The Ideological Foundation of Law

Modern legal discourse and social contract ideology emerged together and are mutually constituting. Social contract ideology posits that members of society are bound together by a “free” contract, the enforcement of which is generally entrusted to the state. According to social contract ideology, however, the state is nothing more than an instrument of the people, who give their consent to allow certain representatives to manage the terms of the contract on everyone’s behalf. What this means, in practice, is that the social contract can only be enforced and protected via these authorized representatives (in other words, the state).  I have emphasized this point before, and it will become important later.  This is also the key to understanding the concept of "rights."  Rights are certain things that are guaranteed to the individual by the state, generally involving protections of property, individual subjectivity (including consciousness, identity, pleasure, and self-determination), and life itself.  Without the state, there are no rights.

Of course, as I have already argued, social contract ideology conceals the non-consensual relations that lie at the heart of modern social formations, and in many ways legitimates exploitation by construing it ideologically as “free contract” (such is the case with wage labor). In fact, the modern contract rests on a theory of personhood in which freedom and formal equality are predicated on ownership of property. Coincident with this view is an elaboration of subjectivity which brings it into realm of "own-able" objects; hence freedom of speech, religion, etc. In this scheme, "equality" and "freedom" mean that one's rights derive (ostensibly) not from social relations and status hierarchies but from an inviolable relation between person and thing. Whatever one owns (however that ownership is reckoned) one is free to dispose of as one wishes. Yet, my parenthetical remark is not entirely parenthetical, as social contract ideology conveniently elides (thereby sanctions) the history and extant structure of property relations.

This is the "loophole" that allows for exploitation. Some people do not have any chance of owning any means of production, and must allow themselves to be exploited via wage labor. In fact, capitalism could not function if everyone owned some (viable) means of production. This fact is obscured by social contract ideology, with its "equality" and "freedom."  In other words, in orienting societal values solely toward the freedoms and privileges inhering in property ownership, questions concerning the distribution of wealth and relations of production become counterposed to the hegemonic sense of moral order, making them all the more difficult to address. Furthermore, it is fitting that this phenomenon has taken root with the rise of global capitalism, a system in which relations between people are represented as relations between things, and in which non-human ("rational") accounts of the social order are privileged.