Timeliness of the Reification of Marx as an Instrument for the Analysis of Legal and Social Relations ()
1. Introduction
This article aims at thematically revisiting the reification concept as a social phenomenon, assessing passages of Marx’s works: The Capital and Grundrisse. This proposal recognizes the difficulty of the task—an attempt to reinsert the issue in the current juridical-sociological debate; a debate that has been developed in several places throughout the world.
We consider the concept of reification as a concept-diagnosis, or at least an indispensable element of diagnosis of a historical period. This is due to the fact that such debate addresses a phenomenon linked to forms of consciousness and a set of social practices inspired by them that may single out a certain historical time. This thematic field has been abandoned by the social and legal sciences for years, at least since the 1980s. However, we emphasize that this theme was central to the German, Austrian, and Latin American debate in the 1920s and 1930s, continuing after the Second World War until the 1980s. The silence throughout the 1990s and the beginning of the 21st century still needs an explanation. It is not within the scope of this article to find this explanation. We would need to investigate the political and theoretical reasons to diagnose the profound causes of such silence. Fortunately, the theme was reintroduced to the international sociological debate at a high level in renowned works by important authors such as Alex Honneth (2007), Rahel Jaeggi, Daniel Loick and Nach Marx (2017), Lukács (2003), and Remo Bodei (2004). The authors take another path to discuss and analyze the thematic in question. Vast contemporary bibliographic research was conducted, including normative theories of social action, psychoanalysis, and political theory. They take advantage of the normative power of a kin d of liberalism, especially of Kantian inspiration, highlighting authors who work with the individual autonomy thematic, such as Joseph Raz (The Morality of Freedom), focusing on the idea of self-authorship on behalf of individuals. We consider our duty to clarify that, in the current text, we sought to revisit Marx and the main formulation in this field made in 1923 by Georg Lukács, with a seminal work that enriched and still enriches the debate about the relationship between conscience and society.
The text will discuss the concept of reification in Marx regarding the economic production model, characterized by its historical theory, although not mobilizing this consolidated attempt of theory (Cohen, 2013: p. 19; Shaw, 1978: p. 166). If, on the one hand, the Marxist starting point for reification highlights the economic condition, on the other, Marxists studies leave a wide gap for understanding reification in the scope of other social relations, which include legal ones, consequences of the practice and concrete expansion of Law in cases of dispute between distinct social classes.
The effort here will not consist of searching for a Law theory in Marx, once this would be useless: Marx has no Law theory. However, the more instigating challenge is finding what Law theory can gain with Marx and his reflections, especially Constitutional Law, which is nothing more than Political Law. In many ways, the reification theme is set in the history of Western thinking since the Greek. As a result, it can be invoked to represent the concern with Plato’s cave problem. There, both the play of light and the existing shadows upon the objects of the world are exposed to the perception of the beings.
According to Leo Strauss (2014), the fundamental philosophical event in this perspective refers to the fact that the Greeks were able to problematize the issue of nature and consequently differentiate the world of nature from the one of convention, of the human artifact. In other words, the world of human creations and institutional, political, and social foundations. Thereby, Strauss (2014) draws attention to Aristotle’s definition: philosophers are the men who discuss nature; different from the men who discuss the Gods. “La filosofía, a diferencia del mito, comenzó a existir cuando la naturaleza fue descubierta, o el primer filósofo fue el primer hombre que descubrió la naturaleza” (Strauss, 2014: p. 134). It is necessary to recover such aspect without falling into the temptation of trying to measure the pace with the instruments of the present. The Greek perspective lends us the example that relations with nature, with its use and the constant attempts to subject it to human interest, are complex, and people are not always able to dominate nature as they wish. The attribution of the gods’ features to natural phenomenon, which still had no possible scientific explanation, is one of the most important elements of Western culture, that is, the “marvelous,” still present in a frozen manner in the classic epic of modernity Os Lusíadas, whose memory of the Giant Adamastor is one of the most significant2. That is merely one of the reasons to remember such point.
The memory elicits another occurrence: the search for the truth of constructing oneself with the conducting force of the act of thinking. Narrating the repeatedly recorded mythological tradition is not enough. The truth must be investigated. Philosophers who sought the truth survived the sophists and their strong argumentative rhetoric, without being intimidated by the possibility, as the sophists alerted, or bending to the easy practice of the obviousness of appearance, namely, the truth. From this same wave and with the main directive to search for this truth, the lasting distrust of thinking emerged, the world of appearances, the ways that phenomenon presents itself to the world. In other words, the formal illusions produced on the surface of society.
Thus, the Marxist concept of reification has its roots in the recovery of this accumulated cultural past, according to the explanation found in chapter 48 of Book III of The Capital. At this moment, properly perceived and dissected by Lukács (2003: p. 212s), reification—Verdinglichung—is translated into the forms acquired by property, actions, and human relationships; forms which are now independent and subject to those who created them through the capital and its movement. As a consequence, reification will correspond to a “special case of alienation, its most extreme and generalized form, a characteristic of the modern capitalist society” (Bottomore, 1983: p. 314). In the well-known words of Marx:
In the profit-capital, or better in the interest-capital, land-income, work-wages, in this economic Trinity as a connection of the value and richness components, beyond its sources, the mystification of the capitalist production mode is completed, as well as the reification of social relations, the immeasurable junction of material production relations with its social-historical determination: the enchanted world, inverted and upside down, where Monsieur le Capital and Madame la Terre haunt as ghosts, sometimes as social characters and at the same time as mere things (Marx, 1969b: p. 838)3.
The starting point of this text is this Marxist perception, in the attempt to understand the legal phenomenon, limited to the constitutional aspect. The traditional division between public and private law refers to distinct categories in which a legal “methodology” is found—and not simply a legal “method”—, a satisfying explanation for the understanding of Law, with respect to the peculiarities of its development forms. Namely, there are requirements of perception for the link between Law and political tension to be clear not only as a simple reproduction. Legal methodology has the task of clarifying the other functions of Law accomplishment (legislation, government, administration, jurisprudence, science), without ignoring the action of other “possibilities of control (political, social, public, non-public, informal)” of Law (Müller & Christensen, 2002: p. 27)4.
The relations between capital, rent, land, wage, identified by Marx above, are modernized, and this cannot be attributed to Marx: it is impossible to demand from a thinker a reality that did not exist in his time. On the other hand, the “methodology” of understanding how this complexity was modernized, as well as its essence, not haunted by appearance, seems possible, and the dialectic of such a changing process is recognized.
The objective of this text is to enrich the analysis of Law with a Marxist inspiration. The research is bibliographic, and the search was conducted in primary Marxist sources, especially those published in the Marx-Engels-Werke (MEW). The translation of the sources of this well-known collection is of full responsibility of the authors.
2. Renaissance and Illustration
The humanization of human nature with work will impose its worldview, its Weltanschauung, to people by the rational activity that it models, creating civilization and culture in the sense that Jacob Christoph Burckhardt (1990) confirmed in the classic The Civilization of the Renaissance in Italy. Humans are demiurges of the world, as in the act of nature transformation, they transformed it into civilization. In this perspective, they become the subject because they can modify the world, acting in history and transforming nature and its own history, giving it sense and meaning. After all, what does it mean to act in the world?
Which senses will act as foundations for the capitalist production manner, with inherent requirements that bond and experience the need to be dissolved for and reproduced by capitalism? Thus, it is not about determining senses and meanings distant from the construction and preservation of the capitalist economic order, despite having some divergences here and there, which requires a greater effort for the understanding of its multiple nature. Law is also found in the core of this referred multiplicity, not rarely in the form of Law of Right, which does not dismiss the condition of capitalist reification in its intrinsic relations. In other words, what is said to be Law of Right is nothing more than a “portrait” of class conflict by the appropriation of the means of production, transformed by liberalism into the Law of Right, as if it belonged to everyone, as if the pillars of the same liberalism were indistinctively guaranteed to all: equality, freedom of speech and association, freedom of movement, private property.
The thematic of the action of humans upon nature due to their economic and political activities unfolds into another important problem about social mediations, about which society scope will develop the relations between humans and nature, and, above all, in which conditions their human capacities are used by themselves, making them lords of themselves, their bodies, their souls, their subjectivity, and, at the same time, making them objects of this immanence.
The questions that come up in this sphere are numerous. We will select a fundamental one regarding the nature of historical phenomenon, how they are constituted and presented before consciousness. The following challenge will be posed: how to explain, understand, and distinguish in this process the relation between essence and appearance of the reality of a political phenomenon that was made juridical, or in other words, that was constitutionalized in order to appeal to the modern sense established after the 1789 French Revolution.
Similar questions appear in many ways throughout the history of thought. The strong philosophical intuition realized that myths—magic, ghosts, sacrifice rituals, Gods, demons, superstitions, trials as a form of juridical proof—fundamentally constituted an enchanted world created by humans that enslaved their bodies and souls. This transfiguration fed the Greek culture since the well-known sophist Socratic dialogue, registered by Plato: Socrates—(…) They assume the forms of the politicians, or of sophists, and other times they would give the impression of being in total delirium (…) Theodore—To whom? Socrates—To the sophist, the politician, and the philosopher (Platão, 1991: p. 206).
The transcendent character of the Greeks did not serve as the final foundation for the understanding of politics, State, and actions, as this civilization sought reason to guide human actions and, for this same reason, the explanatory nature of social happenings. Transcendence as a determining factor of human actions and for the formulation of juridical forms of the State was what persisted in the explanatory forms of modernity appearances until it completely seized human nature under the theological domain. The emancipation of thought of this theology found in Spinoza the deciding conception: whoever makes reason and philosophy the servants of theology will go insane (hic scilicet sine ratione, ille vero cum ratione insaniet) (Espinosa, 2003: p. 224; Spinoza, 2008: p. 444). From this point forward, the duel will extend until current days, with the registry that transcendence has hardly kept its cultural hegemony after the 18th and 19th centuries despite some attempts, highlighting the one developed in the second half of the 21st century, disguised as obscurantist hysteria, called neoliberalism and, in the religious field, the Pentecostalism, so present in the Americas.
Renaissance and Illustration: Materialistic Version
Enlightenment presented and opposed itself to religion, to the conception of the world and human acts as a product of faith. It was about a “disenchantment program of the world. Its objective was the dissolution of myths and the fall of imagination through knowledge.” Such a program consisted of offering new meanings to history. New meanings that, until then, had been forbidden by the supporters of tradition, for the aversion of doubt, and by the verbal fetish responsible for the nonexistence of a “happy marriage between human comprehension and the nature of things” (Horkheimer & Adorno, 1997: p. 19)5. New meanings that indicate a materialist version of human comprehension, based on reason (Vernunft).
If this was the objective of Enlightenment, later Horkheimer (1976) will recognize that the so sought reason “has never truly directed social reality, but today it is so completely expurgated of any trends or specific preferences that it renounced at last even the task of judging human actions and way of life” (Horkheimer, 1976: p. 17). The triumph of capitalism was greeted by Max Weber as a disenchantment of the world, that is, the inauguration of an era in which rationality progressively extended its meaning and its logic to all the historical becoming of humanity. Marx salutes capitalism (in the almost euphoric words of the Communist Manifest) as a special moment in history, a historical period of deep and fast transformations, which revolutionized, in a way never seen before, all the ancient forms of economic production, as well as all the old conceptions about the world in general, which includes Law. Now it was able to talk emphatically about a universal history. All peoples in the most distant places of the planet would be dragged by this irresistible avalanche that was the capitalist world market. This scenario would make possible the universalization of the bourgeois, in the broad sense of the word. However, differently from Max Weber, capitalism for Marx meant, on one side, unusual progress and the victory of a determined reason—although not always reasonable—, and on the other, the emergence from the depths of history of a bewitched and unhuman kingdom, which demanded the resumption of the foundation of its thought: the world of reason. After all, the origin of capital as a social relation (and in its form of primitive accumulation) will figure “in the annals of humanity with traces of blood and fire” (Marx, 1969b: p. 743)6.
It was imperative for reason to mobilize it as an incontrovertible task of research and comprehension of specific enchantment processes, now belonging to modernity. In this matter, we must carefully examine Marx’s development, an extreme illuminist who proposed to himself the great task of radically comprehending modernity, unveiling its main mysteries, or in other words, of radically fulfilling its main promises, embodied in the most decisive objectification accomplished by humans. Namely, a task to understand the deepest reasons for the fact that humans impose the extension of their power upon nature, achieving through science, with some strangeness, an alienation, before the things they produced themselves. At last, it attempts to uncover through methodological reason which are the specific constitutive enchantments of modernity, or capitalism, that, far from producing freedom and equality, generate very specific domination and servitude.
In this sense, the cognoscente subject was forced to go through the thick fogs that involve social, political, and economic relations and their dominant discursive modes, and, to a certain extent, justify the determining relations of this new type of society. Marx’s investigative development is itself a paradox, for it aims to throw light amongst the light of progress, quoted in verses, as the deep content of modern civic coexistence.
The most dazzling lights came from liberalism and its bright promises of equality and freedom through the work and rationality of the market. In summary, Marx’s company, on the one hand, engages in recognizing the fundamental advance that this theoretic and political body meant in the history of humanity. On the other hand, he researches the most recondite foundation of his formal illusions, his discursive ways of presenting economic and social phenomena, which will be a greater task. The idea is not only to understand how capitalism became rich but to investigate its power, its limits, and the character of this complex political and social formation at the expense of the immense majority of the populations left to misery and intense rights fragility. The idea is to unveil how an entire state structure was transformed from the livingness of a concrete and profound historical experience toward the satisfaction of the demands of this form of economic activity, in which the explanation regarding the “bloodthirsty legislation against the expropriated at the end of the 15th century” is one of the most valuable moments of the Marxist work (Marx, 1969b: p. 761)7.
What decisive fact does Marx discover? He identifies his specific fantasies, his enchantment, his potential masks, his most dressed-up form, wearing a suit, but as charming as the ancient sacred rituals. Temples and rituals may have changed, but they still attract people because they engender the thickest mist in the reality of the phenomenon, to the point of having more occulting powers, which act and coerce individuals. It actually means comprehending the representations of an entire time; deciphering knowledge; learning knowledge that is not knowledge; analytically deconstructing how social phenomenon presents itself dressed in reality. Now dressed in suits of accumulation, capital, money, taxes, and wages. All these characters, concretely shown by Marx, aid juridical forms. In other words: the reification of the relations formed by “Monsieur le Capital and Madame la Terre,” to which Marx adverts, also corresponds to the reification of juridical relations, mediated by Law. It is not about the automatic preponderance of the first upon the second form of reification mentioned but understanding the complex nexus between one and the other.
So, what are we talking about? We are referring to an entanglement of social relations involved in forms of great social convincing power. We can, for example, make assumptions about the capitalist trade in its juridical forms. What assumptions? They are not unknown: equality, freedom of trade agents, freedom of capital circulation. Let us follow some steps of the author’s explanation. In Grundrisse, Marx explains how money is transformed into capital. For such, he gives a prior explanation about the nature of money, which is compared to gold and silver. These metals are not money. They are in nature. “To be money is not a natural property of gold or silver […]. But money is immediately gold and silver” (Marx, 1983: p. 165)8. Marx underlines the fact that nobody is born as merchandise, the constitution of labor strength, their muscles, and nerves do not contain a “natural” property of converting into merchandise, into exchange value, just as the properties of gold, in its natural condition, are not inherently measured in monetary value. For example, in the pre-Colombian civilizations of Peru and Mexico, gold served to decorate temples, dressing rituals (Marx, 1983). Such conversions are born in certain societies, namely, the capitalist society. They are human conventions, artifacts, creations, and, for that reason, they are denatured. In this process of removing natural qualities, they are reified, transformed into goods or things, which will be formalized in complex juridical relations. Where would be this key that leads people, the State, and society to revolutionize its forms of organization to give room to the transformations of capitalism in all instances of its life? In the exchange value, Tauschwert, in the words of Marx (1983: p. 166):
Therefore, the basic contradiction contained in exchange value and in the corresponding method of production of society emerges here in all its purity. The attempts of abolishing this contradiction by depriving money from its metallic form and using it to make an external law of social relation, in which its last form would be the one of labor money, are already criticized above9.
A historic step in the reasoning of transforming money into capital would reside in the exchange value. It involves capitalism, modernity, in which holders of different but equivalent merchandise face each other as if they were “free buyers and free salespeople” meeting to exchange whatever they would like. During in the act of exchange, individuals are precisely positioned as individuals, as equals. In the act of exchange, individuals also confirm themselves as equals at the same time, and consequently as not different amongst themselves. The social and juridical relation is materialized in the scope of the market, in which the individuals assumed as equals “have the sense of freedom,” as if, on one side, there was no historical situation of misery that leaves no choice other than selling their own bodies—and conscience in the name of physical surviving—and, on the other, there were accumulation and capital circulation.
Here, the mutual recognition of equality and freedom of individuals constitutes the natural exchange condition. To understand how the trade between capital and the employed person’s work operates, Marx affirms that “the worker trades their merchandise, their work, that is, their use value, which has a price as any merchandise, as all other goods, by a certain sum of values, a certain sum of money that the capital offers (Marx, 1983: p. 199)10.
In the world of trade, in the interchange of exchange values, the equality of individuals is not an illusion, affirming itself as a necessity of capitalism. The craftiness of this illusion is what Marx seeks to prove: “The universal interest becomes the universality of the selfish interests” (Marx, 1983: p. 170)11. This operates with the abstract confusion between equality and freedom, as if they meant equality and freedom to all. However, when we understand the material world of accomplishment, individual as well as collective, of this equality, freedom is imposed. “Therefore, equality and freedom are not only respected in the trade, which is based on exchange values, but the change of exchange values is the productive and real foundation of all equality and freedom” (Marx, 1983: p. 170)12.
At this moment, Marx draws attention to an important point: these notions of freedom and equality essentially refer to a determined historical period. They are not abstract universalities. For example, “In this sense, equality and freedom are the exact opposite of old freedom and equality, which did not have as basis the ideal currency value developed, but were destroyed by its development” (Marx, 1983: p. 170)13.
With these material conditions, freedom and equality are orchestrated in conformity with exchange relations and the improvement of circulation. If there is resistance to a will, the other side will be forced to join the exchange relations. Its coerciveness impregnates and imposes itself upon all the will it constitutes: personal interest reflected in the general, universal interest with the power to oblige all. Marx warns that even the slave condition in ancient Rome did not impede that in other circles, different from the condition of servus, the Law developed “the determinations of the juridical individual, exactly like the ones of the exchange individual, which anticipated Law in industrial society (in its fundamental determinations)” (Marx, 1983: p. 171)14. The issue of the ancient always regarded the means of property through which the best citizens would be raised. The individuals that interchangeably exist under differentiated determinations of buyer and seller. One buys some particular merchandise, natural, which is the labor force (muscles, nerves, etc.), while the other sells its own skin. The constitutive indifference of this relation is reported in its alleged equivalence; after all, money (as a thing) circulates, sometimes in some hands, other times in others. This indifference (the money as a universal equivalent) gives materiality to equality. Money fulfills its function of extreme leveler. It links and holds all bonds. “Each appears as owner of the other’s money, even with money, if considered the exchange process” (Marx, 1983: p. 171)15.
The exchange is perceived and lived as a mutual action of individuals in its shape and content. It is the interested satisfaction of needs and, from the point of view of forms, an interchange of equivalents. So, what comes after for the individual as a natural existence of change? Their work force metamorphoses into merchandise; merchandise that claims to be the product of resulting equality, which, actually, is not even free of the process and will not result in equality for all. The existence of the individual as an exchange value producer brings the absolute denial of its natural existence, as previously mentioned. It, therefore, represents the moment of its denaturalization, as Marx demonstrates. Such relation occurs because “the presumption is not, whatsoever, a previous condition of the individual that causes the will or the nature of the same individual, but a historical previous condition to be established with the individual as already determined by society” (Marx, 1983: p. 173)16.
In this regard, freedom and equality are set in general liberal thinking because they refer to a specific historical time and particular historical individuals: the capitalist, the worker, the peasant, etc. Such concepts substantiate formal-abstract determinations in the sense that they deny their own normative formulations. Nevertheless, and with formal and magical realities, this is where it is presented in the phenomenal reality. We highlight that, for Marx, these appearances are not illusions but a phenomenon constituted by the social real world. Consequently, as Theodor Adorno says, there are acting appearances toward which the practice of all social agents involved is orientated, imposing itself before their consciousness as imperative exteriors, that is, as things, as if they were autonomous existences, gifted with their own life and going against their own creators, the people inside certain social-historical relations.
Having generated the phenomenon of strangeness regarding the product and its own creations, the reification of all social relations takes shape. All seems natural, as naturalization constitutes a powerful artifact that hides the relations of domination and exploitation existent and necessary to the functioning of a bourgeoisie society. After all, a similar phenomenal reality produces and consumes its own appearances, and one of them is the form of the capitalist labor contract. Legal force of the contract presupposes the existence of autonomous wills, of equality and freedom for the agents involved—capitalist and worker. The labor contract, the payment for the work, its conditions and duration are firmed pacts that need regulation in favor of the capitalist expansion. At this moment, Marx sets out to unveil the content of the social forms that legitimate and legalize what appears on the surface of society as gifts of autonomous wills, regardless of the social process from which they originate. In chapter 17 of Book I of The Capital—“Transformation of value or price labor power into wages”: Verwandlung von Wert resp. Preis der Arbeitskraft in Arbeitslohn—, Marx (1969a) demonstrates how the identification of wage with the “price of work” appears and acts in society. However, what is wage? It is a form (known as transmutable form) that mystically and equally involves its main agents, the capitalist and the proletariat—the wrapping that extinguishes “all traces of the division of daily work into necessary work and surplus work into paid and non-paid work. All work appears as paid work” (Marx, 1969a: p. 562)17, but in reality, it is not.
Therefore, in this appearance, which makes invisible the visible relation and shows exactly its opposite, all juridical relations can be found, whether from the worker or the capitalist, all the mystifications of the capitalist production mode, all its illusions of freedom, all the apologetic lapses of the vulgar remainder of the economy (Marx, 1969a: p. 562)18.
The incessant struggles of workers to reduce the working hours, usually repressed with violence, demonstrate their true character:
The clear distinction between public and private is blurred, the violence of the State goes beyond the old floodgates, and the social struggle starts to count on a new contender, the State officials, in this ambiguous position of representatives of the whole and agents of the individual (Gianotti, 1983: p. 299).
What comes to be freedom, which Marx identified as: “an enchanted world, inhumane and inverted, where the charms, the capital lord and mother earth, social protagonists and at the same time things, make their hauntings?” This freedom is found in the spaces where reification becomes a true “religion of daily life” (Marx, 1969b: p. 838)19. We are reduced to a mere economic calculus “to proclaim in quality the dogma of the natural needs of the dominant class” before all society (Marx, 1969b: p. 839)20.
Such transmuted form, such phenomenon category, has a real existence, an active one. But what does it hide? It hides its bottom, namely, the social relation (capital) in which the asset occurs. After all, “in the objectified society, nothing that survives has not been objectified” (Adorno, 1998: p. 286)21. We take as fact that freedom is subject to a very powerful domain exactly because its mystical involvement assumes the form of action between equals and free, which they are not. Things and phenomenon are not what they are. The reconstitutions of Marx’s thinking about this issue constitute the task of research teams due to the magnitude of his investigation. In any case, we highlight that it is in books II and III of The Capital that Marx exposes his analysis of the capital circulation sphere (not as a thing, but regarding the social aspect that also appears before the conscience of individuals concerning things). In this topic, he will demonstrate how value will cover itself move autonomously, eclipsing all casual nexus of the relations from which they originate. Mediations disappear to give place to the dance of forms. Again, referencing Adorno (1998), the obfuscating nexus become each time stronger; the production and circulation spheres, mutually autonomous, however, have specific determinations and involve abstract forms of their own, in other words, specific fetishes. And it is in this concrete reality that the legal relation is found.
Economic, legal and social relations, now conceived in terms of the rationality of materiality, are also included in the circumstance of movement (Bewegung). By affirming the events capable of being assimilated by reason, Marx’s Hegelian tradition allows itself to be observed, insofar as everything is understood from the movement of economic, political and social forces, which excludes the irrational argument of the “natural development” of history. This theoretical framework achieves the understanding of the legal phenomenon that we will see below.
3. Reification and Legal Relations
In a letter to his father from November 10, 1837, Marx writes that the way of the concepts (die Begriffe Form) and the content (Inhalt) of Law “can and must develop separately from each another” (Lottig, 1961: p. 3)22. The contradiction seen by the still young Marx in the rational forms of Law is evident, the same young man who will describe it for the first time in his well-known text regarding the “Debates on law and thefts of wood” seen in the Rheinische Zeitung no. 298, October 25, 1842, whose authorship is attributed to “Renish” (von einem Rheinländer). Marx separates in this text the notions of Law and justice, which, in the concrete world, are not synonymous23 and exist in their independent forms: privileged individuals get their interests through legislation, and these same privileged people do not create rights, as their privileges violate the “foundation of equal treatment” (Lottig, 1961: p. 6)24. The way Marx questions Law and its reification gains argumentative strength when he challenges the traditional formation of Law.
The legal nature of things cannot, therefore, be determined by law; law should be determined from the legal nature of things. If, however, law calls theft of wood that which would hardly be a crime of wood, then the law lies and the poor will be sacrificed for a legal lie. “There are two kinds of corruption, affirms Montesquieu, one when the people do not observe the law; the other when they are corrupted by law, which is an incurable evil because it is contained in its own medicine” (Marx, 1977a: p. 112)25.
Marx demonstrates and perceives the “magic” nature of Law toward economic and social relations without incurring in the naivety that such confusion would represent the conviction in the illusion of those who maintained their privileges: they are fully conscious of their acts and how the creation of Law culturally and intellectually strengthens their interests. The purposeful and creative division between justice and law, or the division between the normative sayings and the general concrete situation of society, translates into an anticipated division by Hegel and will also be criticized by Marx. For Marx, separating civil society (bürgerliche Gesellschaft) from the political State (politischer Staat) seems necessary in order also to separate the citizen, the State citizen (der Bürger, der Staatsbürger) from their empirical reality (empirischen Wriklichkeit) (Marx, 1977b: p. 281). This empirical reality shows not only the tensions of the exploitation and inequality between one and the other but also the roots of such exploitation and inequalities. Actually, in this path lays the criticism of young Marx toward Hegel, when he points out Hegel’s confusion between “the State as the whole of a people’s existence” with the political State as if it belonged to all (Marx, 1977b: p. 282)26. The path of reification in Marx goes through the complex net of Private Law. In the criticism of Hegel’s philosophy of law are the analyses regarding the use of the power of the State as a consolidation of property right and the imposition of this right as the law of the possible state. For Marx, this Hegel idealization form would correspond to a base of private law that, through sacred property, becomes State Law. Hegel’s comprehension would then be that the distinctions within the State private stratum would mean only private and never a broad political meaning27. What Marx refuses is the idea of distancing from politics attempting to hide itself in the normative formulation, that is, in Law. In this purposeful refusal resides the unacceptable abstract form of understanding the nature of the legal phenomenon.
Despite the difficulty of finding a Theory of Law in Marx, the search for stronger elements for understanding Law may come from the Marxist thinking. So, the appropriate inquiry would be what can Law gain with Marx and Marxism.
Andrea Maihofer (1992) updates this perspective in a singular way. How do most people, even if aware of the historical and structural contradictions of Law in societies, still maintain the same model of Law in their minds? “Why do societies let themselves be regulated in such form?” (Maihofer, 1992: p. 51)28. It is not only about clarifying the “discrepancy” (Diskrepanz) between real and regulatory Law but about properly clarifying such discrepancy of Law as a whole, as a social system; “in other words: all phenomenon associated with social relations of legal rules” (Maihofer, 1992: p. 51)29. Trying to see the multiple aspects of reification in the scope of Law represents searching for unveiling, in the constitutional and political phenomenon, elements so far “invisible” to the eyes of those who deal with legal science. After the Marxist reflection, intellectuals and jurists could rely on one more methodology to analyze their science, with an interdisciplinary and more enriching view of their millennial legal phenomenon.
Under this perception, the reification perceived by Marx makes allows us to understand one of the most meaningful moments of modern constitutionalism, notably the one that produced constitutions such as the Mexican in 1917 and Weimar’s in 1919, that is, the period between the two great world wars of the 20th century. By the ontological proximity, Weimar’s happened in a society of the already advanced capitalism, in which the social and political struggle involved the considerable political power of organized communists, liberals, social-democrats, and socialist actors, aside from having experienced a “democracy without democrats,” with its collapse conducting the world to the barbarism of a war without anti-civilization precedent, especially regarding legal institutes.
Weimar proposed a “minimum commitment” between capital and work that can be resumed in its “art. 151 [Foundation] Economic life organizations must conform to justice principles, with the purpose of providing all with a dignified human existence” (Schuster, 1985: p. 201)30. This option for a less unequal society and for democracy in liberal molds unleashed the fury of the reactionary in Germany; a nation coming from a war defeat and with no democratic tradition. From a revolutionary process in November 1918 to this reality, the Weimar Constitution tried to give the country institutional tools for overcoming their challenges, especially the one of constructing an economic and politically democratic as well as tolerant society. In the words of Franz Neumann, it was about facing a bet for the future: “Constitutions written at the great turning points of history always embody decisions about the future structure of society. Furthermore, a constitution is more than its legal text; it is also a myth demanding loyalty to an eternally valid value system” (Neumann, 2009: p. 8).
Weimar’s social democrats had the ability to accomplish the transition of reactionary monarchy to an attempt of democracy at the same time that they were able to build governments in tormented moments in the economic and political spheres of Europe between wars. The same social democrats were not prepared for the strength of such a powerful enemy, the national socialism, which destroyed the precarious bases of a democracy still in its childhood. The collaboration between jurists and the Judiciary power had a relevant role in this destruction:
In the center of the counter-revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decision rest on law, that is on the right and wrong, and they always enjoy the limelight of publicity. Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice (Neumann, 2009: p. 20).
More than the Judiciary Branch, the working of concepts and legal institutions for their adaptation to the Nazi institutionality and consequent rupture with the “Marxist Jewish republic” of Weimar (Hürter, 2016: p. 13) proves the necessity of observing the reification phenomenon with a new meaning, although with the objective of maintaining forms of domination of classes and social estates, one above the other. The extreme Nazism brings novelty to the fixation of the friend-enemy concept, with the enemy not being simply dominated and neutralized but eliminated in its personal, cultural, economic, and political existence.
Law as a whole—and not only public, private, or traditional Law of State, Staatsrecht—will be understood as, at the same time, being subjected to and consolidating the Nazi morale. The lack of need for law in the newly elaborated Nazi morale gave the concepts of rational purity and cultural, scientific, and economic superiorities a foundation to administrative and legal decisions. The transition to national socialism found in the “ideological morale of Law” (ideologische Moralisierung des Rechts) its special function, in which, as in the Weimar State Republic,
An internal relation with the German people would be missing, which, from a theoretic point of view of Law, depletes in a positivist formalism without substance. As Koellreutter states: the fall of November 1918 brought to Germany an extraordinary victory of formal democracy and legal positivism (Pauer-Studer, 2014: p. 13)31.
The criticisms against Weimar also comes from one of the most prominent jurists, Ernst Forsthoff, for whom the constitution was nothing more than “an attempt of a State with no substance (den Versuch zum Staat ohne Substanz) (Forsthoff, 1933: p. 20). Since Weimar did not choose its substance—which could be “monarchy according to the grace of God, the people, a myth” (Forsthoff, 1933: p. 20) (die Monarchie von Gottes Gnaden, das Volk, der Fürher, ein Mythos sein)—, its emptiness would be only in the positive Law.
We do not need much to realize that the intellectual and political battle would happen still within the bureaucracy of the Nazi State, which was being consolidated and had in Hans Kelsen and his Pure Theory of Law the great adversaries to be eliminated. The accomplishment of legality sought to move the enforcement of the constitution and the law to an objective domain, gaining broader sectors, as judges would base their decisions on legality and not on the alleged traditional moral values of society. The classic separation between Law and the moral of positivism constituted the main target of Nazism, confusing the judicial interpretation with the moral one and thus preventing jurists from identifying the differences when related to authoritarianism or when they were before the “statality” of Law (Rechtsstaatlichkeit).
This reification of Law by moral was not, of course, confronted by Marx. However, his concept of reification of social relations gives clues to how the complex operationalization of national socialism was successful in the task of reifying its view of the world and of society, aiming at building a deformed political comprehension, above moral and Law, which had the substantial interest of this new form of political organization.
On the days that followed, under the national socialism domain, Law assumed the task of reifying the system according to Nazi values, leaving the historical proof that normativity alone cannot handle the explanatory nature of the constitutional phenomenon, and that the moral value system would need, aside from positive, written Law, to join the concrete political action of the judiciary bureaucracy.
4. Reification as a Structure of Political Consciousness
The phenomenon amplitude of reification of social relations makes forms acquire much more refined shape, gifted with more powerful hidden strengths and, most importantly, more autonomous ones. They appear in the everyday life of individuals as gifts, accidents of nature. The interest form of money-capital possibly represents the most complete form of fetish, a thing that has its own movement, rhythm, and light. As capitalism develops and becomes more complex, especially in the relationship between civil society and the State, the cause nexus within social relations become more invisible. These social relations are to be considered also in the fields of technology and innovation, which fed Marxian thinking since English thinkers:
(…) Marx reworks this concept from the reading of the aforementioned works of Charles Babbage and Andrew Ure, mainly. With this Marx expands his vision of production, articulating the concept of technology with the concepts of use-value, exchange-value, within the production process. This aspect of the formation of Marx’s technological thinking is an important innovation of the very work he did in economics (Oliveira, 2022: p. 261).
Money in the form of value movement seems to have self-power, transferring it to its personifications, in this case, the money owners. As Marx remembered, money has the power of connecting everything and untying everything. The social complexity, the diversity of social relations, makes it even harder to establish the mediations capable of reflectively recomposing the unit of the real process of production and of capital circulation. Advanced capitalism, now internationally funded, corresponds, on one side, to the strong capital centralization and, on the other, to the transfiguration of the State, which assumes a more representative character of “general interest,” without actually having it. This scenario is substantiated by the search for the abstract richness of money, which generates more money, making this social and political practice dominant. In this regard, the discourse of some supposed rationality is incessantly produced, presenting itself as a fundamental aspect of virtuous austerity practices, of auditing calculus, also materialized through normative instruments. In Brazil, the Complementary Law No. 101 from May 4, 2000—or “Fiscal Responsibility Law”—is the best example of this pretense discourse of over rationality. Society will have to be controlled by its impulses toward a good life. It involves assuming the responsibility of controlling the results of social labor, of being the only agency with rational capacity for such. To that end, its spokespeople will not hesitate to bury all civilization conquers in the basement of history. Heritages of civilization and social struggles appear in the discursive practices of the states as living witnesses of the irrationalities of society, particularly the ones achieved by democratic battles for a good life. Welfare State sounds like delirium, irresponsibility, collective madness. The world of things, of ghosts, invades all corners of social life. Reification emerges as inescapable rationality embodied by fiscal austerity practices. Paying the interests of the public debt ends one of the mysteries of these new ways of presentation as representatives of the universal interest. Archaic ways of religion and discriminatory social practices gain status of maximum rationality. All of them merge in the myth of the minimum state. Actually, individuals went back to being stripped, being naked again, just as they were when they arrived in the objectified modernity, stripped during the centuries of the so-called primitive accumulation. They arrived in modernity totally naked, removed from their former rights, and began to transit the world as beings available to any usage of their flesh and muscles.
The aim was to impose the dominion of the world of things over the destinies of humanity. This scenario confirms Marx’s greatest fear: the dominance of the blind forces of the market, of its most destructive powers, those that do not stop for anything: death, war, and terror.
What is left after all of this? Or even better, what comes to be freedom in this world that Marx defined as “the enchanted world, inverted and upside down, where Monsieur le Capital and Madame la Terre haunt like ghosts, sometimes as social characters and at the same time as mere things?”
Freedom remains in a possible background that necessarily follows certain steps. Which steps are those? They are the ones related to the development and needs of capitalism, that is, the social struggle. Effectively, it corresponds to the emancipation of labor and all the following ideology (Calvinist ethics). This immediately refers to the issue of the relation between realm of freedom and realm of necessity. So, where does the realm of freedom begin? Freedom requires the overcoming of the indispensable realm—production and reproduction of life—to thrive. Therefore, it needs to develop productive strengths capable of increasing and satisfying the always expanding human necessities. Thus, this dialectic between freedom and need is grounded on the history of concrete and real humans. The beginning of this long and difficult journey presupposes political struggle. This struggle seems to initiate, before all, when workers secured social rights. Effectively, it started with the reduction in working hours, the fundamental condition of this humane development. For Marx, the political sphere is the moment of universality; in other words, it corresponds to going beyond and overcoming the private. This becomes clear when he distinguishes the initial worker’s social movement, which he considered particularist, partial, episodic, and non-continuous (from the Luddites to the first coalitions of workers for wage struggles), from its configuration into a political movement. This last one consisting of the moment of the permanent associations, the political party, for example.
At this point, institutional-political issues that transcend the worker’s movement taken individually are raised. Let us examine the universal male suffrage. Marx considers the English Chartism as a moment in which an immediate, particular perspective was overcome by a more universalizing conception of political action. A moment for politics and formation of rules and laws that protect workers through their battles, alliances, cleverness, and tricks. In other words, such moments may redefine the principle and practice of citizenship (Marx, 1990: p. 177).
From this point on, citizenship continuously broadens and redefines its own meaning. As a result, in countries that have not even secured civil, political, and social rights and, more importantly, where those rights are not guaranteed and effectively respected, the construction of the democratic-liberal institutional sphere constitutes a historical imperative. However, at this point in world history, we must understand the risk of reifying the institutions. They can make us dive dangerously into an obscure and inverted world of formal illusions. They can make us emerge in new forms of non-transparency and reification of social life.
Informed by the experience of history about the limits and ranges of the State of Law in modern society, it seems that, at least for us, the institution of this State is extremely necessary. Only this institution can maximize the creation of a democratic political culture indispensable to the fight for the construction of a realm of freedom.
5. Conclusion
The considerations made previously about reified structures of conscience are valid because they lead us to the sociological resumption of social criticism, once more as an extreme criticism of the ideology, that is, of the social forms that reify conscience, that shape the deep structures of our feelings, our perception of the world. Ideologies are ideas; they conform to conviction systems and belief systems. They transform themselves into thinking and acting habits of humans; they have practical consequences in social life. Such systems operate empirically, constituting social, institutional, symbolic practices, as in the form analyzed by Rahel Jaeggi (2016b: p. 64).
Humans act in the world based on ideology; according to Marx, their actions are driven by this wide enchantment system. As we have seen, ideological forms hide and penetrate, in an inverted way, the relations of dominance, as in the well-known and famous image made by the author of the darkroom that inverts the reflection of the objects. Nonetheless, this inversion fundamentally penetrates the minds of individuals and is transmuted into material violence.
An extreme criticism of the ideology is simultaneously a criticism of dominance and exploitation. Similar criticism must decipher the deep mechanisms of domination, enlightening their darkness with the lights of progress, and developing them in the great challenge of thinking that wants to be thinking. Criticizing the reification of juridical hypnosis from the formation of Law concepts, of forms distant from reality, will be the element that allows us to understand the functioning of Law beyond the appearances that this same constituted juridical science seeks to hide in order to maintain separated from reality the human potential of its—material and non-material—liberation from the alienating limits that can only be confronted by “the making of one which is the making of the other” (Jaeggi, 2016a: p. 298)32.
This present Marxist contemplation proves itself, beyond the artistic universe, in the theory reflection. In a recent discussion with Rahel Jaeggi, Nancy Fraser regards boundary struggles not as a substitution of Marx’s class struggles (Fraser & Jaeggi, 2018: p. 168) but as a concept that belongs: “in the same conceptual framework as the expanded view of class struggle that I just outlined, which also includes struggles over unwaged and expropriated labor, including social reproduction, and over natural and political conditions that support it” (Fraser & Jaeggi, 2018: p. 168).
In this sense, we can resume Marx’s legacy and, in fact, pay him the tribute we owe him on his 200th birthday. As once Marshall Berman said: Marx will be dancing up Broadway when we are all dead.
NOTES
1Original: “Wenn aber die Arbeiter von der Luft leben könnten, so wären sie auch um keinen Preis zu kaufen. Ihr Nichtkosten ist also eine Grenze im mathematischen Sinn, stets unerrereichbar, obgleich stets anäherbar. Es ist die beständige Tendenz des Kapitals, sie auf diese nihilistischen Standpunk herabzudrücken. Ein oft von mir zitierter Schriftsteller des 18. Jahrhundert, der Vaerfasser des‚ Essay on Trade and Commerce”, verräter nur das inneste Seelengeheimnis des englischen Kapitals, wenn er für die historische Lebensaufgabe Englands erklärt, dn englischen Arbeitslohn auf das französische und holländische Niveau herbazudrücken”.
2“Tão grande era de membros que bem posso/Certificar-te que este era o segundo/De Rhodes estranhíssimo Colosso” (Camões, 2014: p. 134).
3Original: “Im Kapital-Profit, oder noch besser Kapital-Zins, Boden-Grundrente, ArbeitArbeitslohn, in diese ökonomischer Trinität als dem Zusammenhang der Bestandteile des Werts und des Reichtums überhaput mit seinen Quellen ist die Mystification der kapitalistischen Produktionsweise, die Verdinglichung der gesellschfatlichen Verhältnisse, das unmitlebare Zusammenwachsen der stofflichen Produktionverhältnisse mit ihrer geschichtlich-sozialer Bestimmheit vollendet: die verzauberte, verkehrte und auf den Kopf gestellt Welt, wo Monsieur le Capital und Madame la Terre als soziale Charaktere und zugleich unmitelbar als bloße Dinge ihren Spuk treiben”.
4Original: “(Gesetzgebung, Regierung Verwaltung, Rechstsprechung, Wissenschaft)… (politische, soziale, öffentliche, nicht-öffentliche, informelle) Kontrollmöglichkeiten”.
5“Das Program der Aufklärung war die Entzauberung der Welt. Sie wollte die Mythen auflösen und Einbil.dung duchr das Wissen stürzen. […] hat die glücklische Ehe des menschlichen Verstandes mit der Natur der Dinge vehindert”.
6Original: “Und die Geschichte dieser ihrer Expropriation ist in die Analen der Menschenheit eingeschrieben mit Zügen von Blut und Feuer”.
7“Die Blutgesetzgebung der Expropriierten seite Ende des 15, Jahrhundert”.
8“Geld zu sein ist keine natürliche Eingenschaft des Gold und Silbers […] Aber Geld ist unmittelbar Gold und Silber”.
9Original: “Es tritt daher hier in der ganze Reinheit hervor der Grundwiderspruch, der im Tauschwert und der ihm entsprechenden Produktionsweise der Gesellschaft enthalten ist. Die Versuche, diesen Widerspruch aufzuheben, dadurch, daß dem Geld seine metallne Form entzogen und es auch äußerliche als von der Gesellschaft Gesetzes, als Ausdruck eines gesellschaftlichen Verhältnisses gesetz wird, wovon die letzte Form die von Arbeitsgeld wäre, its schon oben kritisiert”.
10“Der Arbeietr tauscht seine Ware, die Arbeit, den Gebrauchswerte, die als Ware auch eine Preis hat, wie alle andren Waren, aus gegen eine bestimmte Summe Tauschwerte, bestimmte Summe Geld, die das Kapital an ihn ablässt”.
11“Das allgemeine Interesse ist eben die Allgemeinheit der selsbtsüchtigen Interessen”.
12“Gleichheit und Freiheit sind also nicht nur respektiert im Austausch, der auf Tauschwerten beruht, sondern der Austausch von Tauschwerten ist die produktive, reale Basis aller Gleichheit und Freiheit”.
13“Gleichheit und Freiheit in dieser Ausdehnung sind grade das Gegenteil der antiken Freiheit und Gleichheit, die eben den entwickelten Tauschwert nicht zur Grundlage haben, vielmehr an seiner Entwicklung kapputgehen”.
14“[…] Bestimmungen der juristischen Person, eben des Individuums des Austauschs, entwickeln konnte und so das Recht (nach den Grundmestimmungen hin)”.
15“Jeder erscheint als Besitzer des Geldes dem anderen gegenüber, selbst das Geld, soweit der Prozeß des Austauschs betrachtet wird”.
16“Daß also nicht nur die Voraussetzung keinesweges weder einem aus der Willen noch der unmitelbaren Natur des Individuums hervorgehende, sondern eine geschichtliche ist und das Individuum schon als durch die Gesellschaft betimmt setzt”.
17“Die Form des Arbeitslohns löscht also jeder Spur der Teilung des Arbeitstags in notwendige Arbeit und Mehrarbeit in bezhlte und unbezahlte Arbeits aus. Alle Arbeit erscheint als bezahlte Arbeit”.
18“Auf dieser Erscheijungsform, die das sichtliche Verhältnis unsichtbar macht und grade sein Gegenteil zeigt, beruhn alle Rechtsvorstellungen des Arbeiters, wie des Kapitalisten, alle Mystifikationen der kapitalistischen Produktionsweise, alle ihrer Freiheit Illusionen, alle apologetische Flause der Vulgärökonomie”.
19“Religion des Alltageslebens”.
20“In dem sie die Naturnotwendigkeit und eiwige Berechtigung ihrer Einnahmequellen proklamiert und zu einen Dogma erhebt”.
21“Nichts hat innehalb der vedinglichten Gesellschaft eine Chance, zu überleben, was nicht seinerseits verdinglicht wäre”.
22“das eine könne und müsse getrennt von dem aderen sich entwickeln”.
23Although this observation is part of the work of young Marx, the notion of natural law that Marx showed in this first writing is noticeable—during the Weimar collapse—and was very important to at least the expressive Marxism. Here, the understanding of Ernst Fraenkel and his insistence on the recovery of natural law in Marx, as a necessary instrument for confronting Nazism, stands out: “Weber’s reflections here clearly made a significant impression on Ernst Fraenkel, who devotes much of his intellectual energy during the 1920s and 1930s to articulating a response to Weber’s analysis of natural law and socialism. In the process, Fraenkel develops an idiosyncratic synthesis of natural law and Marxism that acknowledges the undeniable intellectual merit of Weber’s claim—without abandoning Fraenkel’s own preference for social democracy. […] Fraenkel implies that modern rationalism and intellectualism necessitate the inevitable demise of natural law and its normative treasures” (Caldwell & Schuerman, 2000: pp. 77-83).
24“den Grundsatz der Gleichbehandlung”.
25“Die rechtliche Natur der Dinge kann sich daher nicht nach dem Gesetz, sondern das Gesetz muß sich nach der rechtlichen Natur der Dinge richten. Wenn das Gesetz aber eine Handlulng, die kaum ein Holzfrevel ist, einen Holzdiebstahl nennt, so lügt das Gesetz, und der Arme wird eine gesetzlichen Lüge geopfter. “Il y a deux genres de corrpution, sagt Montesquieu, l’un lorsque le peuple n’observe point les lois; l’autre lorsqu’il est corrompu par le lois: mal incurable parce qu’il est dan le remède même”.
26“Aber Hegel verwechselt hier den Staat als gazes Dasein eines Volkes mit dem politischen Staat”.
27daß die Unterscheidungen innerhalb des Privatstandes, die verschiedenen bürgerlichen Ständen, nun eine Privatebedeutung in bezug auf den Staat, keine politische Bedeutung haben.
28“Wie kommt es, daß die Menschen sich so etwas wie das Recht in den Kopfen setzen? Weshalb regeln sie ihre gesellschaftlichen Verhältnisse auf diese Weise?”.
29“oder genauer: alle Phänomene, die mit der rechtlichen Regelung gesellschaftlicher Verhältnisse zu tun haben”.
30Art. 151 [Grundsätze] Die Ordnung des Wirtschaftslebens muß den Grundsätzen der Gerechtigkeit mit dem Ziele der Gewährleistung eines menschenwürdigen Daseins für alle entsprechen.
31“die Weimarer Republik als eine Staatsform, der die innere Beziehung zum deutschen Volk fehle und die sich rechtstheoretisch im positivistischen und substanzlosen Formalismus erschöpfe. Wie Koellreutter schreibt: Das Novemberumsturz des Jahres 1918 brachte in Deutschland eine äußerlichen Sieg der formalen Demokratie und des Rechtspositivismus”.
32“Das Tun des Einen ist das Tun des Anderen”.