·Private and Public aspects of Trespass : Problems of 'ltieorising taW* by: P.c. Vincent-uones Thesis submitted for the degree of PhD Department of Law, Sheffield University October 1982 194 Ch. 5. Concrete p:trticular and concrete totality of law scecurirs relations of p?ssession and se~ration. (1) The concrete p:trticular (initial object): the ~l ri2ht to exclude. The concrete particular, and therefore the point of departure for con- crete analysis, is the ri9ht of the sUbject to exclude the world from interference with F?ssession of land. This is the simplest and most irreducible element of the law as it is expressed in a histor- ically determinate and socially constituted practice, at the concrete level of the Apparent movement and in the corresponding organization of legal categories •. This particular "right" is interp<;>latedwithin the structure of Society at a definite stage in its historical development in accord- ance with an economic determination yet to be specified. It may form the basis of legal claims by private individuals or non-human legal persons such as Corporations and Public Authorities (its limits are not exhaustively defined in its interpellation of human subjectsl). Yet its sphere of influence extends far beyond the resolution of dis- putes, informing the concrete practice of legal subjects in everday social situations: it is the foundation of the Company's exclusive control of production within the enterprise, and of the individual's reaction to intrusion: "Hey, you there, what do you think you're doing 1. Since not all legal subjects are "human", the mechanism of interpellation cannot completely account for their creation (requiring as it does a human "recognizing" subject.) [see Hirst, 1979/813] 195 in my garden?,,2 It is not necessary, to justify this starting-point, that legal sub- jects should "know" that their practice in relation to the possession of land is founded on this simple right, or that they be able to explain their attitudes by reference to it. It is sufficient that it exists, on the surface of Society, at the level of Appearances and in social practice, in the unproblematic assumption (however incoher- ent) of the right of exclude. This "right" is therefore a concrete rather than an abstract category. The fact that it has been identified by a process of reasoning, that it does not announce itself from the outset as obviously the correct point of departure, does not make it any less concrete. In observing the rigorous distinction between Scientific practice (Essential move- ment) and Social practice (Apparent movement), the simple "right to exclude" thus becomes the initial object of scientific Abstraction3; however irreducible at the level of the concrete, this object never- theless remains a "chaotic whole", precisely by virtue of its concret- eness, and Abstraction must perform the role of revealing its constit- uent elements, the real social and economic relations that underlie and determine it. Whilst it is clear that there can be no question of beginning with "general and abstract determinants obtaining in more or less all forms of society", or with a particular abstract such as "possession" or the 2. [see Althusser (1971) p. 163] Here human individuals are indeed "interpellated", ideology being the medium through which they may "live" a relation to their real conditions of existence. 3. see supra. (Ch. 4.) 196 "subject" (as is the case with pashukanis),4 the concrete "right to exclude" is just one amongst a number of concretes that might equally have served as the point of departure, and whose particular selection must therefore be defended.5 Indeed, the concrete legal "subject" (understood concretely contra. Pashukanis) would have the advantage of being concrete in the tangible sense in which the commodity is concrete, whereas the "right" is of an altogether different and more ethereal character. Nevertheless, the criterion of "concreteness" is satisfied in the socially constituted nature of legal practice, and need not require a literally concrete object. The crucial question is which of these alternatives is the most irreducible, and most likely to provide a basis for the development of theoretical determinations which will ultimately reveal the essence of the law of Trespass. Three observations may be made at this stage of the analysis: (1) The "right to exclude" is more prominent at the level of the Apparent movement than the "subject" of that right; persons may "know their rights" without conceiving of themselves as "legal sub- jects". In other words, the language of "rights" provides an Import> ant medium, for human individuals, through which they are able to live a relation to their real conditions of existence. It is an everyday ideology forming the spontaneous consciousness of social agents - and this is precisely the level of Appearances at which the analysis must begin. (2) The "right to exclude" can also be shown to be a more 4. ••••• starting with an analysis of the legal form in its "most abstract and pure shape" : see Ch. 4. Section V. (supra.) 5. Similarly Marx abandoned the abstract categories of Labour and Value at the end of 1857, but had yet to determine which particular concrete would constitute his starting-point (see supra Ch. 4. Section II. 197 simple and a less problematic, starting point. Whilst a variety of quite different legal subjects may share the same basic "right to exclude", to begin with a unitary subject of that right would raise the problem of how such a "subject" should be conceived (in Production or Consumption, as human or non-human, as tenant, wage-labourer or Corporation?) thus risking a crucial reduction from the outset. There is also the problem of the relation between the legal subject and the socio-economic subject (can the former be considered in abstraction from the latter?), whereas the legal right exists logically quite independently of an~ particular subject. What is most fundamental is thus the right to exclude - the different categories of social agent constituted as the bearers of this right being a matter for secondary consideration.6 (3) The analy~ical departure from the "right to exclude" best enables the necessary transition from Apparent movement to Essential movement, ensuring the most theoretically productive transition from concrete to abstract concepts.7 Ca) Trespass: an equal ri2ht. The "right to exclude", like Marx's Corrmodity, appears at first sight an extremely obvious, trivial thing. But it is precisely this natural and unassuming appearance that has to be explained. To begin with, this "right" does not exist in a vacuum, but must have some function and reference outside itself. Of what elements may this concrete whole be said to consist? What role does it perform? The "right" 6. These points are elaborated in the course of this Chapter, and should become still clearer in Ch.6. 7. cf. Echeverria supra Ch. 4. section IV. 198 only makes sense as the pro~rt¥ of socio-economic subjects, whose relations are governed precisely by a framework of rights and obliga- tions. Beneath this form of "right" are concealed an almost infinite number and considerable variety of different subjects; what they have in common is "ownership" of the identical right. Considered apart from such shared "rights", however, subjects are merely heteronomous socio-economic atoms; it is specifically legal rights that give them unity by providing something in which they can share. Thus human socio-economic subjects have quite different capacities, powers, attributes and abili.ties, but their particularity is lost in the shadow of "right", and the same may be said of non-human subjects such as business enterprises and units of Public Administration. Besides the differences between subjects of the same type, there is a distinc- tion to be drawn between the various kinds of socio-economic subject: that human individuals, enterprises and public corporations have the same universal "right to exclude" serves to obscure the heterogeneity of essentially different subjects with different characteristics and capacities. The "right to exclude" creates socio-economic sUbjects in its own imase as lesal sUbjects of that risht; hence the over-determined status of these subjects as legal subjects (be they juridical individuals, joint-stock companies or Corporations) with the right of exclusive possession.8 Since all subjects unite under the banner of the "right to exclude", all sUbjects are e9ual in respect of this right, and hence it is 8. of course Trespass is merely one amongst a number of areas of Law - private, public and criminal - interpolated within the fabric of society and defining the practices of socio-economic subjects. Quite specific legal elements constitute non-human, as opposed to human, legal subjects - nevertheless the effectivity of Trespass in relation to all such subjects remains. 199 an equal right within the juridical meaning of "equality": all sub- jects have an equal right to exclude all other subjects from interfer- ence with their possession of land. With this recognition the analysis is returned, with the results so far achieved through abstraction, to the level of the concrete, where the simple "right" which formed the irreducible point of departure is confirmed in its dimension of equality. Thus the analysis is conducted in relation to a historically determin- ate and particular right, that of "exclusion from interference with possession of land", in the form in which it appears in contemporary social practice at the very moment of analysis. The dimension of "equality" is not "logically deduced" from an essential and abstract right, rather it is discovered as an aspect of a practically constitu- ted and concrete object through a process of scientific abstraction. This quality is not of course unique to the particular "right to exclude", but a crucial component of every bourgeois right.