www.uow.edu.au/law/law_web_main?commodification.html
Commodification of Justice and the 'Re-Privatization' of Private Property Prepared for the conference Commodification: Theories, Practices, Histories and Representations University of Wollongong 19-20 February 1998 Richard Mohr
'In seeking to resolve tomorrow's disputes, the justice consumer will demand options as surely as he or she will insist on choices in seeking any other valuable commodity.' - Chief Justice's Commission on the Future of the Courts (Massachusetts) 1992: 17 'Justice is a right, not a commodity.' - Dave Morris, defendant in the 'McLibel' trial, 1995
As suggested by the Massachusetts report quoted here, there are a number of current trends towards the commodification of justice. I will return to these by way of illustrating what the 'commodification of justice' might look like. However, it is not the purpose of this paper to argue that justice has been or will be commodified, but rather to explore the implications of such a step. The question posed, and at least partly answered, by the paper will be: 'what difference would it make if justice were a commodity?'
I am focusing on civil justice, that is to say, the adjudication of disputes between private parties (individuals or corporations). Civil litigation offers a particularly fruitful sphere in which to study the ways in which the practice of law constitutes private property. Litigation in the courts is a public display of law in action. Parties engage each other, disputants and the public are present, and the players take their ordained places (temporal and physical) in the ritual. Property is central to civil litigation, since these disputes are frequently over debts, inheritance or some other form of property. Even when they are tort or damages cases they are frequently reduced to a claim for some amount of money in reparation.
The social transformation of private property
My principal argument is based on law's role in aiding the transformation of private property into a publicly recognised benefit. The paper will inquire into some of the ways in which law manages this change. In particular, the role of courts and litigation will be considered in order to illuminate the symbolic role of a justice system in a regime of property relations.
Land, goods or money are transformed into private property by various forms of social symbolism. These processes are familiar in the field of commodification, since it is just these sorts of social symbolic and interaction process which transform use value into commodity value. The meanings which attach to objects of value are defined through a wide range of social interactions, which may vary between cultures and historical circumstances. Food, for instance, may acquire various cultural values through religious ceremonies, family life, production practices or marketing. Even money, in the form of currency, may be invested with various cultural values or meanings depending upon whether it is a child's souvenir of an overseas trip, a baptised peso note with magical properties in western Colombia Taussig 1980: 126ff, or an item exchanged in a Swiss bank.
How is it that goods are constituted as private property or as commodities? There are, of course, numerous symbolic systems which constitute the nature of commodities and property. Money, for instance, relies for its social meaning and context upon book-keeping, stock exchanges and other markets. Land becomes property through fencing and surveying and the various meaning systems ('beating the bounds'; trigonometry) surrounding those practices. Yet in considering any of these systems of property relationships we soon come back to contracts, titles and the legal system from which their meanings derive.
The puzzle of the nature of capital or exchange values was a thread which ran through many writings of the nineteenth century. From 'Ravenstone's' complaint in 1821 that 'it is not a very easy matter to acquire an accurate idea of the nature of capital' to Simmel's tome of 1900, The Philosophy of Money, the mystery of money and its ontology weighed on many minds. Ravenstone went on to lampoon the reified place of capital in the thought of his day:
'No man hath seen its form; none can tell its habitation. … Its treasures are not real wealth, they are only representations of wealth. … Capital is like the subtle ether of the older philosophers; it is around us, it is about us, it mixes in everything we do. Though itself invisible, its effects are but too apparent. It is no less useful to our economists than that was to the philosophers. … It is the deity of their idolatry which they have set up to worship in the high places of the Lord; and were its powers what they imagine, it would not be unworthy of their adoration.' (quoted Pasquino 1991: 105-06)
In 1840 Proudhon, refusing to recognise the legitimating role of capitalist institutions, answered the question 'what is property?' with the answer, 'it is robbery' (Proudhon 1964 (1840): 87) . Marx developed his theory of commodity fetishism as a way of explaining the mysterious power of capital over economic life. In this theory labour was transformed into use value and, hence, commodity value through a series of equivalences of value. Commodities are thus constituted as 'social things whose qualities are at the same time perceptible and imperceptible by the senses.' (Marx 1919 I:83) ) The social relations of people 'assume, in their eyes, the fantastic form of a relation between things'. Our own products assume an independent life, and enter into relations with us and with each other as fetishes. We are less the owners of commodities than their guardians.
Exchange, as expounded in Capital, is based in the voluntary contract between two owners, or guardians, of commodities. The existence of a 'developed legal system' is irrelevant to this relation, since the juridical relation of making a contract 'is a relation between two wills, and … this economical relation determines the subject matter comprised in each such juridical act.' (Marx 1919 I:96)
Two features of Marx's treatment of the exchange relation are significant here. The first is the radical individualism, uncharacteristic of much of his work, while the other is the voluntarism of the proprietors which determines the juridical context. Convenient as these devices are for his economic exposition of the 'development' of exchange and monetary relationships, they do not illuminate the symbolic forms of social relationships which constitute the exchange relationship and its reified outcomes.
It has been remarked that much of Weber's sociology may be seen as a dialogue with Marx's ghost. His sociology of law seems designed to fit precisely into the gap left by Marx's voluntaristic and individualistic description of the system of exchange.
Weber compares the freedom enshrined in legal rights with the legal coercion available to enforce contracts. So central is the legal system to Weber's notion of property and exchange that he defines 'exchange', precisely, as a 'legal transaction' ('within the framework of a legal order'). 'A legal order can indeed be characterized by the agreements which it does and does not enforce.' (Weber 1978: 668)
The social and associative basis of economic life and the role of law within it are highlighted by Weber's rebuttal of individual voluntarism as a foundation of exchange or of law. 'In some sense and to some degree almost every legal transaction between two persons, inasmuch as it modifies the mode of the distribution of disposition over legally guaranteed powers of control, affects relations with an indeterminately large body of outsiders.' (Weber 1978: 684)
All creditors are affected by any increase in liabilities of a debtor; all neighbours are potentially affected by any new uses to which a purchaser may put a portion of land.
Law asserts the interests of a broader community when it regulates private property relations. In doing so it legitimates private property&endashboth in general and in the specific instance of an exchange relationship. Within the English legal system this may be traced back at least to the Magna Carta, which stated that no 'freeman' could be deprived of property except in accordance with the established 'law of the land'. The system of law constitutes private property as a publicly recognised benefit, and hence effects an important part of the social transformation from use value into commodity value.
This transformation does indeed have the magical qualities which Marx identified. That transformed labour or land assumes the relations of private property under capital, however, and not, say, the magical qualities of the baptised banknote depends upon the social context within which they are constituted. The 'fiction' that land and labour are not, in fact, simply nature and human activity but really commodities, becomes reality. 'In its market form society engenders this fictional reality, and it is with these abstractions or symbols that we are forced to operate and comprehend the world.' (Taussig 1980).
As we have seen, the legal system of society is a crucial part of the symbolic order which conjures up the peculiar magic of property relations in advanced capitalism. So we may turn next to the content of our legal order to see how it is that it works its magic.
In transforming the useful object into the commodity, the monetary and legal system engages a wide range of symbolic forms. Money itself is made up of tokens and material symbols of universal value, but these are always open to alternative constructions, as Taussig's work reminds us. The meaning system of western law is constituted by elaborate devices to reinforce and reinterpret the social and economic order, such as legal principle and precedent, and other texts (eg statutes, judgements, contracts and cheques). Above all in litigation, law invokes the power of place and of ritual in its symbolic work of giving meaning to property relationships. We will see the means by which law constitutes private property in three interrelated areas: the state, ideology and social practice.
Public recognition of the outcomes of litigation are important to the parties themselves to the extent that this is the basis of enforcement and compliance. In addition, the wider social benefits of litigation are most apparent as a result of public recognition. Lawyers are quick to point to the benefits of litigation in setting binding legal precedent: hence the 'public interest' case in its deepest sense. But it is also in a more generalised Weberian sense that the public resolution of disputes serves wider social interests. As we saw above, Weber saw the social benefits of law ranging from the determination of a dispute between parties which could affect many outsiders, to the pattern of enforceability of contracts, which characterises a legal order, and in turn defines the exchange relationship.
Antifoundationalist critics of law see the evaporation of law's theological basis as the end of its claims to any external or transcendent validity. Yet we have seen that the theological justification was replaced, after the enlightenment, by a robust consensus arising out of the principle of publicity. While the outward form of civil litigation changed little, its foundations were re-established in the public sphere. In his critique of the contemporary structural transformation of the public sphere, with particular reference to the foundations of the state, Habermas notes that the enlightenment consensus has been replaced by competing self-representations of private interests. (Habermas 1991: 195) . Here again we are confronted by the paradoxical relationship between law, the state and civil society. The new frameworks of a commodified justice conform closely to Habermas's picture of the transformed public sphere. The removal of decision making from democratic institutions and from public participation or scrutiny sees the citizen give way to the consumer, in a process by which civil society itself has been derationalized and commodified (Splichal 1994: 72-73). In the same way, the commodification of justice undermines the public recognition or scrutiny of property relations.
As a result of the current transformation of the public sphere, to the extent that justice may become commodified and privatized, we may anticipate a more profound shift in the consensus on which civil litigation and private property are based. The symbolic systems by which private property is constituted as a publicly recognised benefit lose their legitimacy and integrative role. To the extent that justice is commodified, i.e. becomes a private and voluntary benefit, it ceases to work its magic as the basis of other commodities, exchange relationships and private property. If justice itself descends into the realm of the commodity, there is no foundation to commodity relations outside the private and voluntary world of the individual will. Economic inequalities refract throughout society, recolonising the public sphere and overwhelming the polity.