- Introduction
Given the current intertwined ad multifaceted global crisis, and given the at best modest outcomes of private law in moderating deepening inequalities – despite the numerous and laudable efforts by scholars with different backgrounds -, does it still make sense to enquire whether and how private law could foster social justice? In this short intervention, I will argue that private law, to be transformative, needs to be antisystemic (that is, contradict the rationale of capital accumulation), and that it can be anti-systemic only in very few cases, when there is a dissociation between the legal form and the commodity form. I build this intervention on a longer analysis that I have developed in a recent article devoted to climate litigation.
- The commodity form theory of law as a limit to transformative private law
It is usually impossible to use private law in an anti-systemic way, because the legal form, even in the age of monopoly capitalism, reproduces the commodity form. The commodity form theory of law, as elaborated by Pašukanis, is a powerful theory to explain the stability of the private law system. In a nutshell, the commodity form theory of law affirms that the legal form is molded on the commodity form: the legal form is the expression of a social relationship, of which capital is the general form. Even though the law is semi-autonomous, and despite the different contents it can have, the legal form corresponds to the rationale of the commodity. The legal form, like the commodity form, relies on an abstraction. While the commodity is an abstraction of different labors and has different use-values, but is exchanged on the basis of its exchange value, the legal form crafts persons as equal through the fiction of the juridical person, and the contract as the product of free will that realize the exchange of equivalent rights. This abstraction is also central for the constitution of property and entangles it to racialization. To accomplish the circulation of the commodity, the system posits that subjects are equal and free, and that their transactions are the product of their will. The development of the juridical subject, ownership, and contract is a prerequisite for the goods to be exchanged as commodities.
As affirmed by Balbus: “the homology between the legal form and the commodity form guarantees that the legal form, like the commodity form, functions and develops autonomously from the preferences of social actors and that it does not function and develop autonomously from the system in which these social actors participate.”
The commodity form theory of law is not a sophisticated version of a simple economism, considering the law as a mirror of economic relationships. On the contrary, it conceives the legal system as semi-autonomous (here and here). Therefore, the content of rules is not predetermined, nor is the simple object of the will of specific social groups. It is the form of the system that assures that, despite the different content the rules can assume, the system does not contradict the rationale of capital accumulation.
The content of the law is not determined a priori and can vary; there may be laws and decisions that do not favor the most powerful, law can realize redistribution of resources and therefore rekindle the framework of the struggle between social actors with conflicting interests, but the legal form itself is based on the commodity form and, therefore, cannot be contrary to the rationale of accumulation of capital. It is because of this homology that private law, moving in a spectrum, cannot usually have anti-systemic applications.
- Private Law for the Age of Monopoly Capitalism
The premises and basic legal concepts and rules that underpin the commodity form theory of law are those of competitive capitalism and classical private law. There is a dissonance between this framework and many recent laws and decisions at national, transnational and international level: for instance, the presumption of equality between juridical subjects and the conception of the contract as an agreement negotiated at arm’s length do not seem to be realistic in the current socio-economic environment.
The monopolization of the economy has modified not only the socio-economic relations that private law is deemed to regulate, but also the very assumptions that constitute its foundations: the competitive market where transactions should be at arm’s length is swept away in manifold sectors.
Confronted with this phase of capitalist development, private law regulation has developed a specific rationale to tackle these problems. These rules modify the traditional structures of private law. Myriad legislation passed in different fields such as consumer law, agri-food business, large-scale organized distribution, antitrust, finance, digital commerce and so on aim to restore market mechanisms or to mimic the results that a competitive market would have supposedly produced. All these laws aim to regulate socio-economic relationships characterized by market failures. In doing so, they go beyond the abstraction of the equal subject and of parties’ autonomy.
Some of these laws can have a redistributive effect, allocating resources in a more egalitarian way. There is no doubt that these issues are important and have a real impact on the life of the affected parties. Moreover, they can even transform contractual practices, setting the stage for more balanced relationships. However, the transformations that have been highlighted do not disentangle the homology with the commodity form; on the contrary, they try to react to the fact that in the current system the exchange values and their realization are hampered by the monopolization of the economic system.
While classical legal thought reproduced the commodity form, starting from the perspective of a competitive market where the subjects had to be left free to act, PLAMC reproduces the commodity form taking into account the distortions of monopolization and the asymmetries that derives from this process. The constraints that the commodity form imposes on the transformative potential of private law still hold.
- Which way forward for transformative private law?
As the homology between the legal form and the commodity form prevents the law from having anti-systemic potential, it is in the very limited cases where such homology is disentangled that private law may be used in this way. As this is rare, this might also explain the apparent contradiction between a period of skyrocketing inequality, that the law contributes to create, entrench and invisibilize, and a private law at least discursively devoted to fairness and fundamental rights. I have tried to demonstrate elsewhere that it happens, for instance, in some specific forms of climate litigation.
This perspective gives us two further indications concerning the role and the transformative potential of private law. First, private law can be used not in a merely tactical, but properly anti-systemic way only in the interstices, where the legal form does not correspond to the commodity form. Second, transformative private law shall look for fields where it is possible to realize this disentanglement: it is there that it may bear the most promising fruits.
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
2016 Digital contents
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