The Online Journal of Contour biennale

January 12 2017

Legal Forms, Value-Forms, Forms of Resistance

By Sven Lütticken

It is far from coincidental that the authors of key early works of aesthetic philosophy, such as Immanuel Kant and G. W. F. Hegel, also published major works on the philosophy of law.11One could add Friedrich Schiller, who not only dealt with just and unjust constitutions in his dramatic works, but also wrote an essay on “The Legislation of Lycurgus and Solon” (1789, part of his lecture series on Universal History), as well as the Letters on the Aesthetic Education of Mankind (1794–95). Modern philosophy tried to found itself on reason alone, on the subject as pure cogito; in the process, it cut itself off from the world. Aesthetics was philosophy’s attempt to reconnect reason and sense, subject and object. Constructed according to an obscure logic, the artwork came to be seen as a bridge between philosophy and the world, but also as a constant challenge to philosophy’s claim to dominion. If in the realm of the aesthetic, the material world reveals itself to be “dimly akin to reason,” in law reason reaches out into the world and seeks to regulate the messy mesh of the social.22The phrase “dimly akin to reason” is from: Terry Eagleton, The Ideology of the Aesthetic (Oxford and Cambridge, MA: Blackwell, 1990), 17.  The aesthetic allowed reason to get pleasantly lost in the world of the senses, in Zweckmässigkeit ohne Zweck; in this respect aesthetics complemented the juridical and its purposive rationality.

Nonetheless, juridical reason has itself an aesthetic component, or an aesthetic potential, in so far as it both frames and helps to remake and reshape the world. The law not only frames what already exists; it sculpts into being. It is operative idealism, real abstraction; reason here becomes a productive force.33See also Denise Ferreira da Silva on the “productive nomos” around 1800 (focusing here on Georges Cuvier and the life sciences, rather than on legal thought) in: Toward a Global Idea of Race (Minneapolis and London: University of Minnesota Press, 2007), 97–113.  The aesthetic, meanwhile, has wavered between being a critique of such productivist or instrumental reason and being its fulfillment. Now that legal and technoscientific rationality have merged in anything from biometric passports and surveillance to patented crops, it is hardly surprising that individual and collective artistic practices—from Adelita Husni-Bey to Lawrence Abu Hamdan, from Judy Radul to Trevor Paglen, from Agency to Superflex via Metahaven, from Forensic Architecture’s investigations to Jonas Staal’s New World Summit—are seeking to intervene in the law—art’s uncanny doppelganger.

Judy Radul: World Rehearsal Court, 2009, production still, courtesy of the artist and Catriona Jeffries Gallery

Adelita Husni-Bey: AGENCY - Giochi di potere, 2014, still from HD video, courtesy of the artist and Galleria Laveronica

Adelita Husni-Bey: AGENCY – Giochi di potere, 2014, still from HD video, courtesy of the artist and Galleria Laveronica


Person and Property

To understand what is at stake in these projects, it can help to revisit the primal scene of idealist aesthetics and legal theory—especially to Hegel, and Karl Marx’s later critical use of Hegelian thought. As the de facto official philosopher of the post-Napoleonic Prussian state, Hegel lectured extensively both on the philosophy of right (which represents “objective spirit”) and the philosophy of art (which falls under “absolute spirit”). In both cases, he starts as befits an idealist: with the Begriffe [the notions or concepts] that are central to the field in question: the beautiful in the case of aesthetics, and will, freedom, and justice in the case of the Elements of the Philosophy of Right (1820).

Hegel’s philosophy is crucially about notions becoming reality, thus realizing the idea, for the idea is “the absolute unity of the notion and of objectivity,” or the “adequate notion.”44G.W.F. Hegel, Enzyklopädie der philosophischen Wissenschaften I: Die Wissenschaft der Logik, in Werke 8 (Frankfurt am Main: Suhrkamp, 1986), § 213, 367; G.W.F. Hegel, Wissenschaft der Logik II, in Werke 6 (Frankfurt am main: Suhrkamp, 1986), 462.The sphere of right, with its laws, is thus a “reality which is established by the notion itself” [durch den Begriff selbst gesetzte Entwicklung].”55G.W.F. Hegel, Grundlinien der Philosophie des Rechts (1820), in Werke 7 (Frankfurt am Main: Suhrkamp, 1986), §1, 29. Everything is process; the self-realization of the concept, whose self-movement is subjectivity. “Now the idea has shown itself to be the notion liberated again in its subjectivity from the immediacy in which it submerged in the object.”66Hegel, Wissenschaft der Logik II, 466. In the preface to the Philosophy of Right, Hegel affirms: “Against the doctrine that the idea is a mere idea, figment or opinion, philosophy preserves the more profound view that nothing is real except the idea. Hence arises the effort to recognize in the temporal and transient the substance, which is immanent, and the eternal, which is present.”77Hegel, Philosophie des Rechts, preface, 25. Throughout this text, English quotations from the Elements of the Philosophy of Right are taken from—or, in some cases, adapted from—the English translation, combining elements from translations by S.W. Dyde and G.M. Knox and missing Hegel’s notes: “Hegel’s Philosophy of Right,” Marxists Internet Archive website, accessed January 10, 2017, https://www.marxists.org/reference/archive/hegel/works/pr/philosophy-of-right.pdf.  The Hegelian dialectic aspires to a “reconciliation with reality.”88Hegel, Philosophie des Rechts, 27. Discussing Plato, Hegel intones that, “What is rational is real; And what is real is rational.”99Ibid, 24.

 In the lectures on aesthetics, Hegel follows up his introductory sections on the Begriff of beauty with an extensive tour through history, showing how art unfolded dialectically from the Egyptians via the Greeks to the “modern” Christian era; in the end, philosophy triumphs over art as spirit and its ideas and notions attain a level of self-realization that goes beyond encapsulation in sensuous forms. The idea of beauty is articulated in Hegel’s theory, and reaches its full realization in the historicization and museifiation of the art of the past.1010This is the delicious recursiveness of Hegel’s aesthetics: a field that had been introduced to ensure that thought could be reconciled with the senses kills of its subject; this is Hegel’s famous Death of Art. Ceci tuera cela, as Victor Hugo puts the relation between the printed book and the gothic cathedral (in a novel published in the year of Hegel’s death).  In the Philosophy of Right, Hegel is much less inclined to follow his notions through history. The substantial section on “abstract law” shows Hegel at his most radical. Abstract law strips away all the conventions and particularities that have accrued to law throughout the decades, and in response to specific circumstances. The entire focus is not on subject and object but on their social and legal placeholders: the person and the thing (Sache). It is their dialectic that is foundational. But what, for Hegel, is a person?

First of all, personhood is a relation between the abstract “I” and itself; it is a form of self-objectivation: “In personality […], knowledge is knowledge of oneself as an object [Gegenstand], but an object raised by thinking to the level of simple infinity and so an object purely self-identical.”1111Hegel, Philosophie des Rechts, § 35, 93. Hegel’s characterization is remarkably ambivalent, drawing on various usages and connotations of the term Person (in German): “Man’s chief glory is to be a person, and yet the bare abstraction ‘person’ is somewhat contemptuous in its very expression. ‘Person’ is essentially different from ‘subject’, since ‘subject’ is only the possibility of personality; every living thing of any sort is a subject. A person, then, is a subject aware of this subjectivity, since in personality it is of myself alone that I am aware. A person is a unit of freedom aware of its sheer independence. As this person, I know myself to be free in myself. I can abstract from everything, since nothing confronts me save pure personality, and yet as this person I am something wholly determinate, e.g. I am of a certain age, a certain stature, I occupy this space, and so on through whatever other details you like.”1212Ibid, 95.

For Hegel, then, “personality is at once the very highest and the utterly base. It implies this unity of the infinite with the purely finite.”1313Ibid, 95. A person is a subject captured; it is posited as universal precisely via personal details that allow for identification. In fact, it is as though Hegel’s characterization of the person is an idealist sublimation of the modern identity document, that “legal body” of the citizen.1414The term “legal body” was suggested to me by Nina Støttrup Larsen, in reference to certain projects by Heath Bunting that involve the creation of aliases. Napoleon’s Empire had made strides in this respect, imposing on French workers the obligation to carry with them a livret d’ouvrier that put them in a highly dependent relation to their employers, and which contained details about their height, and eye and hair color, etc; George Byron collected one such document from the battlefield at Waterloo, as he was composing Canto III of Childe Harold’s Pilgrimage.1515Byron’s Waterloo spoils are kept at King’s College London: “16. & 17. Byron’s collection of Waterloo spoils (objects and livret),” King’s College London website, accessed January 11, 2017, http://www.kingscollections.org/exhibitions/specialcollections/byron/napoleon/spoils. Bertel Thorvaldsen’s statue of Byron shows him as the author of Childe Harold—a visionary subject, and a rather different sort of person than the unfree French citizen shackled to his livret. Some persons are more equal than others.

Bertel Thorvaldsen: George Gordon Byron, 1831, plaster, Thorvaldsens Museum, www.thorvaldsensmuseum.dk

Bertel Thorvaldsen: George Gordon Byron, 1831, plaster, Thorvaldsens Museum, www.thorvaldsensmuseum.dk

Kant still made the distinction between jus reale and jus personale—the traditional distinction, deriving from Roman Law, between right of persons and right of things. Kant introduces “jus realiter personale” to resolve contradictions in theory (but only in theory); the wife, servant, child were neither full persons nor actual things; they were dependent, thingified subjects.1616See Bernard Edelman’s analysis in: Ownership of the Image: Elements for a Marxist Theory of Law (London and Boston: Routledge & Kegan Paul, 1979), 142–69.By contrast, Hegel states that, “jus ad personam in its essence is jus ad rem” [das persönliche Recht ist wesentlich Sachenrecht]; being a person is having (the right to own) things.1717Hegel, Philosophie des Rechts, § 40, 99. In a passage where one imagines Marx bursting into liberating laughter upon reading it, Hegel does away with the Kantian Ding an sich in one fell swoop by positing an “absolute human right of appropriation over all things.”1818Ibid, § 44, 106 The notion of some unknowable, ungraspable thing-in-itself is pointless where everything is about grasping, about taking possession—and, ultimately, owning the thing legally.1919See also: Edelman, Ownership of the Image, 177. The distinction between Personenrecht and Sachenrecht is thus a false one, as Personenrecht law is ultimately property law.

In positing a universal personhood, Hegel takes a decisive step beyond Kant and his jus realiter personale. As Bernard Edelman puts it, this amounted to the emergence of a “universal subject in law” that created an available pool of “free” labor—of workers selling their only property, their labor-power, to capitalists.2020Edelman, Ownership of the Image, 143–91. Of course, this universal subjecthood has many of the hallmarks of fiction: just as in the Napoleonic Empire, in which the lowly soldier-worker needed a carnet but the general did not, in post-Napoleonic Prussia—which did not actually have a constitution, though Hegel presented it as a constitutional monarchy—actual divisions and hierarchies between different degrees of personhood give the lie to Hegel’s universalist notion. Kant at least acknowledges that some people were effectively (treated as) half a person.

Contrary to the myth floated by Alexandre Kojève in the 1930s, Hegel never argued that history amounts to the struggle between masters and slaves; his master-slave dialectic belongs in the realm of subjective spirit and articulates the formation of self-consciousness.2121See also: Sven Lütticken, “Post-Human Prehistory,” in Cultural Revolution: Aesthetic Practice after Autonomy (Berlin: Sternberg Press, 2016), 115–47. Historically, slavery belongs to early phases of the Geist’s development; in Christianity, it is obsolete. This does not prevent him from engaging in victim blaming and suggesting that the forms of slavery that, bafflingly, continue to exist, may be due as much to the slaves’ minds being trapped in an unfree state as to the slave traders’ and slaveholders’ activities.2222Hegel, Philosophie des Rechts, § 57, 122–26. His record on the role of women in early nineteenth-century society is hardly better—while men run the state, science, and public life, women as the “passive and subjective” gender belong in the domestic sphere; and there were of course real legal obstacles to women working, which in Germany and many other European countries persisted long into the twentieth century.2323Ibid, §166, 318.

It is certainly possible, and indeed necessary, to critique Hegel and other idealists for structurally opposing a European, male, rational subject—what Denise Ferreira da Silva calls the “transparent I”—to an irrational other falling short of subjecthood—which Ferreira da Silva calls the “affectable I.”2424Ferreira da Silva, Toward a Global Idea of Race. However, this does not quite do justice to the peculiar mixture of speculative breakthroughs and ideological blockages that one finds in the Philosophy of Right. While far from a critique of the law of his own day, it is not devoid of a critical sting. In the process of seeking to found his philosophy of objective spirit on fundamental concepts that are not derived or plotted out historically, Hegel becomes radical: he strikes at the roots (radix) of modern law as the legal precondition of property. The subject gets a double, the legal person, and this person is above all the bearer of the right to own property.

Compare this to today’s well-meaning liberal paeans to Democracy, Law, and Human Rights: Hegel suggests that property is the ultimate right, against which something such as the right to vote is expendable superstructure. And if Hegel’s step beyond Kant’s legal theory was precisely based on his insistence that “all right derives from the person,” as Edelman puts it, the question just what or who this person is becomes of paramount importance.2525Edelman, Ownership of the Image, 172.


Legal Form and Value-Form

Discussing Kant’s ethics, Giorgio Agamben argues that its limit but also its strength “lie precisely in having left the form of law in force as an empty principle. But what is such a ‘form of law’? And how, first of all, is one to conduct oneself before such a ‘form of law,’ once the will is not determined by any particular content? What is the form of life, that is, that corresponds to the form of law? Does the moral law not become something like an ‘inscrutable faculty’?”2626Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford California Press, 1998), 52. Hegel, in an anti-Kantian turn, frequently disparages Formalismus [formalism] yet develops a formalism of the person, whose individual distinguishing features are instrumentalized to inscribe them all the more securely in “universal” personhood.

Marx, that attentive reader of the Philosophy of Right, characterized the commodity fetish in terms that recall Hegel’s person: the commodity is a sinnlich übersinnliches Ding [a sensory suprasensory thing, or natural supernatural thing] that appears to be within our grasp, that we can see, possess, and own, yet it is also a highly mysterious entity whose value is not transparent.2727Karl Marx, Das Kapital. Kritik der politischen Ökonomie. Erster Band, in Marx Engels Werke, vol. 23 (Berlin: Dietz, 1962), I.1.4, 85. Like Hegel’s person, the commodity is at once “something wholly determinate” and an abstraction. It is a real abstraction that is operative in the world. In analyzing monetary real abstraction, Marx could take important cues from Hegel’s account of the real abstractions of the law.2828On juridical real abstraction see also: Sven Lütticken, “Concrete Abstraction: Our Common World,” Open! (January 6, 2015), https://www.onlineopen.org/concrete-abstraction; and E.C. Feiss, “‘Whiteness as Property’, Reform as Material: White Paper: The Law,” in Adelita Husni-Bey: On Land, Law and the Imaginary (Amsterdam: Valiz, 2016), 33–45. His notion of the value-form is a polemical appropriation of idealist modes of thought. Later, Marxists such as Evgeny Pashukani and Edelman would make this more explicit in their insistence on the “connection between the form of law and the form of commodities,” between legal and value-form.2929Evgeny Pashuknis, “The General Theory of Law and Marxism” (1924), Marxists Internet Archive website, accessed January 13, 2017,  https://www.marxists.org/archive/pashukanis/1924/law/intro.htm; see also Paul Q. Hirst, introduction to Edelman, Ownership of the Image, 1-18.

While routinely dismissing formalism, Hegel stresses the importance of Formierung [forming or formation]. This is a higher form of Besitzname [taking-possession] of a property. “When I impose a form on something, the thing’s determinant character as mine acquires an independent externality and ceases to be restricted to my presence here and now and to the direct presence of my awareness and will.”3030Hegel, Philosophie des Rechts, § 56, 121. Here, then, we see that Formierung alleviates the abstract externality of ownership. “To impose a form on a thing is the mode of taking possession most in conformity with the idea, since it unites the subjective and the objective, although it varies endlessly according to the qualitative character of the objects and the variety of subjective aims.”3131Ibid. Some of Hegel’s examples of formation are rather curious, and would deserve to be analyzed at length. In the next paragraph (§ 57) he discusses the human body and mind as something that has an external, objective existence and can thus be subject to active formation or Ausbildung, and contains the aforementioned note on slavery.

Agency: Assembly (Générique et spécifique), Centre d’art contemporain, Saint-Nazaire, December 6, 2015, image by Marc Domage, courtesy of the artist

Agency: Assembly (Générique et spécifique), Centre d’art contemporain, Saint-Nazaire, December 6, 2015, image by Marc Domage, courtesy of the artist

One the one hand, we could say that Marx reverses Hegel’s idealist synthesis, his insistence on matter being formed by the possessive person. After all, the value-form is a perverse kind of form in that is not directly, externally observable. This is why Marx’s extensive analysis in Capital is needed in the first place; due to a failure of form. The “commodity form” comprises both a “natural form” and a “value-form”; we do not see the latter, which within the capitalist horizon almost functions like a Kantian transcendental schema.3232Marx, Das Kapital, I.1.3, 62. This also goes for its juridical component. In contemporary art practice, Agency’s presentations and assemblies make tangible and sensible the complex and often contradictory logic of the juridical value-form: Agency “calls forth” Things that have been subject to some kind of legal dispute, from artworks to computer-generated bingo cards and patented microorganisms. Seemingly innocuous things display copious “theological whims.” Several of Agency’s cases concern moving images and movements: films, slapstick routines, dances and choreographies. Movement itself—fixed on film or in scores—becomes intellectual property as the originators of those motions become legally recognized as creators.3333On this see also Edelman, Ownership of the Image, 44.

Marx also follows Hegel in an important respect. With his post-formalist notion of Formierung, Hegel comes close to articulating form as a labor of in- and trans-formation: “Under this head there also falls the formation of the organic. What I do to the organic does not remain external to it but is assimilated by it. Examples are the tilling of the soil, the cultivation of plants, the taming in and feeding of animals, the preservation of game, as well as contrivances for utilising raw materials or the forces of nature and processes for making one material produce effects on another, and so forth.”3434Hegel, Philosophie des Rechts, § 56, 121–22. Almost 200 years down the line, it is hard not to think of the contemporary agro industry and its reconfiguration and patenting of living organisms’ DNA—a new wave of privatization and exploitation that would not have surprised Marx. Taking cues from Agamben, we might ask what the development of forms of life in and against the ruling legal form and value form would entail. What are possible forms of life and forms of resistance inside the juridical value-form complex—ways of using its logic against it?3535My use of the term “forms of resistance” is a nod to the Van Abbemuseum’s exhibition of the same name (Eindhoven, the Netherlands, January 6 to September 22, 2007).


Survivals and Revivals: Triumph of the Corporate Person

While Hegel critiqued other thinkers’ tendency to mix up the “[rights] pertaining to ‘abstract personality as such’” with “‘rights which presuppose substantial ties, e.g. those of the family and political life’,” he did not did disregard the latter; in contrast to Kant, he considered them of great importance.3636Hegel, Philosophie des Rechts, § 40, 99; Edelman, Ownership of the Image, 179. The Philosophy of Right is structured in three parts, dealing first with “abstract law,” then with “moral law” and finally with “Sittlichkeit”—which has been translated as “ethical life,” but being derived from Sitte in German it has strong connotations of customs, of social habits and conventions. Within the Philosophy of Right, the section on Sittlichkeit is the “aesthetic” part in that it seeks to humanize the cold universality of abstract law—but it does so by naturalizing the remnants of feudalism. Here it becomes apparent that the Philosophy of Right is haunted by history after all.

At the same time, one could argue that with his conception of the universal person, Hegel provided a new conceptual base both for the persistence of inequality and exploitation and for its contestation, always moving the boundaries between personhood and its other. Today, as in Hegel’s day, there is a proliferation of gradations; to be an undocumented immigrant is to be half a person at best, and a Guantánamo inmate is little more than an abject thing. Furthermore, even for “legal” citizens the collecting and trafficking of data by governmental and commercial organizations alike leads to various forms of credit ranking and “social credit” whose implications are still insufficiently understood. Data from a fitness tracker may well impact one’s ability to purchase property, and one’s credit record may impact the price one has to pay for a product; as people give up ownership of their “data body,” neo-feudal hierarchies emerge. One crucial tool in this development is the ascendancy of the artificial or corporate person.

The Philosophy of Right contains a passage on “corporations,” but the term can be misleading for contemporary readers: what Hegel discusses here is the specific corporate form of the guild, which itself is a medieval holdover. In itself this is quite fitting. As Ernst Kantorowicz has famously shown, the notion of the persona ficta has deep roots in medieval theology and legal theory. Kantorowicz’s 1957 study The King’s Two Bodies concerns the emergence of the persona ficta, or juridical person, as applied to all kinds of collective bodies; not just to kingship but to kingdoms, with the notion of the separate legal status of the state only gaining ground gradually. And there were of course many other, smaller personae fictae, such as cities or universities. Kantorowicz stresses that “legal corporations compared structurally with Christian angels rather than with pagan goddesses.”3737Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957), 304. Agamben critiques Kantorowicz for his “medievalist” unwillingness to do justice to Roman antiquity, and for focusing more on the “innocuous” aspect of sovereignty, its perpetuity, rather than on its dark, absolute nature. See: Agamben, Homo Sacer, 91–94.  Thus medieval law created the corporation by allowing for “the possibility of treating every universitas (that is, every plurality of men collected in one body) as a juristic person.”3838Kantorowicz, The King’s Two Bodies, 306. On The King’s Two Bodies and personhood see also: Sven Lütticken, “Personafication,” New Left Review 96 (November–December 2015): 101–26.

Though Prussia did not actually make haste with adopting a constitution once the danger of Napoleon had passed, the state did modernize during the Napoleonic era, abolishing serfdom in 1807 and the guild system in 1810; this meant that you no longer had to apply for membership in a guild if you wanted to enter a specific profession.3939These measures were part of the so-called Stein-Hardenberg reforms, which were initiated after Prussia’s defeat by Napoleon at the Battle on Jena in 1806—Alexandre Kojève’s pseudo-Hegelian “end of history.”  While the abolition of serfdom provided a new pool of “free” labor, the end of compulsory guild membership removed a crucial obstacle for entrepreneurship.

Peter Beuth, a key member of the Prussian state’s so-called Technical Deputation and the Gewerbeverein sought to make Prussian craft and industry more competitive—industrializing production and at the same time improving the quality of its commodities.4040In 1821, so virtually simultaneously with the Philosophy of Right, Beuth and Schinkel published the first installment of the Vorbilder für Fabrikanten und Handwerker, which presented reproduction of good (usually historical) artefacts to inspire producers to give their products “the highest formal perfection” [die höchste Vollkommenheit der Form]. Beuth and Schinkel quoted in Miron Mislin, “Zum Verhältnisvon Architektur, Kunstgewerbe und Industrie 1790-1850,”in Packeis und Pressglas. Von der Kunstgewerbebewegung zum Deutschen Werkbund, eds. Angelika Thiekötter and Eckhard Siepmann (Giessen: Anabas-Verlag, 1987), 44.  Here we see, then, in Hegel’s own time, the beginnings of a kind of governmental industrial policy that has resulted in today’s corporate state with its revolving door between the public and the private. Equating the artificial corporate person as much as possible to the natural person and its rights was a crucial step toward this corporate state.

Karl Friedrich Schinkel: Allegorical Drawing for Peter Beuth (Female figure blowing soap bubbles and riding Pegasus above an industrial city), drawing, 1837 © Kupferstichkabinett der Staatlichen Museen zu Berlin - Preußischer Kulturbesitz, Photo by: Dietmar Katz

Karl Friedrich Schinkel: Allegorical Drawing for Peter Beuth (Female figure blowing soap bubbles and riding Pegasus above an industrial city), drawing, 1837 © Kupferstichkabinett der Staatlichen Museen zu Berlin – Preußischer Kulturbesitz, Photo by: Dietmar Katz

Hegel was keenly aware of the importance of intellectual property, appearing to reflect Prussian economic policy when comparing the protection of “the sciences and arts” against intellectual theft to protecting “trade and industry” against highway robbery.”4141Hegel, Philosophie des Rechts, § 69, 147-48. On the other hand, his focus on the natural person (the individual) led him to neglect the artificial juridical person, with the exception of the state itself. In one passage he quickly dispenses with the notion of the artificial person, on his way to the apotheosis of the state: “A so-called ‘artificial person’, be it a society, a community, or a family, however inherently concrete it may be, contains personality only abstractly, as one moment of itself. In an ‘artificial person’, personality has not achieved its true mode of existence. The state, however, is precisely this totality in which the moments of the concept have attained the actuality correspondent to their degree of truth.” Today, the state and its legal apparatus often seem to define themselves above all as protectors of artificial persons. Inhabitants’ (Mariana Silva and Pedro Neves Marques) video piece Hobby Lobby vs. the Allegory of Justice focuses precisely on this—specifically, on the corporate person’s alleged “freedom of religion” cutting into its female employees’ reproductive rights.4242Hobby Lobby vs. the Allegory of Justice focuses on an American case where the corporate person (or its fundamentalist Christian owners) was given the right to curtail the rights of women working for the company. See: Inhabitants, “Hobby Lobby vs. the Allegory of Justice,” Hearings (November 4, 2016), http://www.contour8.be/inhabitant/hobby-lobby-vs-the-allegory-of-justice/.

Inhabitants (Mariana Silva & Pedro Neves Marques): Hobby Lobby vs. The Allegory of Justice, 2016, courtesy of the artists

Inhabitants (Mariana Silva & Pedro Neves Marques): Hobby Lobby vs. The Allegory of Justice, 2016, courtesy of the artists

If sovereignty is the ability to suspend the law, and recent decades have seen the generalization of the state of exception noted by Agamben, one factor in this is the proliferation of actors that have the ability to suspend some of one’s rights—from the NSA to Apple, from Amazon to Frontex, from your insurance company to Facebook.4343See: Agamben, Homo Sacer. As Benjamin Bratton puts it, a delinking of sovereignty and territory has occurred.4444Benjamin H. Bratton, The Stock: On Software and Sovereignty (Cambridge, MA and London: MIT Press, 2015). Just like Facebook and Monsanto, the NSA and Vladimir Putin’s troll factories are global players. The notion of the “retreating government” was always a highly ideological one; what has happened is not so much retreat as a reformation in a field with ever more players.

After Donald Trump’s election victory, Zachary Formwalt recalled how the previous Republican presidential candidate (Mitt Romney) responded to the cry “End corporate personhood now!” with the line “Corporations are people, my friend,” and how historically, “the doctrine of corporate personhood in the United States, under the pretense of protecting business interests, further disenfranchised some of the very same groups that Trump railed against throughout his campaign.”4545Zachary Formwalt, statement in: “Supplement: Post-Election Dossier,” Grey Room 65 (Fall 2016), http://www.mitpressjournals.org/doi/pdf/10.1162/GREY_a_00209 (accessed January 10, 2016). The Fourteenth Amendment to the United States constitution, which gives equal rights to “all persons born or naturalized in the United States,” was added after the Civil War to protect the rights of former slaves; however, it has mostly been used to extend the rights of artificial persons. “In one of the key cases, which led to the corporate personhood doctrine in the 1880s, one of the authors of the Fourteenth Amendment testified on behalf of a railroad corporation. He claimed that the word ‘person’ had been inserted rather than ‘citizen’ so that corporations would be included for protection along with the former slaves for whom the amendment was expressly written. Two birds with one stone. Although his testimony was later revealed to be spurious, it helped establish judicial precedent on the matter of corporate personhood and his fabrication would become simply an awkward detail of no further consequence.”4646Formwalt, statement.

Meanwhile, activists try to award personhood to non-human animals, or even plants and entire ecosystems; animals and plants, of course, can also be patented if certain criteria are met. Autonomous and owned, a patented person: such a status might appear paradoxical, but is every one of us not also a living embodiment of just such a paradox? Are we not persons possessed? The present age of collapse is benefiting those who profit from growth as well as crisis; those who always find some form, some body, to perpetuate their privilege and wealth. The development of forms of resistance and forms of life will in some cases have to involve the creation of fictitious personae, and of doubly fictitious personae: if corporations are people, we need to become corporations.4747See also: Lütticken, “Personafication.” Which is another way of saying: we need to get our act together and organize.


Thanks to Rob Lucas and Daniel Finn for prodding me with a remark on the importance of Hegel’s concept of the persona in Philosophy of Right for Marx’s account of the commodity, and to the participants in my theory seminar at the Dutch Art Institute.


© 2016–2017 Kunstencentrum NONA Begijnenstraat 19-21, B – 2800 Mechelen |

Legal Forms, Value-Forms, Forms of Resistance

By Sven Lütticken