Translated from Sozialistische Gruppe (SG)– Hochschulgruppe Erlangen/Nürnberg

The study of public force 2

Property –
and the peculiarities of freedom of contract

The fact that the arbitrary notions of the servants of the law, who very heedlessly make legal cases out of social circumstances, owe their objectivity solely to state force, thus serve a forcible settlement solely in its interest, is regarded by legal experts as a tendentious exaggeration at best. To justify their profession, they like to refer to the liberal legal principles of civil life that allow the private autonomous subjects of the law to pursue their personal development in the most non-coercive way. Freedom of contract, “which dominates the whole of private law,” actually gives rise to an enthusiasm which lawyers otherwise prefer to leave to society’s humanistic adulators:

“Forgive the pathos: the legal transaction and its core, the declaration of will, is the means of man’s self-realization in law; for what would man be without his social-legal relations, his social tasks and goals, and without a means of creating, changing, resolving, and ordering these relations according to his very own conceptions?” (Baumann, 203)

Putting aside the pathos, if one instantly thinks of the legal system of bourgeois society when thinking of “man” and his “social relations,” and then contentedly states that the legal subjects would be in quite a fix without the law, and thereby quite matter-of-factly omits the means that “man” needs for his self-realization and that are negotiated in declarations of will between legal subjects – and not at all according to the participants’ very own conceptions – this is not an argument, but a declaration of will in favor of the ruling conditions.

The construction of the free will by more than 10 commandments

The freedom founded under private law can’t be that hot because each person sees the beautiful legal order as his very own means insofar as it grants his claims, but only reluctantly wants to accept the duties attached to them, or not at all. Liberal pathos is then also discredited by the dogmatic certainty with which the law adds restrictions to this granted freedom, the constitutional guarantee of which claim the larger half of Article 2 of the Basic Law [Personal freedoms]. The strange thing about the freedom that is granted is that the will of the citizen who enjoys it exists in two ways at once – as someone who wants something specific and as a state-recognized institution that permits one to want – and it is already designed for the consequence that the law often does not permit one to want, i.e. for reasons of state; and precisely as a result of being permitted. Lawyers, whose “sober,” “logical” way of thinking serves, as is well known, to translate the great phrases about freedom into the small change of everyday legal cases, do not make a big problem of this. They take the reluctance of citizens toward their guarantees of freedom as evidence of an unpathetic continuation of the lovely holiday ideology of private law which contradicts it rather head-on, but which does not matter at all in the field of ideologies: without legal barriers, “human nature” would let off steam in destructive whims; therefore, the positive interpretation of the “constitutional guarantee of freedom,” that “everyone can do whatever he wants,” is to be rejected as too “simple.” No sooner do these professional guarantors of freedom talk about their achievement in allowing free will to come into play than they demonstrate their distrust of everyone except themselves (so why does everyone distrust lawyers?) and speak out in favor of the thousand legal rules that determine down to the smallest detail what counts as an expression of will, how it is allowed to assert itself, and the only ways it may. With the greatest matter-of-factness, they refer to their clear-cut image of man, which declares cheating to be everyone’s innermost need and legal power to be the most natural and beneficial thing in the world. In this way, the beautiful good of freedom is ideologically damaged, but one gets a good conscience and uses one’s legal skills to make the universal fiction of all political, legal and other theorists – that the value of freedom actually exists in its limitation – a social fact.

The whole beauty of private autonomy consists, first of all, in the fact that, without considering the actual needs, intentions, and necessities which drive the members of society into “social interactions” (contracts are, after all, not concluded on mere whims), everything is made into a “legal transaction” in which the respective will is only recognized in such a way and to such an extent that it corresponds to the legal clauses. With the consequence that, for example, in the case of a “form error,” the will is decisively disputed (“invalid form”), which is painfully experienced not just by a few heirs (“but grandpa always said...”).

Once legally recognized, the free will does not fare any better. Barely expressed, it is legally taken at its word, i.e. made into a forcibly guaranteed obligation against its bearer, who may also bring forward the best reasons why he has changed his intentions. Someone who has subscribed to a newspaper and after a while wants to stop receiving the rag is forced to fulfill the “contractual duties typical for a purchase agreement” according to § 433 of the Civil Code, just as someone who has happily stepped in front of a marriage altar is reminded of his marital cohabitation and other obligations in the event of family disgruntlements and not released from them without legally valid reasons and only with some sacrifice. On the other hand, the law, with its keen sense of the practical constraints that private autonomy helps achieve, encourages workers to keep to their employment contract obligations, but does not make it particularly difficult for them, and especially their employers, to terminate the contract. The material plight of private autonomous citizens without property does the same service here and, after all, we no longer live in a slaveholding society. Quite the contrary: The will counts for something, i.e. it is harnessed!

The freedom-based society certainly does not dictate to anybody – at least not directly – with whom he has to make which contract. But the fact that people contractually regulate all their relationships, from buying bread and working up to their love lives, is already required (namely, by access to them being withheld from the very outset!) and this ensures the fundamental supervision of the law over all expressions of free will. Hence the granting of freedom of contract shows a tangible interest of the state in everything that its citizens are expected to wish for. Furthermore, the state takes it for granted that entering into contractual obligations results in damages to the will expressed in them; the corresponding changes of will, however, must not simply be granted for that reason, but only in a framework acceptable to the state. If it stipulates, for example, that a financial emergency due to unemployment is not a legally recognized reason to interfere with the publisher’s business calculations by suddenly stopping payments for a newspaper; or that the unpleasant consequences of completing contractual duties no longer entitles a worker to let the entrepreneur sit on his capital (the other way around is more likely: the 4 million unemployed of today have all come about with laws protecting them from dismissal!), etc. – then criteria are applied to the legal guarantee = supervision of the free will, which has little to do with regulating a bad human nature, but has a lot more to do with circumstances that benefit the state. Apparently, whether the will, blessed with official recognition, derives any corresponding benefit, depends on this.

Have something, get something!

The phrase “homo homini lupus” [man is a wolf to man], chewed over by generations of legal practitioners, seems more than ridiculous in view of the rather unnatural content of civil law – everything from stock corporations law, real estate law, laws concerning the contest of a debtor’s transactions, marriage laws and laws on the treatment of the marital home and household goods after divorce, laws on the re-organization of family names via limited liability companies, commercial codes, protection against dismissal, law on checks, all the way up to laws on rights to registered ships and shipbuilding structures, bills of exhange law, tenants protection law, etc. etc. – which is constantly being “shaped” in accordance with the practical requirements of civil life and its state supervision. It is the legally sanctioned mutual exclusion from wealth, the freedom of property, that turns subjects of the law into contractual partners who cannot obtain the objects they want without something in return and who must therefore try to get as good a deal as possible. And before the “as good a deal as possible,” the state power has set a fundamental barrier, with harsh practical consequences: The negative definition of property –

“The owner of a thing may, to the extent that a statute or third-party rights does not conflict with this, deal with the thing at their discretion and exclude others from exercising any influence whatsoever” (Section 903 of the German Civil Code)

– treats – and this is guaranteed by the constitution – everything that does not have arms, legs and a more or less bourgeois mind as an object at the sole disposal of a “natural” or “legal” person – whether it is essential to someone’s life or not, whether it is a means of production or reproduction, whether it is nature or a product of labor. This is the harsh truth of the equation property = exclusion which is made valid by the monopoly of violence: The whole beautiful freedom of personal self-realization lies in the fact that everybody only gets a chance insofar as he has acquired property, that is, as far as he already has property at his disposal – by definition, against others – which he transfers to whoever shows an interest in it in return for an appropriate trade-off.

The “self-realization of man in law” is therefore quite something: Everyone has freedom of contract, therefore may – regardless of the means they have for it – set their purposes according to their interests and needs, and everyone must respect property – whether they have any or not. Hence the law makes a truly extortionate claim; it wants to be at home in the self-determination of individuals according to the motto: Respect private autonomy and property first and then do as thou willst! Even if exclusion from the means of your needs and desires – or the legitimate exclusion – harm your interests, you shall nevertheless do only what is permitted and refrain from what is forbidden. The law, which already knows how to ensure through state force that its claim to private individuals is not a groundless matter, sets the contradictions in people’s actions in the – civil! – world in the first place. So much for “human nature”...

Incidentally, private law doesn’t give a damn about the allegedly bad nature of humanity, which it supposedly exists to rein in, but on the contrary provides a proper basis for the social antagonisms set in motion by the recognition of property, and ensures their regulated course. The meticulous provisions of the civil code on the form and content of contracts, obligations to accept, defaults in performance, debt obligations, contractual penalties, etc., clearly show what the legally codified “lupus” is supposed to look like. They define the framework within which social intercourse – right down to the so-called “intimate sphere” – takes place according to the principle of one’s own advantage at the expense of other human beings, fixes the calculating will in the stipulations on legal capacity, declaration of intent, performance, culpability, etc., and thus provides the legal means to rip off others in a recognized way, according to the just principles of give and take, right and duty. The state-guaranteed and legally supervised existence of the property system generates, on the one hand, citizens with equal rights who compete against each other and, on the other hand, opposing classes, namely according to the means they have or do not have for entering into the enacted competition. On this basis, the state power, which has always made decisions on competition and theft, offers its citizens the opportunity to secure the power of the state = the valid legal means for their opposition: Nobody can do anything to anyone who has these on their side (at least as long as the state is not in question!). How this offer works is really no secret. The existence, for example, of a separate profession, the legal counsel, which ensures that companies make proper use of legal remedies, speaks volumes here, and the fact that general terms and conditions are usually foisted on contractual partners in small print serves, as is well known, not to save paper, but to cheat them legally. The fact that a worker, on the other hand, does not need an in-house lawyer, but legal protection, is certainly not due to his free will, but to the fact that he does not have the legally recognized means at his disposal that would make it worthwhile and necessary for him to lay down general terms and conditions: What one gets depends precisely on what one has to offer.

The justice of the property order – safely separating the classes with eyes blindfolded

Not ideologically, but practically, nobody knows better about the separation of classes in bourgeois society than the state. “Natural” from the law’s point of view, the organization of human coexistence through property brings with it, for example, the fact that one person happens to be born into property and another into a somewhat less well-off family. The world is already strangely uncomfortable. Because the latter citizen only has a few personal belongings and almost certainly only a high school diploma by age 17, and because on the other hand everything one needs to live can only be obtained by a sales contract for money and the factories and machines belong to the former citizen, he is allowed as a free person to make into property that which only others have an interest in: Arms, legs, and brains – in short, his labor power. He enjoys “the right to use his labor power for payment” (BVerfG 35, 205) [Germany’s Federal Administrative Court]. As a result of an employment contract, he is obliged to work for an entrepreneur or someone else in return for money, thereby almost certainly destroying what little he possesses, namely himself, over the course of time, but doing so entirely voluntarily – at least from a legal point of view. Then the compulsion to look for a job due to a lack of property, the conditions of which the property owners determine and the result of which they may dispose over as their property, takes place as a voluntary agreement between persons with equal rights, regulated without any direct compulsion, with the state kindly ensuring that both sides comply with the contract.

That’s why a lawyer can and must only be interested in the legal outcome. Justice must be done, and it is done when both sides commit themselves to a quid pro quo within the framework of the Civil Code. Justice is when the worker must perform the promised service specified by the employer, and justice is when the contracting party must fulfill its promised service and pay the wage negotiated annually between representatives of the employee and employer in collective bargaining agreements. Admittedly, in these negotiations, the legal appearance gets lost in individual capriciousness and randomness: the social conflict between the contracting parties repeatedly blows up the normal form of legally recognized contracts; the workers are allowed to break the contract for a while with the aim of negotiating new contract conditions and the other side is allowed to do the same in order to make the union compliant (strikes and lockouts). Here, then, the classes enter into a state-regulated exploitative relationship in which one side, obeying necessity due to a lack of property, voluntarily sells its labor, while the other side, by means of ownership of the means of production, voluntarily accepts this offer on its terms.

But of course this does not prove to legal experts that the much vaunted private autonomy is an unpleasant thing, but that those who own property titles in sufficient numbers are rightly well off and those who have nothing are rightly given a chance. As much as he likes to portray himself as a specialist in matters of (merit-based) justice, he is just as keen to declare himself incompetent at considering the reasons why the system of private law comes into effect for one part of humankind primarily in the form of the employment contract (or the over-the-counter sale or installment plan) and for another part in the form of the rest of the law textbook’s “focus on commercial law” – without regard to the person. If, for example, instead of relying on his “freedom of enterprise” (BVerfG 14, 281), Krupp the entrepreneur were to agree to an employment contract with a 40-hour “performance obligation” week for 1500 deutschmarks, a lawyer would be just as unafraid to urge him to comply with his contractual obligations as if he were Krause the worker. Of course, the law does not oblige any Krupp to make such jokes; that would be egalitarianism, because only those who otherwise “impose a burden on the state” are encouraged to work. On the other hand, it is of course an imperative of justice that the law regulates the business of capitalists which is “unequal” to that of the workers, and does so in such a way that the handling of their property can also produce the results it deserves, regardless of whether it belongs to a Krupp or a Krause.

The freedom of the worker – in the service of property

Justice and the freedom of the private individual therefore have a lot to do with equality before the law and freedom from direct personal dependence, but really nothing to do with egalitarianism and the liberation of all members of society from the constraints of material need. The idea that a worker might get rich off pecuniary consideration of his own property by cleverly using the Works Constitution Act, the Employment Protection Act, the Holiday Act, or the general rules on employment contracts of the Civil Code does not appear in even the most inventive collections of legal examples. This is because, in order to make use of his “general and comprehensive freedom of action” guaranteed by Art. 2 (1) of the Basic Law (BVerfG 6, 36), the “special right of employees” grants him little more than the freedom to choose his own relationship of dependency. The details are regulated in this case by institutions such as the Dismissal Protection Act and the Labor Office which – among other things, by continually worsening the expectations of employment conditions – is complemented perfectly by the entrepreneurial freedom to fire employees. And because material inequality is the starting point for abstract equal treatment, the saying is always true for the proles: whoever (still) has a choice has the torment.

The guarantors of the free contract on enrichment and impoverishment know this, of course, and provide daily evidence that laws are anything but dead, lifeless letters. Generously, though not without pressure from those affected, they tirelessly ensure that employment contracts do not completely expose working people to the ruthless whims of the owners, but “only” to the legally recognized claims of the legal institution of property to their cheap services. When violations are sanctioned, intervention is thereby codified. Labor law teems with provisions which prove that “work in the service of another, in a relationship of dependence” is not “freedom and equality under the functional prerequisite of a mode of production based on the division of labor” (i.e., a technical necessity). Rather, it is based on the private property-based exclusion from the means of production and is therefore a self-destructive affair that is shaped by labor law “protections” (why aren’t there any protection rights for entrepreneurs?!) into a lifetime of useful ruin in the service of productive property – including the opportunity to not be allowed to exercise this right. Laid-off workers prove the truth of old Karl Marx’s discovery of the “doubly free wage laborer” (free legal subject and free of property): that the freedom of these people consists in nothing other than the existential compulsion to always make themselves useful again in a factory, or as soon as possible.

Housewarming with tenant law

Thanks to the property system, the hardship of some is a source of enrichment for others. As is the case everywhere, with regard to land and housing as essential necessities, civil law does not provide a remedy, but it does provide clarity. Tenancy law regulates in meticulous detail that property owners are entitled to make lucrative use of land and rental buildings, and that those in need of housing are subject to a permitted rent gouging. In return, they enjoy the right not to be evicted without warning and, in extreme emergencies, the right to be able to give landlords scarce state subsidies in addition to their own money. The fact that people who do not have a roof over their heads can now be kicked out on the street with ever fewer difficulties is therefore not unjust, but results from the fact that “prevailing opinion,” which has given itself new tenancy laws, has defined previously paid rents and protections against eviction as grossly inconsiderate of the right of land and housing owners to make the best possible use of their source of wealth. That is what legally protected property is there for!

This way of regulating the material inequality guaranteed through a “free self-responsible regulation of legal relations through contracts” can also be “interpreted” differently, in the interest of preserving these relations:

“The freedom of contract thus conceived is based on the principle of formal equal treatment. It fails where material equality is lacking; in civil law, for example, in the case of rent and installment purchases. In these areas, the law attempts to bring about material(!) equality with the help of mandatory law and general and social clauses. For the rest, all contracts are under the reservation of good customs.” (Fischer-Lexicon on Law)

It is therefore one of the good legal customs to lie to the contrary in specifying how far the lack of consideration for housing and other elementary needs of life may go.

A contract not only for the mutual use of sex organs

It seems natural and progressive in the minds of law makers and practitioners who are concerned with order and legal certainty that the freedom of give and take under state supervision must apply even in the “most intimately personal spheres,” i.e. love, childbearing, and the like. Here it is quite certain that fixing the confessions of love of its population into a contract that does not stipulate love, but rather its state useful services regarding mutual support, population production and rearing, the administration and transfer of property, becomes all the more unpleasant and destroys affection, the less resources, time and energy are available for these requirements, hence the more they become a constraint. As with all the consequences of its granting of freedom, it deals with them accordingly: It treats it as a breach of contract which is sanctioned in accordance with the common good, with the subtle and thoughtful hint that in the case of an uncommitted marriage in forced circumstances, the obligation to provide for the results of love must be met if the heavenly feeling has gone down the drain, but that those obligated to live together can divorce if they have drifted apart.

The unpleasant effects that come with institutionalizing these services of love for the purpose of cheaply maintaining the state’s people proves, as usual, that, because of human nature, it is precisely love – which, more than anything else, has to be a task and a sacrifice – that belongs to the spirit of the community and is forcibly organized into a “solid” community by regulations such as the following:

“Marriage is a commitment to live together; the spouses owe each other fidelity, assistance and care in personal and property matters, as well as maintenance, which also includes personal living eexpenses, including an advance payment for lawsuits in personal matters (for divorce) ...” (§ 1353 et seq.). “The minor child of a marriage is subject to parental authority” (§ 1616 ff). “Father and mother are responsible for his physical well-being and upbringing (personal care) and for his property (property care).” (Fischer-Lexicon Law)

Incidentally, the victims of family responsibilities keep whole hordes of lawyers, social workers, psychologists, teachers, and priests busy, all of whom are careful not to over do it. At the same time, the principle of free personality offers a lot of free room for parental violence toward and with each other, which is carried out in roughly inverse proportion to financial assets. In this way, many underage children are made ready for care and many families are forced into lifelong devotion to help from social assistance. Here too the state’s interest in the universal validity of private autonomy takes care of the differences connected with property.

Civil liberty needs law enforcers

The law cannot be accused of inconsistency. From the millions of daily sales contracts that are signed every day that give everyone the freedom to decide what they can and want to afford based on what’s in their wallet, to the last section of commercial law which regulates the need to deal with property that is intended to increase in accordance with the suitable rules – the state always acts everywhere, i.e. where the freedom of person and property prevails, by allowing everyone to use the work of others or to work for others according to what they own. And with some further legal support it ensures that this can safely be left up to everyone. Those who struggle to survive, who live in cramped conditions and have to bear the burdens of family life, do not go unpunished for outbursts against persons and things – which are taken into account by the state – just like the practical calculations of the agile entrepreneur to enrich himself beyond the lawful use of his property, with or without its help. Anyone who does not recognize private autonomy as “self-realization” according to his “very own conceptions” – and such a thing is inevitable when one’s conceded interests constantly come into conflict with one’s fellow human beings and legal property limits – is therefore not only liable to pay “damages” under civil law according to the “law of torts,” but enjoys the guarantee that the state will inflict personal violence on him, regardless of this. After all, the point is not to avoid damage, but to ensure order, i.e. to avert damage to the freedom of property.