[An earlier version of this post was first published on the Historical Materialism blog, and is republished here with permission. For the original post, see here. The paper on which this post is based was first presented at the Historical Materialism conference in London in November 2016.]
This post analyses aspects of Marx’s theory of the labour contract in order to explore the possibility of a Marxian critique of modern rights that goes beyond their dismissal as merely illusory or ideological forms.
The labour contract, as a juridical construct, positions rights, juridical subjects, and juridical relations at the core of the concrete process of material production in modern capitalist societies.
I will first discuss the young Marx’s symptomatic oversight of the labour contract. I 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.
I will then outline problems relating to the labour contract in Das Kapital: (1) as a particular form of commodity exchange that produces the difference between value and use-value, enabling the production and appropriation of surplus value; and (2) as a means of subsuming labour to capital in the work process. The relationship between these two aspects involves the relationship between the legal and the non-legal, the juridical and the economic, in ways that exceed an opposition between an unreal or illusory form and a concrete practice. Here I briefly discuss the similarities between the labour contract and the state of exception, since both produce the non-differentiation of right and non-right, law and force, as a way of inscribing a relationship of dominium and inequality. 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 imbalances in supposedly equal juridical exchange.
Finally, I will argue that a particular dialectic of personal and impersonal action may be located in Das Kapital. This dialectic positions the juridical form, and the “free” subject linked to it, as a necessary and real moment in the production and reproduction of the modern capitalist form of social relationships, and as a specific element of its antagonistic nature.
The Labour Contract As a Lapsus in the Young Marx
When discussing Marxist approaches to rights and the problems of the legal form, it is common to focus on Marx’s early writings. From his journalistic writings in the Rheinische Zeitung through his critique of Hegel’s Philosophy of Right in 1843 to the better known essays on the modern state, the rights of man, and Jewish emancipation in the Deutsch–Französische Jahrbücher, what lies at the core of his initial intellectual and political concerns are problems of sovereignty, rights, representation, and political emancipation.
Marx’s “mature” movement towards the economic has been understood to displace these issues, according importance to the study of capital’s logic and the critique of political economy. Althusser’s well-known thesis of the “epistemological break” famously theorizes this non-continuity in Marx’s thought. Althusser argues that after his “scientific discovery” of history and economic-material determination, Marx parted ways with his early moral and humanistic concerns.  Accentuating this “break” tends to render the problem of the juridical form an illusory one, or as merely ideological, by situating the true determination of modern capitalist relations elsewhere. 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 emanating from the material process itself, or as a subsidiary sphere of human activity that needs to be related to the economic. The totality of modern social relationships is fragmented, only to formulate ex post a functionalist and de-subjectivized 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 the 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 state engenders are what drives Marx towards the anatomy of civil society as a way of deciphering the secret of the modern form of difference and hierarchy. The domination of man over man is no longer produced, at least not exclusively or universally, by fixed privileges, hereditary rights, or land-bound relations of dominium.
This movement in Marx’s work can be seen as an expansion of his critical thinking to forms of human activity and social dynamics that he previously neglected, rather than as a discarding of the political-juridical level of modern relations as somehow secondary or supplementary. Consequently, the problems of the “free” subject and its juridical form cannot simply be dissolved, or dismissed 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 which shapes modern society as a whole.
This does not, however, lead to the assertion of a forced continuity in Marx’s thought. Marx’s work is undeniably marked by profound reformulations, crisis, and changes of perspective. This non-continuity is brought to light by understanding the young Marx’s symptomatic overview of the labour contract.
In his classic “On the Jewish Question” , Marx addresses the limits of modern rights of man and citizen, engaging directly with the 1789 Declaration of the Rights of the Man and of the Citizen. Nevertheless, he does not comment on the emergence of an asymmetrical work relationship that is no longer grounded upon direct ownership of the workforce (slavery) or a specific right to a portion of the work product (feudal servitude).
This labour contract formula can be found not in the 1789 declaration but in 1793 constitution and the 1795 constitution. Marx refers to the latter two documents in “On the Jewish Question”, but he does not mention the articles relating to the labour contract. These formulations also figured prominently in many of the draft declarations discussed in the revolutionary National Assembly.  The most typical formulation was the one expressed in the eighteenth article of the preface to the 1793 constitution. It reads as follows:
“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 formulated in negative terms, we find here the draft of the modern labour contract. By excluding ownership of one person by another, it is consistent with the modern idea of the person as free and autonomous. Because the person is regarded as an absolute and sovereign owner of itself and its labour, full alienation to another is not possible. At the same time, this absolute ownership of oneself allows the “free” exchange of one’s labour in the form of a bond of “solicitude and acknowledgment” between formally equal subjects.
Surprisingly, this significant change in productive relationships, expressed in juridical-political terminology, is overlooked by the young Marx. Marx refers to the dissociated aspect of private-property owners as subjects of modern rights, and the dissolving character of money. Moreover, law is posited as the modern link between persons that replaces bonds structured through fixed relations of privilege, producing both the form of the modern state and the atomistic sphere of civil society. But not having focused on the particular dynamics 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 revolutionary conception of rights.
In Das Kapital, by contrast, the legally mediated act of selling and purchasing labour power inheres in both the sphere of production and the sphere of circulation, and is essential to the process whereby money comes to be valorized as capital.
The distinct characteristics of this enigmatic valorization, insofar as it occurs “both in circulation and not in circulation” , explains the differential accumulation of value. A difference that disrupts the equivalence of an exchange relation that was originally carried out by equal “commodity owners”, i.e. juridical persons.
 Louis Althusser, For Marx, trans. Ben Brewster (London: Verso, 2005 ); also available (in different translation) at https://www.marxists.org/reference/archive/althusser/1965/index.htm.
 Karl Marx, “On the Jewish Question” , in Karl Marx and Frederick Engels, Marx-Engels Collected Works, vol. 3 (New York: International Publishers, 1975) 146; also available (in different translation) at https://www.marxists.org/archive/marx/works/1844/jewish-question/.
 Christine Fauré, Les Déclarations des droits de l’homme de 1789, textes réunis et présentés (Paris: Payot, 1988).
 Karl Marx, Capital: A Critique of Political Economy, vol. 1, trans. Ben Fowkes (London: Penguin, 1990 ), 269; also available (in different translation) at https://www.marxists.org/archive/marx/works/1867-c1/ch05.htm.
Facundo C. Rocca is a doctoral student of philosophy at the National University of General San Martín and the University of Paris VIII, and a doctoral fellow at the National Scientific and Technical Research Council of Argentina.