The labour contract in Das Kapital: from simple illusions to necessary appearances

8th Sep, 2017

Protest in France 'Non a la Loi Travail, On est pas du betail'

Facundo C Rocca analyses the labour contract and the juridical form from the young to the mature Marx, en passant par Foucault and Agamben. Facundo is a PhD. Student in Philosophy at the University of San Martin and Paris 8, and a PhD Fellow at the National Scientific and Technical Research Council of Argentina (CONICET). This paper was presented at the London HM Conference in November 2016.

This paper analyses aspects of Marx’s theory of the labour contract to explore the possibility of a Marxian critique of modern rights that goes beyond their dismissal as mere illusory or ideological forms.

The labour contract, as a juridical figure, puts rights, juridical subjects and juridical relationships at the core of the concrete process of material production of modern capitalist societies. It enables the logical passage, from the field of exchange between equally free subjects in the market (and in the political), to the hierarchies of command between unequal individuals in the production battlefield.

In order to explore this, I will firstly point out young Marx’s symptomatic oversight of labour-contract like formulations in the French Declarations of Rights. This will stress the non-continuous character of Marx’s oeuvre while also providing a possible alternative place for the juridical form in Marx’s mature work.

Secondly, I will outline the problems around the labour contract in Marx’s Das Kapital: 1) as a particular form of commodity exchange that produces the difference between value and use value of the work force, enabling the production and appropriation of surplus value; and 2) as a way of producing the subsumption of labour to capital’s command in the work process. The relationship of these two aspects involves the intricate relationship of the legal and the non-legal, the judicial and the economic, in ways that surpass an opposition between an unreal or illusory form and a concrete practice. Here we briefly discuss the similarities between the labour-contract and the state of exception, as both juridical instruments produce the non-differentiation of right and non-right, law and force, as a way of legally inscribing a relationship of dominium and inequality. At the same time that it tends to exceed law, it needs to posit it as its logical and historical foundation. Foucault’s treatment of the labour contract as an example of the counter-law effect of disciplines will also be discussed as a way of fixing certain unbalances in the supposedly equal juridical exchange.

Finally, it will be argued that a particular dialectic of personal and impersonal action could be found in Das Kapital, that would place the juridical form, and the “free” subject linked to it, as a necessary and real moment of the production and reproduction of the modern-capitalists form of social relationships, and as a specific element of its antagonistic nature.

Cartoon Legislative 8 hours days


When discussing Marxist approaches to Rights and the problems of the judicial form it is common to focus on Marx’s early writings, given that the Young Marx’s oeuvre evidently contains strictly philosophical political elements. From his journalistic writings in the Rhenish Newspaper (Rheinische Zeitung) on the political debates in his Germanic homeland; his directly political critique of Hegel’s Philosophy of Right in 1843, to the more known essays on the modern State, Rights of Men and Jewish Emancipation in the German–French Annals (Deutsch–Französische Jahrbücher); what lies at the core of his first intellectual and political worries are the problems of sovereignty, rights, representation and political emancipation.

The “mature” movement towards the economic has been understood to de-center these issues, giving predominance to the study of capital’s logic and the critique of political economy. Althusser’s well-known thesis of the epistemological break famously formulated this non-continuity of Marx’s thought. It is stated that after his “scientific discovery” of History and economic-material determination Marx parted ways with his early moral and humanistic tribulations (Althusser: 2005). The accentuation of this break tends to render the problem of the juridical form as an illusory one or as merely ideological, by understanding that the true determinations of modern capitalist relations lay elsewhere. The political, the modern “free subject” and the problem of the juridical link between autonomous individuals is then disregarded either as an ideological trap, a form of false consciousness pouring out of the material process itself or as a subsidiary sphere of human activity that needs to be related to the economic on a second degree. The totality of modern social relationships is wrongly fragmented only to formulate ex-post a functionalistic and desubjectivised link between them.

Nevertheless, this same movement of Marx’s thought towards the economic could be seen as an attempt to address the very limits and contradictions of that same modern political logic that was at the core of Marx’s early work. The contradictions of political emancipation, its limited effect on the inequalities of modern civil society, and the mediated and alienated universality that the political and the State produces, are what drives Marx towards the “anatomy of the civil society” as a way of deciphering the secret of the modern form of difference and hierarchies. A form of the domination of man over man is that it is no longer produced by fixed privileges, hereditable rights or land-bound links of dominium.

Marx’s movement could be seen as an expansion of the grounds of his critical thought to forms of human activity and social dynamics previously not properly taken into account, rather than the discarding of the political-juridical level of modern relations as supplementary or secondary in favor of a purely economic link. Therefore, the problems of the free subject and its juridical form cannot be simply dissolved or thought as secondary to the “main” economic relationship. What should be at stake is the possibility of reframing these problems as distinct aspects of the same totality: that of the capitalist relationship that shapes modern society as a whole.

However this should not imply asserting a forced continuity of Marx’s thought, as it is indeed marked by profound reformulations, crisis, and changes of perspective. This non-continuity could be brought to light by regarding Young Marx’s symptomatic overview of labour-contract like formulations in the French Declarations of Rights of Men. 

In his classic and thoroughly debated On the Jewish Question (Marx: 2011)Marx addresses the limits of the modern rights of men and the citizen, engaging deeply with the French Declarations. Nevertheless he would not mention or comment on the incipient definition of an asymmetrical work relationship that is no longer grounded on a direct ownership of the work-force (slavery) or on a given right to a portion of the work product (feudal servitude).

This labour contract type formula can be found not in the foundational Declaration of 1789 but in the two others that followed it, that of the French Constitution of 1793 (Year I) and that of the Constitution of 1795. Marx does refer to both of them in his essay, but does not mention the labour contract related articles. These formulations are also part of many projects and drafts of the Declarations discussed in the Revolutionary French Assembly (Fauré: 1988). The more typical formulation would be that of the 18th Article of the Preface of the 1793 Constitution, which states:

“Every man may contract his services or his time; but he may not sell himself or be sold; his person is not an alienable property. The law does not recognize the status of servant; only a bond of solicitude and acknowledgment may exist between the employee and his employer.”

Although negatively formulated, we find here the draft of the modern labour contract. By excluding ownership of one person by another,  is coherent with the modern idea of the person as free, independent, autonomous and inviolable. Because the person is stated as absolute and sovereign owner of itself and its labour, total alienation to another is unthinkable. At the same time, this absolute ownership of oneself allows the “free” exchange of ones' abilities, force and labour in the form of a bond “of solicitude and acknowledgment” between formally equal subjects of a juridical mediated act.

This significant change in productive relationships, expressed in juridical-political terminology, is surprisingly overlooked by the young Marx. He does refer to the dissociated aspect of private property owners as subjects of modern rights, and the dissolving character of moneyMoreover, law is posited as the modern link between men (and women) that replaces privilege structured bonds, producing in “one and the same act” both the form of the modern State and the atomistic sphere of civil society.[1] But having not focused on the particular dynamic of modern production, Marx seems to find no reason to consider this particular “economic” element – the embryonic labour contract - that finds its way into the modern political Declaration of Rights.

In Das Kapital, on the contrary, it will be the specific juridical act of the sale and purchase of the labour-power that would allow us to move from the sphere of circulation to that of production, and outline the process by which the exchange of equal magnitudes of value can produce the valorisation of Money as Capital.

The distinct characteristics of this enigmatic valorization, in so far as it has to take place “both in circulation and not in circulation“ (Marx: 1990; p. 269), would then explain the differential accumulation of value. A difference that disrupts the equivalence of an exchange relation that was originally carried out by, so far, equal “commodity owners”, i.e. juridical persons.


Before going back to the particularities of the labour contract – as an act of exchange of a distinct commodity - we need to outline Marx’s formulation of the contract itself as the specific link between commodity owners. The soviet law theorist Evgeni Pashukanis had already insisted, in his General Theory of Law and Marxism (Pashukanis: 1976), on the necessary and internal place of the juridical form and the juridical free person in the capitalist social relations as a whole.

Das Kapital opens with a critical examination of commodities as “the elementary form“ (Marx: 1990; p. 126) of modern capitalist societies. In the first chapter Marx develops the dynamic of this commodity-form: their duplicity as use-value and exchange-value; their existence as quantity of value, i.e. “congealed quantities of homogeneous human labour” (Ibid.; p. 128), and therefore their new duplicity as embodiment of both concrete and abstract labour. Finally Marx shows how, being privately and independently produced for the exchange, commodities are forcefully realised in the value-form; have an internal need of a universal equivalent-form, the “general form of value”, that finds its existence in the money-form.

Before Marx extends his analysis of the money-form itself towards self-valorisation as Capital we find a first and preliminary conclusion. The sum of this previous development of determinations of the commodity form is stated as a generalised fethishization and as the forceful mediation of all human relationships by autonomous and self-moving “social relations between things” (Marx: 1990; p. 167).

But when the movement of the exposition seems to be heading towards a completely impersonal and de-subjectivized process; Marx reintroduces, in the second chapter: The process of Exchange, the problem of will, i.e. human subjectivity, which lies entangled with the fetishized existence of commodities:

“Commodities cannot themselves go to market and perform exchanges in their own right. We must, therefore, have recourse to their guardians, who are the possessors of commodities. Commodities are things, and therefore lack the power to resist man. If they are unwilling, he can use force; in other words, he can take possession of them. In order that these objects may enter into relation with each other as commodities, their guardians must place themselves in relation to one another as persons whose will resides in those objects, and must behave in such a way that each does not appropriate the commodity of the other, and alienate his own, except through an act to which both parties consent.” (Marx: 1990; p. 178)

Commodities had appeared to establish links with one another only by their own autonomous movement. Nonetheless, despite this fetishized objective-appearance, a different kind of link needs to be postulated: that of two wills that recognise each other as persons. That of two “owners of private property” that mark and command objects with their will and by doing so, allow commodities to be exchanged in the market place. “This juridical relation, whose form is the contract, whether as part of a developed legal system or not, is a relation between two wills which mirrors the economic relation” (Marx: 1990; p. 178)

The fact that Marx states that “the content of this juridical relation (or relation of two wills) is itself determined by the economic relation” (Marx: 1990; p. 178), should not lead us to believe the juridical link and the existence of juridical persons to be somehow secondary or epiphenomenal. Throughout Das Kapital what matters is also the form itself: the fact that human activity takes specific historical forms, although surely tied to specific contents. The economic fact of exchange can indeed determine the content of the juridical act, but it does not render the form less real or effective. Because there could not exist any formless but somehow “pure” economic fact.

After having deployed the genesis and logic of the money-form, Marx intends to explain, in Part Two, the “transformation of Money into Capital”. And at the end of this section we will find again the juridical act of the contract and its figures.

The contradiction of the general formula of self-valorizing value (money in process of transforming into capital) finds its resolution in a specific act of exchange in the circulation sphere between equal persons: the sale and purchase of the labour-power.  Here, the emergence of value as subject of its own process [2] encounters the conditions for the resolution of its contradictions in a new free juridical exchange. An exchange between the money bearer - the “larval form” (Marx: 1990; p. 269) of a capitalist that is the owner of money in search of valorization - with a particular other subject: the doubly “free worker” (Marx: 1990; p. 272). A worker that arrives to the market as a commodity owner that owns nothing but itself, as a minimum juridical person, is entitled to the formal status of commodity owner but depleted of the possession of any concrete value, and therefore left in possession of nothing else but the right to its autonomous existence as a will, attached to a body, among others in the market place. A subject that is both free of other means to produce and preserve his or her life and free of any kind of external compulsion to work.[3]

The reasons for the convenient existence of this free worker (vitally useful for the money in searching of self-valorization that the larval-capitalist personifies) are not of practical importance to our buyer, and has no place in the pure logic of capital in-becoming that Marx lays out.[4] But Marx does point out that “nature does not produce on the one hand owners of money or commodities, and on the other hand men possessing nothing but their own labour-power. […] It is clearly the result of a past historical development, the product of many economic revolutions, of the extinction of a whole series of older formations of social production” (Marx: 1990; p. 273). Historical developments that place the violent and destructive imposition of these new social relations, which Marx would describe in Part Eight: “So-Called Primitive Accumulations” (1990; pp. 873-927), as the counterpart of the political revolutions that had positively produced the destruction of all forms of patriarchal, feudal or religious dependence and, in so doing, allowed the existence of the free subject.

What is important for Marx at this stage is that the labour contract allows the consumption of a particular commodity, of which the distinctive use value holds the key to the enigma of self-valorizing value. Therefore, in line with the characteristics of the particular commodity that is labour-power, this specific kind of exchange contract resolves itself not in a simple consumption (the private act of consumption had had no significance whatsoever until this moment) but in its use in the production process. The purchase of labour-power, like the purchase of commodities as means of production, draws our attention to the production process itself, so far absent in the logical development of Das Kapital. It produces the movement from the “noisy sphere” of circulation “where everything takes place on the surface and in full view of everyone” towards “the hidden abode of production” (Marx: 1990; p. 279), where “we shall see, not only how capital produces, but how capital is itself produced” and where “the secret of profit-making must at last be laid bare” (Marx: 1990; p. 280)

The labour contract enables this juridical link between the money owner and the worker, in a way that it is fully respectful of law and of the mutual recognition of every man as an equal juridical person. In the same way it has to respect the equivalence of values being exchanged (the same equivalence that had rendered impossible for capital, as value in search of a magnification, to arise exclusively from the exchange sphere). The labour contract takes place in the “Eden of innate rights” (Marx: 1990; p. 280). But, echoing his previous judgment of the rights of men (as opposed to the rights of the citizen) as juridical names for the atomistic and egotistical modern individuals, Marx ironically renders this scene as the place of a community that knows no link but that of selfishness. The circulation sphere, the market, puts men and women together only by resorting to their mutual need for commodities, and by the means of their equivalent exchange.[5]

From this atomistic garden, rooted in self-interested will and blossoming with equality, freedoms and private properties, our subjects are thrown down to the darkness of the production process. There, our fallen juridical persons are reincarnated as capitalists and proletarians, and find the torments and gains of the work discipline, and the battle for its intensity and duration.

The very terms of the labour contract grounds the capitalist’s control over the use of the labour-force, as rightful owner of this commodity he has fairly bought.

But the commodity he now owns is inseparable from the body of the juridical person who has sold it to him, precisely because he or she had nothing but their body to sell- Hence the buyer’s lawful consumption ,according to his free will takes the form of his unbounded command and imposition to other men and women. It is the same will he was recognised for as buyer. A will which is nothing but the personal mask of the immanent and impersonal need of capital for achieving self-valorization through the suction of living labour.[6] Here lays the key trajectory that transforms the free juridical link between equal individuals and the exchange of equivalent magnitudes of value in the form of commodity or money on the circulation sphere; into the power of capital over workers and the process of appropriation of the surplus value created in the sphere of production of commodities themselves. Here, the juridically built differentiation of bodily commodities and juridical persons resolves in the transformation of the dominium over things into a new form of imperium over subjects.[7]

This juridical act that allows an unbounded authority in the material process of commodity production, resonates analogous to the particular juridical status of the state of exception, which Agamben has extendedly developed (2005). The state of exception manages to keep the forces of life that exceed law attached to the legal form, by enabling an authority that strategically suspends its link to instituted law, imposing a purely empty force of law in the immediate grasp of life.[8] Similarly, the labour contract manages to bind to a paradoxically legalised authority the underpinning forces of the activity and creativity of living labour. Nonetheless, these forces persist to menace the exceptional authority of capital with the phantom of open (class) war: a specter of stasis in the oikos of modern manufacture that permanently threatens to disrupt the exceptional authority of Capital and (re)politicize the de-politicized sphere of production and reproduction of life. This menace, the undergoing battle that simmers under the paradoxical juridical free form of the capitalist relation that grounds its exceptional authority, could be traced in Das Kapital. The way warmongering language emerges in its rhetorical figures and images would find its first peak in the “protracted and more or less concealed civil war between the capitalist class and the working class” (Marx: 1990; p. 412) over the working day in the middle of Das Kapital’s Part Three.

There are, of course, unavoidable differences between these two strange juridical figures: one at the basis of private law and civil rights, the other at the height of the contradictions of public law and its figures of sovereignty and representation. But at the bottom and at the top of the juridical order of western capitalist modernity we find the same inescapable tendencies towards an undifferentiation of right and non-right, law and force, legally bound authority and unlimited command of power. And maybe the generalization of forms of exceptional authority in times of “global civil war”, the ancestry of which Agamben has excavated in the ruins of totalitarian wreckage and in the vestiges of ancient Western powers, could know a multiple and permanent existence in the form of Capital’s rightfully unbounded command of workers’ bodies, creativity and activity in the work process.

However, Capital’s authority over the work process enabled by the labour-contract is not devoid of movement. It knows a development that deals with the way the work-process is subsumed to the internal needs of the process of valorization (the production process being the unity of this structural duplicity of capitalist production that reformulates the original duplicity of commodity).

Labour-power has the key to the valorization process in terms of the temporal, and even ontological, difference it has as source of value facing the crystallized value in form of money, commodities and capital. This difference its systematically posited in Das Kapital in terms of living/dead work; actual/past work; fluent/crystallized work and as an opposition of the subjective force of labour as the only factor of creation of value to the objective existence of value products in the form of means of production and capital. It is this opposition that renders Capital as a dead monster growing alive out of the suction and vampirization of the living forces of labour.[9] After the labour contract has been signed, the work process takes place then “under the anxious eye of the capitalist” (Marx: 1990; p. 291), personification of this living dead in desperate need of blood and sweat from the bodily commodity he has bought.

Because of this, and in order to make use of this vital difference it has bought, Capital needs, at first, to assure its command in a way that the production of surplus-labour is achieved. It needs to assure by its vigilance and control[10] over the work process that the effective and present activity of the labour-power exteriorises in a way that both exceeds the dead value the capitalist has paid him or her in advance in the form of wage (means of subsistence from the worker’s perspective) and that it properly reproduces and transfers the value contained in the means of production and raw materials it has also bought on the market.

The first form of this control is still merely a formal subsumption of labour to capital’s command, based both on the prescribed terms of the monetary and juridical relation they had established in the market (by the sale and purchase of labour-power) and on the fact that owning no means of subsistence or production, the conditions of its necessary work are not of labour’s property but in the hands of capital. In this stage Capital and its personifications appear as a “voracious appetite for surplus labour” (Marx: 1990; p. 344), forcing a longer working day, and establishing a battle over time itself that seeks to assure the production a bigger magnitude of absolute plusvalue. An attempt to imprison the workers time in the boundaries of the workplace and the capital’s command, that lead Foucault to compare the wage-form to the discipline over time implicated in the prison as a distinctive mode of punishment (Foucault: 2013).

But, in the search of a bigger amount of surplus value the capitalist relation tends to intensify its grasp over the work process by producing a real subsumption of its determinations. This produces another form of surplus value, a relative surplus value that plays on the intensity of the work activity and the productivity of labour inside the fixed period of time of the working day.

This new form of capital’s command inaugurates the specific mode of capitalist production. The formal subsumption shared with previous forms of appropriation its hunger for surplus-labour, although carried out in a specific way: throughout the free and strictly monetary dependence of the market rather than through direct ownership of the labourer or through entitlements to the surplus-product.

With real subsumption capitalism radically transform the work processes; producing both quantitative and qualitative modifications. These modifications appear in the form of cooperation, machinery, bigger scales of production, the systematic use of science on production, etc. Marx explains theses transformation all through Part Four “The Production of Relative Surplus-Value” (Marx: 1990; pp. 429-642)

In these key passages, Jameson (2011) founds an important break in the exposition of Das Kapital. A break that leaves behind the individualistic, atomistic relations, figures and personifications of the market place and the exchange (to which formal subsumption still functions too closely) and open the space for collectives and class.[11]

What does this change - of both scale and nature - of the work process imply for the juridical act that had initially rendered it possible, i.e. the labour contract?

Firstly, it implies an intensification of the hierarchies and direct command of capital.  Because the “anxious regard” of the capitalist is replaced by its enlarged control over the social power of science, of collectivity and association and of the conditions and rhythms of work that it now opposes as its own power facing the workers.

The coercion to produce the surplus-labour is here reinforced and transformed by this growing power of Capital over material production, by its capacity to increasingly subsume the different aspects of it to the logic of pure and abstract self-valorization. Hence, the material and practical conditions of the production process, as carried out under this logic, seems to undermine the initial existence of its subjects as equally juridical persons.

Foucault (1995) had already pointed out how disciplinary technologies and mechanisms constituted a sort of counter-law. And he had cited the “legal fiction” of the “work contract” as an obvious example of this aspect of disciplines (Ibid; p. 223). In his description, the disciplinary mechanisms constituted the “dark side” of the general juridical form forged in the Enlightenment, and secure the effectiveness of power, beyond the subject’s will, by introducing “non-egalitarian and asymmetrical” effects, “real” and “corporal" disciplines that “constituted the foundation of the formal, juridical liberties” (Ibid; p. 222):

“They have the precise role of introducing insuperable asymmetries and excluding reciprocities. First, because discipline creates between individuals a 'private' link, which is a relation of constraints entirely different from contractual obligation; the acceptance of a discipline may be underwritten by contract; the way in which it is imposed, the mechanisms it brings into play, the non-reversible subordination of one group of people by another, the 'surplus' power that is always fixed on the same side, the inequality of position of the different 'partners’ in relation the common regulation, all these distinguish the disciplinary link from the contractual link, and making it possible to distort the contractual link systematically from the moment it has as its content a mechanism of discipline”. (Foucault: 1995; pp. 222-223)

The concrete practices of the workshop discipline, the expropriation of the laborers knowledge in favor of a science that commands them; the anatomo-political effects of machinery, etc., seem far more effective for the control of the work-force than the weak fact that they had entered in this process as free wills, and freely contracted the terms of the use of their bodies. The effectiveness of these power technologies that undermine the labour contract from within seems to reside in its paradoxical link with the juridical form (suspending but not annulling it), as we had already pointed out in relation to the figure of the state of exception: “in the space and during the time in which they exercise their control and bring into play the asymmetries of their power, they effect a suspension of the law that is never total, but is never annulled either” (Foucault: 1995; p. 223).

In an apparently similar way, Marx states that, at this stage, the equality and freedom of the sale and purchase of labour-power and the labour contract reveals itself as mere appearance that resolves itself and secures, by disguising it, open appropriation and enslavement.[12] The displacement of the juridical form produced by the real subsumption seems to imply  the evanescent existence of the juridical itself.

But Foucault’s formulation, yet mainly focused on the individual level of power and micro-powers, is closer to young Marx’s early critique of the juridical figures than to Marx’s mature formulation. He still opposes the ideological and formal sphere of rights to the concrete and real sphere of practices (where Foucault places the disciplinary mechanisms of power; the young Marx had placed the atomistic existence on individuals) as two poles that can only establish an external link of concealment between each other. And this logic leaves no other place for the free subjectivity than that of being a pure function, a mere illusory trick of power; or a derailed Idea of the human.

But in the movement of Das Kapital the juridical forms do not constitute simple illusions but necessary appearances. The juridical informed exchange is a necessary form of the capitalist relation, the objective-appearance it has to posit as its mediation thorough subjectivity and its modernly gained freedoms to realise its particular form of surplus-product appropriation. Hence, the juridical-form arises as an unavoidable moment of value’s movement itself (Pashukanis: 1976; Blanke et al: 1978)

In the next and final section we present the particular place of the juridical-form within the more general dialectics of Capital, and outline possible consequences for further research.


At the beginning of our previous section we had already pointed out how the juridical act of the exchange contract somehow interrupted the tendency of the commodity-form towards autonomization and complete reification of human activity. The fact that commodities do not have an independent existence, that they have to be exchanged by human subjects, posited the question of the link of recognition of that exchange. A link that was not between commodities themselves, but between human subjects as commodity owners. Therefore the movement of commodities had re-encountered its dependency on human activity and subjectivity.

In the production sphere the internal dependency of Capital (as impersonal power of objectified labour) on the dynamic and actual potency of labour subjectivity was also evident. Despite Capital’s mystification, despite its unbounded control over the work process and the alienation of the social power of production as a natural attribute of Capital, Capital could not exist without the living labour borne by the conscious body of the workers. Without it Capital will cease to be a living-dead, and would freeze as pure dead past labour, incapable of movement and of valorization.

The movement of the capitalist relation, which Das Kapital’s logical exposition attempts to mirror, seems to imply this dialectic between the subjective, personal moment of activity and the autonomisation of its objectified products in the form of impersonal (though personified) powers.

These personal figures are then frequent in the exposition, always disrupting the mechanical function of autonomised things: from the abstractly equivalent commodity owners, to the exchange between commodity owners and the money owners, to the money owner who wants to increase its value conveniently facing commodity owners that have nothing to sell but their own labour-power and from there to the classes of capitalists and proletarians who confront themselves in a civil war inside the material process. The development of the capitalist relation encounters dramatis personae (Marx: 1990; p. 206) that seem to be more than mere bearers [Träger] of mechanical and impersonal economic relations. Precisely because the impersonal economic relations of capitalism, as its purely immanent form of dependence, relies on its mediation by these figures of subjectivity: the free person, the right-entitled juridical subject, the externally unbounded worker, and the politically active class.

Inside this dialectic between the personal and the impersonal, the subjective and its autonomised objectification, the unbounded activity of the free individual and the determinations that the crystallisation of its own activity as an autonomous power imposes on them; the juridical form  finds new and recurrent figures.

After the original free labour-contract, and once the formal subsumption of labour to capital it enables has been installed, we encounter the problem of labour law concerning the duration of the work day all the way through Chapter 10.

What is interesting is that we find here, before the leap towards the social worker in the Cooperation section Jameson had pointed out, a first form of collectivity in two classes politically confronting each other.

At the same time, in this political subjectivisation, what is at stake is a dispute over the original juridical terms and figures of the free contract. It is a full scale political battle over the interpretation and the limits of the recognition implied on the labour contract. Against the rightful ambition of the capitalist to make free and unrestricted use of the commodity he bought, the worker opposes the fact of having been recognised as a free person that cannot, therefore, be fully submitted to the voracious will of the buyer of his only commodity. The transformation of the lawful dominium over commodities, and of labour as a commodity, in a form of imperium over workers reveals itself as a space of conflict rather than an automatic effect of an objective economic link. Hence, the juridical form rather than a mere illusion on the minds of power-controlled or system-determined subjectivities appears as a battleground and as a rule that can be polemically reactivated, acting as a support for an antagonistic subjectivity.[13]

Moreover, after Marx has laid out the logic of the specific mode of capitalist production, the alienated existence of cooperation in the form of the machinery and the big industry that allows the real subsumption of labour to capital and the appropriation of relative surplus-value, we re-encounter again the juridical figures of law instituted rules of health, education and working conditions. Although here, the reach of law finds itself the obstacle of the robust authority of the capitalist over the workspace he owns, and can only achieve effectiveness and generalisation as a result of the competition of capitalists among themselves, which leads them to demand an equal obstacle for their exploitation of workers.

The persistence of these juridical figures and processes all along Das Kapital hints that there’s more to the juridical than being a mere illusion or subjective misrecognition. The apparently juvenile problem of the juridical-form does follow the mature Marx to the very “abode of production”. We need to develop these ideas, already advanced by Pashukanis (1976), and attempt to see the persistence of the juridical-form through the full unfolding of capitalist relations. Especially when the problem of the juridical constantly brings about the problem of subjectivity that is entangled in the power nets of its objectifications.



Agamben, Giorgio (2005) State of Exception. Chicago, The University of Chicago Press.

Agamben, Giorgio (2015) Stasis. Civil War as Political Paradigm. Edinburgh, Edinburgh University Press.

Althusser, Louis (2005) For Marx. London, Verso.

Alves da Fonseca, M (2002) Michel Foucault e o direito. São Paulo: Editora Max Limonad.

Blanke, B.; Jurgens, U.; Kastendiek, H. (1978) “On the Current Marxist Discussion on the Analysis of Form and Function of the Bourgeois State” en Holloway, J. y Piccioto, (eds) State & Capital. A marxist debate. Austin: University of Texas Press.

Fauré, Christinne (1988) Les Déclarations des droits de l'Homme de 1789, textes réunis et présentés. Paris, Payot. 

Foucault, Michel (2013) La societé punitive. Cours au Collége de France. 1972-1973. Paris, EHESS/Galimard/Seul

Foucault, Michel (1995) Discipline and Punish. The Birth of the Prison. New York, Vintage Books.

Pasukanis, Evgeni B. (1976) Teoría general del derecho y marxismo. Barcelona, Labour [The General Theory of Law and Marxism, online version available at Marxist Internet Archive]

Jameson, Frederic. (2011) Representing Capital. A reading of Volume One. London, Verso.

Neocleous, Mark (2000) The Fabrication of Social Order: A Critical Theory of Police Power. London, Pluto Press.

Pages: 176 Marx, Karl. “Sobre la cuestión judía” en VV.AA, Volver a La cuestión Judía (2011), Barcelona, Gedisa.

Marx, Karl (1990) Capital. A Critique of Poiltical Economy. Voume One. London, Penguin.


[1] “The establishment of the political state and the dissolution of civil society into independent individuals – whose relation with one another on law, just as the relations of men in the system of estates and guilds depended on privilege – is accomplished by one and the same act.” (Marx: 2001, p. 86)

[2] “[Value] is constantly changing from one form into the other, without becoming lost in this movement; it thus becomes transformed into an automatic subject. If we pin down the specific forms of appearance assumed in tum by selfvalorizing value in the course of its life, we reach the following elucidation: capital is money, capital is commodities. In truth, however, value is here the subject of a process in which, while constantly assuming the form in tum of money and commodities, it changes its own magnitude, throws off surplus-value from itself considered as original value, and thus valorizes itself independently. For the movement in the course of which it adds surplus-value is its own movement, its valorization is therefore self-valorization [Selbstverwertung]. By virtue of being value, it has acquired the occult ability to add value to itself. It brings forth living offspring, or at least lays golden eggs.” (Marx: 1990; p. 255)

[3] “In and for itself, the exchange of commodities implies no other relations of dependence than those which result from its own nature. On this assumption, labour-power can appear on the market as a commodity only if, and in so far as, its possessor, the individual whose labour-power it is, offers it for sale or sells it as a commodity. In order that its possessor may sell it as a commodity, he must have it at his disposal, he must be the free proprietor of his own labour-capacity, hence of his person. He and the owner of money meet in the market, and enter into relations with each other on a footing of equality as owners of commodities, with the sole difference that one is a buyer, the other a seller; both are therefore equal in the eyes of the law. For this relation to continue, the proprietor of labour-power must always sell it for a limited period only, for if he were to sell it in a lump, once and for all, he would be selling himself, converting himself from a free man into a slave, from an owner of a commodity into a commodity. He must constantly treat his labour-power as his own property, his own commodity, and he can do this only by placing it at the disposal of the buyer, i.e. handing it over to the buyer for him to consume, for a definite period of time, temporarily. In this way he manages both to alienate [veriiussern] his labour-power and to avoid renouncing his rights of ownership over it. (Marx: 1990; pp. 270-271)

[4] “Why this free worker confronts him in the sphere of circulation is a question which does not interest the owner of money, for he finds the labour-market in existence as a particular branch of the commodity-market. And for the present it interests us just as little. We confine ourselves to the fact theoretically, as he does practically” (Marx: 1990; p. 273)

[5] “The sphere of circulation or commodity exchange, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. It is the exclusive realm of Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, let us say of labour-power, are determined only by their own free will. They contract as free persons, who are equal before the law. Their contract is the final result in which their joint will finds a common legal expression. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to his own advantage. The only force bringing them together, and putting them into relation with each other, is the selfishness, the gain and the private interest of each. Each pays heed to himself only, and no one worries about the others. And precisely for that reason, either in accordance with the pre-established harmony of things, or under the auspices of an omniscient providence, they all work together to their mutual advantage, for the common weal, and in the common interest” (Marx: 1990; p. 280)

[6] “In itself this sum of money may only be defined as capital if it is employed, spent, with the aim of increasing it, if it is spent expressly in order to increase it. In the case of the sum of value or money this phenomenon is its destiny, its inner law, its tendency, while to the capitalist, i.e. the owner of the sum of money, in whose hands it shall acquire its function, it appears as intention, purpose” (Marx: 1990; p. 976)

[7] Neocleous (2010) has pointed out this problem as a key aspect of liberal political thinking: “liberalism played on the Roman distinction between dominium, the rule over things by the individual, and imperium, a vertical relationship of domination between a political authority (usually, though not necessarily, the prince) and its subordinates. This obscured the fact that dominium over things is also a form of imperium in a different form: the rule over people via property ownership. To state the point in more obvious terms: it obscured the fact that property is a form of power. Dominium is still a form of subjugation – not only does it allow rule over people through the power of property, but it facilitates the treatment of human beings as if they were property” (Ibid; p. 39)

[8] “The juridical system of the West appears as a double structure, formed by two heterogeneous yet coordinated elements: one that is normative and juridical in the strict sense ([…] potestas) and one that is anomic and metajuridical ([…] auctoritas)

The normative element needs the anomic element in order to be applied, but, on the other hand, auctoritas can assert itself only in the validation or suspension of potestas. […] The state of exception is the device that must ultimately articulate and hold together the two aspects of the juridico-political machine by instituting a threshold of undecidability between anomie and nomos, between life and law, between auctoritas and potestas. It is founded on the essential fiction according to which anomie (in the form of auctoritas, living law, or the force of law) is still related to the juridical order and the power to suspend the norm has an immediate hold on life” (Agamben: 2005: pp. 85-86).

[9] “By turning his money into commodities which serve as the building materials for a new product, and as factors in the labour process, by incorporating living labour into their lifeless objectivity, the capitalist simultaneously transforms value, i.e. past labour in its objectified and lifeless form, into capital, value which can perform its own valorization process, an animated monster which begins to 'work', 'as if its body were by love possessed” (Marx: 1990; p. 303)

[10] “the worker works under the control of the capitalist to whom his labour belongs; the capitalist takes good care that the work is done in a proper manner, and the means of production are applied directly to the purpose, so that the raw material is not wasted, and the instruments of labour are spared, i.e. only worn to the extent necessitated by their use in the work.” (Marx: 1990; p. 292); and also: “it is here that the supervisory responsibility of the capitalist enters. (He secures his position here through piece-work, deductions from wages, etc.) He must also see to it that the work is performed in an orderly and methodical fashion and that the use-value he has in mind actually emerges successfully at the end of the process. At this point too the capitalist's ability to supervise and enforce discipline is vital. Lastly, he must make sure that the process of production is not interrupted or disturbed and that it really does proceed to the creation of the product within the time allowed for by the particular labour process and its objective requirements. This depends partly on the continuity of work which is introduced by capitalist production, partly however on uncontrollable external factors  (Marx: 1990; p. 986)

[11] “It is the moment in which the individual and individualist categories with which we have had to work ever since the opening presentation of the market and the exchange between an individual buyer and an individual seller are now swept away and replaced by (or aujgehoben, lifted into) those of collectivity, the only adequate ones for understanding anything concerning that "political animal" we are. The technical excuse for the discussion lies, however, in the first, rather narrow answer to the problem of how "relative surplus-value" is to be achieved, namely by multiplying the number of workers. Yet its historical justification is far more sweeping than this, for "capitalist production only really begins ... when each individual capital simultaneously employs a comparatively large number of workers" (439). Meanwhile, collectivity "begets in most industries a rivalry and a stimulation of the animal spirits' which heightens the efficiency of each individual worker" (443): labor psychology or some more general existential proposition (and one suspiciously redolent of the competitive ethos, at that)? But this is not a book about people but rather about a system: the true climax is thus, foreshadowed by monuments in the middle distance like the pyramids or the great hydraulic works of the Middle East, the revelation of "the creation of a new productive power, which is intrinsically a collective one" (443). This new power, ruefully exults Marx, is "a free gift to capital" (451). It is also a rebuke to the economists, above all to the neo-Smithians and Proudhon, ho have been tempted to fetishize the division of labor as a kind of absolute: collectivity takes ontological priority here; and with its discovery and development by capitalism, Marxism closes the door on all nostalgic regressions to simpler and more humane modes of production” (Jameson: 2011; pp. 63-64)

[12] “Thus, while the worker produces his produce as capital, the capitalist reproduces the worker as a wage-labourer and hence as the vendor of his labour. The relation of people who merely sell commodities is that they exchange their own labour objectified in different use values. However, the sale and purchase of labour-power, as the constant result of the capitalist process of production, implies that the worker must constantly buy back a portion of his own produce in exchange for his living labour. This dispels the illusion that we are concerned here merely with relations between commodity owners. This constant sale and purchase of labour-power, and the constant entrance of the commodity produced by the worker himself as buyer of his labour-power and as constant capital, appear merely as forms which mediate his subjugation by capital. Living labour is no more than the means of maintaining and increasing the objective labour and making it independent of him. This form of mediation is intrinsic to this mode of production. It perpetuates the relation between capital as the buyer and the worker as the seller of labour. It is a form, however, which can be distinguished only formally from other more direct forms of the enslavement of labour and the ownership of it as perpetrated by the owners of the means of production. Through the mediation of this sale and purchase it disguises the real transaction, and the perpetual dependence which is constantly renewed, by presenting it as nothing more than a financial relationship” (Marx: 1990; pp. 1063-1064) [Note: the Spanish translation uses appearances rather than illusions/illusionary which helps clarify the difference that we refer to in this article]

[13] “The capitalist therefore takes his stand on the law of commodity-exchange. Like all other buyers, he seeks to extract the maximum possible benefit from the use-value of his commodity. Suddenly, however, there arises the voice of the worker, which had previously been stifled in the sound and fury of the production process:

'The commodity I have sold you differs from the ordinary crowd of commodities in that its use creates value, a greater value than it costs. That is why you bought it. What appears on your side as the valorization of capital is on my side an excess expenditure of labour-power. You and I know on the market only one law, that of the exchange of commodities. And the consumption of the commodity belongs not to the seller who parts with it, but to the buyer who acquires it. The use of my daily labour-power therefore belongs to you. But by means of the price you pay for it every day, I must be able to reproduce it every day, thus allowing myself to sell it again. Apart from natural deterioration through age etc., I must be able to work tomorrow with the same normal amount of strength, health and freshness as today. You are constantly preaching to me the gospel of "saving" and "abstinence". Very well! Like a sensible, thrifty owner of property I will husband my sole wealth, my labour-power, and abstain from wasting it foolishly. Every day I will spend, set in motion, transfer into labour only as much of it as is compatible with its normal duration and healthy development. By an unlimited extension of the working day, you may in one day use up a quantity of labour-power greater than I can restore in three. What you gain in labour, I lose in the substance of labour. Using my labour and despoiling it are quite different things. [...] You pay me for one day's labour-power, while you use three days of it. That is against our contract and the law of commodity exchange. […] I demand a normal working day because, like every other seller, I demand the value of my commodity” (Marx: 1990; pp. 343-344)