Marx, law and the corporate form

bandt at bandt at
Sun Apr 30 01:21:29 MDT 1995

In _On Law and Ideology_ (1979, Ch5) Paul Hirst suggests that Marx, and
those writing after him such as Pashukanis and Renner, inadequately
conceptualised the relationship between law and the means of production.
Through an analysis of the political struggles over the nature of the
corporate form in the 18th and 19th centuries in England, Hirst argues

i) the joint-stock company was not merely a 'natural' expression of the
legal relations necessary for capital;
ii) that 'productive' and manufacturing capital in particular were not
behind the push to create the corporate form;
iii) that for Marx (Capital, Vol 3) the growth amongst the population of
share ownership (with shareholders as rentier capitalists), and the
concurrent separation of management from ownership, was seen as an effect
of the increasingly socialised character of the productive forces, albeit
under capitalism. The stock market is seen primarily as a speculative
arena, characterised by adventurers and 'gung-ho' capitalists. This, says
Hirst, is wrong, as the joint-stock company does not represent a sign of
dissolution of capitalist relations, and 'the centralisation of financial
markets and the credit system has led to the domianation of corporate
enterprises, banks and other institutions, holding companies etc., not
individual super-capitalist adventurers. Indeed, it is those institutions
which are the main means of centralisation.' (p136)

Marx's main failings, says Hirst, stemmed from his assumptions that the
legal form of economic relations simply arises out of those economic
relations, and that Marx comprehends both by understanding capitalists only
as indivdiual, anthropomorphic entities who willingly engage in commercial
transactions, implying that the change to the joint-stock company
represented a 'breaking down' (and socialising) of capital because all the
functions of the capitalist were no longer contained in one entity.

Pashukanis argued that the legal subject was created to facilitate
exchange: that the economic subject (ie person as trader, as capitaliat)
preceded and caused the 'rights bearing' subject of bourgeois law. Hirst's
objections to the notion of social totality which supposedly explains why
Marx and Pashukanis had to understand legal phenomena as effects of the
means of production, objections elaborated in Hirst et al.'s _Marx's
Capital and Capitalism Today_ go some way to explaining his critique. Even
if one can succesfully demolish Hirst's philosophical presumtions, it still
leaves unanswered his point that the corporate form cannot simply be 'read
off' the means of production.

It seems to me that this raises big questions for marxism. Fundamentally,
it suggests that law isn't understandable either as part of the relations
of production nor the 'superstructure'. If the legal form of the
organisation of capital is not simply relatively independent of the forces
of production, but can in fact be determining (a fortiori when the legal
form is promoted by finance capital which in turn affects manufacturing
capital), doesn't this imply not only a far greater emphasis on
understanding legal relations, but also a demolition of the works of those
like Pashukanis who took the first steps towards such an understanding?

I'd be particularly interested to hear responses from people reading Hardt
and Negri's _Labor of Dionysus_, as their chapters on the juridical form of
labour have an acknowledged (but limited) debt to Pashukanis, but attempt
to grapple with both the form of law and its nature as an 'instrumennt' of
the state.

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