Date: Tue, 24 Feb 1998 08:02:14 +0000
From: "M.A.&N.G. Jones" <Jones_M-AT-netcomuk.co.uk>
Subject: Re: M-TH: Privacy and Marxism (fwd)


Justin Schwartz wrote:

> what's Mark doing if not absolutizing a right?
>

I meant we have to support the Right to Choose 'because women since 
Wollstonecraft have fought for it'. I didn't give any other reason. 
I'm saying that we support a demand raised by women. If they didn't 
raise it, we men, being honourable, conscientious, simple souls, 
might do so anyway, as some kind of didactic exercise, but no form 
of oppression has historical meaning until the oppressed oppose it 
(except as a form of ruling class triumphalism).

The right to abortion on demand is a Rubicon issue for socialists.

As far as I can see, if you claim 'the fetus has a right' then you are 
claiming that it is possible for absolute, transcendental human rights to 
exist. I object to that.


> Mark also says that any "reasonable" person can see that the only rights
> fetus' or unborn persons generally yhave is to a better social world that
> we might leave them if we are lucky and work hard. Well of course everyone
> who disagrees wityh me us unreasonable. That's foolish Mark. Abortion is
> hard and there are good reasons for being on the other side,a s Rob is.

Well, I had no idea what Rob's take is; and I was being tongue in cheek 
about Reason capital R but I'll be more judicious in future in the presence 
of  powdered wigs. But my point remains: and I did NOT say 'a fetus 
has rights'. I said 'unborn generations', ie the future working
CLASS, to which WE have a duty.  Get your lorgnette out.

> Marx says that no one has an abtract right to life. Well, I guess I don't
> know what an "abstract" right to life is, as opposed to what?

What I mean, Justin, is that even if we claim that abstract rights exist 
(and personally I wish they did, it would make the class struggle so 
much simpler, would it not: 'Hang on a minute, Adolf! This bullet 
entering my brain abrogates an Abstract Right!!!') they do not, 
except in the empty form of bourgeois hypocrisy. What else is your 
job, as a matter of fact, but using reason to uncover hypocrisy, 
deliberate mendacity, fraud and other devices lawyers use to reaffirm the
oppression of your clients by the character-masks of capital? Your job
exists excatly because the alleged rights are never observed. 

> How does it
> advance the discussion to say that rights to life are not abstract?

It materialises the discussion, is what it does. It drags it out of 
chambers, into daylight and the street.

> Do you
> mean absolute, in the semse that nothing can ovveride a claim of sucha
> right even if justified? Almost everyone will agree. But that doesn't help
> unless we know what has such rights and what can override them.

I mean the exact opposite. I mean that the notion that absolute rights exist 
is a mystification on a level with the Holy Grail or Pieces of the True Cross.

A right is a thing one may legally or morally claim; the state of being 
entitled to a privilege or immunity or authority to act. That's the 
dictionary definition. How much do such rights really exist in
bourgeois civil society? That's my question: answer: they don't, 
in the abstract, is as ansolutes.

My understanding of  this is based on Pashukanis, so you know where I'm 
coming from: the sovereign subject is established as the bearer of rights 
the ensemble of which defines bourgeois civil society, and which have 
emerged and can only emerge on the basis of commodity-exchange.

The civil society  provides some of the necessary conditions of existence 
of such a mode of production (this bears on Rob's base/superstructure 
problem: the priority still lies with the base, and the superstructure can be 
seen as securing the 'conditions of existence' of the base, ie, capitalist 
commodity production: sorry to go off topic a moment, but I plan to return to this
base/superstructure thing one day; the main thing with regard to intellectual 
workers is, 'do they add value or not?'. If they do, then they are no part of 
the superstructure, they are wage-labourers in the capitalist labour process; 
doesn't matter if they sit in a factory or not.

Marx said in Grundrisse that capitalism exists ONLY because of a division of 
mental and manual labour; I think Engels went further and said all forms of 
commodity production, hence society itself, exists because of this division. 
That's how fundamental HE thought it. In Grundrisse, Marx also says that 
capitalism will disappear WHEN AND ONLY WHEN the division between 
mental and manual labour is overcome, transcended; and one of the 
signs of this will be the increasing difficulty of valoring capital 
due to rising OCC; thus Marx predicted Bill Gates's problem... 
sorry for the digression).

Back to Pashukanis: the point is that although on the face of it we are all 
made equal under the Law and confront each other in the market-place 
and in civil society as absolute sovereign individuals, bearers of rights which
apply equally to all and are therefore absolute: the truth is rather different. 
The truth is that society is composed not of individuals but of classes, and 
rights are not absolute, they are just hypocritical mystifications: the 
worker sells his labour-power 'at its value', ie thru fair exchange,  
but in production produces both that value and an increment, ie
surplus-value. This is the theft of alienated labour-time. The glittering 
surface of Enlightenment civil society conceals pure, unmediated 
exploitation.  Rights, fetishised as 'absolute' (nowhere more than in the 
case of the fetus) are actually non-existent because civil society itself
is a fraud. Rights have to be upheld, fought for 
and won anew everyday; you're a lawyer, you know this. They are 
only real to the degree to which the working class can assert them. The fact that
the law is mostly a preserve of rich bastards trying to screw each other, or seek 
redress for a previous screwing, changes nothing, in fact only proves the case: 
there, the cynicism of the discourse of rights is at its clearest.

> There's a sense I agree with the idea that there are no natural rights.

Glad to hear it.

> But there's a sense inw hich I and everyone on this list thinks there are
> natural rights, if by these are meant rights that do not depend on social
> convention. Whatever our or anyone's conventions, it would certainly be
> wrong to kill me because I'm Jewish, say.
>

Really? Back to the Third Reich, then, and test out public opinion on just 
that point.No, I for one do NOT agree that 'there's a sense inw hich there 
are natural rights,' as I trust is now clear. 
On the contrary, your wig has slipped over your eyes, 'pulling the wool'.

> Mark is mistaken to suppose that bourgeois jurisprudence is based on
> natural rights. On the contrary, bourgeois jurisprudence, if by taht he
> means the interpretation and making of law by judges, is relentless
> utilitarian.

I defer to your opinion, there.

> Most judges are legal positivists who see themselves as
> dealing with positive law alone, moral rights bedamned, and when they have
> to make law, they do it on "policy" or utilitarian grounds with some
> primitive notion of fairness in the background. The only sanctioned place
> for natural right in American law is in the teeny but important arae of
> substantive due process constitutional law,

Yes, I have sat in the British High Court on my own account and I know two 
thigns: firstly, process (due or not) is totally remote from any practical 
sense of justice or the actual facts of the case; second no-one is thinking 
about rights.

> Since I do not understand the proposition Mark asserts that under
> communism there will be no civil society, I cannot accept it, and
> therefore cannot make it the goal of my praxis.

At least we know what divides us, then. But let me just ask you this: 
when you are teaching your kids to be god citizens, do you see yourself 
as it were as the vector of civil society instilling abtract notions of 
right and duty into their heads? Or as a father explaining to them how 
to get by IN THIS WORLD?

> If Mark means by that all
> will magically agree wnd there will be do conflicts, I reject that
> proposition.

See my other posting. I think the opposite. I think that the creation 
of a collectivity which permits the free expression of whatever is 
immanent within its human members, if that is the process of 'creating 
communism', is likely to prove not less colourful than the history of our own
epoch. But at least the INTENTION will be different; the notion of equity 
behind it will not be a mask of hypocrisy, and there will (crucially) be no 
need to discriminate all the time between our public and private personae, 
which will be a felt liberation, altho no doubt often a taxing one;
but at least the obligation to be honest and not hypocritical will put an 
onus on us to be solidaristic and true to ourselves and each other, as we 
lamentably are not now.

> If Marik and Yoshie think that a complex modern society can
> attain such a degree of consensus as to dispense with abstract rules and
> procedures for making decisions and adjudicating conflicts, I think they
> are utopians in the bad sense.

Well, I can't speak for Yoshie, but personally I am not overawed by 
complexity, which actually equals entropy (the more complex a state is, 
the more actually and potentially disorderly it is: ah, but that's 
Caudwell-speak again...)

> I also don't find a society with that degree of consensus attractive.

You wouldn't find me IN it, I guarantee...

> That
> is a main disagreement I have with Rousseau.

Is a misunderstanding of J-J.

> Rawls' recognition that we
> have to live with disagreement is one area in which Rawls improves on
> Rousseau.

I feel a primal scream coming on.

> The idea of a society with no distinction between public and
> private strikes me as a nightmare, tobe perfectly frank.

Well, now that you mention it, there are a couple of dreams I'd like 
to share with you if you have a moment, Justin...

> Call be petty
> bourgeois, but there's a lot--I'm not talking about property--that I don't
> care to share with all and sundry.

Probably most people will feel the same, is it necessray to address things in 
quite this way?

> Rawls can't holda candle to Rousseau as far as rhetoric goes, but he's a
> lot more attuned to the realities of a complex and free society.

Damn, now I'll have to reread Rawls. Well, I won't, so there.

> Incidentally, although Rawls' argum,ent for his conception of justice
> involves starting from hypotherical parties reasoning egoistically, he
> ends up with a society in which  we all share a fate and cooperate for
> mutual benefit.

Yes, but I have 2 feelings about that, or rather, one thought and one 
feeling: first, I feel repugnance towards the premise. I don't want a world 
where thinking bad adds up to good, even if it happened like that, and it 
wouldn't (take Titmuss' arguments about blood transfusions for eg). Rawls is a 
prime example of the decline of the Enlightenment from its lofty beginnings 
to a brawl in a courtroom about who did what to whom and why. Except that with 
Rawls the brawl is ante facto instead of post facto. Ie, it is FICTION. 
Secondly, obviously, we do not all share the same fate. At the end of Rawls what
 we have, fictionally, is  that the workers are persuaded to be happy 
with their fate, and the rich man in his castle with his.

> I don't think his reasoning works for raesons I have
> spelled out in print,

Haven't seen it and I wish you wouldn't constantly cite yourself in legal 
journals to which mortals have no access. Post the thing, Like Jim Blaut 
does, and let us judge for ourselves.

Mark

PS I've replied at inordinate length, but I may not be able to contribute 
much to this thread for the next week or two, I never meant to get drawn 
in anyway! Damn, you're all such jolly intersting blokes and blokettes on Thaxis.



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