[This is a translation of Alexis Cukier’s “Exploitation, marxisme et droit du travail”, originally published in Contretemps. Revue de critique communiste. The original text is available here.]
On trial with other members of the Rhenish District Committee of Democrats in 1849, Karl Marx argued in a Cologne court that their prosecution was based upon “laws which the Crown itself has trampled into the dirt”. 
In March 1848 a bourgeois-led insurrection had secured the establishment of a national assembly in Frankfurt. Frightened of an emergent self-conscious working class more than reaction itself, “the alliance between the bourgeoisie and the supporters of the overturned system was concluded on the very barricades of Berlin”, Engels was to write some years later. 
In December 1848, after the liberals’ support had waned through the autumn, “[t]he ‘powers that were’ before the hurricane of 1848 [had again become] the ‘powers that be'”.  Three months later, Marx and his co-defendants were charged with breaking laws–calling for the non-payment of taxes in defence of the National Assembly–that the prosecuting state had itself annulled; they were engaged less in a legal or even political dispute than in “a conflict between two societies”, as Marx observed. “Society is not founded upon the law”, Marx argued, maintaining that “this is a legal fiction. On the contrary, the law must be founded upon society.” 
But while Marx and his collaborators subscribed to a historical materialist understanding of jurisprudence, they “never tried to present a complete theory of bourgeois law”, as Gary Young has pointed out. Nor did they try to provide a complete theory of the bourgeois state.  Explaining Capital to Ludwig Kugelmann in late December 1862, Marx wrote that it was complete as a work on the “The Principles of Political Economy”, but “with the exception, perhaps, of the relationship between the various forms of state and the various economic structures of society”. 
Various theories of capitalist states and their laws have, of course, been developed since that time. Alexis Cukier has done a great service in patiently contrasting three distinct Marxist conceptions of the relationship between “droits du travail”–literally “rights of work”, or, as we have rendered it, “labour law”–and “exploitation”, understood not in the general sense of “use to advantage” but in the stricter sense suggested by Marx in Wage Labour and Capital. In the Dictionary of Marxist Thought, Susan Himmelweit’s definition of “exploitation” is as follows:
Under capitalism, exploitation takes the form of the extraction of surplus value …. Capitalist production generates a surplus because capitalists buy workers’ labour-power at a wage equal to its value but, being in control of production, extract labour greater than the equivalent of that wage. Marx differed from the classical political economists, who saw exploitation as rising the unequal exchange of labour for the wage. For Marx, the distinction between labour and labour-power allowed the latter to be sold at its value while the former created the surplus. 
The organized working class does not need a Marxist theory of exploitation or the law in order to limit the former via the latter. Indeed, such limits often take the form of agreements between labour, capital, and the state. Marxists, though, do require a working theory of the relation between law (the capitalist state) and exploitation (the capital-labour relation) if they are to provide a proper assessment of contemporary capitalist society. This is the theory to which Cukier’s essay contributes.
Naturally, readers will decide whether the essay is relevant conjuncturally. We suggest that Cukier’s analyses of the European Union’s legal demands and the labour regime of the “gig economy” speak directly to the concerns of several UK-based left-wing tendencies. We would also like to suggest two further issues it might be used to illuminate.
The first is that, for the first time in its history, the UK Labour Party has a leadership whose politics are to the left of both the parliamentary party’s average and (what is less frequently noted) the official left wings of the major trade unions. If Corbynism’s maximal aim is to work “in and against the state”, there arise a host of questions about how it understands the state’s relation to those unions, and how each understands the laws that govern the basic relation between capital and the working class. What kinds of laws are to replace the 2016 Trade Union Act? What labour regime is Corbyn’s Labour Party proposing to create?
A second issue is the tremendous increase in the number of Employment Tribunal cases in the United Kingdom over the last fifty years–from roughly 15 000 per year in the early 1970s to 218 100 in 2010–11, when upwards of two million public sector workers went on strike (the year of “the biggest outbreak of industrial unrest in three decades”).  As the barrister David Renton has argued, this implies
[a] transition from a way of dealing with employment conflicts in which the disputes were resolved collectively, and usually outside the law, to one in which disputes are resolved most often by the courts and tribunals, and today concern individuals rather than classes of people. 
Every year hundreds of thousands of working-class people are directly involved not only in an ambient “employment law” but in employment courts, with their decisions having potentially life-altering consequences. What are the historical determinants of this “transition”? What have been the industrial-political effects?
Again, progressive, even radical, responses to these questions do not require a specifically Marxist theory of the law. Clearly, though, trialling our competing theories of law and exploitation is crucial if Marxists are to intervene satisfactorily in the production of their answers.
Exploitation, Marxism, and Labour Law
The evaluation of the politics of labour law constitutes for Marxist theory, and particularly for the critique of political economy centred on the analysis of exploitation, an essentially contested question. Since Marx, labour law has been considered in relation to the process of extraction of surplus value in three divergent ways:
1 — As an application to labour of bourgeois right, implying a radical critique of formal juridical rationality.
2 — As a limiting force on the wage relation and exploitation, expressing the relations of force in class struggle.
3 — As a political lever for overcoming the capitalist mode of production, through the institution of a “socialist labour law”.
If the second option today appears as the most theoretically fertile and the most politically reasonable, certain discussions at the heart of the social movement against the El Khomri law remind us that the other two options–employment rights as exploitation, and labour law with a view to abolishing exploitation–have not lost their currency entirely.
We know that the dismemberment of the French Labour Code was explicitly “recommended” by the European promoters of neoliberalism: a 14 July 2015 text from the European Commission affirmed that “France should take decisive action to remove the regulatory thresholds provided for in employment rights and accounting regulations that limit the growth of French firms” in order to “reduce labour costs and improve firms’ profit margins”–weakening employment rights and encouraging the extraction of surplus value. 
However, certain elements of the El Khomri law, such as the relaxing of dismissal rights or the possibility of an increase in legal working hours above ten hours, to take just two examples, show the real possibility of a French Labour Code in the service of exploitation. On the other hand, the unions’ and academics’ counter-propositions do not always distinguish sharply between the second and third options: there is, for example, the question of instituting within the Labour Code a thirty-two-hour workweek, and of establishing “professional social security” measures at the start of a job, but also of integrating employment rights into a new “social right”, generalizing the rights of public sector workers in law.
Finally, the three models reintroduce into the framework of ongoing legal debates the criteria both of hierarchical subordination and economic dependence, which might apply to new practices of capitalist exploitation linked, for example, to task-based work via digital platforms.
The analysis of these three models concerning the relation between employment rights and exploitation returns us once more to examining, from the point of view of Marxist theory, a current practical problem: can we wait for a progressive counter-reform to employment rights?
This text proposes a reconstruction of these three positions, commencing with Marx, then Marxist authors of the twentieth century, notably Evgeny Pashukanis and Karl Korsch. Following that I will discuss these models in confrontation with recent juridical and sociological works on the genesis and dynamics of employment rights in France, above all the works of Alain Supiot. In the third section, I will consider two issues currently occupying political and juridical debates: the new practices of economic exploitation on digital platforms, and the relationship between employment and social rights at the national and international level, with a focus on the European Union. To conclude, I seek to reinscribe these arguments in the framework of a broader discussion of contemporary debates [enjeux] around the thesis of the political centrality of work.
Marx’s Three Models of the Relationship between Exploitation and Employment Rights
Marx and Engels’ respective and collaborative bodies of work outline the three previously stated models of the relationship between exploitation and employment rights.
The first argument derives from the materialist critique of bourgeois right. In general, the formulation in The Communist Manifesto on the subject of the right to property seems to apply to all state legislation concerning production:
Your jurisprudence is but the will of your class made into a law for all, a will whose essential character and direction are determined by the economical conditions of existence of your class. 
The materialist critique of idealist and bourgeois legalism, then, views right as the expression of capitalist relations of production, unmasking that legalism’s ideological form: as the work of a political community, involving the fiction of a private individual, with the contractual relationship understood as “a relation between two wills which mirrors the economic relation”. 
In this regard, Capital makes a work contract appear as any other:
The exchange between capital and labour at first presents itself to our perceptions in exactly the same way as the sale and purchase of all other commodities. The buyer gives a certain sum of money, the seller an article which is something other than money. The legal mind recognizes here at most a material difference, expressed in the legally equivalent formulae: “Do ut des, dout facias, facio ut des, fado ut facias” [I give, that you may give; I give, that you may do; I do, that you may give; I do, that you may do]. 
In other words, “the most fundamental right under the law of capital is the equal exploitation of labour-power by all capitalists”. 
But precisely this formal equality promoted by capital–this value-levelling [niveleur] which “claims the intrinsic rights of man are equality of conditions of labour exploitation” –constitutes at the same time, paradoxically, the means by which legislation can limit exploitation, as in the case of the law limiting children’s working hours to six hours that Marx considers in the above passage. Labour law therefore becomes–and this is the second position–a specific field of class struggle between antagonistic interests:
There is here therefore an antinomy, of right against right, both equally bearing the seal of the law of exchange. Between equal rights, force decides. Hence, in the history of capitalist production, the establishment of a norm for the working day presents itself as a struggle over the limits of that day, a struggle between collective capital, i.e. the class of capitalists, and collective labour, i.e. the working class. 
From this perspective, which predominates in Capital, prevailing employment rights are the expression of the balance of forces in the class struggle, and the part of legislation that is captured by workers’ struggles may constitute a principle external to, and capable of limiting, exploitation.
Finally, Marx and Engels, notably in certain political interventions, anticipate labour legislation more favourable to the interests of the proletariat: a form of law which would not be a class compromise, but a direct attack against the very principle of exploitation. This third position appears, for example, in a passage that blurs the line between analysis and political prospectus, in the “Inaugural Address of the International Association of Workers” of 1864. In regard to the reduction of the working day by the Ten Hours’ Act–associated in this text with another important advance since 1847, the development of cooperatives–they affirm that it constitutes “the victory of a principle; it was the first time that in broad daylight the political economy of the middle class succumbed to the political economy of the working class”. 
Similarly in the passage in Capital which places the Magna Carta’s model of the general limitation of the working day in opposition to the vague model of the Rights of Man:
[W]orkers have to put their heads together and, as a class, compel the passing of a law, an all-powerful social barrier by which they can be prevented from selling themselves and their families into slavery and death by voluntary contract with capital’, in such a way that In the place of the pompous catalogue of the “inalienable rights of man” there steps the modest Magna Carta of the legally limited working day, which at last makes clear “when the time which the worker sells is ended, and when his own begins”. 
A passage in The Critique of the Gotha Programme specifies that if such a labour right, defending the interests of workers, retained “in its contents a right of inequality”, this inequality would leave “inevitable dysfunctions in the first phase of communist society”.  There is no specific answer from Marx to “socialist right” in the sense intended by Soviet legal scholars, but one finds in his works something like “a labour law that protects waged workers”, as understood today by some unions.
What were the fates of these three models of the relation between exploitation and employment rights in twentieth-century Marxist theory?
 Marx’s self-defence was published as “The Trial of the Rhenish District Committee of Democrats” in the Neue Rheinische Zeitung shortly after the trial. See Karl Marx, “The Trial of the Rhenish District Committee of Democrats” [8 February 1849], in Karl Marx and Frederick Engels, Collected Works, vol. 8 (London: Lawrence & Wishart, 1977), 323; also available at https://www.marxists.org/archive/marx/works/1849/02/25.htm. On the broader circumstances of the trial (and others in which Marx and his comrades were involved), see David McLellan, Karl Marx: A Biography (London: Papermac, 1995), ch. 4.
 This language is from “The Berlin Insurrection”, one of a series of essays published under Marx’s name in the New York Daily Tribune in 1851–52, and collected by Eleanor Marx as Revolution and Counter-Revolution in Germany in 1848. See Karl Marx, “The Berlin Insurrection” [28 November 1851], in Revolution and Counter-Revolution in Germany in 1848, ed. Eleanor Marx Aveling (London: Swan, Sonnenschein, & Co., 1896), ch. 6; also available at https://www.marxists.org/archive/marx/works/1852/germany/ch06.htm.
 See Karl Marx, “Germany at the Outbreak of the Revolution” [25 October 1851], in Marx, Revolution and Counter-Revolution in Germany in 1848, ch. 1; also available at https://www.marxists.org/archive/marx/works/1852/germany/ch01.htm.
 Marx, “Trial of the Rhenish District Committee of Democrats”.
 See Gary Young, “Marx on Bourgeois Law”, 2 (1979) Research in Law and Sociology 133.
 See Karl Marx to Ludwig Kugelmann [28 September 1862], in in Karl Marx and Frederick Engels, Collected Works, vol. 41 (London: Lawrence & Wishart, 1985), 435; also available at https://marxists.catbull.com/archive/marx/works/1862/letters/62_12_28.htm. See further Gareth Stedman Jones, Karl Marx: Greatness and Illusion (Cambridge, MA: Harvard University Press, 2016), esp. ch. 7.
 Tom Bottomore, Laurence Harris, V. G. Kiernan, and Ralph Miliband (eds), A Dictionary of Marxist Thought, 2nd ed. (London: Routledge, 1991), 183.
 Dan Milmo, Caroline Davies, Polly Curtis, and Hélène Mulholland, “Strikes Over Public Sector Pensions Hit Services Across UK As 2 Million Walk Out”, The Guardian (30 November 2011), available at https://www.theguardian.com/society/2011/nov/30/strikes-public-sector-pensions-impact.
 David Renton, Struck Out: Why Employment Tribunals Fail Workers and What Can be Done (London: Pluto Press, 2012), 39.
 “Council Recommendation of 14 July 2015 on the 2015 National Reform Programme of France and Delivering a Council Opinion on the 2015 Stability Programme of France”, available at https://ec.europa.eu/info/business-economy-euro/economic-and-fiscal-policy-coordination/eu-economic-governance-monitoring-prevention-correction/european-semester/european-semester-your-country/france_en.
 Karl Marx, “The Communist Manifesto” , in Karl Marx and Frederick Engels, Collected Works, vol. 6 (London: Lawrence & Wishart, 1976), 477, at 501; also available at https://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch02.htm.
 Karl Marx, Capital: A Critique of Political Economy, trans. by Ben Fowkes (London: Penguin, 1976 ), 178.
 Marx, Capital, 405: “A great number of manufacturers, who until then had been afraid to use the shift system for young persons and women, now seized on it enthusiastically. But this apparently decisive victory of capital was immediately followed by a counter-stroke. So far, the workers had offered a resistance which was passive, though inflexible and unceasing. They now protested in Lancashire and Yorkshire in threatening meetings. … The so-called Ten Hours’ Act, they said, was thus mere humbug, a parliamentary fraud. It had never existed! The factory inspectors urgently warned the government that class antagonisms had reached an unheard-of degree of tension. … And the most fundamental right under the law of capital is the equal exploitation of labour-power by all capitalists.”
 Marx, Capital, 520: “The revolution effected by machinery in the legal relationship between buyer and seller of labour-power, causing the transaction as a whole to lose the appearance of a contract between free persons, later offered the English Parliament an excuse, founded on juristic principles, for state intervention into factory affairs. … But since capital is by its nature a leveller, since it insists upon equality in the conditions of exploitation of labour in every sphere of production as its own innate right, the limitation by law of children’s labour in one branch of industry results in its limitation in others.”
 Marx, Capital, 34.
 Friedrich Engels and Karl Marx, “Adresse inaugurale et statuts de l’Association internationale des travailleurs” [21–27 October 1864], in Karl Marx, Œuvres complètes, vol. 1 (Paris: Gallimard, 1969), 466.
 Marx, Capital, 416.
 Karl Marx, Critique du programme de Gotha (Paris: Les éditions sociales, 2008), 59. Part of the explanation resides in the general affirmation, according to which “rights can never be higher [plus élevé] than economic organization and the level of civilizational development to which it corresponds”. Ibid., 53.
Joe Hayns is a student (University and College Union) and art industry worker (Independent Workers Union of Great Britain).
Pearl Ahrens learned French from her grandmother and has travelled in France and Switzerland. She lives in London.
[NB: Hayns and Ahrens translated all of Cukier’s extended quotations, and replaced all references to Presses universitaires de France’s edition of Le Capital (1993) with the corresponding passages in Ben Fowkes’ canonical translation of Capital (1976). They left the titles of all other sources untranslated.]