Commodity form schmommodity form.

Notes on Isaac Balbus’s “Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law”

I read this a while back and appear to have never taken notes on it. I looked at it again and took these. I’m skeptical from the outset because of the title. Talk of “form” usually annoys me as it tends to go along with being ahistorical, having an unwarranted sense of certainty, and an air of pseudo-profundity. Which is not to say that all “form” talk is bad (sere we see the dialectical unfolding of the skeptic-form in relation to the form-form) so much as I raise my eyebrows, or narrow my eyes (I just tried to do both at once, that’s hard) and I think “why do you opt for this vocabulary?” Anyway.

Balbus begins with stating his aim: sketching “a Marxian theory of law.” His theory will reject what he calls instrumentalist understandings of the law (we might call this the cynical conspiratorial theory of law – a closed door meeting of ten guys in top hats twirling their mustaches) and formalist ones (we might call this the insufficiently cynical or angelic theory of law – judges deciding in a heaven of legal forms). The first attributes law no autonomy from the rest of society, the second attributes it far too much. (I’ve also heard this posed as externalist vs internalist: should one understand law by reference to its larger context or its internal working, and how much by each? Posed that way the answer seems kind of an obvious truism – “some of each, depending on what you’re doing.”)
Balbus suggests the need “to pose the problem of the specific form of the law and the way in which this form articulates with the overall requirements of the capitalist system.” (I hereby reiterate – but relegate to parentheses – my snarky remark about this form-talk.) In a footnote Balbus rejects the view that law is “a direct reflection of consciously articulated and organized pressures.” (215.) That makes sense to me. He suggests he will later get into “the relationship between the legal form and the specially capitalist whole of which it is a part.” (216.)

Balbus notes, rightly and I think insightfully, that the relationship between law and “the will of social actors” is distinct from that between law and “the capitalist system of which [social] actors are the agents.” Balbus suggests that any debate between instrumentalist and formalist perspectives will be inadequate if it centers one “the assumption that law must be judged “autonomous” to the extent that it functions independently of the will of extralegal social actors.” (That is: law’s autonomy or not is not best understood as a matter of whether or not mustache twirling men in top hats get their way out of the law or not.) Balbus suggests that law is important for “the systemic requirements of capitalism precisely because it does not respond directly to the demands of these actors. In other words, it is one thing to argue that the legal order is autonomous from the preference of actors outside this order, but quite another to argue that it is autonomous from the capitalist system.” Law’s contribution to the staying power of capitalism is not the same as law’s contribution to currently existing capitalists getting their way.

That’s interesting and I find it convincing, I found myself nodding a bit. But then we’re onto “the logic of the commodity form” and I was rolling my eyes again. (Among other things, Marx doesn’t really tell us that “this logic” of the commodity form is “mysterious.” He may say it, but it’s not clear that he’s being direct. Just like when Marx says the commodity form is a metaphysical and theological matter, it’s not clear he means that in a straightforward way. As usual with this kind of thing we’re quickly into epistemological sorts of claims – “by virtue of the double mystification inherent in the commodity form, human beings necessarily “forget” that commodities owe their existence to human needs and to the activity in which people have engaged both to produce and fulfill these needs. (…) the fetishism of commodities: the masking of the link between commodities and their human origin gives rise to the appearance, the ideological inversion, that commodities have living, human powers.” (218.) And it’s all so deep and profound and whatnot… Ugh. I don’t even have the energy to get snarky about this right now (I’m too tired for something this tiresome) let along to engage with this in a serious way and lay out my objections. I’ll just say for now: this is silly. (If anyone were to read this, this would be a cue for someone to trot out some shibboleth or another about how I’m not REALLY a marxist/radical/decent human being/whatever because I don’t accept the muddleheaded received wisdom of treating this perspective and the attendant passages from Marx’s Books with the proper deference.)

Balbus then turns to “the logic of the legal form” (my stupid typing program is set to autocorrect what it takes to be typing errors – about which, something something fetishism something dead labor blahblahblah real subsumption – and I’m too lazy to figure out how to fix it; it changed “legal” to “legume” leaving “the logic of the legume form” which is funny and in a way that I think gets at the silliness of this kind of form talk). He asserts that in the early Marx one can find “an analysis of the legal form which, in its essentials, completely parallel his more systematic, fully developed analysis of the commodity form.” (219) Balbus argues that under capitalism just like how “products take on the form of individual commodities, people take on the form of individual citizens.” (219.) Never mind the great many people who don’t take on this form… (Don’t fact me! I’m theorizing!) Initially the point is just an analogy: products are in many senses different but commodification involves something like a kind of equating; people are in many senses different but being citizens involves something like a kind of equating. (Balbus overstates these points, by the way, as if difference and sameness were ontological givens.) Balbus suggests that this analogy is more than an analogy and is somehow a kind of causal relationship of some sort. He unfurls this analogy into a criticism of law treating people as a kind of equal who are also unequal in important ways with regard to social power, an equality that reinforces important inequality. (I’m reminded of the famous line by Anatole France: “The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread.” Ah, and a moment later Balbus quotes another version of this quote. Nice.)

Balbus adds that “legal equality functions to mask and occlude class differences and social inequalities, contributing to a “declassification” of politics which militates against the formation of the class consciousness necessary to the creation of a substantively more equal society.” (221.) I think I agree with what I take to be the main political point here (something like, not law, but something else, in terms politics) but I find this way of formulating the point unsatisfactory. “the legal form splits off the concrete social existence of the individual” and treats the individual as nothing more than an empty and abstract legal individual. That seems overstated to me, and seems to me that leave out important transformations in the type of material law has trafficked in (which is not to speak in favor of the law, it’s just to say that this claim is one that doesn’t make distinctions worth making analytically). Likewise when on the same page Balbus writes that “The juridical person, in other words, is merely the political persona of the individual whose social existence is instrumental, self-interested, and alienated; the individual, in short, who fails to act as a social individual aware of the inseparable relationship between his or her development and the development of every other individual.” (222.) But at least some of the time some courts do connect the development of individuals with the development of some other individuals: courts can deal in social or at least aggregated individuals. That’s just true. (222. Which, again, is not to defend courts.)

I’m not sure about the stuff on legitimation. I think this is thought provoking though:
“As long as “formality,” “generality,” and “equality before the law as seen as genuine human values, even gross and systematic departures from these norms in practice will not serve to delegitimate the legal order as a whole, but will at most tend to delegitimate specific laws and specific incumbents of political office who are responsible for these laws.” (225.)

Balbus proposes in a footnote that we need “a theory of fetishism (…) which would account for why [questioning of fundamental legal norms] does not and cannot take place.” (226.) Bah.

The semiotics stuff strikes me as dated and quaint but if scaled back (or, if rationally reconstructed) the point that commodities and law can’t express or meet certain important human needs seems fair and important to me.

The stuff on decoding and the “no mere “academic” exercise” bit is annoying. I’m really important, guys! The working class need me to understand reality for them. Ugh. Condescending saviors.

Stuff he cites that I’m interested in reading –
Poulantzas “The Problem of the Capitalist State” and his debate with Milliband
Esping-Anderson, Friedland, and Wright “Modes of Class Struggle and the Capitalist State”
Galanter, “Theories of Legalization and Delegalization”
Offe, “The Abolition of Market Control and the Problem of Legitimacy”
Offe, Class Rule and the Political System