Saturday, January 07, 2006

The right to have rights

Ok, so my laptop has finally been fixed, rather unfortunately I had to get a new hard drive, which mean I have lost quite a lot of articles and notes on articles – mais c’est la vie. Also, this holiday has been horribly busy, so I haven’t had much time to do anything particularly intellectual. Recently, I have actually started to read some interesting articles. One pretty good one I read ‘The Right to Have Rights’ by Werner Hamacher (South Atlantic Quarterly 103:2/3, Spring/Summer 2004).

The article is essentially a reading of Marx and Arendt vis-à-vis human rights, obviously what I am interested in is the Marxian perspective. Hamacher examines the oft quoted ‘On the Jewish Question’, basically – to put it in somewhat Althusserian terms – the article examines the law from an external perspective. Most of my previous ‘work’ has been looking at the legal form, and legal subjects as posited in opposition to each other. In contradistinction to this approach (and in line with seemingly most of the post-whateverist legal theorists) what is here examined is those subjects who are outside of the law, i.e. those who have a right to rights.

The basic line of argument taken by this position is gleaned from Marx’s work ‘On the Jewish Question’, here ‘Christianity’ is seen to provide the ‘secular religion’ of democracy. Christianity posits religion as primarily a private matter, this meant that the ‘human’ could be perceived as separable from the citizen:

That public, political matters were matters alien to Christians meant nothing other than that the human was henceforth not only a political being, but, moreover, and above all, a social being. Politics, on the other hand, was thereby, however discreetly, transformed into the sphere that was able to guarantee the neutrality of the constituents of the state with regard to the political.
p. 334

Now, although this is ok as it goes, I think reading ‘On the Jewish Question’ in this way isn’t necessarily right. To again sound horribly like Althusser I think we need to read ‘On the Jewish Question’ in the light of the fullest development of the materialist dialectic (i.e. read it in a Marxist way). In this way rather than seeing Christianity as the cause of the shift, a change in the religious form should be seen as symptomatic of broader shifts in the socio-economic order. The rigid separation of private and public was only really achieved with the destruction of feudalism and the rise of the commodity form. It is only at this point in history that the economic ‘backbone’ of civil society is sufficiently ‘separated’ from the direct influence of politics, under feudal regimes politics was directly identified with economics (e.g. the feudal lord is the direct political and economic ‘master’ of the peasant).

But back to Hamacher. He argues that ‘democracy’ leaves a gap between the ‘human’ and the political. The ‘political man’ is defined as against other men and within the framework of a national community. What of course follows is that the ‘human’ in human rights is the ‘political’ man, and therefore only exists within a national political context. Since this is the case those groups of people who are without a nation are not human for the purpose of human rights.

This is a basic outline of Hamacher’s position. I found it pretty interesting, and I have already been thinking of somehow trying to account for those external to the law who have not been interpellated through the legal form as legal subjects, especially because I intend to start reading Agamben. Firstly, it should of course be noted that such theorising is not incompatible with Pashukanis. On the contrary it in facts serves to reinforce his account, insofar as it sees the legal form in very similar terms. What it does force us to do is examine the process by which ‘people’ are interepellated as legal subjects.

The first point I’d like to make is that Hamacher is incorrect to limit his account purely to ‘human rights’, a more interesting account would look at rights in general (particularly as human rights are seen as a ‘last ditch’ set of rights in any case). If we do this then the first point to note is that not only humans are capable of being legal subjects. With the development of capitalism and its (seemingly inexorable) centralisation the commodity form has grown to encompass more complex social organisms. Accordingly these organisms have (of necessity) been posited as legal subjects. Thus the corporation is capable of bearing rights, as are certain political organizations. Secondly, some of these social organisms are not rooted in any particular national-political organization. Thus the UN and certain TNCs are still capable of being legal subjects. Thus we can see that although human rights (and all rights) are conceived as ‘private rights’ they are nonetheless not necessarily rooted in a specific national context. Therefore we must why some subjects without nationality are capable of being posited as legal subjects and some are not.

This in itself is a complicated question which I do not really feel up to answering in all its complexity today. However, I think it might be quite interesting to reconsider some of the earlier stuff I said about the spread of the legal form so we get some insight into what might be the driving force behind the exclusion of certain groups from legal subjectivity.

Firstly, we can examine the first context in which the legal form was articulated. In Rome only a very small number of people were actually ‘legal subjects’. Primarily it was only the ‘heads of family’ who were interpellated in this way. Slaves, women and children were all ‘represented’ by the father. Any offence committed against them was only an offence insofar as it offended or harmed the father. Furthermore, any liability they incurred would accrue to the head of the household. This seems to show that where the commodity form is confined to a narrow spectrum of the economy there will be large numbers of people who are not legal subjects. Only those whose status sees them involved in commodity exchange are likely to be posited as legal subjects.

As the commodity form grows stronger we see the expansion of the legal form. This is accelerated by the destruction of other modes of dispute resolution on the basis of bourgeois ‘freedom’. In this respect disputes not directly related to exchange are nevertheless mediated through the legal form. This might provide a grain of distinction, insofar as we see that corporations are engaged in commodity exchange and insofar as there is a global market it is logical that these organizations become legal subjects. But this seems too neat and functional. Not to mention it smacks of economism, it seems necessary to connect the interpellation of legal subjects to politics but that will be for another post I think…

So yeah, I'll start again properly soon, I wanna do some more posts on this, and a little bit on class struggle and the law, I also reckon I might just branch out into Marxian theory in general, 'cos I often have little thoughts I'd like to jot down.

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