On the critique of rights. Marx, Marxism, Foucault

Transcription

1 On the critique of rights Marx, Marxism, Foucault

2 Marx s ambivalence Rights as social form of the modern subject Rights as mere semblance concealing class exploitation

3 Equal right and exchange Although individual A feels a need for the commodity of individual B, he does not appropriate it by force... owners of commodities recognise one another reciprocally as proprietors, as persons whose will penetrates their commodities... the juridical moment of the Person enters here all inherent contradictions of bourgeois society appear extinguished... and bourgeois democracy even more than the bourgeois economists takes refuge in this aspect. (Grundrisse:243, 251)

4 Freedom, equality and Bentham The sphere of commodity exchange is a very Eden of the innate rights of man the realm of Freedom, Equality, Property and Bentham: Freedom because both buyer and seller of a commodity... are determined only by their own free will... Equality because each enters into relations with the other as with a simple owner of commodities and they exchange equivalent with equivalent. Property because each disposes only what is his own. And Bentham because each looks only to his own advantage. (Capital 1: 280)

5 Formal and social equality Equal right is a right of inequality in its content like every right (Critique of the Gotha Programme). if one grows impoverished and the other grows wealthier then this is of their own free will.

6 Worker and capitalist a worker who buys a loaf of bread and a millionaire who does the same appear in this act as simple buyers... all other aspects are extinguished (Gr : 251).

7 Right to the product of one s labour Originally, the rights of property seemed... grounded in man s own labour Now, however, property turns out to be the right on the part of the capitalist to appropriate the unpaid labour of others or its product and the impossibility of the worker of appropriating his own product.

8 Right of Alienation The separation of property from labour becomes the necessary consequence of a law that apparently originated in their identity. (Capital 1: 729)

9 Inversion the law which presupposes that we own the products of our labour turns... through a necessary dialectic into an absolute divorce of property and appropriation of alien labour without exchange (Gr: 514).

10 Marx s Life project the connection of political economy with the state, law, morality, civil life, etc. is only dealt with in so far as Political Economy itself professes to deal with these subjects. (Engels) project : to present one after another a critique of law, of morality, politics, etc.... and then finally... to show the connection of the whole.

11 Form and Semblance Marx contrasts value as real appearance with rights as mere semblance What difficulties and misinterpretations does this lead to?

12 Splits within Marxism

13 Evgeni Pashukanis Law and Marxism 1924

14 Pashukanis' central claims Social foundation of law lies in commodity exchange Law as expression of bourgeois social relations Law as a historically specific and transitory form of authority

15 Social foundation of law in commodity exchange a) subject of rights (juridical subject) as owners of commodities b) legal relation between subjects as expression of exchange relation between commodity owners c) fetishism of legal subject alongside fetishism of commodities d) legal regulation required for society based on conflict between private interests

16 Rights as bourgeois social relation a) inequality: formal equality presupposes social inequality b) fetishism: social relations between people appear as subordination to an impersonal power c) abstraction: abstraction of legal subject as free and equal person from social relations d) competition: rights premised on mutual conflict between isolated legal subjects e) alienation: law really becomes impersonal power above society f) mystification: rights veils class basis of society

17 Law as transitory form of authority Development of law with generalised commodity production and capitalist society Primitive forms of law go back deep into history - defence of rights through vi et armis In capitalist society technical base is constructed for communal, non-legal relations e.g. solidarity of labour and cooperative labour in factory Transcendence of law in communist society replaced by technical forms of authority Technical regulation is based on identity of interests among members of collectivity seeking same goal

18 Critique of Pashukanis Social base of law not in commodity exchange but in commodity production Legal formalism - neglect substance of law - homogenise different forms of law Inadequate conception of relation between law and the state and of technical regulation

19 Edward Thompson Social historian Warwick University Inc Whigs and Hunters 1975

20 Thematics Critique of legal nihilism dressed up as Marxism Critique of bureaucratic statism dressed up as Marxism Base and superstructure metaphor breaks up unity of experience Rule of law as an unqualified human good

21 EP Thompson - Marxism and activism In the 1970s and '80s Thompson polemicized against threats posed to civil liberties and democratic rights by modern governments: branches of the `liberty tree lopped off one by one and `free-born Englishman' was becoming chattel to the state. Thompson identified `muggers of the constitution' not as `criminals, terrorists and subversives' but as the state itself

22 Reconstructing Marxism against drift to authoritarian statism essential for Marxism to put its own house in order Not dismiss law as instrument of class rule. If human rights were merely an illusion, then the only significance of their loss would be to clarify the class struggle. If all states were inherently authoritarian and all inhibitions on power were `tricks to provide it with ideological legitimation', then movement from one state form to another would make no essential difference.

23 Cynical reason This `Marxist' rhetoric was in fact an exercise in cynical reason Dulls the `nerve of outrage In the 20 th century `even the most exalted thinker able to note difference between a state based on the rule of law and one based on arbitrary, extra-legal authority.

24 Theoretical reconstruction Marxist essentialism substituted `Platonic notion of the true, ideal capitalist state' for actual capitalist states; Marxist functionalism defined idea of rights exclusively in terms of class domination; Marxist reductionism turned rights into mere confirmation of existing property relations.

25 Theorising rights Rights should be seen as form of mediation impose `effective inhibitions on power' Defend citizen from `power's all-inclusive claims If law is to be effective as legitimation, then rulers must to some degree live up to its universal and egalitarian standards.

26 Michel Foucault Rights and power

27

28 Images: After the revolution

29 Bentham s Panopticon

30 Bentham s Panopticon

31 Bentham s Panopticon

32

33 Pentonville

34 Pentonville

35 Pentonville

36 Prison chapel

37 Contrasting regimes

38 The old form of power 1757 Damiens the regicide condemned "to make amende honorable before the Church of Paris conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds flesh will be torn from his breasts, arms, thighs and claves with red-hot pincers, his right hand, holding the knife with which he committed the parricide, burnt with sulphur Where flesh torn away, molten lead, boiling oil, burning resin, wax and sulphur melted together will be poured body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes and his ashes thrown to the winds

39 And the new form of power The prisoners' day will begin at six in the morning in winter and at five in summer. They will work for nine hours a day throughout the year. Two hours a day will be devoted to instruction. Work and the day will end at nine o'clock in winter and at eight in summer. Rising. At the first drum-roll, the prisoners must rise and dress in silence, as the supervisor opens the cell doors. At the second drumroll, they must be dressed and make their beds. At the third, they must line up and proceed to the chapel for morning prayer. There is a five-minute interval between each drum-roll. The prayers are conducted by the chaplain and followed by a moral or religious reading. This exercise must not last more than half an hour. Work. At a quarter to six in the summer, a quarter to seven in winter, the prisoners go down into the courtyard where they must wash their hands and faces, and receive their first ration of bread. Immediately afterwards, they form into work-teams and go off to work, which must begin at six in summer and seven in winter.

40 Foucault s observation We have, then, a public execution and a timetable they each define a certain penal style. Less than a century separates them. the entire economy of punishment was redistributed. a time of great scandals for traditional justice and innumerable projects for reform. a new moral or political justification of the right to punish

41 A new age of penal justice Russia, 1769; Prussia, 1780; Pennsylvania and Tuscany, 1786; Austria, 1788; France, 1791, 1808 and 1810 UK?

42 Foucault s question why the disappearance of torture as public spectacle? attributed too readily to a process of "humanization - to rise of human rights?

43 Foucault s answer Not result of a growth in human rights but of new organisation of power or rather growth in human rights was expression of new organisation of power

44 New organisation of power Micro-physics of power (detail) Docile bodies (training) Torture of the soul (guilt) Infra-law (law within the law) Secrecy (walls keep public out) Power as a social relation (mutual inspection) Power/knowledge nexus (science and power)

45 Critique of liberal rights theory trapped in traditional ways of viewing power In our thinking not yet cut off the king s head Against Marxism: power not property of class or state Against liberalism: rights about power, not freedom

46 Critique of Foucauldian approach to rights View the world through prism of power and interest is there not more to social relations than power and interest? Prioritises one side of bourgeois reform over other, utilitarian over humanitarian, but both were co-present Devalue idea of humanity as illusion or mechanism of power, but is this not reductive?