This two part series features a conversation between Anastasia Tataryn and Susan Dianne Brophy. Part 1 is an interview by Anastasia Tataryn of Susan Dianne Brophy. Together, they discuss their respective works on the production of legal subjects and the need to rethink subjectivity in scholarship.
The production of the legal subject is in many respects bound together with the economic productivity of the individual. Subjects whose productivity is highly valued in an economic sense may, in turn, expect a higher social status and greater political entitlements. Economic productivity has been used, and currently remains, a measure of legal subjectivity. Historically, this relation is key to social reproduction theory. Current neoliberal realities emphasize the correlation between productivity and subjectivity as social status or ‘good’ citizenship. Moreover, the notion that ‘there is no alternative’ reiterates the limits of our understanding of the relation between productivity and subjectivity. Value is created and constructed through market economic means, yet productivity as a condition of subjectivity is the result of state power’s complicity in the advance of capitalism. It is neither natural, nor necessary (Marks 2009), however no mere repurposing of the tools and methods of capitalism by the state will be able to address its corrosive social effects.
Brophy: One of the definitive features of the transition to capitalism is a change to the conditions of labour: en masse, “free” workers turn to the market to sell their labour and buy the necessities of life. By this account, the “extra-economic” realm no longer plays a key role in the direct exploitation of labour; instead, the “silent compulsion” of market dependency takes over (Marx, Capital I, 899). Yet this view leaves out the matter of how labour itself is produced as a commodity. Proponents of Social Reproduction Theory (SRT) have done much to emphasize the consequences of this oversight, and in response, they contend that the reproduction of labour power is essential to the production of surplus-value. Taking this a step further, the process of worker self-production (Bhattacharya, Viewpoint, 2015) must be recast as a process of producing the legal subject. This recasting provides a basis for the study of the intersection of law and capitalism not at the point of exchange (where exchange values and legal subjects enter into relations of false equivalency), but at the point of social reproduction, where the differentiation of legal subjects serves as a condition of capitalist value-creation.
By bringing the legal dimensions of social reproduction to the forefront, three points become clear: first, the “extra-economic” realm does not fade away in the transition to capitalism; second, law has an intrinsic relation to capitalism, and not an extrinsic or functionalist relation; and third; human praxis is the site of exploitation and emancipation alike.
Tataryn: So essentially what you’re suggesting is that the ‘extra-economic’ realm is a key player in the direct exploitation of labour, which is upheld by the law, legal system, and what the law excludes?
Brophy: Yes, I suggest that the “extra-economic” realm remains central to labour compulsion. This is obvious, but certain accepted ideas about the relation between law’s coercive power and commodity production leads us to ignore the obvious.
The labour of social reproduction and the sphere of social reproduction are not separate from the market – after all, that is how and where labour as a commodity is produced (Ferguson). However, the qualitative conditions of labour compulsion differentiate this sphere from others (i.e. spheres of exchange and production), and as such, imply a different relation between law’s coercive force and the terms of labour. I posit that the exploitation of the labour of social reproduction is a result of the predominance of law’s coercive force in the sphere of social reproduction. In other words, exploitation in this sphere is not the result of exclusion by law, but the opposite: a more direct relation between law’s coercive force and the terms of labour.
Although one of the defining features of capitalism is that the worker loses ownership over the means of production, loss of ownership is only part of the narrative. It also matters if it is a corporation, a state, or a spouse who owns the means of production, not to mention the actual legal conditions of worker self-production. I think something very interesting happens to our understanding of the relation between law and capitalism when we talk about commodity production in the sphere of social reproduction versus commodity production in general.
Labour compulsion is qualitatively different when examined with the sphere of social reproduction as the starting point. For instance, if we think of the type of waged labour associated with frontline jobs in public education, public transportation, or public healthcare, the exploitation of these workers is always at risk of being distorted into compulsion by public necessity. This overlaps with compulsion by market dependency in some ways, but compulsion by public necessity cannot be reduced to compulsion by market dependency. The worker whose subjectivity is informed by the fact that the state is the “owner” of their means of production may encounter a more direct yet scattered type of compulsion. This is so in part because everyday citizens lay claim to the product of labour, terms of labour, and object of labour in the sphere of reproduction, even those wealthier citizens who have no use for public education, public transit, or public healthcare. The “boss” is everyone and everywhere, as George Robitaille learned, who was photographed asleep while on duty for the Toronto Transit Commission in January 2010 (and who eventually died from a stroke in November that year).
Similar considerations should be extended to “temporary foreign workers”, who are engaged in processes of worker self-production under a permanent threat of the coercive power of the state. Compulsion exercised under these conditions is direct, prying, and constant, and employment at the behest of a capitalist owner only intensifies this reality. Here, the temporariness of employment is a matter of legislation, regulation, and enforcement – this category of employment exists as an extension of public necessity.
If we lose sight of the fact that the actual type of and terms of labour matters, then we are abetting the totalizing effects of self-rationalizing market dependency. We become the worst of the illusion-producing cadre insisting on theories that gloss over the in-your-face coercive realities. I think social reproduction as a frame of analysis refuses the evasiveness by not allowing you to turn away from the material terms of worker self-production.
SRT tends to adopt a frame of analysis that does not assume that the capitalist is the owner of the means of production, or even that a given sector of workers ever owned (and then lost ownership over) the means of production. This approach places the realities of coercion and the illusions of consent back into a generative tension – generative in the sense that it can produce a better understanding of the totality when we talk about the relation between law and labour in capitalism.
Tataryn: Yes, I agree that this notion of compulsion in social reproduction is much more diffused than traditional theories assume. It is interesting to think about in light of notions of ‘good citizenship’ and the current emphasis on ‘essential’ work and workers. I wonder, in stating the human praxis is both the site of exploitation and emancipation, where do you see signs of emancipatory possibility in the current (2021) state of labour and work?
Brophy: I am glad you hint at a differentiation between “essential” work and “essential” workers. The idea of “essential” work is already built into self-rationalizing market dependency; capitalists are quick to argue that they “need” labour. The difference is the elevation “essential” workers, which implies an added duty to serve in the public interest, and as such, an added appeal to the worker as a political and legal subject. It is simultaneously a recognition of, and a claim on, individual agency, which I consider the foundation for what you referred to as ‘good citizenship’ (Brophy 2019).
Earlier I argued that “compulsion by public necessity cannot be reduced to compulsion by market dependency”, which is a way of challenging totalizing notions of market dependency. The championing of “essential” workers is a good example of this irreducibility. Compulsion by public necessity carries an added disciplinary element – public welfare, ‘good citizenship’, and a moralized idea of the “greater good” – that market dependency alone lacks. In the heroism of “essential” workers, theses patently “extra-economic” elements of compulsion persist. But it is also in the heroism of “essential” workers that the contradictions of value-creation become most palpable: why are those whose labour we all depend upon for our sustenance also among those whose labour is less valued? (Arruzza, Bhattacharya, and Fraser 2019, 20).
Wherever these contradictions of value-creation are made plain, that is where I see emancipatory possibility.
