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Jairus Banaji
The Fictions of Free Labour:
Contract, Coercion, and So-Called Unfree Labour
For Jan Breman
Premises: the elusive reality of consent*
When is a contract ‘voluntary’? The answer is,
probably never. The underlying assumption in the
claim that some or most contracts are ‘voluntary’
is that we can ‘descriptively identify domains of
freedom and distinguish them from domains of
choicelessness’.1The conception of contracts as the
outcome of a free choice generalises to all sorts
of contracts, including contracts of employment.
Through contract (the general theory/classical law
of), the nineteenth century sanitised wage-labour in
the sanguine images of individual autonomy, private
volition, free will, and free agency. There was, of
course, a long pre-nineteenth-century tradition, going
back to antiquity, that had seen wage-labour (contracts
for the hiring of labour; ‘service’ in an earlier
terminology) in terms of the subordination of the
employee to the employer.2In one formulation of
Historical Materialism, volume 11:3 (69–95)
© Koninklijke Brill NV, Leiden, 2003
Also available online – www.brill.nl
* Michael Anderson, Sebastian Budgen, Barbara Harriss-White, Karl Klare, Marcel
van der Linden, and Pritam Singh supplied me with useful material when I was
drafting this paper, and Tom Brass sent me a copy of his book. I am grateful to all of
them.
1Kelman 1987, p. 87.
2For example, Cicero, De Ofciis, II.22, ‘And there are persons who even subordinate
themselves [subiciunt se] to the control and power of others for various reasons. [Among
this, what the worker sells is the ‘right to control his labour-power’.3Since
labour-power is never disembodied, what employers buy when they ‘buy’
‘labour-power’ is command over the use of workers’ bodies and their persons.
In other words, ‘The worker and his labour, not his labour power, are the
subject of contract’.4Liberal legalism, or the ‘pure’ or ‘general theory’ of
contract that developed in the nineteenth century, grounded the almost limitless
subordination of the wage-labourer in the anodyne ctions of consent. For
example, it was possible and consistent for the US courts to maintain that ‘a
servitude which was knowingly and willingly entered into could not be
termed involuntary’.5Here, ‘willingly’ meant no more than that ‘No person
is required to enter into such a contract unless he chooses to do so’.6The
voluntary sale of labour-power was not the antithesis of servitude but its
precondition.7Contracts were made to be enforced, and it was convenient
to assume that ‘enforcement of contracts was all about implementing the
free wills of the parties’.8Marx had no quarrel with this, describing the
contract of employment or voluntary sale of labour-power as a ‘formality’,9
while undermining the underlying sense that it had anything to do with the
‘ultimate development of human freedom’10 or with the kinds of transactions
70 Jairus Banaji
those induced to behave in this way are] nally persons who are hired for wages
[mercede conducti], a situation that is frequently seen in our society.’ In I.150 the wage
[merces] is described as ‘remuneration for servitude [auctoramentum servitutis]’. Note
Tom Paine’s description of wage-labour in the late eighteenth century: ‘By servitude
I mean all ofces or employments in or under the state, voluntarily accepted, and to
which there are prots annexed’, cited Steinfeld 1991, p. 131.
3Marx 1976b, p. 1060: ‘The worker sold the right to control his labour-power in
exchange for the necessary means of subsistence’; cf. Batt, 1967, ‘The master must
have the right to control the servant’s work, either personally or by another servant
or agent. It is this right of control or interference, of being entitled to tell the servant
when to work (within the hours of service) or when not to work, and what work
to do and how to do it (within the terms of such service), which is the dominant
characteristic in this relation . . .’.
4Pateman 1988, p. 151. Pateman suggests that the ‘disembodied ction of labour
power’ buttresses the illusion that workers themselves are not commodities under
capitalism. In the Critique of Dialectical Reason, Sartre uses the expressions ‘selling
labour-power ’/’selling oneself’ interchangeably, for example, he refers to the worker
‘selling himself as a material object [se vendre comme un objet materiel]’ and to the
‘worker-commodity [l’ouvrier-marchandise]’.
5Justice Brown in Robertson v. Baldwin, 1897, cited in Steinfeld 2001, p. 271.
6From a state Supreme Court ruling cited by Steinfeld 2001, p. 268.
7See Orren 1991, pp. 94–5.
8Dalton 1985, p. 1027.
9Marx 1976a, p. 724, n. 20: ‘It will not be forgotten that, where the labour of children
is concerned, even the formality of a voluntary sale vanishes’.
10 Marx 1973, pp. 651–2: ‘Hence, on the other side, the insipidity of the view that
free competition is the ultimate development of human freedom’.
equally-placed capitalists struck between themselves.11 The will theory of
contract was a construct of the legal formalism of the nineteenth century and
was accepted for precisely what it was,12 hence the perfectly non-ironic assertion
in Volume I of Capital that ‘the wage-labourer . . . is compelled to sell himself of
his own free will’.13
At another level, however, it is possible to argue that no contract is free
because economic coercion is pervasive under capitalism. (This is as true for
‘many capitals’ as it is for the individual worker.14) This is certainly what
Marx had in mind in characterising wage-labour as ‘voluntary in appearance’,15
and, presumably, also the sense of Sartre’s characterisation of the contract of
employment as a ‘pseudo-contract’.16 However, this sense of constraint – as
the ‘diffused violence’ of the practico-inert (the labour market conceived as a
‘collective’ in Sartre’s sense) or the ‘dull compulsion of economic relations’ –
is signalled in Marx less by any obvious desire to contest the language of
voluntarism than by repeated references to the free worker as a ‘free’ worker.17
Whatever the common-law doctrine of duress, Marx and Engels clearly did
not see the isolated wage-earner as a free agent or the wage contract as a free
contract.18 The issue here is not that of the plasticity of legal reasoning,19 of
where one draws the line between free and unfree labour,20 but of the incoherence
of the concept of free labour under capitalism. Coercion is everywhere, because
The Fictions of Free Labour 71
11 Hence the reference in Marx 1976b to the ‘deceptive illusion of a transaction’
(p. 1064; Marx’s emphasis), and in Marx 1976a, p. 520, to the ‘appearance of a contract
between free persons’.
12 This is especially clear in Marx 1976a, p. 178 (‘a relation between two wills’);
p. 280 (‘Their contract is the nal result in which their joint will nds a common legal
expression’).
13 Marx 1976a, p. 932; my emphasis.
14 For example, Miranda 1982, pp. 26ff. On ‘many capitals’, note Marx’s references
to the ‘coercive’ force of competition, Marx 1976a, pp. 381; 433; 436.
15 Marx 1976b, p. 1028; cf. Marx 1981, p. 958: ‘. . . forced labour, however much it
might appear as the result of free contractual agreement’.
16 de Beauvoir 1981, p. 455.
17 For example, Marx 1976a, pp. 382; 412; 612; Marx 1978, p. 117; Hobbes rejected
the common-law doctrine of duress, treating contracts as equally binding whatever
their origins, see Thomas 1965, pp. 185–236, esp. 232ff.
18 For example, Engels, in a review of Capital, Volume I, meant for The Fortnightly
Review: ‘The contract, on the part of the labourer, is not a free contract . . . it is merely
the opposition of the labourers, as a mass, which forcibly obtains the enactment of a
public law to prevent them from selling themselves and their children, by a “free”
contract, into death and slavery’ (in Marx and Engels 1985, p. 255).
19 Kennedy 1998.
20 Steinfeld 2001.
the ‘outcomes [of bargaining] are heavily conditioned by the legal order in
effect at any given moment’.21 The line between freedom and coercion is
impossible to draw, ‘either as a matter of logic or as a matter of policy’.22
Indeed,
In every contract . . . it is an open question both whether the more informed
party ought to have shared more of his information with his trading partner
(that is, a question of ‘fraud’ arises, in some sense, in every case) and whether
the contract would have been made had each party had other physically
imaginable though socially unavailable options available to him (that is, a
question of ‘duress’ arises in every case).23
A Marxism of liberal mysti cations?
In a monograph published in the late 1970s, a young economist Sudipto
Mundle made the interesting move of describing the evolution of bondage
in Palamau, a district of South Bihar in India, as an instance of what Marx
called the ‘formal subsumption’ of labour into capital. Mundle argued that
‘the bonded labour system was a product of capital’s penetra tion into
agriculture’ and was evolved by landowners in response to a massive exodus
of labour, in a bid to hold wages down.24 Over a decade passed without any
substantial theoretical discussion of these issues, till V.K. Ramachandran
published Wage Labour and Unfreedom in Agriculture in 1990. Ramachandran
displayed considerable condescension towards Mundle. To view the most
backward forms of bonded labour as capitalist exploitation was only possible
72 Jairus Banaji
21 Kennedy 1976, pp. 1685ff., and Kennedy 1998, p. 260.
22 Dalton 1985, p. 1031.
23 Kelman 1976, p. 21; cf. Wightman 1996 arguing that
[I]f consent is to retain its justifying power, the law must be able to distinguish
when consent is real. But once the veil is pulled aside and the reality of consent
is examined, all kinds of everyday economic pressure or necessity clamour for
attention as potentially undermining consent. And since the law of contract has
traditionally adopted an objective theory of agreement, where what counts is
the appearance of agreement, it is not well equipped to begin to identify real
consent. Thus the problem that legal writers face is one of connement: how to
dene pressure in a way which will allow the victim to say the consent was not
real without thereby undermining doctrines which depend on a much more
restrictive conception of consent, the consequence of which would be the
unravelling of all manner of contracts which are commonly entered into or
modied without any real choice by one party. (p. 19)
24 Mundle 1979, pp. 92ff., taking up Banaji 1977a.
‘by means of something of a denitional trick’.25 Bonded labour cannot be
part of capitalism, it was alleged, because workers’ choice is central to the
nature of capitalist exploitation. Surprisingly, Ramachandran’s own position
has received scarcely any critical comment. In retrospect, it seems that if there
was any juggling with denitions, it was his own curious assertion on the
very rst page of his book that whereas hired labour was compatible with
‘unfreedom’, wage-labour was not.26 The distinction stated there is obviously
arbitrary. For most of us, hired labour and wage-labour are interchangeable
terms, and there is certainly no lexicon of social-science vocabulary that assigns
these particular distinctions to them. What Ramachandran was obviously
keen to do was preserve a model of wage-labour that would make the
institution unintelligible outside its conventional description in the language
of voluntarism. That this language came to us suffused with the premises
and dichotomies of classical individualism – suffused, in other words, with
ideology in the strongest sense – was, ostensibly, beyond Ramachandran’s
interest in the issue. Since I would dene ideology as a system of beliefs/
representations that naturalise social relations (particularly those of domination),
the unreexive stance vis-à-vis the individualist construction of wage-labour
as free labour seemed to do little to confront the illusion of naturalness
wrapped up with this notion.
Accepting the individualist construction of wage-labour as a free bargain,
Ramachandran then faced the problem of the value to assign to this freedom.
Thus, Wage Labour and Unfreedom characterises the freedom of the free worker
both as ‘formal’ and as ‘positive’. Not much is said about either of these
notions or the contradiction implicit in using both characterisations. Free
wage-labour is often referred to as ‘free’ wage-labour, implying adherence to
the rst description. But Ramachandran also speaks of the ‘basic self-dignity
and freedom from servitude that the freedom to choose employers implies’.27
At any rate, one interesting consequence of this line of reasoning is that
bondage precludes capitalism, since capitalism is based on wage-labour and
wage-labour excludes bondage.
The Fictions of Free Labour 73
25 Ramachandran 1990, p. 18.
26 Ramachandran 1990, p. 1: ‘. . . wage labour must be distinguished from the general
category of hired labour. A wage labourer or proletarian is a hired labourer who is
propertyless and is free to sell his or her labour power to the employer of his or her
choice. This is in contrast, for instance, to a bonded labourer, who, though a hired
labourer all right, is unfree to choose his or her employer’.
27 Ramachandran 1990, p. 250.
For Ramachandran, the polarity is one between wage-labour and unfreedom,
because wage-labour is, by denition, free, and ‘free’ is construed here as
substantially the opposite of ‘unfree’. Tom Brass replaces this with the general
polarity between free and unfree labour because, unlike Ramachandran, he
seems to be unsure whether wage-labourers can be unfree. There is only one
passage in his book where he uses the expression ‘unfree wage-labour’,28
against many more where wage-labour is routinely described as ‘free wage-
labour’ and numerous others where he speaks of ‘unfree labour’ tout court.
Indeed, the index to Towards a Comparative Political Economy of Unfree Labour
contains no item for ‘wage-labour’! Measured against the reams of condent
polemic on the issues of free and unfree labour, the least this suggests is a
lack of clarity about where wage-labour itself ts into a conceptual schema
built around the mesmerising contrast between ‘free’ and ‘unfree’ labour.
Brass constructs a rigorously Manichean universe where workers are either
free or unfree, and the scholars who write about them either realise that or
function as apologists of bonded labour. He argues that debt-bound labour
is unfree (i.e. not free labour dominated through debt), that employers use
debt and bondage to ‘decommodify’ labour (re-incorporate labour into the
means of production?), and, nally, that this tendency (of the forcible exclusion
of workers from the labour market) increases as individual employers
‘restructure’ the composition of the workforce to stave off growing ‘class
consciousness’ (since ‘unfree’ workers are unlikely to organise). Brass has a
peculiar notion of ‘proletarianisation’. He denes it not in terms of the
dispossession of labour but, evidently, as the formation of an organised
working class. This enables him to speak of the factors which impede the
formation of organised groups of workers as ‘deproletarianisation’. Bonded
labourers may or may not be wage-labourers (Brass leaves this unclear) but
they are not a proletariat (in the idealised, Lukácsian sense used by Brass).
Agrarian capitalists use bondage to deprive workers of an incipient proletarian
subjectivity.
The upshot of their stark dualities is that Brass and Ramachandran both
subscribe to a liberal-individualist notion of wage-labour as essentially free
labour, labour based on the ‘consent’ of the individual worker and the free
bargain that embodies that ‘consent’. This is in sharp contrast to Marx whose
74 Jairus Banaji
28 Brass 1999, p. 151, replicating parts of his joint ‘Introduction’ to Daniel, Bernstein,
and Brass (eds.) 1993.
references to free labour have a profoundly delegitimating intent. There are
two aspects to Marx’s handling of free labour: in Marx, free labour is both
dened historically and contested ideologically. These are different levels of
abstraction, and, while both are signicant, my interest in this paper is in the
second. I want to argue that his contestation of free labour makes Marx the
rst signicant thinker to have adumbrated the critique of contract which
emerged in the critical legal traditions of the twentieth century, starting with
the ‘Legal Realists’. To abstract the references to free labour from the framework
of this critique is to run the risk of imparting a naturalness to the notion of
freedom which it does not possess. Not only did it take the modern world a
long time to dene a model of employment based on contract,29 but when
such a model did emerge, nally, in the nineteenth century, wage-labour was
shrouded in a legal mysticism that remains with us to this day.
The famous passage in Capital, Volume I, which describes the sphere of
circulation as a ‘very Eden of the innate rights of man’ is a succinct and
sardonic statement of the nineteenth-century liberal-individualist ideology of
contract. ‘Freedom’, ‘Equality’, and ‘Property’ are symbolic of the abstractions
of classical individualism (core individualist concepts), while the references
to natural rights, free will, and Bentham resonate with ideological imagery.30
The implication is that ‘freedom’ is understood strictly in terms of the ideology
of contract and the abstractions of individualism. Later, in Volume I, Marx
characterises the employment contract as a ‘legal ction’ which, with the
mobility of labour, sustains the ‘appearance of independence’.31 Later still,
the ‘free contract’ between capitalist and worker is described as an ‘illusion’.32
The perspective framing these sorties against individualism is the conception
of the individual (free) worker from the standpoint of capital as such, that
is, of the total social capital. Thus,
In reality, the worker belongs to capital before he has sold himself to the
capitalist. His economic bondage is at once mediated through, and concealed
by, the periodic renewal of the act by which he sells himself, his change of
masters, and the oscillations in the market-price of his labour.33
The Fictions of Free Labour 75
29 See Kahn-Freund 1977, pp. 508ff.
30 Marx 1976a, pp. 280.
31 Marx 1976a, pp. 719.
32 Marx 1976a, pp. 935.
33 Marx 1976a, pp. 723–4.
Again, the individual worker’s ‘enslavement to capital is only concealed by
the variety of individual capitalists to whom [she] sells [herself]’.34 Finally, ‘the
relation of exchange between capitalist and worker becomes a mere semblance
belonging only to the process of circulation, it becomes a mere form, which
is alien to the content of the transaction itself, and merely mysties it’.35
All of this is summed up in a fascinating passage of the famous ‘Appendix’
where free contract is described as a ‘formality’, though one essential to
capitalism, ‘one of the essential mediating forms of capitalist relations of
production’ which is nonetheless a mystication of the ‘essential nature’ of
wage-labour, an ‘illusion’ or ‘deceptive appearance’.36
In other words, the ‘essential’ nature of wage-labour cannot lie in any of
the ideological representations which legitimate the oppression of workers.
To counterpose free labour to unfree labour the way Brass does is to ignore
‘contract law’s role in making actual domination appear free, natural, and
rational’.37 As Feinman and Gabel argue,
The rise of capitalism . . . generated a dramatic and dislocating social
upheaval. . . . How could people have been persuaded or forced to accept
such massive disruptions in their lives? One vehicle of persuasion was the
law of contracts, which generated a new ideological imagery that sought to
give legitimacy to the new order. Contract law was one of many such forms
of imagery in law, politics, religion, and other representations of social
experience that concealed and denied the oppressive and alienating aspects
of the new social and economic relations. Contract law denied the nature of
the system by creating an imagery that made the oppression and alienation appear
to be the consequences of what the people themselves desired.38
76 Jairus Banaji
34 Marx 1976a, pp. 763–4.
35 Marx 1976a, pp. 729–30.
36 Marx 1976a, pp. 1063–4. Marx 1976b, p. 1064:
It follows that two widely held views are in error: There are rstly those who
consider that wage-labour, the sale of labour to the capitalist, and hence the wage
form, is something only supercially characteristic of capitalist production. It is,
however, one of the essential mediating forms of capitalist relations of production,
and one constantly reproduced by those relations themselves. Secondly, there
are those who regard this supercial relation, this essential formality, this deceptive
appearance of capitalist relations as its true essence. They therefore imagine that
they can give a true account of those relations by classifying both workers and
capitalists as commodity owners. They thereby gloss over the essential nature of
the relationship, extinguishing its differentia specica. [italics in original.]
37 Mensch 1981, p. 767, reviewing Atiyah 1979.
38 Gabel and Feinman 1998, p. 501.
Marx’s conception of the wage contract can thus be summed up in the words
used by Friedrich Kessler to describe standardised contracts or contracts of
adhesion in modern capitalism: the worker’s ‘contractual intention is but a
subjection more or less voluntary to terms dictated by the stronger party’.39 That
is, nothing in the nature of free labour prevented employers from imposing
the harshest possible terms on their employees, including restrictions on
their mobility. If this seems paradoxical, that is only so because contract
entails the ‘general irony of coercion imposed in the name of freedom’.40
Freedom of contract enables capitalists to ‘legislate by contract’, and to legislate
in a ‘substantially authoritarian manner without using the appearance of
authoritarian forms’.41
Brass construes unfree labour in terms of mechanisms of control which
tie labo ur dow n. The key mecha nism is debt. The explanation l acks
nuance (perhaps deliberately), and attachment, debt, and bondage become
interchangeable expressions of an undifferentiated coercion = unfreedom.42
Marx himself dened free labour primarily in terms of the dispossession
of labour, and then, of course, its ability to make valid contracts. Since
subordination (obedience, subjection to the employer) is the essence of
wage-labour, it would have made no sense to allow the control of labour, in
the labour process and/or the employment relation, to cancel freedom all the
way through. Discussing the feudal remnant in the governance of American
labour in the late nineteenth century, the remarkable fact that ‘the law of
master and servant was at the foundation of capitalist development and
industrialism’, Karen Orren writes,
[W]hatever the public rights and private aspirations of the worker, he or
she was in reality a free person against everyone except his or her employer.
That does not mean there were no rights the servant could assert against
the master, but they were severely restricted by the processes and content
of the law, and by the practicalities that stemmed from the master’s own –
absolute – right to terminate the employment at any time.43
The Fictions of Free Labour 77
39 Kessler 1943, p. 632.
40 Mensch 1981, p. 767.
41 Kessler 1943, p. 640.
42 This looks like a caricature but cf. Brass 1996, p. 237: ‘I tend to use all these
four concepts interchangeably (attached labour = unfreedom = debt bondage =
deproletarianisation)’.
43 Orren 1991, pp. 70, 92.
In the majority of instances discussed by Brass, contract is always the
background against which coercion operates. But this is contract imbued with
a profound sense of inequality, the hierarchy of master and servant, a ‘medieval’
remnant, even if the relations of production are certainly capitalist.
To repeat, in both Brass and Ramachandran, the critique of unfree labour
is secured at a price, namely, endorsing the liberal mystication of a ‘free’
bargain,44 against Marx’s conception of the labour market as an instrument
of coercion and the ‘Realist’ undermining of the premises of liberal legalism.
On the other hand, their problematics diverge. The issue for Brass is whether
labour that he construes as ‘unfree’ is compatible with capital/capitalism; the
issue underlying the formalist orthodoxy on wage-labour (Ramachandran)
is a different and more substantial one though, namely, whether ‘unfree’
labour can ever be construed as wage-labour, and here Brass is on the whole
curiously silent, although he does, at one point, allow for the characterisation
of unfree workers as unfree wage-labour.
The condescension with which Ramachandran dismissed Mundle would
be less tenable today. In the diary of his travels in South India, Francis
Buchanan refers repeatedly to ‘hired servants’ who were held in bondage by
their masters. Unaffected by the formalisms that would later swamp the world
of labour, he saw no obvious incongruity in juxtaposing what appear to us
to be sharply conicting images. To quote one of several possible passages
from the travel diaries, he wrote, about southern Canara, ‘The cultivation is
chiey carried on by Culialu, or hired servants’.
At the end of the year the hired servant may change his service, if he be
free from debt; but that is seldom the case. When he gets deeply involved,
his master may sell his sister’s children to discharge the amount, and his
services may be transferred to any other man who chooses to take him and
pay his debts to his master. In fact, he differs little from a slave.45
78 Jairus Banaji
44 Brass attacks Pranab Bardhan for construing attached labour relationships in
India as ‘voluntaristic action by choice-making individuals’ (Brass 1999, p. 224) but
how else does one characterise his own model of free labour? The bland assertion
that ‘in economic terms the concept “market” is actually an antithesis of coercion’ (p.
262; his emphasis) forgets that ‘the freedom of the “market” [is] essentially a freedom
of individuals and groups to coerce one another, with the power to coerce reinforced
by agencies of the state itself ’ (Dawson 1947, p. 266).
45 Buchanan 1870, Volume 2, pp. 227–8.
The bonding of migrant workers discussed by Breman in Footloose Labour
describes a form of wage-labour in which employers ‘use force and oppression
as tools with which to increase their hold on the workers’.46 Here, again, there
is no abstract antithesis between bondage and the hiring of labour, even if
the context is vastly different, with a massive erosion in the legitimacy of
upper-caste dominance and workers less willing to accept domination. That
workers did ght back even in much earlier periods is shown by the repeated
litigation brought by Indian labourers before the General Indian Court of
colonial Mexico for most of the seventeenth and eighteenth centuries. Borah
describes the form of exploitation involved, so-called debt peonage, as ‘the
recruitment of wage labor bound by debt’, describing the workers themselves
as ‘coerced but not enslaved’.47 Again, Martin Murray shows that the European
rubber plantations of northern and eastern Cochinchina used a contract system
that ‘legally bound wage-labourers to the point of production for periods that
almost always exceeded the initial three-year agreement’.48 Finally, in a review
of Byres’s book on agrarian capitalism, Charles Post argues that ‘capital is
often compelled to rely on legally bonded wage-workers. . . . These workers
are bound to a single employer or branch of production by laws restricting
their ability to move geographically and enter short-term labour contracts’.49
Stating all this in a more general form, employers have repeatedly subjected
free workers to repressive forms of control. The massive deployment of Polish
seasonal labourers on the East Elbian estates during the First World War and
under Nazism,50 the forced recruitment of wage-labourers in French and
British Africa,51 and the position of nineteenth-century English wage-earners
who faced criminal sanctions for breach of contract52 all exemplify situations
where the ‘boundary between compulsion and free will . . . was neither distinct
nor of any great interest’ to the authorities and employers.53 Likewise, if
‘attachment’ is basically a means of control over labour, there is no reason
The Fictions of Free Labour 79
46 Breman 1996, p. 168.
47 Borah 1983.
48 Murray 1992, p. 52, and the ref. to ‘bonded forms of hire’ at p. 59.
49 Post 1999, p. 289, noting that ‘Unlike slaves and serfs, coerced wage-workers are
separated from both the means of production and subsistence’.
50 Herbert 1997.
51 Cooper 1996.
52 Steinfeld 2001, Chapter 2, linking the proliferation of stronger contract remedies
to the evolution of ‘freer labour markets’.
53 Herbert 1997, p. 59, on German indifference to the Polish seasonal labourers.
why debt servitude cannot be a means of controlling wage-labourers. The
advance payment of wages is manipulated to intensify the domination of
labour.54
This at least partly deals with the orthodoxy that restrictions on freedom
undermine the nature of wage-labour. Regarding the related issue of whether
capital can exploit workers who are truly unfree (who represent bondage in
Kant’s sense),55 the major problem with Brass’s way of handling this thesis,
apart from his denition of unfree labour, is that the needs of individual and
social capital are conated throughout his argument. Brass conceives capitalism
entirely from the standpoint of individual capital, ignoring the fact that the
logic that regulates capitalist economy is, necessarily, that of the total social
capital. Thus, the real issue of theory here is whether we can sensibly visualise
the accumulation of capital being founded on unfree labour (in the strict sense
just noted) at the level of the expansion of the total social capital. And the
obvious response is, no, since the mobility of labour is essential to the
mechanism of capital at this level. That individual capitals are indifferent to
the nature of the labour force and have no special concern for the rights of
workers was argued at length in my paper in Capital & Class in 1977.56
Forms of exploitation based on wage-labour
Expanding on the argument developed in that paper, capitalist accumulation
may involve any of the following ‘methods’:57
(i) more-or-less coerced/more-or-less ‘free’ forms of wage-labour;
(ii) unfree labour in the strict sense;
(iii) the integration of peasant family labour into the capitalist production
process.
80 Jairus Banaji
54 See Bolland 1981, especially p. 608: ‘Central to effective control of the labor force
was the practice of paying wages in advance’, on the use of debt to trap free labourers
in Belize.
55 In the Metaphysics of Morals, published in 1797, Kant produced one of the most
interesting classications of the forms of labour when he distinguished between
bondage, service, and pure wage contracts. Bondage [Leibeigenschaft] was his generic
term for all types of slavery and serfdom, while ‘service’ was discussed under the
rights pertaining to the heads of households or family heads and seen essentially as
a form of wage-labour subject to patriarchy; see Kant 1996, pp. 431ff., 471–2, 496.
56 Banaji 1977b.
57 Cf. Hilferding 1981, p. 320: ‘methods of capitalist accumulation’.
There is scarcely any doubt that Marx came around to seeing the Southern
plantations (based on slavery) as capitalist enterprises. Thus the overworking
of slaves in the Southern states of the American Union was, he tells us
in Volume I, a question of the ‘production of surplus-value itself’.58 In the
Grundrisse, he refers to ‘[t]he fact that we now not only call the plantation
owners in America capitalists, but that they are capitalists’59 and implies that
these ‘anomalous’ forms of capitalist enterprise could exist because capitalism
as a whole was based on free labour. (My interpretation of this is: the American
slave owners are capitalists because they are part of the total social capital.)
In Theories of Surplus Value, he writes that the ‘business in which slaves are
used in conducted by capitalists’, though this is qualied by saying that here
the capitalist mode of production ‘exists only in a formal sense’.60 Finally, in
Volume III of Capital, he writes, ‘Where the capitalist conception prevails, as
on the American plantations, this entire surplus-value is conceived as prot’,61
and, in Volume II, slaves are described as ‘xed capital’.
It is worth noting that, among later Marxists, Henryk Grossmann saw no
incongruity in accepting Sombart’s description of the seventeenth-century
plantations as the ‘rst [exemplars of] truly large-scale capitalist organization’.62
Indeed, Grossmann argued that
in the rst hundred years following the discovery of America, the whole
character of Spanish and Portuguese colonisation was already capitalist in
nature, characterised as it was by a drive for surplus-value, even if the
plantations were run on the basis of slave labour.63
At the level of individual capitals, it is accumulation or the ‘drive for surplus-
value’ that denes capitalism, not the presence or absence of ‘free’ labour.
Yet a majority of Marxists are probably still reluctant to abandon the comforting
idea that slavery precludes capitalism ‘because’ capitalism is founded on free
labour.
The Fictions of Free Labour 81
58 Marx 1976a, p. 345.
59 Marx 1973, p. 513.
60 Marx 1968, pp. 302–3.
61 Marx 1981, p. 940.
62 Grossmann 1970, p. 406, citing Sombart 1917, Part II, p. 1011. In the rst volume
of Modern Capitalism, Sombart described the slave plantations as the ‘rst large
enterprises of a capitalist nature [die ersten kapitalistichen Großbetriebe]’.
63 Grossmann 1970, p. 408.
Ad iii), capitalist integration of the peasantry is best illustrated by the use
of the advance system in nineteenth-century Indian agriculture. ‘Advances’
were especially widespread in the production of indigo, cotton, and sugarcane.
Thus, the speculative capitalism of the Agency Houses that controlled the
Bengal indigo trade in the early nineteenth century was based on a system
of advances through which planters sought to ‘bind’ the peasantry to the
factory.64 The Report of the Indigo Commission noted that ‘the contract for
the growth and production of the plant, so far from being voluntary, is forced
upon the r yo t, who is comp elled by more or less pressure to accep t
advances . . .’.65 About the squaring of accounts that began in October, one
respondent told the Commission, ‘There are some individuals who could
clear themselves, if we would let them, but we would not clear them on principle,
inasmuch as it would be tantamount to closing the factory’.66 Indeed, Chowdhury
reports that ‘Macaulay looked upon the contract between the planter and the
peasant as of the same kind as one between the capitalist and a worker’.67
In short, historically, capital accumulation has been characterised by
considerable exibility in the structuring of production and in the forms of
labour and organisation of labour used in producing surplus-value. The liberal
conception of capitalism which sees the sole basis of accumulation in the
individual wage-earner conceived as a free labourer obliterates a great deal
of capitalist history, erasing the contribution of both enslaved and collective
(family) units of labour-power.68
To take this further, it would surely represent an advance in Marxist theory
to think of capitalism working through a multiplicity of forms of exploitation
based on wage-labour. In other words, instead of seeing wage-labour as one
form of exploitation among many, alongside sharecropping, labour tenancy,
82 Jairus Banaji
64 See Chowdhury 1964. Chowdhury writes, ‘The peasant had to sign a properly
stamped contract by which he agreed to do whatever was necessary to cultivate indigo
and to deliver the plant to the planter. . . . The primary allurement in cultivating indigo
was the advances. [A]ccording to Walters (1830), “If a ryot once received an advance,
he could very seldom or never clear himself and thus becomes little better than a
bond-slave to the factory”’ (pp. 130–3). Walters was the then Magistrate of the City
of Dacca.
65 Report of the Indigo Commission 1860, § 16.
66 Report of the Indigo Commission 1860, § 492 my emphasis.
67 Chowdhury 1964, p. 162 (about indigo).
68 Yann Moulier Boutang 1998 argues that capitalism has typically been founded
on ‘dependent’ labour (rather than wage-labour specically) and that the central issue
for employers has always been some set of restrictions on the mobility of the worker
(i.e., of living labour). More interestingly, he accepts that wage-labourers may work
under diminished degrees of freedom, referring to ‘salariat non libre’ (e.g., p. 378).
and various kinds of bonded labour, these specic individual forms of
exploitation may just be ways in which paid labour in recruited, exploited,
and controlled by employers. The argument is not that all sharecroppers,
labour tenants, and bonded labourers are wage-workers, but that these ‘forms’
may reect the subsumption of labour into capital in ways where the ‘sale’
of labour-power for wages69 is mediated and possibly disguised in more
complex arrangements. The prototype of this kind of analysis is Waszy/nski’s
conception of the Byzantine sharecropper as a wage-labourer. Analysing
Egyptian agricultural leases of the sixth and seventh centuries, Waszy/nski
argued, ‘[the gevrgñw of the sixth-seventh centuries] is basically no longer
a tenant . . . he has become a hired worker [Mietling] or wage-labourer
[Lohnarbeiter] whom the landlord can dismiss at any time’.70 ‘To form a proper
assessment of these contracts, we should, instead of seeing the share accruing
to the landlord in the division of the crop as rent, view the portion received
by the gevrgñw as a wage.’71 In Bengal in the 1930s, the various landholders’
associations consistently took the stand that their bargadars (sharecroppers)
were ‘mere’ labourers, that is, workers paid in kind, arguing that landowners
preferred sharecropping due to its greater intensity of labour.72 In the US,
most Southern states drew a legal distinction between croppers and tenants.
‘Because the landlord supplied all necessary means of production, the
sharecropper was a wage worker whose form of wages was a share of the crop’.73
Angelo characterises Southern sharecropping (or at least the legal construction
of it) as a ‘disguised wage work contract’.74 Francesco Maria Gianni described
the Tuscan sharecroppers of the late eighteenth century as ‘workers [operai]
recruited by their respective landowners to hire out their labour not by the
day or for any precise and denite daily wages but for at least a year and
for half the crop produced by them’.75 Yet P.J. Jones showed how, even as
early as the late fourteenth/fteenth centuries, when mezzadria expanded on
the estates in Tuscany, it embodied a form of ‘wage-type tenancy’, with
The Fictions of Free Labour 83
69 Marx 1976b, p. 1005: ‘. . . wage-labour (it is thus we designate the labour of the
worker who sells his own labour-power)’; Marx 1972, p. 271: ‘. . . wage-workers, that
is, workers who must sell their labour-power because their conditions of labour
confront them as alien property’.
70 Waszy/nski 1905, p. 92.
71 Waszy/nski 1905, p. 157.
72 Government of Bengal 1940, vols. 3–4.
73 Angelo 1995, p. 594; italics in original.
74 Angelo 1995, p. 595.
75 Gianni, cited in Giorgetti 1977, p. 231.
leaseholds akin to labour contracts.76 With renewed commercialisation in the
late nineteenth century and the introduction of the new industrial crops, the
mezzadri were subjected to further waves of proletarianisation, as farm sizes
were drastically cut, work controls tightened, and eviction formally conceded
to employers as their ‘sole means of restoring discipline’.77 Snowden refers
to the ‘emergence in sizeable numbers from the end of the century of a variety
of new sub-categories of semi-proletarianised mezzadri – camporaioli, logaioli,
vignaioli, and mezzaioli. . . . The new sharecroppers did not live on their
plots. . . . Instead, they commuted to the land from neighbouring villages or
from labourers’ barracks’.78
Labour tenancy is susceptible to a similar analysis. Lenin described this
form of exploitation as the ‘capitalist system of providing the estate with
agricultural workers by allotting patches of land to them’ and characterised
the allotment itself as ‘wages in kind’.79 He referred to labour being ‘hired’
on a ‘labour-service and bonded basis’. Moreover, ‘the latter form of labour
always presupposes the personal dependence of the one hired upon the one
who hires him, it always presupposes the greater or lesser retention of “other
than economic pressure”’.80 The less developed forms of agrarian capitalism
made extensive use of labour tenancy.81 In South Africa, black families ‘without
the resources to work the land themselves entered labour-tenancy agreements’.82
Labour tenants were thus worse off (less independent) than sharecroppers.
Yet labour tenancy staved off total dispossession. The form of payment was
at least as strongly inuenced by tenants’ aspirations to regain access to land
and accumulate cattle as by the shortage of cash among landowners. In fact,
‘obtaining pastures was far and away the most important reason for surrender
to tenancy by homestead heads. . . . Typically, the negotiation of labour tenant
contracts centred around cattle and children, with landlords grudgingly trading
off grazing for the rst in exchange for sufcient labour from the second’.83
If employers preferred wages in kind,84 so clearly did tenant households, for
84 Jairus Banaji
76 Jones 1968, who says, ‘It [mezzadria] represented a “proletarization” of the peasantry’
(at p. 225).
77 Snowden 1979.
78 Snowden 1979, p. 157.
79 Lenin 1972, pp. 200–203.
80 Lenin 1972, p. 203.
81 For Egypt, see Owen 1981; for Peru, Jacobsen 1993, Chapter 8; for Prussia, Perkins
1984.
82 Keegan 1987, p. 77.
83 Bradford 1987, pp. 37–8.
84 Keegan 1987, pp. 122ff.
whom the ‘cash proceeds of their labour contracts were of little or no economic
signicance’.85 But white farmers lobbied aggressively to have labour tenants
placed under the jurisdiction of the Master and Servant Acts.86 The general
point to emerge from these struggles is that, as employers are driven to
increase their control over these forms of labour (sharecroppers included),
the contracts and means of compulsion used by them are progressively
modied to diminish the rights of workers and their families and proletarianise
them further.87
Similarly, Buchanan’s reference to hired servants who were held in bondage
by their masters forms the prototype for the analysis of bonded labour as a
further distinction of form within wage-labour.88 The key mechanism here is
debt, but the failure to disentangle ‘industrial prot’ (in Marx’s sense)89 from
its fetishistic representation in the consciousness of employers generates
endless confusion, even in the work of Marxists like Brass. ‘Interest is a
relationship between two capitalists, not between capitalist and worker’.90
That employers choose to treat wage advances (part of their variable, i.e.
productive, capital) as ‘loans’ has nothing to do with the real nature of the
relationships, which are those between wage-labourers and the functioning
capitalist. The contrast between these levels (or forms) of reality is recurrent
in Marx. Thus, ‘Interest is just another name for surplus-value’, Marx says
of the advances made by usurers (money capitalists) in India.91 Prot is ‘called
rent, just as it is called interest when, for example, as in India, the worker
(although nominally independent) works with advances he receives from the
capitalist and has to hand over all the surplus produce to the capitalist’.92
Where prot is ‘acquired in the form of interest’ (is called interest), the capitalist
The Fictions of Free Labour 85
85 Kanogo 1987, p. 23.
86 See Williams 1996; for Kenya, Kanogo 1987, pp. 37ff.
87 For Italy, see Snowden 1979; for Mexico, Bazant 1977, pp. 74ff. So, too, with the
replacement of the Instleute by the Deputatisten, cf. Perkins 1984, p. 12: ‘The conned
labourer was far more of an economic object than the cottager’.
88 See n. 45 above.
89 Marx 1972, p. 490: ‘Industrial prot, in contradistinction to interest, represents
capital in the [production] process in contradistinction to capital outside the process,
capital as a process in contradistinction to capital as property; it therefore represents
the capitalist as functioning capitalist . . . as opposed to the capitalist as . . . mere owner
of capital’.
90 Marx 1981, p. 506. Cf. Marx 1981, p. 503: ‘[I]nterest-bearing capital as such does
not have wage-labour as its opposite but rather functioning capital. . . . Interest-bearing
capital is capital as property as against capital as function’ (emphasis in original).
91 Marx 1976b, p. 1023.
92 Marx 1972, p. 188.
‘appears as a mere usurer’. When this form of capitalism operates to control
the labour of peasant producers who are both free and formally independent,
‘[w]e have here the whole of capitalist production without its advantages’, namely,
the development of the social forms of labour and of the productivity of
labour that these generate.93 In each of these passages, Marx implies a distinction
between the actual nature of production, which is capitalist, and the forms
in which those relations of production and exploitation are portrayed or
‘represented’ in the consciousness of its agents. To take these forms of
representation at face value – for example, to divide the cash advances made
by employers to their workers into a ‘wage’ component and a ‘loan’ component,
as Brass does – is to move within the fetishised appearances that dominate
the ‘everyday notions of the actual agents of production’.94 Thus, wage advances
are characterised as ‘loans’, employers described as ‘creditors’, and workers
transformed into ‘debtors’.95 The advances themselves are described both as
‘wages for future employment’ and as ‘a loan for work yet to be done’ – in
the same paragraph!96 What this does is to conate a component of productive
capital (namely, wages) with a form of interest-bearing capital. It also fails to
see that when employers advance wages, they actually buy labour ‘instead of
simply paying for it later ’.97
Suppose that the use of cash/kind advances represents not the actual buying
of labour-power (which is what it is) but simply the accumulation of claims
to unrealised labour. There is still an issue about the nature of those claims.
Conceived as interest-bearing capital, the claims to future labour would be
ctitious capital, in the sense that ‘the creditor cannot recall his capital from
the debtor but [at best] can only sell the claim, his title of ownership’.98 ‘The
86 Jairus Banaji
93 Marx 1972, p. 487, adding, ‘This form is very prevalent among peasant nations’
affected by market relations. The italics are mine.
94 Marx 1981, p. 969. Brass 1999, p. 82.
95 Brass 1999, p. 297: ‘Essentially, each consists of a relationship whereby cash or
kind loans advanced by a creditor (usually – but not necessarily – a landlord, a
merchant, a moneylender, a labour contractor, or a rich peasant) are repaid in the
form of compulsory labour-service by the debtor personally etc.’, about enganche in
Peru and attached labour in India.
96 Brass 1999, p. 225. Yet, Brass has a vague sense that one is dealing here with
ideology, not with the actual nature of the transactions themselves, e.g., ‘In ideological
terms, therefore, a bonded labourer works to pay off a debt rather than for a wage’
(at p. 12); or, ‘This sum was regarded by the employer as a debt contracted by the tribal’
(at p. 84); my italics.
97 Marx 1978, p. 295.
98 Marx 1981, p. 595.
capital itself has been consumed, spent by the [worker]. It no longer exists.’99
In other words, conceived as debt (in the strict sense), the capital laid out in
advances to the worker would be ctitious in exactly the sense in which the
national debt represents ‘ctitious capital’.100 What the creditor possesses is
simply a promissory note (a ‘bond’) equivalent to the state’s promissory notes
when creditors buy government bonds. But the advances are not securities
at all, there is no proper market for the circulation of such paper assets,101
and the analogy is as absurd as that between the usurer’s interest and
the modern interest rate decried by Marx.102 ‘Debt’, that is, the depiction of
wages as loans, is simply a device to control labour in conditions where the
competition for labour is likely to drive up the bargaining power and wages
of workers.103 It is a legal or pseudo-legal ction used by employers to
manoeuvre workers into a system of forced labour (which is still wage-labour)
or contain their mobility and manipulate effort standards.104 Some employers
clearly believed in the sanctity (‘legality’) of this ction, others were (and
have been) under no illusion.105
‘Free contract’ in Sartre’s Critique
Vulgar Marxists have worked with a rigid dichotomy between free and unfree
labour, suggesting that lack of coercion is a dening feature of wage-labour.
This bright-line approach camouages the fact that all wage-labour is subject
to compulsion, both in the general and widely accepted sense that workers
The Fictions of Free Labour 87
99 Marx 1981, p. 595, where the sentence reads, ‘The capital itself has been consumed,
spent by the state. It no longer exists’.
100 Marx 1981, pp. 595ff.
101 For example, McArdle 1978, p. 118, ‘Peasant indebtedness formed gigantic paper
assets’, about the Medici estates in Tuscany.
102 Marx 1981, p. 730.
103 For example, McCreery 1983, p. 746: ‘Habilitadores [labour contractors] and
employers competed ercely among themselves for labor ’.
104 Fiction: cf. Chaudhuri 1969, p. 245, citing the words of a nineteenth-century
district ofcial: ‘[T]he ction is usually kept up that the labourer is in his master’s
debt’. Forced labour: e.g., Daniel 1972. Marx characterised peonage as a form of slavery
(Marx 1976a, pp. 271ff., n. 3), but see Zavala 1988, pp. 35ff. for the argument that peonaje
involved a form of wage-labour, and his interesting comment on the footnote in Capital.
105 Cf. Breman 1974, p. 236: ‘[landlords] know that repayment is practically impossible
for the farm servants and are under no illusion in this respect’. Elsewhere, Breman
writes: ‘Employers present such arrangements as “advances” on wages that will be
repaid through the labour of the borrower. However, such “advances” are solely
intended to appropriate labour, whether immediately or at a later date. Neither party
views the transaction as a loan that will be terminated on repayment’ (in Parry et al. (eds.)
1999, p. 419; italics mine).
are compelled to sell their labour-power and subject, at this level, to a general
market or economic coercion, and more directly, insofar as the exchange
involved in wage-labour is one of ‘obedience for wages’106 and employers
have to nd ways to enforce contracts.107 Given that all wage-labour is subject
to constraint in this double sense, it follows that the ‘freedom’ of free labour
is best construed in a minimalist sense to mean, primarily, the legal capacity
(‘autonomy’) required to enter a labour agreement.108 Construed in this way,
Marx’s references to successive Tudor governments driving the propertyless
into free labour in a process he calls the ‘forced labour of free workers
[Zwangsarbeit der freien Arbeiter]’109 seem much less paradoxical than they
might otherwise, as does Sartre’s parallel reference to ‘free forced labour
[le travail librement forcé]’ as typical of the repressive liberal capitalism of
the early nineteenth century.110 In particular, Sartre’s expression refers to the
methods used by English employers to break the recalcitrance of skilled
workers and produce a subjugated labour force. If labour subjected to
‘repressive practices within factories’111 was nonetheless ‘free’, this is because
‘freedom’, in this context, refers, minimalistically, to the mystied/mystifying
moment of the wage contract and the freedom-of-contract rhetoric of nineteenth-
century liberal individualism.112
Sartre’s references to free labour in the Critique work in terms of an implicit
contrast between the real freedom of the worker, identied as the worker’s
human reality, and the abstract or mystied freedom of the wage contract.
Contract ‘mysties’ freedom, both because the ‘form’ (of a free contract)
disguises the dictatorial power of the employer113 and makes the worker ’s
domination appear ‘free, natural, and rational’,114 and because the worker ’s
88 Jairus Banaji
106 Fox 1985, p. 113, citing J.S. Mill, ‘obedience in return for wages’.
107 See Steinfeld 2001.
108 Cf. Orren 1991, p. 95. This is certainly how Marx understood free labour.
109 Marx 1973, p. 736; Marx 1974, pp. 623f. [‘Also noch Zwangsarbeit zu einem
bestimmten Lohn der freien Arbeiter. Sie müssen erst gezwungen werden zu den vom
Kapital gesetzten bedingungen zu arbeiten’].
110 Sartre 1960, p. 694 (Sartre 1976, p. 742).
111 Sartre 1960, p. 694 (Sartre 1976, p. 742); e.g., criminal restraints for breach of
contract, cf. Steinfeld 2001.
112 Sartre 1960, p. 269 (Sartre 1976, p. 207) denes the free worker as ‘an exploited
man whose exploitation resides entirely in freedom of contract’. At p. 697 (p. 746) he
refers to ‘liberal atomism’, at p. 699 (p. 748) to ‘liberal ideology’.
113 Neumann 1936, p. 10.
114 Mensch 1981, p. 767, cf. Klare 1998, p. 554: ‘[T]he alluring rhetoric of free contract
[makes] it appear as though this control and domination of employees occur[s] by
their own consent’.
freedom is in fact complicit in its own crushing. The wage contract belongs
to the practico-inert eld of exploitation, whereas employment and labour –
the search for work and work itself – presuppose the human freedom of the
worker, or free individual praxis, insofar as these are forms of human activity.
Thus freedom is present in two guises – as the mystication of ‘free labour’ (the
inert ‘idea’ of liberal ideology)115 and as the real freedom of the practical
organism, which is praxis itself conceived not as an abstract force traversing
the heterogeneous moments of dialectical intelligibility116 but as the ‘free
actions of individuals’,117 the free activity which ‘in its freedom will take upon
itself everything which crushes it’,118 which is masked by collective represen-
tations and the coerciveness of industrial routine,119 and without which
alienation (that is, the impotence of freedom or the impossibility ‘inside’
freedom)120 would cease to have any meaning since there would be nothing
to be alienated.121 Thus, to say that the worker freely sells his labour-power
is not tantamount to the claim that the worker’s action is unconstrained
or uncoerced but, rather, that the ‘sale’ of labour-power, like work itself and
all human activity, requires the sovereign freedom of a practical agent. As
Sartre says,
It is true that he has no other way out; the choice is an impossible one; he
has not the ghost of a chance of nding better paid work and in any case
he never even asks himself the question: what is the point of it all? He goes
and sells himself at the factory every morning . . . by a sort of sombre resigned
hexis which scarcely resembles a praxis. And yet, in fact, it is a praxis: habit
is directed and organized, the end is posited, the means chosen . . .; in other
words, the ineluctable destiny which is crushing him passes right through
him.122
The Fictions of Free Labour 89
115 Sartre 1960, p. 644 (Sartre 1976, p. 679), ‘la mystication du libre-contrat’; cf.
Trotsky 1969: ‘[F]reedom was reduced to a legal ction, on the basis of freely-hired
slavery. We know of no other form of free labor in history’ (p. 140; italics mine).
116 Sartre 1960, p. 359 (Sartre 1976, p. 319): ‘it would be absurd or idealistic to imagine
that individual praxis, inert activity and common action are the three moments of the
development of a single force conceived as human praxis’.
117 Sartre 1960, p. 370 (Sartre 1976, p. 332).
118 Sartre 1960, p. 364 (Sartre 1976, p. 325); emphasis mine.
119 As Sartre would tell Simone de Beauvoir many years later, de Beauvoir 1981,
p. 455.
120 Sartre 1960, p. 367 (Sartre 1976, pp. 328–9).
121 Sartre 1960, p. 180 (Sartre 1976, p. 97): ‘if human relations are a mere product,
they are in essence reied and it becomes impossible to understand what their reication
really consists in’.
122 Sartre 1960, p. 364 (Sartre 1976, p. 325).
One of the great strengths of the Critique of Dialectical Reason is its clarication
of this issue. A Marxism untouched by the insights of the Critique conates
the real freedom of the worker (as a practical agent) – the freedom that
wage-labourers share with all workers and all kinds of workers throughout
history – with the mystied freedom projected in the rhetoric of liberal legalism
and the common-law doctrine of the private right of free contract. More
importantly, Sartre recovers the legal-realist insight that ‘constraint does not
eliminate freedom (except by liquidating the oppressed)’.123 Coercion is not
an ‘overpowering of the will’. ‘A victim of duress does normally know what
he is doing, does choose to submit, and does intend to do so.’124 Conversely,
The fact that he [the victim] exercised a choice does not indicate lack of
compulsion. Even a slave makes a choice. The compulsion which drives him
to work operates through his own will power. . . . [T]hough he exercises will
power and makes a choice, still, since he is making it under threat, his
servitude is called ‘involuntary’.125
It follows that the moment of the free contract between employers and
wage-earners is, in Sartre’s words, ‘both the most shameless mystication
and a reality’.126 And it is a reality not because freedom of contract implies or
entails that labour recruited by contract is free in the sense of being uncoerced,
but because ‘everything is sustained by individual praxis’.127
Summary
An uncritical deployment of the free/unfree labour antithesis valorises one
of the most powerful ctions of possessive individualism, namely, the notion
that the ‘freedoms of circulation inherent in contract’ are an expression of
90 Jairus Banaji
123 Sartre 1960, p. 690 (Sartre 1976, p. 737), ‘la contrainte ne supprime pas la liberté
(sauf en liquidant les opprimés)’.
124 Atiyah 1982, p. 200, against the traditional view of duress as a coercion of the
will that ‘vitiates consent’. The contemporary view is that a party’s will is never
actually overborne in the sense of losing control, for example, Feinman 1987, pp.
1537ff., reviewing Collins 1986.
125 Hale 1943, p. 606; my emphasis.
126 Sartre 1960, p. 364 (Sartre 1976, p. 325).
127 Sartre 1960, p. 257 (Sartre 1976, p. 193). At p. 362 (p. 323) Sartre writes, ‘it must
be pointed out both that the practico-inert eld exists, that it is real, and that free
human activities are not thereby eliminated, that they are not even altered in their
translucidity as projects in the process of being realized.’
individual freedom128 and that free labourers have some measure of control
over their working lives because they can choose who to work for. This contrasts
sharply with Marx’s conception of the wage contract as a legal ction that
both mediated and masked the domination of labour by capital. Brass deploys
a discourse of freedom and unfreedom as if these terms had an obvious
meaning. He identies free labour with the free circulation of labour, and this
is clearly also how Marx understood the expression. The crucial difference,
however, is that that is all free labour meant for Marx – he did not view the
worker as a free agent – whereas, for Brass, free labour resonates with its
opposition to unfree labour, evoking subliminal images of freedom from
bondage, oppression, and coercion, as if free labour was exempt from violence,
much less from subtler forms of bondage and coercion. In short, the ction of
the free labour contract is renaturalised in an uncritical antinomy of free and unfree
labour. Secondly, I have argued that, while the organisation of labour under
capital accumulation implicates forms of exploitation beyond the presumptively
normative free labour contract (notably, slavery and the centralised eld
labour of slaves), the wage contract itself can be organised in different ways (under
different labour systems), for example, as sharecropping, labour tenancy, or
various forms of bondage, once we extend the notion of wages to include
payments in land, housing, etc.129 Finally, free labour is a construct of liberal
ideology, the lived experience of oppression under capitalism mystied as
an ‘outcome of ordinary principles of freedom of contract’,130 and the only
real freedom workers possess under capitalism or any system of domination
is their power of resistance, that is, the capacity they have as individuals to
act on the world, both individually and through the common action of groups.
References
Angelo, Larian 1995, ‘Wage Labour Deferred: The Recreation of Unfree Labour in the
US South’, Journal of Peasant Studies, 22, 4: 581–644.
Atiyah, Patrick S. 1982, ‘Economic Duress and the “Overborne Will”’, Law Quarterly
Review, 98: 197–202.
The Fictions of Free Labour 91
128 Haag 1999, p. 36. Haag’s book is a brilliant critique of conicting liberal
constructions of women’s sexual agency/oppression and makes repeated reference to
the ctions of the free labour contract.
129 Cf. Marx 1976, p. 820, ‘They receive cottages and coal for ring “for nothing” –
i.e. these form part of their wages, paid in kind’, about miners in Britain.
130 Stokes 1994, p. 90, about the legitimation of managerial power in the contract
version of the traditional legal model of the company.
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