Again, progressive, even radical, responses to these questions do not require a specifically Marxist theory of the law. Clearly, though, trialling our competing theories of law and exploitation is crucial if Marxists are to intervene satisfactorily in the production of their answers. The evaluation of the politics of labour law constitutes for Marxist theory, and particularly for the critique of political economy centred on the analysis of exploitation, an essentially contested question.
Since Marx, labour law has been considered in relation to the process of extraction of surplus value in three divergent ways:.
If the second option today appears as the most theoretically fertile and the most politically reasonable, certain discussions at the heart of the social movement against the El Khomri law remind us that the other two options—employment rights as exploitation, and labour law with a view to abolishing exploitation—have not lost their currency entirely. However, certain elements of the El Khomri law, such as the relaxing of dismissal rights or the possibility of an increase in legal working hours above ten hours, to take just two examples, show the real possibility of a French Labour Code in the service of exploitation.
Finally, the three models reintroduce into the framework of ongoing legal debates the criteria both of hierarchical subordination and economic dependence, which might apply to new practices of capitalist exploitation linked, for example, to task-based work via digital platforms. The analysis of these three models concerning the relation between employment rights and exploitation returns us once more to examining, from the point of view of Marxist theory, a current practical problem: can we wait for a progressive counter-reform to employment rights?
This text proposes a reconstruction of these three positions, commencing with Marx, then Marxist authors of the twentieth century, notably Evgeny Pashukanis and Karl Korsch.
Following that I will discuss these models in confrontation with recent juridical and sociological works on the genesis and dynamics of employment rights in France, above all the works of Alain Supiot. In the third section, I will consider two issues currently occupying political and juridical debates: the new practices of economic exploitation on digital platforms, and the relationship between employment and social rights at the national and international level, with a focus on the European Union.
To conclude, I seek to reinscribe these arguments in the framework of a broader discussion of contemporary debates [ enjeux ] around the thesis of the political centrality of work.
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The first argument derives from the materialist critique of bourgeois right. In general, the formulation in The Communist Manifesto on the subject of the right to property seems to apply to all state legislation concerning production:.
Your jurisprudence is but the will of your class made into a law for all, a will whose essential character and direction are determined by the economical conditions of existence of your class. The exchange between capital and labour at first presents itself to our perceptions in exactly the same way as the sale and purchase of all other commodities.
Karl Marx’s dialetics and the Marxist criticism of law
The buyer gives a certain sum of money, the seller an article which is something other than money. Labour law therefore becomes—and this is the second position—a specific field of class struggle between antagonistic interests:.
There is here therefore an antinomy, of right against right, both equally bearing the seal of the law of exchange. Between equal rights, force decides. Hence, in the history of capitalist production, the establishment of a norm for the working day presents itself as a struggle over the limits of that day, a struggle between collective capital, i.
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Finally, Marx and Engels, notably in certain political interventions, anticipate labour legislation more favourable to the interests of the proletariat: a form of law which would not be a class compromise, but a direct attack against the very principle of exploitation. This involves a materialist view of social life in which law and the state are accorded a subordinate position as part of the superstructure, as opposed to the fundamental economic infrastructure, of society. See also sociology of law.
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