‘trades unions have from 1871 been the legally constituted subjectivity of the working class’

Source: Mieville, China (2005) Between Equal Rights. A Marxist Theory of International Law. Boston: Brill.

“As Kay and Mott point out, the labour contract is an unstable form that attempts to mediate contradictions.

The solution that the law has developed combines two elements:

1) The episodic nature of the transaction: so that the worker only submits himself to capital period by period, and never finally alienates his will. This permits the illusion that he remains in ultimate possession of himself. . . .

2) In the contract itself the object that is formally alienated does not appear as labour-power, i.e. a capacity which is an immediate attribute of the sub- ject, but as labour, i.e. expended labour-power, or labour which has become external to the worker.

The subordination of the labouring population to industrial capital necessitated a development of the categories of individual property which had been adequate to mercantile and artisan-based capitalism ‘when the process of accumulation was realised through the will of individual entrepreneurs’. The move to joint-stock companies provided the germ-seed of the modern corporation. This meant, in Marx’s words, then Kay and Mott’s,

[c]apital, which is inherently based on a social mode of production and pre- supposes a social concentration of means of production and labour-power, now receives the form of social capital (capital of directly associated individuals) in contrast to private capital, and its enterprises appear as social enterprises as opposed to private ones. This is the abolition of capital as private property within the confines of the capitalist mode of production itself.

Legislation in 1855 and 1862 established the principle of limited liability. . . . [T]his new legal form. . . . established a clear distinction between the private property of the capitalist (subject to consumption) and the property of the capitalist project (subject to accumulation).

It is now the capitalist project which must use wage-labour to accumulate, as opposed to the individual capitalist. A necessary corollary of this was the development of the juridical form to allow for a corporate body to be the owner of a commodity and therefore to retain legal personality. This was not a ‘new’ legal form but a development of the legal form Pashukanis outlines on the basis of that form itself.

With the move to the juridical acknowledgement of the agency of abstract entities of accumulation, the same tendency manifested on the side of the working class, where abstract entities of production were necessarily legally recognised. It would be nonsensical for the company to engage in a vast number of contracts, each with its own set of negotiations, one with each of its workers, and it would diminish the formal power of the corporation vis-à-vis its workers if each of them was its formal equal. The legal formalisation of capital’s agent, the company, had its flipside in the formalisation of labour’s agent, the collective organisation of workers, the trade union. ‘In composing the fully developed wage contract, it is necessary for the state to establish the subjectivities of both parties, since neither capital nor labour are spontaneous economic entities.’

Marx himself points out the extent to which such double-sided legalisation of capital and labour as collectives is a result of the peculiar nature of labour-power as a commodity, for similar reasons as those laid out by Kay and Mott.

The capitalist maintains his right as a purchaser when he tries to make the working day as long as possible . . . On the other hand, the peculiar nature of the commodity sold implies a limit to its consumption by the purchaser, and the worker maintains his right as a seller when he wishes to reduce the working day to a particular normal length. . . . [I]n the history of capitalist production, the establishment of a norm for the working day presents itself as a struggle over the limits of that day, a struggle between collective capital . . . and collective labour. . . .

As Kay and Mott point out, ‘trades unions have from 1871 been the legally constituted subjectivity of the working class’. There was a sequence of legal reforms and judgements extending the legal personality of the trade unions from 1841 to 1918. ‘This sequence of legislation defining both labour organisations and their space in law, was the formation of the legal subjectivity of labour by the state.’

What we have here is a theory of the legal recognition of corporations and unions, one of the fundamental changes in contract sometimes deemed to undermine Pashukanis’s theory, understood as a shift in the atoms of the juridical relationship on the basis of the commodity relationship under changing conditions of mass industrialisation and the commodification of labour-power itself. In other words, this does not represent a move away from the commodity-form theory, but a vindication of it.

At the heart of the capitalist economy is the extraordinary commodity of labour-power, which is a commodity simultaneously like and utterly unlike any other.”

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