Thus far I have outlined the historical origins of the law’s “legal character”, in its most basic form, yet embodied concretely (a concrete universal as Ilyenkov might put it). But this is not sufficient in outlining the legal character, as although the basic form has been outlined, one must still account for the law’s general character. Both bourgeois legal theory and the law as embodied in daily practice do not simply posit opposed subjects. The legal subject is seen as an abstract subject, divorced from a particular context and bears abstract rights, as asserted against another abstract subject. This is why laws are always framed in general terms, and confer general rights (even if in specific contexts).
According to Pashukanis this development does not fully occur until the advent of bourgeois society. The legal subject only becomes fully abstract with the development of exchange value and the commodification of human labour.
“In the same way that the natural multiplicity of the useful qualities of a product is in a commodity a simple mask of its value, while the concrete species of human labour are dissolved into abstract human labour as the creator of value so the concrete multiplicity of man's relationship to an object appears as the abstract will of the owner, while all the concrete peculiarities, which distinguish one representative of the species Homo sapiens from another, are dissolved into the abstraction of man in general as a legal subject.”[i]
Capitalism, as a social system, has a distinctly homogenising tendency. Capitalist production tends to reduce all labour into simple, measurable “parts” (e.g. the assembly line), and all commodities become ultimately defined by one quality their exchange value (i.e. money). This tendency is reproduced in the legal sphere, which, as it expands to embrace more and more people, is necessarily divorced from particular concrete circumstances. This transformation is linked with the process I will describe below, as one can only understand the generality of law if one understands its universality.
The problem with Pashukanis’ conception of the legal form is that, in its purest state, it is only applicable to those disputes as arising from the commodity form, that is to say, property and contract law. Obviously this cannot be right; the law is a form of social regulation is all pervasive in modern society. Therefore it is necessary to historically outline how the law comes to regulate other aspects of social life.
As I have outlined, the legal form is generated by the commodity form. Therefore in those societies where there was commodity exchange the legal form would regulate disputes arising from exchange, this must be remembered as an ever present feature. There are two interlinked factors that allow for the rise of the legal form, one political and one economic, both of which working in reciprocal determination.
In societies prior to capitalism one’s position in the socio-economic order was determined by status. This meant that in any dispute there would be a command, and then someone would obey. Customary or hereditary hierarchical relations determined how things worked and disputes were resolved in this manner. Although law did exist it was confined to narrow limits and confused with a series of other social regulators.
However, in the move to capitalism such status was seen as a hindrance to commodity production. For, formally at least, capitalism is based on equality in the market. Since, historically, customary privilege had been largely economic it was necessary to remove it, so as to create the market. Therefore the bourgeoisie, at its birth, carried out a struggle against such privilege.
Simultaneously with this the commodity form, as the ‘unit’ of capitalism,[ii] gains more andmore prominence. Commodity exchange, as has already been discussed posits individuals as formally equal in the economic sphere, whilst simultaneously generating the legal form, and therefore legal subjects. As capitalism begins to constitute itself, the modern working class is created, and labour becomes a commodity. What this means is that as hierarchical societies are destroyed all people become commodity owners.
Therefore all people are, in one area or another, legal subjects, yet this is still simply confined to disputes arising from commodity exchange. And here the link to the disintegration of feudalism rears its head. Dispute can no longer be coordinated by custom, since such regulation is positively antithetical to the market. The specifity of the commodity form and the legal form, combined with the collapse of custom means a combination of social regulation would be incoherent.
But how is it that the legal form comes to regulate these other disputes. As I have already said, at this point people, as commodity owners are already constituted as legal subjects, in terms of commodity exchange. Therefore, the legal form begins to shape other disputes too. Since it already exists, and since bourgeois society has a fragmenting tendency it is only logical that it come to regulate all social grievance (where there is a vacuum). Thus people, in all disputes, are interpelllated as legal subjects, abstract commodity owners asserting their rights. Legal subjects therefore are not simply recognised as such since they are commodity owners, otherwise only commodity disputes. Rather, they are interpellated as legal subjects, in part because they are commodity owners, the existence of the commodity form obviously generates the legal form, but it is only with the collapse of hereditary customs that the legal form comes to interpellate all as legal subjects, even in those areas unconnected from exchange.
As more and more people are rendered as legal subjects, until all are, it is obvious where the abstract character of law arises. Since everyone is a legal subject any concrete differences must be obliterated so that the legal form can provide a form of regulation.
Such an examination of course raises problems. Firstly, the example used here is the transition from feudalism to capitalism, which begs the question as to why there were legal systems in slave and feudal societies. Obviously, the legal form had already been generated by the commodity, yet one must still explain why other aspects of life had come to be regulated by it. The first point to make is that there were a number of people who were commodity owners, and so were interpellated as legal subjects. Most people who could own commodities were equal in status, and so customary duties would not serve to regulate. Therefore, on a small scale legal relations did exist (remembering that many people were not recognised as legal persons). Yet in this period the law was much less ‘pure’ and ‘abstract’, instead being ‘mixed up’ with other forms of regulations, and tied very specifically to certain situations. Furthermore, the legal subject was not abstract, in that it was typically a Roman citizen who was a paterfamilias. Finally, the fullest Roman law was that which was related to commerce and exchange.