Date: Sun, 5 Jan 1997 21:43:53 -0800 (PST)
From: LH Engelskirchen <lhengels-AT-igc.apc.org>
Subject: BHA: hans e's critique


 
 
Hans --
 
Thanks so much for your comments on my piece.  The argument is long
and involved, as you say, and I am enormously grateful for the time
and effort you took to work through it.  I did indeed view your
comments as constructive and I think we are very much working in
the same direction.  But I do have to deal with that devil's
advocate you appeal to -- I didn't really say all those things he
found!
 
1.   The most important point is that I have to leave to the
devil's representatives all manner of discussions of "natural
states."  It's normal for the devil to see his own condition as a
refraction of what he supposes to be "natural," but that's the
devil's problem. I don't anywhere refer to any "natural state" or
make use of any such benchmark implicitly or otherwise.  If you can
locate where I do I will correct the text instanter!  We are
definitely together on the proposition that what I deal with is an
outgrowth of commodity relations of production.  In fact, I
specifically announce that the foundation of my analysis rests on
the analysis of autonomy and the social division of labor brought
to fruition by Marx.  Perhaps in writing for a legal audience I did
not make this relationship clear enough.  
 
Anyway, the foundation of my analysis, the social relation I label
"interdependent autonomy," I acknowledge to be the same social
relation Marx uses to ground his analysis of value.  This social
relation, which is in no sense natural, is a particular disposition
of the agents of production with respect to the means and forces of
production.  The essential element of this disposition is a
contradictory form of autonomy, namely an autonomy which is
separate, but not self-sufficient.  Thus (1) each produces and
reproduces his or her existence separately and independently from
every other;  but (2) on the other hand, none is self sufficient;
instead each produces, as a component part of the social division
of labor, a specialized product not useful to them.  Because no one
produces self-sufficiently to meet the totality of their needs, all
must have recourse to exchange.
 
(By contrast, the patriarchal household in the Germanic form of
production as described by Marx in PreCapitalist Economic
Formations was both autonomous and self-sufficient.  As a
consequence market exchange was not developed and the community
existed only for the sake of defense of territory against others.)
 
Again, the foundation of my analysis is the couple "autonomy\social
division of labor."  This autonomy is characterized not just by
independence, but also by an absence, viz. the lack of self-
sufficiency.  If such an autonomy is to exist in actuality it must
be coupled with a social division of labor.  This is in no way
"natural."  
 
Moreover I do not say that "in a market economy individuals are
subjectively independent and self-interested, but objectively
interdependent."  It follows from the disposition of the agents of
production with respect to the means of production that I have
described that individuals in a market economy are (1) objectively
*independent* in that each produces separately from others and (2)
objectively *interdependent* in that each produces a good not
useful to them and does not produces self-sufficiently --
objectively they must enter exchange if they are to reproduce their
own existence.  Correlatively individuals in a market economy are
(3) subjectively *independent* insofar as they conceive of
themselves as autonomous and self-interested and (4) are
subjectively *interdependent* insofar as they are self-conscious of
their need for others (they lack self-sufficiency) and form the
intention to appropriate the products of others through market
exchange.
 
2.   There are a number of important methodological questions
raised by your comments.  You argue that consideration "is one of
the mechanisms through which capitalist society through the state
forces individuals to relate to each other as isolated self-
interested commodity exchangers, i.e., I think that in order to
understand consideration one has to start with the assumption that
society has a very specific purpose which it forces on the
individuals: namely, society is interested in commodities (perhaps
more specifically in the accumulation of capital) and it forces
individuals to act as the character masks of the commodities."
 
In legal writing the personification of society as having
"purposes," as "being interested in," and "forcing individuals to,"
etc. is endemic.  In consequence for me Bhaskar's ontological 
distinction between people who "purpose" and "force" and are
"interested in" and society which is *reproduced* or *transformed*
(but does not *purpose* or *intend*) represents a real analytical
advance.  I think precision in language is critical here, although
everyone will speak of society metaphorically from time to time,
and I am certainly not immune.
 
At least as fundamentally, I think the causal relationship is the
other way around.  Individuals are forced to relate to one another
as isolated self-interested commodity exchangists by the social
relationship in which they find themselves (this point is made very
powerfully in the Grundrisse section you refer to [one of the truly
great discussions in Marx for understanding law]) -- they are
driven to exchange because they are independent but not self-
sufficient.  Law has nothing to do with it.  BECAUSE self-
interested individuals are forced to relate to one another through
exchange, state institutions of coercion become essential if social
reproduction in this form is to be continued.  
 
3.   In your third paragraph you write "This is an excellent field
for the application of CR.  The catalog of circumstances which make
a promise legally binding is a catalog of empirical manifestations
of a social structure which itself is invisible.  A retroductive
argument is needed to identify this social structure.  Only after
this social structure has been made "visible" by a scientific act
can a judge make a determination whether a certain set of
circumstances represents consideration."
 
On the last point, plainly judges can and do decide cases raising
consideration issues (as well as all manner of other things)
without scientific understanding or much understanding of anything
at all.  What is required to decide a case is nothing more than the
power to do so.  Judges have used the doctrine of consideration for
over 400 years, but this is not 400 years of applied science by any
stretch of the imagination.  Instead, judicial decisions are
empirical events which must be explained by locating the generative
mechanism which can be understood, tendentially, to cause them. 
 
The second sentence from the paragraph just quoted locates a
devil's iceberg of complexity.  My effort is to construct the
concept of the object of study and to do so by giving a real
definition of it.  The object of study is a legal relationship, not
any other social kind, and this relationship is a generative
mechanism.  The one I have in mind is the one legal scholars have
traditionally referred to when they speak of the doctrine of
consideration.  Their references may be pre-scientific, ie like
chemists who referred to phlogiston before oxygen was understood,
or they may be imaginary the way someone might refer to gremlins in
the garden, or they may refer to several relationships as one (e.g.
labor contract is treated as an ordinary contract, but in fact
refers to a very different social relationship than a contract of
commodity exchange), etc.  In American law the rhetoric used and
applied as consideration goes roughly as follows:  
 
"to constitute consideration, a performance or a return promise
must be bargained for.  A performance or return promise is
bargained for if it is sought by the promisor in exchange for his
promise and is given by the promisee in exchange for that promise." 
 
Thus if the plumber comes to fix the sink in return for a promise
of payment, then fixing the sink is consideration and makes the
promise enforceable.  
 
This is an empirical statement of a legal rule.  As such it gives
rhetorical expression, well or badly, to a material relationship
among people actually enforced by the exercise or threat of
coercion.  The material relationship in turn is reproduced by
judicial decisions, actual social events, applying the rule.  The
argument is that the underlying material relationship, a generative
mechanism, tends to cause judicial applications of the rule which
tend to reproduce it.  
 
The phenomenal events to be explained then are a pattern of
judicial decisions -- A wins here, B wins there; B pays here, A
pays there -- and behaviors corresponding to them.  Besides the
decisions and behaviors, the raw material I have to work with to
explain these phenomena are rule statements (usually purporting to
summarize the pattern of decisions and behaviors) and the gloss
commentators have put upon them.  The elements which appear to be
required by the rule's language are (1) an act or promise, (2)
sought after by the promisor and (3) given by the promisee in
exchange for the promise.  These are the empirical incidents a
judge will look to in making a decision.  They are the empirical
incidents contracting parties will look to in order to decide if
they are bound.
 
I try to show that these elements express a material relationship
of coercion which is a component part of a cycle of social
reproduction.  That is, if the couple "autonomy\social division of
labor," (value or "interdependent autonomy," as I call it) is to be
reproduced as part of a market economy (a market economy developed
to the point where promising is an integral part of it), then there
must be a social relationship which may be characterized by the
following:  (a)  there must be a material expression of commitment
by act or promise (the significant thing is the commitment as
*meaning* not behavior, but the meaning must be materially embodied
in behavior), (b) an intent to obtain through exchange and (c) an
inducement.  The act requirement demands an individual actually
exercise his or her autonomy (he or she could have done otherwise). 
The intent to exchange manifests a willingness to give up autonomy
and enter exchange.  Inducement is critical because when I induce
someone to give something to me (rather than taking it from them by
force) then I am appealing to their existence as a center of causal
power, that is, I am constituting their autonomy by appealing to
their exercise of it.
  
What happens then is that in order for an act of exchange which
reproduces the social structure of value or "interdependent
autonomy" to occur I must in action both express my willingness to
relinquish autonomy (given as my presupposed condition) and also I
must have my autonomy constituted by another's recognition of it
(so that autonomy as a social structure is reconstituted and
remains presupposed).  (The other's recognition of my autonomy is
the "tacit recognition" Marx refers to in the opening paragraph of
Chapter Two of Capital.)  But this last catalogue, the a,b,c
catalogue of the immediately preceding paragraph, is not an
empirical manifestation of the social structure, but a conceptual
effort to arrive at a real definition.  It supposes to be a
construction in thought of the real object, namely, a material
relationship of coercion among persons.  When persons are related
in this way their promises are enforceable as social obligation.
 
This is tricky stuff.  We would not say that oxygen "caused" the
concept of phlogiston.  But when we deal with social phenomena,
things are not so easy.  The relationship of autonomy I have
described, for example, causes persons to intend to exchange to
satisfy the totality of their needs, and may also cause them to
seek enforcement of such exchanges.  Real persons pursuing real
interests do attempt to express what is necessary for social
reproduction and give it the force of law.  If they do so
approximately well, as they have done for over 400 years with
consideration, then the relationship is reproduced.  Where they do
not, the relationship may fail or be transformed.  (In a good
example, Marx remarks that the Romans repeatedly tried to transform
rent in kind into money rent but failed for lack of money in
circulation.)  I do think the concept of absence can be helpful
here.  Just as we transform nature by absenting an absence, ie
making something that was not present present, so too we do this in
social life.  For the institution of promising to develop (and all
credit is promising), enforcement of promises is necessary.  We
absent an absence by making the threat of coercion present (or
transforming the form of its existence).  I have in mind particular
persons pursuing particular interests.  In the event social
relations get reproduced and transformed.
 
4.   We are in full agreement on the importance in a market economy
of how individuals relate to one another instrumentally -- recall
Bhaskar in SRHE, p.288:  "the utilitarian must conceive others or
society as manipulable objects."  This is an ideological
consequence of the social relations of exchange.  Also the idea of
people relating to each other as things has long been reflected in
consideration doctrine itself -- consideration, a commitment of
persons, used to be defined as "something given in exchange."  Such
residue of commodity fetishism can be easily found in judicial
opinions.
 
I hope this attempt at clarification has been as constructive as
your comments were for my own thinking about these issues.
 
Howard


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