Common by Pierre Dardot;Christian Laval;

Author:Pierre Dardot;Christian Laval; [Laval, Pierre Dardot and Christian]
Language: eng
Format: epub
ISBN: 9781474238625
Publisher: Bloomsbury UK
Published: 2018-11-22T00:00:00+00:00

The “Customs of the Poor” versus the “Customs of the Privileged”

Given Marx’s emphasis on the conflict between public law and private interest, could we not simply label Marx a “good liberal rationalist” who denounces the mystification of a “falsely universal and rational state” on behalf of this same universality?60 Is not Marx’s critique, in this case, merely a matter of opposing the true purposes of public right against its appropriation by private interest? To see why this interpretation is not tenable, we need to look at the second argumentative thread woven through these five articles on the theft-of-wood law. From the very beginning of his first article, Marx gives special consideration to the nature of custom as such, and he concludes this article with a fierce denunciation of the customs of the privileged as “contrary to the law” (wider das Recht).61 Taken literally, this assertion claims that the customs of the privileged are, in fact, illegal. On the other hand, Marx “demands for the poor a customary right [das Gewohnheitsrecht] and indeed one which is not of a local character but is a customary right of the poor in all countries.”62 In other words, Marx calls for a universal customary right of the poor.

Marx’s claim is striking in its originality, and needs to be carefully unpacked. For it is through this unusual claim that Marx endows customary right with a rather singular double determination, namely the unusual extension of a very localized social content onto a global scale. This assertion fundamentally breaks with the dominant view that such laws or customs can only be local in nature. We have already seen that custom is lex loci, while “common law” is extended to the national level, at least in England,63 and so it should not be identified with customary right. And as widespread and perennial as the customary rights of the poor were, they were far from indiscriminately codified into common law. The “artificial reason” of judges and lawyers was, as we have seen, extremely reluctant to endorse any customs that might discourage “improvements.” But Marx is not satisfied with this claim alone (which is already a little confusing). “We go still farther,” asserts Marx, “and maintain that a customary right by its very nature (seiner Natur nach) can only (nur) be the a right of this lowest, propertyless and elemental mass (dieser untersten besitzlosen und elementarischen Masse).64 We need to pay careful attention to move from one premise to the next in order to properly grasp what Marx is saying at the beginning of the second sentence. He first asserts “we go still further,” and thereby indicates he wants to move beyond the premise “there must be a customary right of poverty” (as far as such a thing can be claimed), to a more ambitious proposition: “customary right is necessarily the customary right of the poor.” In other words, Marx is saying that there can be no other customary law other than that of the poor, because any other customary

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