Date: Sat, 11 Jan 1997 01:53:07 -0800 (PST)
Subject: BHA: contract critique


Hans, Whatever frustration I can lay claim to does not require
apology!  I welcome the focus on basic issues and methodology in
your critique.  We do seem to bring different perspectives to the
analysis, so I'm eager to clarify the differences with the hope of
correcting misperceptions or errors and adding to our
understandings.
 
1.   "True autonomy."  What is the standard of critique here?  By
autonomy I do not mean a relation of will only, but a relation of
an agent of production to the means of production.  An agent of
production who is autonomous possesses a good produced separately
>from other production processes.  The commodity form appears as the
predominant form of wealth when the actual process of labor depends
on the sale of labor power as a commodity.  But Marx points out in
the Grundrisse that this form need not tell us anything about the
actual process of labor which produced the good as a commodity. 
Commodity production was sufficiently well developed in the ancient
world to lay the foundation for the world wide impact of Roman law
on modern law.  Similarly we can expect commodity production to
continue during the transition to socialism (it is a political
error to ignore the underlying basis for this).   Whether under
slavery, capitalism, or the transition to socialism the commodity
form expresses particular characteristics of the process of
production.  It does not express the relationship of the direct
producer to the means of production.  It does express the
relationship of separate processes of production to one another. 
They are autonomous from one another.  This autonomy is as real and
true as the difference between the small cabinet shop around the
corner from where I sit to the newspaper plant a few blocks over. 
 
 
Extended to the direct producer the results of this autonomy are
mixed.  For the petty producer, separate and independent production
represents an advance over relations of personal dependence.  For
the wage slave, freedom to sell labor power as a commodity is a
charade:  because the condition for this is the separation of the
direct producer from the means of production the material
conditions for the actual exercise of autonomy in a material sense
are missing.  But this belongs to the explanation of capital.  My
analysis is focused on the commodity form.  I intend to extend the
analysis to examples of the form of capital in law, but that is
work still to be done.
 
2.   "The equality of human labors."  Hans argues that I can not
derive the results I claim to solely by relying on autonomy and the
social division of labor.  He writes:  "This is not sufficient to
derive exchange.  They exchange because their labors are socially
equal."  
 
I think this is not so.  I have said that the social relation which
generates the commodity form is a particular distribution of the
agents of production with respect to the means of production.  The
essential structural form can be captured in a couple of sentences
>from sections 1 and 2 of chapter 1 of CAPITAL:
(1)  "Only such products can become commodities with regard to each
other, as result from different kinds of labor, each kind being
carried on independently and for the account of private
individuals."  (Ch 1, s2).
 
(2)   "Whoever directly satisfies his wants with the produce of his
own labour, creates, indeed, use-values, but not commodities.  In
order to produce the latter, he must not only produce use-values,
but use-values for others, social use-values." (Ch1, s1).  
 
This is the foundation:  the production of an object of utility
which is useless to its producer within the context of a labor
process that is separate and independent.  Autonomy which is not
self-sufficient.  The rest is emergent.  
 
In particular, the equality of human labor is emergent.  
 
*If* (1) I produce separately and independently, and *if* (2) I
produce only products useless to me, then I am driven to exchange. 
Nothing more is needed.  
 
On this view the equality of human labor is not an assumption of
analysis but a product of activity.  "Im Anfang war die Tat."  The
equality of human labor is accomplished by the act of exchange:
linen is equated with a coat by the act of exchange, a mansion can
be equated with so many tins of shoe polish, etc.  It is by
actually exchanging these things for one another that we equate the
labor embodied in them.  
 
So the equality of human labor is not necessary to derive exchange. 
Persons or entities which independently produce use-values useless
to them exchange because they have no other way to meet the
totality of their needs.  Their labors are rendered equal as a
consequence of their exchange and thus as commodity production
matures the equality of labor becomes a presupposition of social
reproduction.  But it is not a presupposition of the structural
foundation from which the developed form emerges.
 
In any event I know of no part of the analysis of consideration
which is unexplained because I have not developed the point.  On
the other hand, progress in the analysis of contracts, as well as
other legal forms corresponding to the commodity, would definitely
require proceeding from the equality of human labor:  for example,
my guess is that explaining why a contract offer is interpreted
objectively according to the understanding of a "reasonable" person
would require this.  So too, I suspect, would explaining the
standard of "reasonableness" in negligence or explaining money
damages as the principal form of remedy for harm, etc.
 
3.   "Capital's purpose."  Hans writes:  "Capital indeed has a
purpose, namely, self-valorization."  
 
I think we're better off insisting rigorously on the fact that
social relations do not purpose or intend.  The fundamental
tendency of capital, of the way it tends to behave, is self-
valorization.  We do not need to call that it's purpose.  Because
of what it is, that is what it does.  That is what a scientist
wants to be able to establish about a thing.  Oxygen is a flammable
gas.  That doesn't mean its purpose is to burn.  Iron is attracted
by a magnet.  Is the purpose of an acorn to become an oak?   These
things act according to the tendencies of what they are.  But
intention or purpose require the capacity not only to monitor our
activity but to monitor the monitoring of our activity.  We have an
organ of consciousness to accomplish this.  In other systems growth
and reproduction are monitored differently.  Social relations such
as capital, marriage, exchange, etc. are causally efficacious. 
They reproduce themselves and mature.  But we need to identify the
mechanisms of such processes as they really operate.  
 
I think it is correct to say, as Hans writes, "capital forces the
individuals," for this attributes causal efficacy to capital, and
that, without doubt, it has.   In the interests of precision,
though, I do not say or imply that "individuals . . . *welcome* the
laws."
 
In this connection, if Hans' critique of my "too passive view of
the irreducible social forces" is that in referring to society
being reproduced or transformed (rather than purposing or
intending) I did not bring into sufficient relief society's causal
efficacy, I accept the clarification.  I think this is an important
gloss on Bhaskar's distinction. 
 
3.   "Velvet gloves."  Hans writes that I am "velvet gloving
capitalist social relations too much.  There is a taboo against
recognizing the damage the capitalist state inflicts on
individuals, and you do not seem quite immune to this taboo."  
 
My guess is this is at least partly a stylistic concern and I
readily acknowledge I would love easy facility with the acerbic 
bite of Marx's prose.  I have tried to give a scientific account of
a particular legal doctrine emergent from the commodity form, and
written to reach a broad legal audience, but this cannot be
bloodless science and were such an account to shrink in the face of
taboo it would lose its claim to science, surely.  So I take Hans'
critique as a point of attention.
 
Still I don't know what to make of much of the challenge.  Perhaps
part of the problem is Hans wishes the article had different
objectives, and I hope I have the opportunity to write the articles
he would like to see.  But I have written here only of the
commodity and not about capital or the capitalist state.  Moreover
I have written to show only the way in which a particularly
enigmatic legal doctrine -- one puzzling enough to be called "the
central paradox of the common law" -- can be explained if we start
with the social relation which gives rise to the commodity form. 
I have not written to critique the commodity form as such.  
 
Also I do not understand the theoretical ground for many of these
criticisms.  What is the framework of analysis within which they
are rooted?  For example,  arguing that autonomy is not true
autonomy but "forced isolation," Hans writes, "This isolation on
the one hand and its flip side, the fact that property laws
unconditionally override any other human need, are the two poles of
the contradiction between bourgeois and citizen.  As bourgeois,
i.e., as self-interested economic agent, the individual has the
license to pretend he or she is alone in the world; but he has to
pay for this license by his unconditional subjugation to the laws
of private property."  
 
What can really be said here is that production for exchange
overrides production for use responsive to human need.  My analysis
of autonomy is consistent with that.   For the rest, the "license
to pretend," etc., apparently refers to the fact that the
separateness which characterizes commodity property is a
contradictory social form because production is not in fact
separate production for the producer's own use, but production for
others, social production.  The self-interested economic agent, a
social individual, confronts as given a web of social relations of
which his or her isolation is a product.  If this is what is being
said, then my analysis is consistent with that also.  If something
else is being said, I don't understand it.  I realize Hans' hasn't
explained his theoretical framework.  Moreover it is enough that he
locate failures of my analysis, not that he supply what is missing.
Nonetheless, I don't understand the perspective. 
 
I don't understand, for example, what is being made of "the
bourgeois/citizen split."  Hans writes:  "[consideration] uses
guilt feelings about one's own needs (which flow from the
bourgeois/citizen split) as a de-motivator which numbs people
sufficiently so that they allow themselves to be treated as objects
and subordinated as objects."  I don't have any idea how these
categories are developed from the commodity form.  What are "guilt
feelings about one's own needs?"  How does guilt derive from the
commodity form?  How might it shape legal form?  How are people
numbed?  What mechanisms are at play here?  What is their
derivation?
 
I have traced the lineage of a single legal form from underlying
relations of commodity production. The concepts Hans uses suggest
ideological and psychological mechanisms of significant complexity
in themselves.  In the laboratory a natural scientist is able to
identify the operation of causal mechanisms by excluding extraneous
influences.  Wouldn't the same principle apply here?  These
mechanisms may be relevant to an understanding of the social impact
of the commodity, but are they *necessary* in a substantively
transcendental sense to a demonstration of the emergence of an
elemental legal form?
 
In my analysis I have tried to build an argument using only what
was required to show an underlying (substantively transcendental)
necessity from consideration, to promising, to exchange, to
"interdependent autonomy."  I wanted to show that the cycle of
social reproduction which gives rise to exchange must be extended
to include a particular legal doctrine.  In the process I have
tried to go no further than I could trace to the social relation I
started with, and I have tried to avoid unrooted conclusions.
 
Hans continues:  "I don't think Howard sees this [that people allow
themselves to be treated as objects] when he writes sentences like
'if a person's promises are to be performed or the harm caused by
nonperformance redressed, the promisor will sooner or later have to
be compelled to comply."  The example Howard gives is a crop
failure caused by drought!  Commodity exchange indeed makes an
individual pay for crop failure instead of treating it as a damage
to everyone which has to be redressed socially.  Someone who
wonders why capitalist prisons are so full should stop here and
point this out instead of continuing as if nothing had happened." 
 
I agree that forms of associated ownership would open the
possibility for a "withering away of contract" such that
individuals would adjust to adverse circumstances like crop failure
by using "from each according to her ability, to each according to
her need."   Also, in the paper I explictly state that the social
relation of exchange encourages individuals to view each other
instrumentally.  Necessarily in the act of exchange we treat each
other as means to our end.  But "allowing"?  Transforming the
social relations of commodity exchange will take a good deal more
than withholding permission.  As RB remarks in SRHE, the first
consequence of enlightenment may be disillusion as we recognize we
lack the material tools, organizational and otherwise, to do
anything about our condition.  Moreover, why does the use of a non-
nefarious example -- crop failure -- not show *more* dramatically
than some charged example how coercion is a consequence of the
commodity form?  Marx does not allow the analysis of profit to turn
on lying and cheating, for example.  But perhaps I have not
understood Hans' point.  
 
In any event, I thought anyone interested might be able to better
appraise the exchange if I attached pages from the introduction
containing the crop failure example.  These pages reflect the style
and summarize the analysis insofar as they suggest the place of
consideration in the reproduction of commodity exchange.  They do
not summarize the consideration analysis itself.  They do reflect
the tone of the piece.  I'll include this in an accompanying post.
 
What I hope to have accomplished is a work of actual legal
analysis.  We have lots of polemic about capitalism, and I have
paid some of those dues myself, but a century and a half after the
Manifesto, we are painfully short on social theory advancing the
analysis begun by Marx.  I think Bhaskar is as important as he is
because he has done some real underlaboring on that score -- he has
not just reviewed old themes, but done real work.  (Real advance in
social analysis, BTW, is the most valuable way to respond to the
postisms.)  Marx and Engels thought law played a role in capitalist
society comparable to that played by the church in medieval
society, but where is the science of law?  Not just general
discussions, but reliable social analysis?  By making available a
realist reading of Marx, by exposing its significance, we can hope
CR makes advance possible on all fronts of social theory. 
 
Many, many thanks to Hans for his arguments!  I also hope my
responses generate a minimum of frustration and are accepted in a
comradely spirit. 
 
Tobin reminds me I have chili to stir . . . 
 
Howard
 
  


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