The ongoing general crisis of global capitalism has highlighted the work that needs to be done to uncover the role of law in the creation, management, and perpetuation of capitalism’s “constitutive crises”. In this post I focus upon one, particularly fruitful avenue for future research: the relation between the global “labour crisis” on the one hand and what is increasingly referred to as the “migrant crisis” on the other. [1]
Although both phenomena are sufficiently complex and multifaceted to make simple definitions both difficult and unhelpful, it is important to clarify what is meant here by the terms “labour crisis” and “migrant crisis”. By the former I refer to the fact, causes, responses to, and combined effects of rampant global unemployment, rising underemployment, and widespread precarious employment, as well as the persistence of forced and (hyper-)exploitative labour. By the latter I refer to the fact, causes, responses to, and combined effects of the rapid, massive, and catastrophically managed rise in the numbers of people fleeing conflict, repression, and political instability (such as those moving into and within North Africa, the Middle East, and Europe; from Burma into India and Bangladesh; and, to a lesser extent, from Central America to the United States), as well as those moving for “economic reasons” or due to gradual environmental degradation or sudden natural disasters (so-called “climate refugees”).
What appears to link these two phenomena is the fact that law is implicated in the production of what is increasingly characterized as “human superfluity”.
The language of “superfluity”, and its application to the “unwanted” or “unnecessary”, is not new. It has been in use since at least the sixteenth century, and, beginning in the early 1950s with Hannah Arendt’s The Origins of Totalitarianism, has been taken up in a variety of fields, including sociology [2], philosophy [3], literary theory [4], international relations [5], and political theory [6]. Despite this widespread engagement, the language of “superfluity” is almost wholly absent in legal scholarship. This invites a number of questions, including the question of what it is that scholars in other fields mean when they speak of “superfluity” and, more importantly for present purposes, the question of the extent to which the concept of “superfluity” can be accommodated within–and add anything of value to–Marxist legal scholarship.
The first of these two questions is the more straightforward. Broadly speaking, “superfluity” is used to describe the intersection of (actual or perceived) “quantitative excess” (that which is overabundant), “practical redundancy” (that which serves no useful purpose), “noxious waste” (that which risks causing harm in its excess, by contaminating or otherwise endangering what remains), and “fungibility” (the possibility of the mutual substitution of “units” that are functionally indistinguishable and may thus be freely discarded, and which, when put together, are capable of forming a homogeneous mass). [7] All of these elements can be seen both in the ways in which many today are excluded from sufficient and meaningful opportunities to earn a living, and in the ways in which migrants (regardless of their formal status) face increased exclusion, demonisation, and border-securitisation.
Dealing with the second question is more complex. “Human superfluity” is not a traditional part of Marxism’s conceptual vocabulary, and so it is appropriate to be cautious about calls, tacit or explicit, to incorporate it, or even simply engage with it, as Marxist legal scholars. Nevertheless, I would argue that it is worth taking seriously. The two main reasons for this are as follows.
First, neither the concept of “superfluity” itself nor its application is entirely alien to Marxian analytical frameworks. For instance, its presence can be detected in the labour theory of value, insofar as the motor of the capitalist system is the extraction of surplus value, the logic of which necessitates the (sometimes temporary) expulsion of many into the “reserve army of labour”. It also finds expression in the concept of the Lumpenproletariat, the “nebulous non-class” of those who, resistant to the binary of worker and reservist, are “excreted from the class structure and onto the scrapheap”). [8] It can also be found just beneath the surface of the commodity-form theory of law, which assumes that the social relations that produce commodities parallel the social relations between individuals, whether as citizens, legal persons, or wage labourers. [9]
Second, and crucially, the concept is deployed by scholars to describe a collection of interrelated phenomena that appear to be ripe for Marxian analysis. The operation of the contemporary global capitalist system relies not only upon the exploitation of workers in general, and migrant workers in particular, but also upon a multitude of industries and professions (whether formally legal, such as the “aid industry”, or illegal, such as human trafficking) that have developed as a result of (and that also facilitate and reproduce) mass migration. It is these processes that are in “crisis” today, and it is as a result of these processes that many now find themselves “superfluous”. In addition, while scholars working on “human superfluity” have produced a large and valuable literature examining the ways in which many are rendered “superfluous” (both in the “normal” functioning of the contemporary global system and in moments of “crisis”), and while some of those scholars are to some degree influenced by Marxism, few self-identify as Marxists or offer analyses sufficiently materialist to satisfy those with a methodological, rather than simply political, commitment to Marxism.
What is missing is an account that draws together, and makes explicit, findings such as the following: “superfluity” is produced rather than natural, directed rather than spontaneous; it is produced, at least in part, through legal means (particular laws as well as legal categorisations which determine eligibility for inclusion); this has concrete distributional consequences that are in turn protected by law; the productive process operates to the advantage of some classes at the expense of others through means that are common to law in general; “superfluity” is both an outcome and a constituent part of relations of domination and resistance that are mediated through law; and it is in struggles over the meaning and materialisation of the global legal and economic order, and how that order is to be maintained, that human “superfluity” takes shape.
In conclusion, what I have (briefly) sought to argue here is that we should treat “human superfluity” as a shorthand for a collection of interrelated phenomena, the interaction and shared dynamics of which are–or should be–of interest to Marxist legal scholars. This may help to develop a richer analysis of the contemporary global order, and build that analysis into a coherent, systematic, and radical strategy of action.
[1] The meaning and scope of application of the term “migrant” is contested. See, e.g., Katy Long, “When Refugees Stopped Being Migrants: Movement, Labour and Humanitarian Protection”, 1 (2013) Migration Studies 4. I use the term here not only to reflect the popular and scholarly elision of categories, but also because the formal legal categorisations of refugee, migrant-worker, asylum-seeker, undocumented migrant, etc. are themselves problematic, and there is not enough space in a single post to deal with them separately.
[2] See, e.g., Zygmunt Bauman, Wasted Lives: Modernity and Its Outcasts (Cambridge: Polity, 2004); Loïc Wacquant, Urban Outcasts: A Comparative Sociology of Advanced Marginality (Cambridge: Polity, 2008).
[3] See, e.g., Claudia Lenz, “The End or the Apotheosis of ‘Labor’? Hannah Arendt’s Contribution to the Question of the Good Life in Times of Global Superfluity of Human Labor Power”, 20 (2005) Hypatia 135.
[4] See, e.g., Ellen Chances, “The Superfluous Man in Russian Literature”, in Neil Cornwell (ed.), The Routledge Companion to Russian Literature (New York: Routledge, 2001); David Patterson, Exile: The Sense of Alienation in Modern Russian Letters (Lexington: University Press of Kentucky, 1995).
[5] See, e.g., Patrick Hayden, “Superfluous Humanity: An Arendtian Perspective on the Political Evil of Global Poverty”, 35 (2007) Millennium 279.
[6] See, e.g., Achille Mbembé, “Aesthetics of Superfluity”, 16 (2004) Public Culture 373.
[7] Susan Marks, “Law and the Production of Superfluity”, 2 (2011) Transnational Legal Theory 1.
[8] Nicholas Thoburn, “Difference in Marx: The Lumpenproletariat and the Proletarian Unnamable”, 31 (2002) Economy and Society 434, at 437–38 (citing Hal Draper, “The Concept of the ‘Lumpenproletariat’ in Marx and Engels”, 6 (1972) Economies et sociétés 2285 at 2308).
[9] See Isaac D. Balbus, “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law”, 11 (1977) Law and Society Review 575.
Christopher M.J. Boyd is a doctoral candidate in law at the University of Glasgow.
Legal Form 