The Labour Contract in Das Kapital: Capital’s Command, the State of Exception, and Counter-Law
Before going back to the particularities of the labour contract–as the exchange of a distinct commodity–we need to outline Marx’s formulation of the contract itself as the specific link between commodity owners.
Das Kapital opens with a critical examination of the commodity as the “elementary form” of capitalist production.  In the first chapter of volume one, Marx examines the dynamic of the commodity form through a discussion of the concepts of use-value, exchange-value, value, and concrete and abstract labour. Marx shows how being produced privately and independently for exchange, commodities are realized in the value form, and how their exchange engenders the need for a universal equivalent form, the “general form of value”, that ultimately finds expression in the money form.
Before Marx extends his analysis of the money form’s valorization as capital, we encounter a preliminary conclusion: within capitalist production, the exchange of commodities mediates social relations, and commodities are thereby “fetishized”.
But when the movement of Marx’s exposition seems to be heading toward an impersonal and de-subjectivized process, Marx introduces, in the second chapter, the problem of will, i.e. human subjectivity, which is entangled with the fetishism 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.” 
Commodities appear to establish links with each other only by their own autonomous movement. Nevertheless, despite this fetishized objective-appearance, a different kind of link needs to be postulated: that of two wills that recognise each other as persons. In other words, that of two “owners of private property” that command objects with their will and by doing so allow commodities to be exchanged in the marketplace. “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.” 
The fact that Marx claims that “the content of this juridical relation (or relation of two wills) is itself determined by the economic relation” should not lead us to believe that the juridical link and the existence of juridical persons is somehow secondary or epiphenomenal.  Throughout Das Kapital, what matters is also the form itself–the fact that human activity takes specific historical forms, though 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 any less real or effective because it is not possible for there to be formless but somehow “pure” economic facts.
After examining the genesis and logic of the money form, Marx moves to part two, the “transformation of money into capital”. And at the end of this section, we again find the contract.
The contradiction of the general formula of self-valorizing value (money in the process of transformation into capital) finds its resolution in a specific act of exchange in the circulation sphere between equal persons: the sale and purchase of labour power. Here the emergence of value as a subject of its own process encounters the conditions for the resolution of its contradictions in free juridical exchange.  This is the exchange between the money-bearer–the “larval form” of a capitalist who is the owner of money in search of valorization –with another subject: the doubly “free” worker.  This worker arrives to market owning nothing but itself, as a minimum juridical person, is entitled to the formal status of commodity-owner but not in possession of any concrete value, and therefore left in possession of nothing but the right to its autonomous existence as a will, attached to a body, among others in the marketplace. A subject that is both free of other means to preserve his or her life and free of any kind of external compulsion to work. 
The reasons for the existence of this free worker are not of practical importance to our buyer, and have no place in the pure logic of capital in-becoming that Marx lays out.  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.” 
What is important for Marx at this stage is that the labour contract allows the consumption of a particular commodity, the distinctive use-value of which holds the key to the enigma of self-valorizing value. Consequently, in line with the properties of the particular commodity that is labour-power, this kind of contract resolves itself not in a simple consumption (the private act of consumption has 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, absent thus far 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”, toward “the hidden abode of production”, 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”. 
The labour contract enables the juridical link between the money owner and the worker, in a way that is fully respectful of law and of the mutual recognition of every person as an equally juridical person. In the same way, it has to respect the equivalence of values that are exchanged. The labour contract takes place in the “Eden of the innate rights of man”.  But echoing his previous judgment of the rights of man (as opposed to the rights of the citizen) as juridical names for the atomistic and egotistical modern individuals, Marx renders this scene 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 means of their equivalent exchange. 
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 work, and the battle for its intensity and duration.
The very terms of the labour contract grounds the capitalist’s control over the use of labour force, as rightful owner of this commodity that he or she has fairly bought.
But the commodity he or she 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 takes the form of his unbounded command of and imposition upon other persons. It is the same will for which he was recognised as buyer. A will that is nothing but the personal mask of the immanent and impersonal need of capital for achieving self-valorization through the suction of living labour.  Here lies 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 in the circulation sphere into the power of capital over workers and the process of appropriating surplus value created in the sphere of production of commodities. Here the differentiation of bodily commodities and juridical persons resolves in the transformation of dominium over things into a new form of imperium over subjects. 
This juridical act that allows unbounded authority in the material process of commodity production resonates analogous to the particular juridical status of the state of exception, which Agamben has examined.  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.  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 prospect of open (class) war. This menace, the undergoing battle that simmers under the juridical form of the capital relation that grounds its exceptional authority, may be traced in Das Kapital. The way warmongering language emerges in its rhetorical figures and images finds its peak in the “protracted and more or less concealed civil war between the capitalist class and the working class” over the working day in the middle of part three of Das Kapital. 
There are, of course, unavoidable differences between these two 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 tendencies towards an undifferentiation of right and non-right, law and force, legally bound authority and unlimited command of power. And perhaps 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, knows a multiple and permanent existence in the form of capital’s unbounded command of workers’ bodies, creativity, and activity in the work process.
However, capital’s authority over the work process, which is enabled by the labour contract, is not devoid of movement. It admits of a development that deals with the way that the work process is subordinated to the internal needs of the process of valorization.
Labour power holds the key to the valorization process. in Das Kapital, a difference is systematically posited between living and dead work, present and past work, and the subjective force of labour and the objective existence of value. It is such opposition that renders capital dependent upon the vampirization of labour’s living forces.  After the labour contract has been concluded, the work process takes place “under the anxious eye of the capitalist”, the personification of the living dead in desperate need of blood and sweat from the bodily commodity he or she has bought. 
Because of this, and in order to make use of this vital difference it has bought, capital needs, at first, to ensure its command so that the production of surplus labour is achieved. It needs to ensure that the effective and present activity of the labour power exteriorises in a way that exceeds the amount the capitalist has paid in advance in the form of the wage and that it properly reproduces and transfers the value contained in the means of production that has been purchased on the market. 
The first form of this control is still merely a formal subsumption of labour to capital’s command, based upon the prescribed terms of the monetary and juridical relation they had established in the market (by the sale and purchase of labour power), and also upon the fact that labour owns no independent means of subsistence or production. In this stage, capital and its personifications appear as a “voracious appetite for surplus labour”, forcing a longer working day, and establishing a battle over time itself that seeks to assure the production a bigger magnitude of absolute surplus-value.  This attempt to imprison the worker’s time led Foucault to compare the wage-form to the discipline over time implicated in the prison as a distinct mode of punishment. 
But in the search of a larger amount of surplus value, the capitalist tends to intensify its grasp over the work process by producing a real subsumption of its determinations. This produces another form of surplus value: relative surplus value. This form of surplus value concerns the intensity of the work activity and the productivity of labour during the course of the working day.
This new form of capital’s command furthers the capitalist mode of production. Formal subsumption shares with previous forms of appropriation its hunger for surplus-labour, although carried out through dependence upon the market rather than through direct ownership of the worker.
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, and so on. Marx explains theses transformation in part four of Das Kapital.
In these key passages, Jameson finds an important break in the exposition of Das Kapital–a break that leaves behind the individualistic, atomistic relations, figures, and personifications of the marketplace. 
What does this change–in both scale and nature–of the work process imply for the juridical act that had initially rendered it possible, i.e. the labour contract?
First, it implies an intensification of capital’s command. The coercion to produce surplus labour is here reinforced and transformed by the growing power of capital over material production, by its capacity to subsume 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 had already pointed out how disciplinary technologies and mechanisms constituted a sort of counter-law. And he cited the “legal fiction” of the “work contract” as an obvious example of this aspect of disciplines.  In his view, 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”. 
“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.” 
The concrete practices of workshop discipline, the expropriation of the laborer’s knowledge in favor of a science that commands them; the anatomo-political effects of machinery, et cetera–this seems far more effective for the control of the workforce 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, which undermine the labour contract from within, seems to reside in their paradoxical link with the juridical form, as I 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”. 
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 a mere appearance that resolves itself and secures open appropriation and enslavement.  The displacement of the juridical form produced by real subsumption seems to imply the evanescent existence of the juridical itself.
But Foucault’s formulation, mainly focused on micro-power, is closer to the young Marx’s critique of law than to Marx’s mature formulation. He still opposes the formal and ideological sphere of rights to the concrete and real sphere of practices. (Whereas Foucault places the disciplinary mechanisms of power, the young Marx had placed the atomistic existence on individuals.) These are understood as two poles that can only establish an external link of concealment between each other. And this logic leaves no place for free subjectivity than that of a pure function, a mere illusory trick of power–or a derailed idea of the human.
In the movement of Das Kapital, juridical forms do not constitute simple illusions but necessary appearances. The juridical informing exchange is a necessary form of the capitalist relation.
In the next and final section, I will discuss the place of the juridical form within the broader dialectics of capital, and outline possible consequences for further research.
 Karl Marx, Capital: A Critique of Political Economy, vol. 1, trans. Ben Fowkes (London: Penguin, 1990 ), 125; also available (in different translation) at https://www.marxists.org/archive/marx/works/1867-c1/.
 Ibid., 178.
 “[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 self-valorizing 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.” Ibid., 255.
 Ibid., 269.
 Ibid., 272.
 “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 [veräussern] his labour-power and to avoid renouncing his rights of ownership over it.” Ibid., 270–71.
 “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.” Ibid., 273.
 Ibid., 279–80.
 Ibid., 280.
 “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.” Ibid., 280.
 “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.” Ibid., 976.
 Neocleous 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.” Mark Neocleous, The Fabrication of Social Order: A Critical Theory of Police Power (London: Pluto Press, 2000), 39.
 Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005).
 “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.” Ibid., 85–86.
 Marx, Capital, vol. 1, 412–13.
 “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.” Ibid., 302.
 Ibid., 290.
 “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.” Ibid., 291. 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.” Ibid., 986.
 Ibid., 344.
 Michel Foucault, La societé punitive. Cours au Collège de France, 1972–1973 (Paris: Le Seuil, 2013).
 “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 aufgehoben, 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’. Meanwhile, collectivity ‘begets in most industries a rivalry and a stimulation of the animal spirits which heightens the efficiency of each individual worker’: 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’. This new power, ruefully exults Marx, is ‘a free gift to capital’. 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.” Frederic Jameson, Representing Capital: A Reading of Volume One (London: Verso, 2011), 63–64.
 Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1995), 223.
 Ibid., 222.
 Ibid., 222–23.
 Ibid., 223.
 “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, Capital, vol. 1, 1063–64. [Note: the Spanish translation uses “appearances” rather than “illusions”, which helps to clarify the difference to which I refer in this post.]
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.