This article is the result of reflections developed within the research project Re.Com.Te. (Responsibility, Complexity, Technologies), carried out as part of the 2024-2026 University Research Plan, known as PIACERI, of the University of Catania.

Introduction

T

he study of the concept of form in Kant’s theoretical framework opens up avenues for dialogue with the legal dimension of this notion. Antonio Negri argues—in Alle origini del formalismo giuridico. Studio sul problema della forma in Kant e nei giuristi kantiani tra il 1789 e il 1802—that there exists a continuity—an isomorphic and iterative action—that reveals the reverberations of historical-political tendencies within the various interpretations of the concept of form in both pure reason and legal theory. This paper aims to demonstrate how, in Negri’s research, the link between legal formalism and the abstract legal subject constitutes a necessary and inescapable logical and material relationship; in other words, how the process of de-subjectivation within the legal system takes shape as a power dispositif.

Supporting this thesis, extensive use will be made of the method of “determinate abstraction”—particularly through the lens of Pašukanis—especially in demonstrating that normativity in the mercantile-capitalist era is coextensive with the economic order to which the former belongs. The essay thus interrogates the social synthesis of abstraction processes underlying the thinkability of the abstract legal form and, as its corollary, of the abstract legal subject. Shifting the analysis to the dimension of real subsumption, the study returns to the work of Antonio Negri, highlighting—once again in a coextensive manner—the crisis of ontology within the social order and postmodern legal systems. It will ultimately assess the appropriateness of the genealogical reconstruction found in Alle origini del formalismo giuridico, critically testing Negri’s central thesis on form and the legal subject.

The resonance of this investigation with contemporary debates and proposals on the transformation of the legal subject lies in the necessity of its deconstruction at the very level of form and abstraction—as Pašukanis has notably argued. To take a case in point, Yan Thomas has clearly delineated the current tendency to conflate the juridical person with the desiring element of the empirical subject—thereby bringing into sharp focus the process by which juridical form becomes materialized, well beyond its supposedly formal and hypostatic character. This “air chamber” within legal form—always vulnerable to incursions from the historical-material domain in which it operates, along with the distinctive modality of the social relations of production that define it—is precisely the object of the present article. In this context, what is intended to be demonstrated, through a specific and segmented genealogical investigation of the relationship between legal formalism and capitalism, is the formal naturalization of mercantile principles within the legal form itself and within the figure of the legal subject to which relevant entitlements refer. So long as the form of the legal subject remains coextensive with the commodity form, it is here argued, it will endure as a “spectral objectivity” of the exploitative process. The paper is structured as follows. The first section outlines Antonio Negri’s interpretation of the concept of form in Kant, highlighting the relationship between matter and abstraction at the epistemological and theoretical levels. The second section, drawing on Pašukanis’s theory and the method of determinate abstraction, offers a critical interpretation of the relationship between history and form through an analysis of the legal form and the legal subject. In conclusion, the paper returns to Negri’s work in order to further investigate the relationship between the formal abstractions of law—with particular attention to the subject—and real subsumption.

I. The Problem of Form in Kant: the Reading of Antonio Negri

With the belief that the analysis shall be grounded in a historical framework that allows the critical precursors of contemporary formalism to come into view, it is worth pausing briefly on the challenges that xix^th century philosophy had to confront through its metaphysical constructions—antinomies of which Kant had already become acutely aware, and whose plausible resolutions, often mediated by the action of form, will be explored in this section. The crisis of xix^th century monism coincides with the acknowledged fragility of metaphysical mediation between opposing terms—above all, the attempt to sublimate the tension between reason and history into their substantial identity within the systemic aspiration of the absolute. The failure of this attempt—that is, the inability to contain the irruption of the irrational and of experience within speculative totalitarianism—is followed by formalism’s proposal of a philosophical approach grounded in the fabric of validity, that is, in the investigation of procedural and relational legitimacy as a non-ontological but logical foundation of both theoretical and practical reason. Kant, Negri argues, appears to anticipate the need for new practices of transcendental mediation inspired by the aforementioned principles: the heterogenesis of the concept of form in his work is directed—though not without contradictions—toward the recomposition of the antinomy between reason and history, between the rational and the real.

As is well known, one of the central concerns that most animated Kant’s investigation is the critique of method. It is with the Dissertatio that the search for a response to the problems raised in this regard can be said to have begun: here, Kant clarifies—within the sphere of knowledge—the existence of a formal and intelligible domain that stands alongside the sensible and the material. The concept of form, evidently related to time and space as ordering principles of sensible content, comes to be established as the receptive pole of sensible objectivity in a purely subjective manner: the principle of productive synthesis is not yet present. Form thus becomes the locus in which intelligible possibility is exercised, although it is deemed insufficient to exhaust “the thing in itself”: this, in turn, constitutes the insurmountable limit imposed upon reason and explains Kant’s need to formulate a critique of rationalist-constructivist and metaphysical methods. In the Dissertatio phase, in short, form represents one of the two poles—namely, the receptive and non-spontaneous one—of cognitive activity. “In the Dissertatio, then, there begins to take shape—as a constant in Kantian thought—that epistemological dualism which functions, first and foremost, as a polemical reference to the metaphysical tradition”.

The critical method reaches its highest expression in the Critique of Pure Reason. It is therefore worth examining the three stages of the transcendental—Aesthetic, Analytic, and Dialectic—in order to uncover the various functions attributed to form in Negri’s reading. In the Transcendental Aesthetic, the interpretation remains very close to that offered in the Dissertatio; the duality of experience is preserved, as is the irreducible rift between the sensible and the intelligible. Yet for the first time, emphasis is placed on the idea of form as a condition of objectivity: that is, by admitting the existence of pure a priori intuitions even in the absence of an actual object of the senses, the epistemological symmetry that previously governed the relationship between matter and form in the Dissertatio becomes obscured, giving way to the decisive role of the latter. It is form, as pure intuition present a priori in the mind—and which, unlike the object it operates on, cannot have a sensible origin—that legitimates the phenomenal interpretation of the thing in itself, rendering intelligible its original multiplicity in the mode of schematized relations:

If, on the one hand, transcendental aesthetics confronts thought with reality, on the other, it elaborates within the very concept of form the condition for overcoming dualism.

In the transition from the Aesthetic to the Transcendental Analytic, Negri argues, this tendency reaches a critical threshold: form begins to appear as constitutive of knowledge. The forms addressed in the Analytic, unlike those in the Aesthetic, do not merely serve to isolate the formal intelligible from the sensible; rather, they are involved in the organic unity of the intellect—that is, in the construction of a reciprocal unifying relation oriented toward the systematic (indeed, totalizing) structuring of concepts. The forms of the Analytic project themselves onto matter, thereby marking the distinction between spontaneity (Analytic) and mere receptivity (Aesthetic). The heterogenesis of the concept of form—which, in the Analytic, becomes definitively formative—can be understood through the pressing need to invoke a systematic standpoint, which is fundamental for Kant in order to distance himself from accusations of merely reviving a form of subjective idealism. In this regard, the operation of transcendental schematism is particularly illustrative: here, the dualism of intuition and concept is resolved under the aegis of the temporal form specific to the schema.

If in the Dissertatio and in the Transcendental Aesthetic the notion of form as a pole of experience and as receptivity brought Kant’s analysis closer to the perspectives of subjective idealism, in the Analytic—and particularly through the schematism—one can discern a movement toward objective idealism, and toward form as constitutive of objectivity. In the Dialectic, by contrast, there appears to be a renewed opening toward a subjectivist possibility. In the deduction of ideas from pure reason, Kant excludes the possibility that the former might attain the objective form-giving power that belonged to schematism and, more generally, to pure concepts. Ideas, at most, retain a dimension of as if, of quasi-objectivity, exercising a regulative function as a boundary for the direction of reason. The transcendental ideal in the Dialectic coincides with a concept of the totality of the possible determinations of an object: this does not mean that the total idea exists per se, but rather that it is instrumental in enabling the derivation of the totality of the limited from the idea of the unconditioned totality. One may thus say that the transcendental ideal of totality exists within the organicity of logical function: in the Dialectic, the idea as form expresses the relation between logical universality and empirical totality as the driving force of reason. In Negri’s reading, the original problem of the antinomies—reopened in the Dialectic—does not find a univocal resolution within the Critique of Pure Reason.

In the Critique of Practical Reason, the autonomy of form triumphs definitively: at this stage, Kant holds that the rational being must develop maxims as universal practical laws by abstracting from—and indeed, actively determining—the material object of volition. Here, it is form that—just as in the Analytic of the Critique of Pure Reason—produces and constitutes the material outcome of willing. If in pure reason objects elicit the action of the transcendental intellectual structure—will being subject to nature—in practical reason objects are the consequence of the will in its peculiar articulation as free volition. The same critical considerations by Negri apply here, regarding the oscillation between a reconfiguration of metaphysical constructivism—now modified by the substitution of transcendental schematism with the filter of individual consciousness—and the systematic standpoint. The difference is that, in practical reason, the magnitude of certain aporias resounds in an even more vivid and concrete manner: if matter is entirely subsumed within the demiurgic action of the formal horizon of the will—if, in other words, the moral law is by definition irreducible to content and is pure form—how is value to be determined? For Negri, the absence of determination renders this question even more pressing when the analysis turns to the theory of law.

To introduce the question of form within juridical reason, it is worth pausing on the ambiguity that characterizes the concept of freedom between practical reason and the theory of law. In the former, freedom is understood in a Rousseauian sense as autonomy and, secondly, as form-giving—that is, as the capacity to construct, in and of itself, the formal horizon and the noumenal order. At times, however, in the analysis of juridical reason, one encounters a Montesquieuian conception more closely aligned with the idea of independence. In this case, freedom designates the inviolable sphere to which each individual is entitled in relation to the collective; a notion quite distinct, therefore, from freedom as autonomy and as obligation toward society. Applying the conception of freedom as independence to the system of practical reason, Negri maintains, nullifies the formative and constructivist potential that shines through in the analysis of praxis; form becomes mere exposition because it is a mere material limit, lacking the creative potential inherent in the idea of autonomy. In the Metaphysics of Morals, Kant often alternates between the concept of freedom as autonomy and that of freedom as independence, frequently favouring the latter: he strongly emphasizes the pure conditions of volition detached from heteronomous constraints.

Negri links this conclusion to the historical element: the revolutionary ferment that animates the minds of jurists at the end of the xviii^th century is set against the backdrop of the nascent bourgeois order, which requires a legal system capable of protecting the citizen’s economic independence as entrepreneur. It is precisely this motivational lever, Negri contends, that inspires Kant’s need to distinguish between internal legislation—guided by freedom as autonomy, which takes shape in morality—and external legislation—structured upon freedom as independence, which is realized in positive law.

Another concept useful to the analysis is that of possession, which, in Kant, becomes a subjective condition for the possibility of use in general: the goal should have been the theorization of a noumenal or theoretical possession, pure and rationally grounded, posited as the condition for phenomenal possession, proper to positive law. In reality, Negri maintains, Kant proceeds through abstractions derived from the positive legal order, justifying it tautologically. Noumenal possession ought to be an a priori practical principle, which differs from the a priori theoretical principle in virtue of its validity beyond application to any empirical residue or concept. The forced nature of this transition becomes apparent when Kant proceeds to analyse the concept of legal obligation: this depends, in fact, on a general rule of external legal relation; reciprocity in obligation is not grounded in individual will, but in the general will expressed by the civil state. There is, in Negri’s reading, no possible conception of noumenal possession abstracted from the coercive authority of the state: only the hypostatization of the general will, derived from the positive legal order, allows possession to become thinkable. The problem of the justification of power is thus deferred to a higher level.

We are thus confronted with the distinctly apologetic meaning of grounding the legal order on possession: it is a matter of inventing, for the sake of systematic coherence, the a priori legitimacy of elements that are surreptitiously economic in nature within law. Hence emerges the problem of Kantian conformism: on the one hand, historico-political, that is, as reception of the contradictions intrinsic to the historical moment—shaken by revolutionary fervour and nascent bourgeois ideologies; on the other hand, immediately theoretical, as adaptation of form to the sensible and concrete content of matter, that is, as hypostatization, in formal guise, of contingent and worldly premises—often economic, patrimonial, or proprietary in nature—of positive law. The trajectory of the critical period that has been briefly reconstructed, in which Kant sought to assign to form a role capable of resolving metaphysical antinomies, is thus suspended in practical reason and in the theory of law: in these domains, the demand for determination is decisive and compels Kant to shape form according to matter. This interpretation by Negri appears to suggest that the abstraction of form thus presupposes a determinate foundation.

II. From the Critique of Legal Form to the Legal Subject: Determinate Abstraction in Pašukanis

There are two suggestions in Negri’s analysis presented thus far that may inspire a continuation of the inquiry into form along the lines of critical legal theory: on the one hand, the hypothesis that the latter expresses the economic relations that structurally regulate society; on the other, the recognition—common, in his view, to legal formalism in general—of a tendency to hypostatize the specific contents of positive law. These two intuitions can be synthesized in the epistemological attitude of Marxian derivation known as the method of determined abstraction. Introduced in the Grundrisse, this analytical tool allows the juxtaposition of the pure, a priori element of the “I think”—the domain of the logical-analytical aspect of knowledge—with that which is historically (and therefore materially) determined: the tensional spirit animating the phrase determined abstraction thus makes it possible to unearth the regimes of reciprocal influence that are woven between form and determination, revealing the material characteristics embedded in the processes of hypostatization. On closer inspection, Negri’s conclusion regarding the role of form in Kant’s theory of law resonates with a similar methodological disposition:

Form traces and records matter, suppressing all its formative capacity in the mere reproduction—at a presumed higher level—of concrete contents; it is stripped of any character of substantive intelligibility in order to perform an ordering function in the sense of the expository coherence of concrete historical connections.

Pašukanis devoted much of his research to interpreting the legal form in mercantile-capitalist societies through the lens of determinate abstraction: a brief analysis of his epistemological framework allows for the insertion of (the invention of) the legal subject within this analytical context.

It is necessary to examine the dialogue between Marx’s Foundations of the Critique of Political Economy and Pašukanis’ critique of the legal form in order to grasp the key features of the so-called commodity form theory of law. Marx’s thesis is as follows: the process of abstraction—the role of form in cognitive dynamics—is of undeniable importance; it is only through such a process that a transcendental comprehension of reality becomes possible. However, abstractions are never the result of a purely a priori, mechanical function of the “I think”: there exist certain material conditions that operate at an even more fundamental gnoseological level and authorize a specific type of generalization, a mode of cognitive organization of the real into categories that transcend the particular toward the universal.

In this regard, the concept of abstract labour—central to the critique of political economy—is paradigmatic: this concept does not exist in and of itself, nor does it constitute any kind of empirically observable material evidence. In order for such a concept to be articulated, it is necessary to abstract from the specific features of individual production processes—qualitative differences that are irreducible on the level of use-value—so that a measure may emerge (be invented) capable of expressing a principle of commensurability. The abstraction of labour in general, in other words, is made possible—even in its formal and hypostatized guise—by the conditions of capitalist-industrial production: only the demands arising with the advent of the market elicit an abstracting process with the outcome just described.

It is from this context that the exchange value embedded in the commodity form arises: for Pašukanis, there exists a relationship between this and the legal form that goes beyond mere analogy or simple isomorphism; it is a matter of homology. Just as the commodity form—constantly traversed by exchange value—invents a form of commensurability that materializes in the very possibility of the market, so too the legal form constitutes a principle of equivalence in the relationship between subjects as bearers of rights. Not unlike the exchangeability of commodities, legal claims may interact through a synallagmatic criterion identifiable in the form of the norm.

In this regard:

The first [the capitalist-mercantile society] is the circulation of commodities, and the commodity is the form of exchange value, an abstraction with respect to the particularity of use value. The second, the legal form, is the constitution of the abstract legal subject and of the (formal and abstract) equality between these subjects.

The homology between the commodity form and the legal form leads in medias res to an interpretation of law as a system of materially determined relations; the latter are instantiated by legal subjects who—by fulfilling the formal circuit in which they are embedded—are abstract subjects. If the terrain mediating legal claims is indeed homologous to the market—which, through the theory of value, constructs functions of commensurability that are abstract yet always determined by the social synthesis of a historically specific mode of production—then the former too will be characteristic of the mercantile-capitalist system: after all, the legal subject is, first and foremost, a rights-holder. In fact, in order to functionally comply with the procedures of law, such a subject cannot be considered in light of the irreducible peculiarities that materially define them: instead, they must be formalized and thus abstracted. Similarly, the relations they weave with their counterparts will be mediated by one or more norms capable of ensuring the formal equivalence of such relations by means of abstraction. Within this framework, the (legal) form does not perform a formative or constitutive function: on the contrary, it produces a legal subject who is de-subjectivized.

The principle of the legal subject (by this we mean the formal principles of equality and liberty, the principle of personal autonomy, etc.) is not merely a tool of deception and a product of bourgeois hypocrisy, insofar as it stands in opposition to the proletariat’s struggles for the elimination of class, but is simultaneously a real and active principle, the embodiment of bourgeois society when it emerges from the feudal-patriarchal order and destroys it.

The fact that the legal subject is abstract and de-subjectivized does not mean, for Pašukanis, that its place within legal mediation—just like that mediation itself—exists in a merely derivative and superstructural guise. Law, with its forms and abstractions, effectively regulates reality to the point of replacing it with social relations that exist only insofar as they are legally determined:

But just as the fetishism of the commodity is not a distortion, a falsehood, or an ideological corruption, but rather reflects the specific commodity-form that characterizes capitalist society, so too the legal form is the specific form of social regulation within this determinate mode of production.

The homology continues: just as the commodity-form—permeated by exchange value—already incorporates the premises of surplus value appropriation not materially but formally, likewise exploitation—once labour-power is commodified—is implicit in the equivalent form that governs the relationship between legal subjects.

When Pašukanis deepens the discussion on the legal subject, he makes a brief reference to Fichte and to the theorists of natural law as they attempt to conceptualize the individual as an isolated and independent monad. This “joint existence of many free beings in which all must be free and the freedom of one must not obstruct the freedom of another” resonates strikingly with Negri’s analysis regarding Kant’s ambiguity on the concept of freedom: we are faced with an interpretation of the latter as independence, which posits nothing creatively nor in terms of content, but is instead embodied in a concept of form as a (pure) expository limit. Within this seemingly in-determinate dimension, Pašukanis discerns the intrusion of a historical-material necessity, which he identifies as:

the market into which independent producers converge, idealized and transposed into the otherworld of philosophical abstraction, freed from crude empiricism[.]

Here, then, the red thread that connects Antonio Negri’s critique of the juridical form in Kant with Pašukanis’ theory of law begins to emerge: in both cases, the emphasis on formalism as a transcendental guarantee is seen as concealing a heuristic flaw, within which historical-material determination operates, regulating and orienting the process of abstraction. The idea of the legal subject as an abstract, independent, and isolated monad is likewise deemed necessary so that the mediation of claims can be interpreted within a market of rights, in which the private owner functions merely as their representative. The logically interdependent link between de-subjectivized legal subjects and the juridical form as the synallagmatic guarantee of the relationship between them is thus articulated.

It becomes evident that legal formalism always requires, in order for its transcendental framework to assume a character of universal validity, a legal subject that appears “as a mathematical point, a center to which a certain number of rights are referred”. However, the point of derivability—of the very thinkability—of the abstract legal subject is identifiable only because it is situated within a historical-material function that necessitates its emergence. It is solely from the need to regulate acts of exchange—once these no longer resolve themselves in the direct relationship between executor and contractor, but are instead subsumed under the capitalist form—that the urgency arises to imagine a private proprietor capable of exchanging rights, among which is included their own labour power. In other words, the need to reify the social relation arises alongside the abstraction of exchange value, which renders products exchangeable beyond their use value. Alongside the commodity fetishism, then, stands the juridical fetishism.

At this point, Pašukanis opens the way to a post-structuralist suggestion. If the mystique of value as a universal category—as a principle of social synthesis capable of organizing the entire bios of society—comes into being through the systematic repetition of acts of exchange finally stripped of contingency and arbitrariness, likewise the custom expressed in the regular repetition of relations between private proprietors socializes and renders paradigmatic the will as a legally tradable act. The irreducible differences that distinguish human beings—both in their subjective depths and in their material roles within productive processes—are sacrificed in view of de-subjectivation that enables the circulation of commodities. To engage with the problem of legal form in the era of real subsumption, when power is compelled to invent production in an intensive sense by capitalizing the entire vital fabric of the social, means to explore the microphysical space in which custom acts as an autonomous outpost of command. Thus, there is a renewed need to contextualize Antonio Negri’s insight into the blockage of Kant’s critical project concerning the creative capacity of form, emphasizing its material and instrumental nature.

III. The Legal Subject in Real Subsumption and Its “Factories”

To structure a critical analysis of the legal form within the framework of real subsumption, it may be helpful to provoke reflection with the words of Natalino Irti:

The meaning of law shatters and disperses into the meanings of unexpected, unpredictable, and indefinite norms. Its most proper and stable meaning lies in the functionality of procedures: not in what is produced, but in how it is produced. The language of law is now the language of the economy: technique, production, procedure, functionality. The jurist perceives that individual norms are and could just as well not be; that, having emerged from nothing, they may return to nothing. There is no fixed and eternal meaning, nor a becoming inscribed in unity, but an absolute contingency of the will.

This observation opens the door to an awareness of the transience not only of the material content of contemporary normative regimes, but also of their procedural and formal dimensions. The radical contingency that characterizes legal systems is coextensive with the contingency that, more generally, defines the horizon of meaning within real subsumption; the pure technique of law inherits the legacy of transcendental truth-claims and structures mechanisms of identity between truth and validity in terms of functions and procedures. In other words: the external control that once conferred credibility upon normativity abandons hypostasis and folds back into the transcendental, seeking logical-mechanical criteria capable of immunizing the system against the unpredictability of materiality. And yet, as previously noted, these efforts at abstraction inevitably unfold from a historicized substrate. In the context of real subsumption, this social a priori is capital.

Again, on the plane of homology, it has been noted that the repetition of acts of exchange is both preparatory to—and then runs parallel with—the systematic reiteration of acts of will in legal form, mediated by juridical instruments: both, in order to acquire transcendental value, require stabilization within a theory of value that structures a principle of equivalence within the relation. This repetition necessarily triggers a reflection on language and communication, which Antonio Negri explores in Fabbriche del soggetto:

his linguistic, logical universe, which does not possess truth but only movement, is also a productive universe. It includes, at the very moment it establishes relations of communication, social parameters, structures, and figures that are socially effective in rendering language valid.

The analysis here focuses on the metaphysical horizon of real subsumption, in which the functioning of language games, according to Negri’s reading, is governed by the organization and preservation of social relations of production: language thus structures a second reality, which becomes the only thinkable one precisely through the mechanism of repetition and custom inherent in a specific mode of production. Again:

The linguistic sphere conceals the totality of the production process—or rather, it absorbs it in order to annihilate its antagonistic features. It is a fact that when everything is productive, no absolute criterion of measure can exist.

If this is the condition of subjectivities in the era of real subsumption—that is, life at the outer edge of the contradictions of mature capitalism—and if the domain of the juridical, as Negri argues, is coextensive with this condition, then the closure of the horizon of meaning within the circulation and production of commodities becomes the critical foundation for interpreting the legal subject in contemporary times. It is precisely through language, after all, that the processes of abstraction are carried out—processes that capital cannot forgo in its work of organization and command.

Continuing along this line of Antonio Negri’s analysis allows for the recomposition of several insights presented thus far—chief among them, the problem of abstraction and the Kantian categories. In Negri’s interpretation, the transcendental platform upon which the process of universalizing the contingent is consummated—namely, the site where a specific mode of production, that of capitalism, stabilizes itself and elevates into an a priori logical-formative grid—is the Analytic. This is resemanticized by Negri as the “capitalist capacity for command through the instruments of the new dominion and of the very production of subjectivity” In his analysis, it would be Kant’s privileged dimension for offering a transcendental interpretation of experience. From the inquiry previously conducted—concerning the critique of the concept of form—it is possible to recall the formative and creative notion of form within the Analytic; indeed, it is precisely within this dimension of power that subjectivities are produced under real subsumption. Here, the operation of determinate abstraction can be isolated, insofar as form produces a reality originally specific to the capitalist mode and then absolutizes it through categories and generalizations: the ideal instrument of the Transcendental Analytic as the techno-logical outpost of power is the law.

Conclusions

The analysis conducted so far—especially where it has engaged with Pašukanis’ theory—does not suggest the subordination of law to political economy in the classical structure-superstructure model. On the contrary, the Soviet jurist’s insight lies precisely in having anticipated the overcoming of this continuum, which was later definitively dismantled by both post-Marxist and post-structuralist critique. Homology, rather than implying derivation, is realized in the productive effectuality of both capitalist economy and law: just as the theory of value arises from a strategic necessity and remains pure abstraction—while nonetheless governing the concrete material lives of the subjectivities implicated in the system—so too does the invention of legal relations and legal subjects produce a world that, under real subsumption, becomes the only conceivable one. Consequently, the subjectivity integrated into the productive order is true only insofar as it is that of the legal subject, such that normativity is coextensive with both the circulation of commodities and production.

Law follows the evolution of the social relations of production. It is their form. But, as social development progresses and projects itself toward that particular order proper to real subsumption, law is no longer merely the form of society—more precisely, of social order—but structurally intervenes as a general function of legitimation in social reproduction.

Form, procedure, and the rationale of equivalence—structuring the technical dimension of law—are, in the era of real subsumption, the outposts of its legitimation: the foundation of the system is produced from within. In this context, the legal subject takes the shape of a desubjectivized monad, embedded in a self-referential and autopoietic system. In this regard, Negri devotes considerable attention to Luhmann’s model of the social system: subjectivity, in the German sociologist’s analysis, is reduced to an element whose existential or material determination is irrelevant to the system’s logical-transcendental mechanism. The rationale behind the enduring urgency for complexity reductions functions as a selective criterion aimed at sustaining the machinic vitalism of the system—and within this framework, ontology is expelled. Any interpretation of subjectivity that escapes its juridical categorization, its institutionalized mask, constitutes a foreign body that the social system is unable to process in order to generate outcomes consistent with its autopoietic and functional imperative. The abstraction of the legal subject, therefore, is not an unproductive fictio, but functionally integrates the systemic fabric of social systems, structured by the selective criterion of technique and by the validity generated through procedure. The study on systemism allows Negri to discuss the connection between subsumption, subject, and self-referentiality. The latter is

in some ways always hypostatic. It is, on the other hand, contradictory to the ontological status of the elements that constitute its final configuration, because these contingent elements involve, in their dynamism, radical alternatives—which, however, are blocked and fixed in the conclusion of the process.

From Kant, through Pašukanis, and back to Kant: Negri applies the methodological intention of determinate abstraction to systemism in order to reveal the intrusion of matter—and of the historical-material necessities it dictates—into the form of legal procedure and technique. The contingency of the mode of production under real subsumption is arrested and fixed, and law, being coextensive with it, absorbs its implications; to recall once again the words of Irti, it is an absolute contingency of the will which, however, in its self-referential circuit, takes on a hypostatic form. Consequently, the current proposals on the transformation of the legal subject within the bounds of alternative legal imagination are coextensive with the critique of its reification within the commodity form. What has been expressed thus far testifies to the inherent vulnerability into the fictional, abstract, and formal construction of the category of the legal subject. This fragility is, of course, further exposed when faced with the proliferation of contemporary processes of subjectivation and the symmetric subjectivities’ quest for representation in the domain of subjective rights. This biopolitical level of analysis implies its biopower counterpart: the multiplication of arenas in which value extraction from subjectivities takes place—characteristic of real subsumption—exacerbates the problem of the incursion of material power into the form of the juridical person, which, precisely in light of its “naturalness” and hypostatic character, becomes an ideal and malleable locus for the sedimentation of particular and dynamic interests.

Lorenzo Gianni

PhD student at the University of Catania, Department of Political Science. He focuses on penal abolitionism in the work of E.B. Pašukanis, examining the points of dialogue between his thought and the theoretical cores of post-Marxism and post-structuralism. He is also interested in the critique of form and determinate abstraction as devices of normative power; among these, he pays particular attention to the form of time as an epistemological criterion of punishment, assessing its crisis within the real subsumption of society under capital.