Militant protests have broken out across India in response to Prime Minister Narendra Modi’s Citizenship Amendment Act (CAA). [1] The bill fast-tracks naturalization for non-Muslim religious minorities from three Muslim-majority countries–Afghanistan, Bangladesh, and Pakistan. It also explicitly excludes Muslims, including persecuted groups such as the Ahmadiyyas of Pakistan and the Rohingya of Myanmar. The CAA is the latest in a series of provocations by the Modi regime, which aims to refashion India in the image of Hindu nationalism. The CAA is designed to operate alongside the National Register of Citizens (NRC), which requires proof of citizenship on the basis of a restricted list of documents and can be used as a basis for identifying and deporting illegal migrants, especially Muslims. In India, where births often take place at home, many are unable to prove their residency, even if they have lived in the same place for generations. Pursuant to the CAA, non-Muslims may be fast-tracked into citizenship, if they cannot procure documents. Muslims, on the other hand may be condemned to detention centres.
Large-scale demonstrations, spearheaded by students, have rocked the country—including a women-led sit-in at Shaheen Bagh and a ten-day general strike called by the trade unions. In late February and early March of this year, anti-Muslim riots broke out in Delhi. [2] What unites the opposition has been a defence of secularism by reference to the preamble of the Indian Constitution. The preamble defines the Indian state as a “sovereign, socialist, secular, and democratic republic” that exists to secure “justice, liberty, equality to all citizens and promote fraternity to maintain unity and integrity of the nation”. [3] The opposition justifiably claims that the CAA violates this secularist principle, turning Muslims into second-class citizens. The Communist Party in Kerala is in the process of requiring that the Constitution’s preamble be read at school and college morning assemblies. [4] Artists have invoked the nationalist imagery of the tricolour flag against Modi’s dereliction. [5] One painting depicts an Indian citizen holding up the Constitution, and it was reported that a rickshaw driver in Delhi declared “Yeh samvidhan ke liye hain” (“This is for the Constitution”) as motivation for his protest. [6] Nationalist imagery is common at demonstrations, especially among students who have “taken over the celebration of the very nationalist symbols that BJP thought it had a monopoly to protect”. [7]
The language of constitutionality introduces a split at the heart of the anti-CAA movement, a divide between the radical form of the struggle and its reformist content. The anti-CAA movement is marked by relatively high levels of militancy, which often provoke fierce repression. Its tactics frequently aim to upend established social relations, in some cases by openly repudiating state power and capital. And yet these tactics simultaneously help to reconstitute the matrix of state and class power, mobilizing a “humane nationalism” as against its more muscular and religious counterpart.
There are two types of ideology at work here. One type of ideology is capable of being explained with instrumentalism, according to which law reflects the interests of the ruling class directly. Another type of ideology demands social form analysis–an analysis of the internal connections between the logic of law and the logic of capital.
The first type of ideology reflects particular hegemonic interests. This is fully on display in the use of constitutionality by the parliamentary left, including the Communist Party of India (Marxist), which is the largest communist party in India. Opposition political parties in India, including some state-level BJP allies, have rallied together to oppose the CAA. The use of constitutionality is in the objective interest of the parliamentary left, so as to obtain political advantages during elections.
In this case, a critique of legal opposition would take the form of a theory of manipulation: in mobilizing around the law, the anti-CAA movement falls into a trap set for the working class. Reformist parties hold out false promises, mobilizing workers in the interests of the very system that exploits them. Yet if legal opposition were nothing more than deception, it would be unlikely to command as much social authority as it does. If the instrumentalist explanation suffices when speaking about the use of legal arguments by bourgeois parties or the reformist left, it fails to explain the extent to which it keeps working and how workers actively participate in keeping “in existence a reality which enslaves them in ever greater degree”. [8]
The turn to legal form analysis comes into its own when its criticisms are directed against both bourgeois legal theory and false forms of emancipation. In the first volume of Capital, Marx critiques bourgeois political economy, demonstrating that its assumptions are historically constituted and thus changeable. He anchors the categories of capitalism in labour’s subjugation to capital. In so doing, he argues against other socialist tendencies, including those in favour of a “fair day’s pay for a fair day’s work”. This is why Marx maintains that exploitation inheres in formally free and equal transactions, even if theft, greed, and swindling are endemic to actually existing capitalism. Other socialist movements at the time also criticized capitalism, but they tended to articulate their opposition to it within the conceptual framework bequeathed by capital and not against it. Evgeny Pashukanis’ analysis of the legal form critiqued bourgeois legal theory, and also those reformists who favoured the parliamentary road to socialism, as well as fellow Bolsheviks who believed in the possibility of socialist law. [9] These forms of reformism were radical with respect to the political organization of capitalism. But in opposing a given configuration of capital-labour relations, they did so by affirming capitalism’s underlying logic. Reformism is not necessarily doomed to failure, but it can only accomplish pyrrhic victories.
This essay explores class struggle through a legal form analysis of constitutionality. Constitutionality is the “Eden of the innate rights of man” [10], in which persons interact as formally free and equal commodity owners and also as citizens who participate equally in the social and political community. This freedom and equality turns out to be the form of appearance of its opposite: the exploitative relationship between wage-labour and capital. Class struggle, in this sense, is system-immanent and system-preserving. But class struggle is also, at least potentially, what overcomes capital, and may therefore also be system-negating. Whether system-immanent or system-negating tendencies win out in the course of struggle is a priori indeterminate.
Constitutionality and the Commodity-Law Nexus
The legal form is a means of realizing class cohesion, complementary to the commodity form. The commodity form brings formally free individuals together in the market, where their interdependence is indirectly realized through exchange. The objective social relation grounded in the commodity has its subjective complement in the legal form, so that the subject exists simultaneously as both a commodity owner and as a rights-bearing individual. [11] The unity of commodity form and legal form (the commodity-law nexus) mediates relations between individuals, and between individuals and institutional structures, reproducing classes through the “dull compulsions” of the market, not to mention a social and political system that ensures the general conditions of accumulation.
The juridical subject in law is the self-same subjectivity that Marx analyzes in his theory of commodity fetishism. According to Marx, the mystery of the commodity and its secret is that social relations appear as relations between things. [12] Concrete acts of labour are socially validated insofar as they can prove themselves worthy of exchange. The realization of needs, both individual and collective, is the basic form of sociability. In capitalist society, however, sociability is indirectly realized by way of commodity production and exchange. Two key inversions take place: (a) social labour appears in the mode of its denial as private labour, and (b) the social division of labour appears as antagonistic production between private producers. [13] Bearers of commodities relate to each other subjectively as formally free and equal participants in exchange. Abstract equivalence between commodities doubles as equivalence between its owners. [14] Each commodity owner’s will resides in the object, and each owner relates to others as formal equals in the transaction.
Each transaction partner must recognize the other as a juridically legitimate commodity owner. The social relations of exchange are, however, not reducible to a sum of individual transactions. Therefore, mutual recognition is not reducible to a sum of intentional acts of recognition. Generalized and regular exchange places all commodity owners in a relationship to all others, regulated by socially necessary labour time. Conversely, contractual obligation expresses systematic recognition. The contract form excludes or colonizes other ways of achieving reciprocity. The multiplicity of relations between individuals, as Pashukanis writes, “dissolve into the abstraction of man in general, man as a legal subject”. [15] The social bond appears, then, “simultaneously in two absurd forms: as value of commodities, and as man’s capacity to be the subject of rights”. [16] Abstract subjectivity is a field of interpellation that governs the conditions of possibility for concrete subjects to be subjects of law (e.g. citizen, nation-state, corporation). But if one is to avoid the charge of metaphysics, the field of interpellation does not pre-exist its materialization. The legal form is enacted behind the backs of its producers in their everyday relations. The concrete particularities of individuals are never truly erased. Indeed, difference is the hinge upon which rights are established. Of course, concrete actors are themselves located historically and geographically. So the materialization of the legal form is simultaneously its adaptation to circumstance.
Constitutionality is a means by which the legal form is institutionalized, establishing a systematic juridical architecture for legal claims and rights. Constitutions play an important role in forging national unity by organizing human communities. Declarations in constitutional preambles, fundamental rights and duties, and principles of state policy set the basic terms by which individuals relate to each other in civil society, and the relationship between civil society and the state. Constitutional doctrines demand the restriction and limitation of sovereign power, forcing the state to demonstrate that its power accords with the dictates of popular sovereignty. The state cannot, in principle, legitimize its use of power on the basis of its own interests, as in purely monarchical systems. [17] Constitutions establish the terms of citizenship and nationhood, and typically set out the jurisdictional boundaries between branches of government. The bourgeois constitutional state institutionalizes the public sphere as part of the state apparatus by linking the former to the latter via the law, regulated by the “rule of law”. On the other hand, constitutions are a “kind of overlay on top of social relations” that create formal-bureaucratic procedures that determine the lines between the political and non-political. [18] They also legalize and illegalize different forms of struggle, and structure how political preferences are constituted and expressed.
Juridical formalization is first expressed by associating the citizen with fundamental rights and participation in national sovereignty. In India, it is a common journalistic cliché to suggest that a given political dispute concerns the “soul of India”. The “soul” is an idealized expression for the way in which people are integrated into a social totality and have their wills expressed by the state. The definition of the citizen is nominally not class-specific. Both capitalists and workers are equal partners in the public sphere as citizens: “The relation of the political state to civil society is just as spiritual as the relation of heaven to earth.” [19] If so, then it would appear natural to leverage political equality against economic inequality. But law’s embeddedness in the commodity reveals this heavenly existence to be nothing more than the market, which dominates everyone, though unequally. The expansion of liberal rights to new groups is also an expansion of “market freedom”. [20] In India, the political emancipation of religious minorities is simultaneously the emancipation of the state as an autonomous (or quasi-autonomous) force, one whose limits “are evident at once from the fact that the state can free itself from a restriction without man being really free from this restriction”. [21]
Constitutional preambles are texts in which the state inscribes its creation myth. Unlike pre-capitalist states, the bourgeois state legitimizes itself with a claim to popular sovereignty. Popular sovereignty means that sovereignty is, in the last instance, retained by individual persons, even as they alienate their will to the state. In doing so, people enact their own dispossession. The same article in the Indian Constitution that defines fundamental rights contains a clause that accords the state the authority to adopt “any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred … in the interests of [the sovereignty and integrity of India], the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense” (Art. 19(2)).
The category of right expresses the unity of an imagined community with state power. Herein lies the first source of ideology within the anti-CAA movement. When this movement opposes the Modi government, it has recourse to normative ideals of constitutionality. To have recourse to an ideal is not necessarily capitalist–but it is not necessarily anything at all. The legal form colonizes alternative social forms, offering an impoverished conceptual vocabulary to express the need for both autonomy and community. The politics of legal opposition transforms normative claims into an apology for “humane” state power.
Constitutionality and the Capital-Law Nexus
The commodity-law nexus is the form of appearance of the relation between capitalists and wage-labourers. Labour-power is a distinct commodity, because its use-value is a source for creating value. But labour-power, as a commodity, cannot be consumed without the seller’s presence. Hence, the worker alienates their will and body in the act of alienating their labour-power. Labour and capital meet each other as equals in the market, but the result is dependence rather than freedom. The “Eden of innate rights” changes as the “physiognomy of our dramatis personae” changes: the capitalist, as an owner of capital, is typically confident, while the owner of labour-power is “timid and holding back, like one who is bringing his own hide to the market and has nothing to expect but—a hiding”. [22] The wage relation is a formally free contractual relation between juridically equal commodity owners, but one that is anything but equivalent in substance and effect for those involved. Under capitalism, the relation between formal equals “turns out to be the right, on the part of the capitalist, to appropriate the unpaid labor of others or its product, and to be the impossibility, on the part of the labourer, of appropriating his own product. The separation of property from labour has become the necessary consequence of a law that apparently originated in their identity.” [23]
Constitutional law has been a means of integrating the industrial working class into capitalist states and markets since at least the mid- to late nineteenth century. In the United States, the Thirteenth Amendment, adopted in 1865, prohibited slavery and “involuntary servitude”, establishing “free” labour as a norm. In India, unfree labour has been an acute problem since independence in 1947. A grotesquely large segment of the Indian proletariat lives under servitude, whether it be debt bondage or the caste system. Capitalism, left to its own devices, may generate a proletariat without even the semblance of juridically free and equal workers. [24] Hence, the Indian state has had to actively assert free labour as a legal norm. Among the fundamental rights recognized by the Indian state is the abolition of caste privileges (Art. 15), a ban on untouchability (Art. 17), and a ban on forced labor and child labour (Art. 23). The norm of free labour receives further support in the state’s right to adjudicate and adopt legislation with respect to industrial and labour disputes (Art. 323B).
Labour-power is what makes possible the creation of value, but the process of capital accumulation systematically undermines the reproduction of the wage-labourer. The antagonism between capital and labour is not corrosive of the social order, but constitutive of capitalism. In Capital, Marx describes a pitched class struggle around the working day. He demonstrates that the victory of the nineteenth-century British working class encouraged capitalists to transition toward newer methods of producing and extracting relative surplus-value. At the same time, the worker undermines its own conditions of reproduction, vividly illustrated in Marx’s general law of capitalist accumulation. [25]
Where social relations are mediated through capitalist exploitation, those social relations are also mediated through private property. Law is a means of “restructuring rational activity into capital and labor on an orderly basis”. [26] Law must be continually renewed and modified as social production and class struggle develops. Private property is therefore a “field of force”, the constitution of which depends upon a class struggle that also threatens it with dissolution. Private property pulls itself apart and is forced back together in a “continual state of tension”. [27]
Police power is the force that maintains capitalist state and society, forcibly preserving social order under capitalism. Legal violence may, of course, be found in direct application of coercive force or other forms of easily recognizable violence. It may also manifest as disciplinary power, which furthers dispossession under capitalism. In this sense, the worker is mired in two alien worlds: the world of commodities and the world of liberal law. The first confronts the worker as capital, the machine that commands their labour according to objective laws. The second confronts the worker as the realization of its subjectivity, but in the form of impersonal bureaucracies, webs of constraining obligations, and, in the final instance, the policeman’s baton.
Class Struggle and Its Ideologization
Placing class struggle at the heart of the legal form leads to a troubling observation. Law is intimately bound up with the development of capitalism and its social forms. Disputes between rights-holders are the very substance of the legal form. Constitutional claims abound in legal disputes as a specific actor makes constitutional claims in order to couch their private interest as representative of the universal interest. Given that liberal democracies are competitive systems, then claims-making by one actor is countered by another actor. Constitutionality is contested, but there is no crisis for those claims are expressed within a largely stable framework. If capitalist development is proceeding apace, then litigation only rises to the level of a crisis in form.
But class struggle is also that which brings about the possibility of capital’s overcoming. Such revolutionary crisis unfolds when workers’ activity induces a state of emergency in public order. Class struggle induces, in this case, a crisis of form, in which the legal order as a whole is threatened, ultimately with dissolution. A crisis of form is where the “contradictions that constitutionalism is meant to manage cannot be managed through the ordinary reproduction of constitutionality”. [28] The bourgeoisie experiences the crisis as a loss of legitimacy. The working class experiences crisis as immiseration and social upheaval. A crisis of form is the condition in which total rupture with capital is possible. But if workers fail to defeat capitalists, capitalists will reconstitute themselves.
The contradiction between the radical form of struggle and its reformist content is immanent in the dual character of class struggle, as that which motors and that which may overcome capital. Constitutionality is a vehicle of self-recuperation. Once struggles against state power are transformed into struggles over the proper interpretation of a given constitution, workers are doing the state’s work for it. Hypothetically, a legal opposition could contest the Modi regime, though one should be pessimistic even about its pragmatic utility. But to overturn a regime simply demonstrates its inadequacy as a manager of capital accumulation. What replaces that regime is a new organization of domination and exploitation. A victory for the “soul of India” is a day of defeat for the workers.
The use of legal language by the left, then, is self-induced recuperation. Radical reformism seems progressive because it promises to put an end to an existing group of forces and interests. Legal language, if complemented by intensified class conflict, may help to overturn a given regime of accumulation. However, in the process of putting an end to a specific arrangement of capital, it simply prefaces a new restructuring, one still to come. No specific arrangement of capitalist social relations is synonymous with the logic of capital or its legal form as such. If the essential relations are affirmed, then class struggle itself creates a new organization of state and power.
This is fully on display in the current wave of struggles centered on the CAA. The level of militancy found in the protests has created a real crisis of constitutionality. The Modi government has instituted state of emergency policies to repress dissent, and has done so viciously. Despite such militancy, the movement’s programmatic content remains dependent upon the language of “the defense of the Constitution”, fully decked in saffron imagery. No matter how sympathetic one might be to a defence of secularism, as against religious ultra-nationalism, it is ultimately doomed. No positive solution is on the horizon unless the present emergency is countered by a real state of emergency that calls into question the capitalist social order as a whole. [29]
Postscript
The piece was largely written prior to the COVID-19 pandemic and finished in the middle of the twenty-one day lockdown initiated by the Modi government. The worst fears of the piece have been largely confirmed. The Indian state apparatus has placed over 100 million people on lockdown, one of the strictest pandemic policies anywhere in the world, and unleashed an arguably terroristic state of emergency. [30] At the same time, the Indian economy has collapsed, evaporating the wages of millions of migrant workers. India is racked by the greatest mass exodus since partition, as millions of workers are fleeing cities. Least surprisingly, COVID-19 has provided the regime with ample opportunities to persecute its critics. [31] As a result, the streak of optimism in this blog piece should be tempered to some degree. Continuation or transformation of class and other social struggles in Modi’s India is still possible, after the dust has settled on the pandemic. It could, however, simply be the case that the current immiseration becomes quasi-permanent, leading to the collapse of existing movements and preventing future ones from arising.
Kailash Srinivasan is a PhD candidate in political science at The Ohio State University. He specializes in international relations and legal theory.
[1] This piece was largely written prior to the COVID-19 pandemic. This section is unchanged because I believe that certain general tendencies of social struggles, and their relationship to law, form the basis upon which a new or continued cycle of struggles will unfold. The postscript briefly discusses the Indian state of emergency surrounding COVID-19 policy, but the situation is too volatile to offer any strong theoretical conclusions as of the time of writing.
[2] “Death Toll in Delhi Violence Mounts To 46“, India Today (2 March 2020); Hartosh Singh Bar, “Why Delhi Police Did Nothing To Stop Attacks on Muslims“, New York Times (3 March 2020).
[3] All citations of the Indian Constitution are to the official government’s published version.
[4] “Reading of Preamble to Constitution To Be Made Part of School Assembly in Kerala: CM Pinarayi Vijayan“, The Economic Times (6 January 2020).
[5] Tanvi Kemani, “Amid Anti-CAA, NRC Protests, Artists in India are Creating–and Sharing—a Portrait of Dissent“, Firstpost (31 December 2019).
[6] Charmy Harikrishnan, “Anti-CAA Protests: People Hold Up Constitution as the Only Document That Matters“, The Economic Times (26 January 2020).
[7] Pavan K. Varma, “A Tale of Two Nationalisms: Anti-CAA-NRC Protestors Have Broken BJP’s Monopoly Over Patriotism“, The Times of India (1 February 2020).
[8] Max Horkheimer, “Traditional and Critical Theory” [1937], in Critical Theory: Selected Essays (London: Bloomsbury, 1982) 188, at 213.
[9] Evgeny Pashukanis, The General Theory of Law and Marxism (New York: Transaction, 2002 [1924]).
[10] Karl Marx, Capital: A Critique of Political Economy–Volume One [1867], in Karl Marx and Frederick Engels, Marx-Engels Collected Works, vol. 35 (New York: International Publishers, 1996) xiii, at 186.
[11] Pashukanis, General Theory, 109–33.
[12] Isaak Rubin, Essays on Marx’s Theory of Value (New Dehli: HarperCollins India, 2007 [1928]).
[13] Helmut Reichelt, “Jurgen Habermas’ Reconstruction of Historical Materialism”, in Werner Bonefeld and Kosmas Psychopedis (eds), The Politics of Change: Globalization, Ideology, and Critique (London: Palgrave Macmillan, 2000).
[14] Marx, Capital, ch. 2.
[15] Pashukanis, General Theory, 113.
[16] Pashukanis, General Theory, 76.
[17] Franz L. Neumann, “The Change in the Function of Law in Modern Society” [1937], in William E. Scheuerman (ed), The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer (Berkeley: University of California Press, 1996) 101.
[18] Rob Hunter, “Crises of Constitutionality“, Legal Form (23 February 2018); Keith E. Whittington, “Constitutional Theory and the Faces of Power”, in Kenneth D. Ward and Cecilia R. Castillo (eds), The Judiciary in American Democracy: Alexander Bickel, the Countermajoritarian Difficulty, and Contemporary Constitutional Theory (Albany: State University of New York Press, 2005) 163.
[19] Karl Marx, “On the Jewish Question” [1843], in Karl Marx and Frederick Engels, Marx-Engels Collected Works, vol. 3 (New York: International Publishers, 1975) 146, at 154.
[20] Heide Gerstenberger, Impersonal Power: History and Theory of the Bourgeois State (Chicago: Haymarket, 2009).
[21] Marx, “Jewish Question”, 152.
[22] Marx, Capital, 186.
[23] Marx, Capital, 583.
[24] Heide Gerstenberger, “The Political Economy of Capitalist Labor“, Viewpoint (2 September 2014).
[25] Marx, Capital, ch. 25.
[26] Geoffrey Kay and James Mott, Political Order and the Law of Labour (London: Macmillan, 1982), 95.
[27] Kay and Mott, Political Order, 123.
[28] Hunter, “Crises of Constitutionality”.
[29] Walter Benjamin, “Theses on the Philosophy of History” [1940], in Illuminations: Essays and Reflections, ed. Hannah Arendt, trans. Harry Zorn (New York: Schocken, 1968) 253.
[30] Taran Deol, “BJP Gives ‘Full Marks’ To PM Modi for Lockdown Citing Oxford Study, But Stands Corrected“, The Print (13 April 2020). Just a few examples of the ways in which the state of emergency is being used. For Kashmir see Azad Essa, “Indian Army Accused of Using Kashmiris as Human Shields in Border Skirmish with Pakistan“, Middle East Eye (13 April 2020). On migrant workers, see “Coronavirus: Anger as Migrants Sprayed With Disinfectant in India“, BBC News (31 March 2020). More generally, see Tim Hume, “Indian Police Are Being Accused of Beating a Man to Death for Violating the Coronavirus Lockdown“, Vice (26 March 2020); Joe Wallen, “Indian Man Shopping For Milk Under Curfew Dies After Alleged Police Beating“, The Telegraph (26 March 2020). And on the communalizing pandemic, see Sohini Ghosh and Parimal A. Dabhi, “Ahmedabad Hospital Splits COVID-19 Wards on Faith, Says Govt Decision“, The Indian Express (12 April 2020).
[31] Brinda Karat, “Lockdown Being Misused to Persecute Government’s Critics“, NDTV (13 April 2020).
Legal Form 