposes an ensemble of concrete legislative measures, of which I will only mention the one concerning the “immediate rights of worker members of firms”.⁽¹⁰⁾ Essential to Korsch’s project of industrial democracy is the participation of workers in diverse instances of decision-making, using what Korsch calls their “voices”: business councils, joint consultative committees, general assemblies of the firm–“the principle constitutive right of the employment contract is the right of decision-making in the ‘representative instances of the firm”.⁽¹¹⁾ Notably, this right to decision-making concerns “ the rule-making [réglementation] of the enterprise as part of decision-making processes concerning hiring and firing”.⁽¹²⁾

One can consider this work by Korsch as one of the more successful attempts–given the evident historical specificities–at circumscribing how “employment rights” would be inscribed in a project of democratization of work, and of the whole of society. However, for Korsch, the experience of legislation setting up workers’ councils constitutes not only one step in the “revolution of bourgeois-dominated labour law” but also the promise of a new social order, which must emerge from the cocoon of the former state. It is this that certain Soviet jurists would go on to theorize, against Pashukanis and Korsch, under the rubric of “socialist right”, which brings us to the third model.

C. Third Model

This third option defends the idea of workers’ employment rights as socialism realized at a juridical level. If the practical realization of “socialist rights” is indissociably tied to the specific context of Stalinism (its official promoter in the USSR, Andrei Vychinski, was the organizer of executions during the Moscow trials, of which Pashukanis was a victim), then its theoretical arguments should be analyzed on precisely how they interrogate the relations between, and potential fusion of, employment and social rights.

From this perspective, the law must be understood as the set of rules established by the state which regulate conduct, and labour law is theorized as the objective extension of the particular form of work.

Thus, the state has an obligation to furnish all citizens with work (as stipulated in Article 118 of the 1936 Constitution of the USSR), work which is no longer supposed to be founded on the exploitation of man by man. The salary is constitutionally defined as “the part of the product of work which does not go toward collective property and investment”, according to the principle proclaimed in the Soviet Constitution: “He who does not work, neither shall he eat.… From each according to his ability, to each according to his work.”⁽¹³⁾

I will only mention here the example of professional mobility in relation to the Work Handbook, such as it is given in the Labour Law in the USSR, a guide from 1949 written under the direction of Nikolai Aleksandrov.⁽¹⁴⁾ In general, the employer was not able to expect an employee to do work unrelated to activities as explicitly indicated in the Work Handbook, and the worker could not be transferred from one enterprise to another, or to another post within the firm, without their consent. But note two interesting exceptions: first, provisional transfers to another establishment necessitated by the needs of production or imposed as disciplinary sanctions; second, as stipulated by a 1940 decree, an authorization from the firm’s director or the head of the relevant public body [administration publique] was obligatory in the case of transfer, except in cases of entry to a higher education establishment or the change of spouse to another locality.

To summarize, we can say that in Soviet employment rights, it is work that has the rights, before the workers (who rather have obligations [devoirs])–and most of the workers’ rights consist of exceptions to the fundamental principles of employment rights.

Exploitation and Alienation in the Light of Work Legislation in France

Several recent sociological and juridical works on the subject of the genesis, logic, and functioning of work legislation in France further illuminate these three Marxist positions on labour law. I will mention here some analyses of the Critique du droit du travail [Critique of Labour Law] by Alain Supiot,⁽¹⁵⁾ and L’institution du travail. Droit et salariat dans l’histoire [The Institution of Work: Law and Salaried Workers in History] by Claude Didry.⁽¹⁶⁾

In Critique du droit du travail, the legal scholar Alain Supiot directly criticizes the classical Marxist alternative between the first option–“bourgeois rights which adjust themselves to work”–and the third: the construction, on existing juridical bases, of a “right in the popular and democratic interest”.⁽¹⁷⁾

Supiot notes that the first is incorrect from a juridical point of view, since “its material rationality places employment rights in a conflictual situation with the civil legal order: the ‘juridical reason’ of [employment] rights contradicts their ‘social reason’”.⁽¹⁸⁾ And since the goal of employment rights is the limitation of exploitation, rather than its elimination: “The opinion, according to which ‘socialist right’ is only the fulfillment [épanouissement] of employment rights–indeed, their final extrapolation–is total nonsense”.⁽¹⁹⁾

Supiot thus strictly defends the second option: “Labour law has had, and has still–as its first raison d’être– to overcome this lack, that is to say to ‘civilize’ the employers’ power, by designating a juridical frame in which it is exercised, that is to say in the firm.”⁽²⁰⁾

How is this reading of labour law, as a force limiting exploitation, developed into an internal juridical critique? In his work, Supiot develops three more specific arguments.

Employment rights do not define what exploitation is, but instead situate work between two conceptual poles. At one end is the conception of work as a good [bien], something negotiable, up to the limit-point of slavery (in which the worker is apprehended as an object); the other extreme conceives of work as an element of the person, who cannot be treated as a commodity–domestic, feudal, or monastic labour–and is by its nature inseparable from personal relations. In his analysis of the positive developments of labour law and social rights in the twentieth century, Supiot insists, then, on the centrality of demands concerning the legal status of the worker’s body within labour relations, which have progressively departed from that second, patrimonial conception of work in which “the worker or the employee are work or employment personified”.⁽²¹⁾

This is why “the antinomy” between the “contractual postulate, which must be acknowledged, since the work relation remains subject to positive law, and the postulate of the non-patrimonialité of human bodies, which must be respected” constitutes, in the last instance, “the place from which employment rights are conceived”.⁽²²⁾ For Supiot the error of Marxist theories stems from considering employment rights as constituting either a reinforcement of or an opposition to exploitation in the economic sense; he is, instead, concerned primarily with exploitation in the sense of “violence against bodies”, which may be put in terms of alienation or reification⁽²³⁾, but does not directly concern the extraction of surplus value.

This first argument is reinforced by the socio-historical analysis of the emergence and construction of labour law in France, as developed by the sociologist Claude Didry in L’institution du travail. Through reconstructing a general tableau of economic practices in nineteenth-century France, following the work of historians like Alain Dewerpe and Alain Cottereau, Didry calls into question current assumption about the history of labour law and exploitation: that the wage relation put into opposition, from the epoch of the emergence of employment rights onwards, two strictly distinct groups, the worker class and the bosses:

The division [césure] between workers and bosses was weakened by the fact of a generalized commodification [marchandage], which is to say a form of cascading subcontracting in which the workers employed other workers, along with members of their family, towards the realization of work or “pieces” under the command of an agent or factory director.⁽²⁴⁾

Putting this economic heterogeneity into relief leads to another view of practices of exploitation–a different reading of the emergence and development of the Labour Code. The first elements of work legislation in France were directed against short-term hiring [louvrage d’ouvrage]:

If the 19th century is characterized less by the managerial exploitation of the workers than by intra-worker exploitation, inherent in commodification [marchandage], which drove short-term hiring [louage d’ouvrage], then of what significance is the elaboration, then progressive adoption, of a Labour Code?⁽²⁵⁾

From this perspective, which shapes the general argument of the book, it was less increasing juridical control over work that constitutes progress in the Labour Code than the fact that “[t]he work contract instituted work as the specific activity of an individual–the employee linked to an employer–which thus produces a community of those linked to the same employer”–a fact that obliges, in principle, the “responsibility of the firm’s boss towards his waged workers discovering, through the work, their enterprise”.⁽²⁶⁾ This analysis then reinforces the idea suggested by Supiot: the initial aim of the Labour Code was not to limit exploitation, properly called, but alienation, in the sense of the dispossession of workers’ control over their work.⁽²⁷⁾

The guiding thread of Critique du droit du travail is the status of the [physical] body of the worker within labour law, and it is in relation to this that the principle of “security through work”, specifically the wages of work and rights of workers, are analyzed. Supiot does, however, directly examine the question of exploitation, in his discussion of the juridical principles of the minimum wage and their relations to social rights and social protection.

He recalls the existence of fairly progressive texts of the International Labour Organization and of its various international conventions–notably the 1944 Philadelphia Convention, which affirmed the necessity of assuring “a minimum salary for all those who who have a job and have need of such protection”–and the Universal Declaration of Human of Rights of 1948, which posed the principle of an “equitable” salary allowing a “decent” existence.⁽²⁸⁾ And in France, Supiot mentions the inflation-adjusted salaire minimum interprofessionnel garanti [le smig], and, after it, the cost-adjusted salaire minimum interprofessionnel de croissance [le smic], both juridical tools that aim more specifically to limit exploitation in the strictly economic sense.

For Supiot, even more than these, “the dynamic of the idea of security through work, which began with the objective of physically guaranteeing the worker’s survival, and led to an economic guarantee of ‘participation in the economic development of the nation’”, is opposed to the logic of exploitation.⁽²⁹⁾ This certainly invites the remark that this conception of the [social] security of workers, inherent in the idea of a social right, has been developed not through employment rights but through public functions, above all through changes to the social security code. And today the heart of the unions’ demands is “professional social security”, which is the basis of the “new status of waged work” as defended by the Confédération générale du travail (CGT).

However, Alain Supiot clearly shows the ambivalent relationship between employment and social rights. On the one hand, “the development of social rights has thus provoked a total reversal of the role played by the contract”, which “had over the years become an ‘Open Sesame’ permitting access to collective rights of workers”,⁽³⁰⁾ even if “the dynamic of the idea of security leads to making labour law into the common rights of relations of economic dependance”.⁽³¹⁾ But on the other hand, Supiot notes that this extension of the idea of security outside of the world of “workers” is accompanied by an individualization of rights conferred to them.⁽³²⁾ In other words, the development of employment rights within social rights carries the risk of obscuring [déréalisation] concrete work.

With the entry into social rights of “an abstract worker”, who “might be a salarié or an independent contractor, a manager or someone managed, an agricultural trader or a doctor”, and the correlating institution of the juridical category of “workers and their families”⁽³³⁾, one sees instituted and potentially generalized “[t]he development of the notion of abstract work within the rights of persons, as was produced by the prevalence of mass service-rental, and the corresponding rights and obligations, in the age of the industrial revolution”.⁽³⁴⁾

Supiot’s analyses thus convincingly show the ambivalent character of the relations between labour law and social rights in France, and consequently suggest that their convergence could lead to either the reinforcement or obliteration of the legal instruments limiting exploitation.

Finally, we will mention another tension internal to labour law examined by Supiot in Critique du droit du travail–the opposition of hierarchical subordination and economic dependence. Supiot recalls that in France the legal concept of dependance as the juridical category of waged workers became the subject of important debate in the 1930s: should the criteria of worker-ness be economic dependence or hierarchical subordination?

The first position “claimed that economic dependence retained a functional definition of dependence, which is to say that it aimed to adjust the field of application of employment rights to cover the weakest economic categories”.⁽³⁵⁾ Such an approach tended implicitly to make economic exploitation the basis of the definition of a waged worker. And it explicitly referred to the origin and level of workers’ resources as the principal criterion of who was and was not a waged worker: if a person’s resources depend near-exclusively on those who profit from their labour, then it is necessary to see them as a waged worker. However, this is not the criterion that has been retained until today; rather, it is that of the subordination of a worker to the orders of an employer. As Supiot puts it, “the character of the employment contract is not to be found in the pair ‘profit/economic dependance’ but in the pair ‘authority/subordination’”.⁽³⁶⁾

This question of the relationship between the criteria of economic subordination and hierarchical subordination–the objective of the latter to include those between artisans and waged workers, such as freelance workers [travailleurs à domicile] within social protections–is today posed in new way, linked to new practices of economic exploitation.

Joe Hayns is a student (University and College Union) and art industry worker (Independent Workers Union of Great Britain).

Pearl Ahrens learned French from her grandmother and has travelled in France and Switzerland. She lives in London.

NB: Hayns and Ahrens translated all of Cukier’s extended quotations, and replaced all references to Presses universitaires de France’s edition of Le Capital (1993) with the corresponding passages in Ben Fowkes’ canonical translation of Capital (1976). They left the titles of all other sources untranslated.

Notes

↩ Evgeny B. Pašukanis, La théorie générale du droit et le marxisme (Paris: EDI, 1990), 35.
↩ Georg Lukács, Histoire et conscience de classe. Essais de dialectique marxiste (Paris: Minuit, 1960), 127.
↩ Pašukanis, La théorie générale, 103.
↩ Pašukanis, La théorie générale, 103.
↩ Nicos Poulantzas, Nature des choses et droit. Essai sur la dialectique du fait et de la valeur (Paris: Librairie générale de droit et de jurisprudence, 1965), 272.
↩ Poulantzas, Nature des choses et droit, 138. From the point of view of the specific theoretical construction of the text: “what is important here is to signal that these rights are not tied, in the juridical universe, to values allegedly distinct and transcendent from the practical activity that constitutes work, which is to say ‘production’ [fait]”. Ibid.
↩ Karl Korsch, Politische Texte: Arbeitsrecht für Betriebsräte (Hamburg: Europäische Verlaganstalt, 1968), para. 3.
↩ Korsch, Politische Texte, 5 (“Avant-propos”), translated by Cukier.
↩ “The proletariat is transformed through acquiring the historical function of operator of the positivity of rights. Its content is in no way intrinsically linked to its struggle to liberate the constraints imposed by the bourgeois classes, but the positivity of the law is always presented as a formal shield against the use violence by the bourgeoisie, which however, when that class’ social domination is threatened, ceases to exist.” Korsch, Politische Texte, 5 (“Avant-propos”).
↩ Korsch, Politische Texte, para. 15 et seq.
↩ Notes that the author adds immediately: “but besides this right of decision is a series of others, partly from the legislation of enterprise councils, partly from the laws and regulations of enterprises themselves, which are essentially distinct from the private rights inscribed in employment contracts, for example, concerning payment; and, the constitutional rights of the employer are distinct from his ownership rights.” Korsch, Politische Texte, 149.
↩ Korsch, Politische Texte, 156.
↩ See Constitution (Fundamental law) of the Union of Soviet Socialist Republics, available at www.marxists.org. [Translators’ note.]
↩ Nikolaï Alexandrov, Droit du travail en U.R.S.S [Sovetskoe Trudovoe Pravo] (Moscow: Editions de la littérature juridique, 1948). For a summary, see “Droit du travail en U.R.S.S.” 4 (1952) Revue internationale de droit comparé 365.
↩ Alain Supiot, Critique du droit du travail, 3rd edition (Paris: PUF, 2015).
↩ Claude Didry, L’institution du travail. Droit et salariat dans l’histoire (Paris: La Dispute, 2016).
↩ Supiot, Critique du droit du travail, 201.
↩ Supiot, Critique du droit du travail, 202.
↩ Supiot, Critique du droit du travail, 205.
↩ Supiot, Critique du droit du travail, 151.
↩ Supiot, Critique du droit du travail, 51.
↩ Supiot, Critique du droit du travail, 59.
↩ See the section “Corps et bien: l’obscur objet du contrat de travail”, in Supiot, Critique du droit du travail, 51 et seq, esp. 54.
↩ Didry, L’institution du travail, 11.
↩ Didry, L’institution du travail, 12.
↩ Didry, L’institution du travail, 14.
↩ This is why the author opposed, to the destruction of work collectives by financial and management changes and to ongoing attempts to destroy employment rights, the reinforcing of the political function of comités d’entreprise [workplace-based co-management fora], and the principles of “industrial social security”, “special drawing rights”, and “industry committees”, which should permit “the strengthening of the intervention of workers [salariés] in these collectivities”. Didry, L’institution du travail, 15, 235.
↩ For these, and their discussions, see Supiot, Critique du droit du travail, 75 et seq.
↩ Supiot, Critique du droit du travail, 78. The author here relies upon articles L. 141-2 and 141–44 of the Code du travail.
↩ Supiot, Critique du droit du travail, 89.
↩ Supiot, Critique du droit du travail, 90.
↩ Supiot, Critique du droit du travail, 90.
↩ Supiot, Critique du droit du travail, 81.
↩ Supiot, Critique du droit du travail, 81.
↩ Supiot, Critique du droit du travail, 112.
↩ Supiot, Critique du droit du travail, 113.