Research project Living as a Commodity: Law, Exploitation, and the Trade on Human Lives
PhD project that explores the interoperability of legal and economic mechanisms that make exploitation possible despite the plausible illegality of its root causes.
This dissertation investigates the role of the law in affording the conditions of possibility for exploitation to install and reproduce itself in the context of contemporary capitalism. It engages with the dialectical incompossibility of some of the key normative assumptions embedded in the law and the economy vis-à-vis their phenomenological consequences. With support from Niklas Luhmann’s systems theory, the dissertation relies on two main examples – patents on essential medicines and labour exploitation – to examine the tension between expropriation and accumulation. It advances the novel concept of “ablegality” as a register for the remainder that every phenomenological-hermeneutic operation will inevitably generate as the potentiality that accompanies all phenomenological reduction. The principal contribution made through this dissertation lies in articulating the role of the invisibilised side of legal operations as drivers for exploitation and, ultimately, for injustice to manifest legally.
Supervisors:
Prof. Pål Wrange, Stockholm University (main supervisor)
Prof. Emilios Christodoulidis, University of Glasgow
Prof. Antonina Bakardjeva Engelbrekt, Stockholm University
Project description
My main research objective is to explore and address the key legal features that contribute – likely decisively – to different patterns of exploitation to endure for centuries, reproducing and legitimising themselves continuously despite the steady threat they pose to human rights and fundamental moral standards. As such, the project unfolds in three steps, all of which stem from different experimentations with Scott Veitch’s theory developed on Law and Irresponsibility. The primary assumption drawn from the book is that while the role of law in asserting responsibility has been widely studied, legal scholarship often remains circumspect when addressing the intricately organised elements that confer legal status to instances of sheer irresponsibility. This tendency is particularly evident in cases of mass harm, such as those related to colonialism, inequality, and exploitation.
Starting in 2019, I surveyed the persisting underinvestment in innovation and the supply of medicines related to neglected tropical diseases from a law and economics perspective and briefly addressed the differences in relation to Covid-related research due to its contemporaneity at the time of submission. I focused on the artificial scarcity effected by intellectual property rights and the distribution of incentives it implies, along with the tension between human experience and the limits imposed by the ‘language’ of market prices. The goal was to speculate on the validity of a negative counterpart of the public domain as a register of the social damage caused by the institutional arrangement of intellectual property, acknowledging harms that are experienced but for which there is no accountability. It followed that the enduring nature of such harms was not only derived from artificial scarcity but necessary for the economic value associated with scarcity to exist in the first place.
The second research step resulted in one article and a working paper. Throughout the two texts, I sought to develop a theory that could challenge the claim that the private property rights afforded to a drug patent “create” value. I countered this claim by arguing that what is at stake is not value that is created but concretely an expression of harm-derived value that follows from a process of systematic expropriation which is subsequently reallocated. As such, I took issue with commodification and its underlying law and economics, which were then re-examined using Luhmann’s systems theory.
Proposing the novel concept of ablegality, i.e. where legality is absent rather than inexistent but still causally related to material effects, I sought to capture the obscured counterpart of legal communications which are nonetheless relevant in terms of the phenomenology of law. For instance, I deployed ablegality to register the nature of the purported economic value observable as a consequence of the gap that remains between the harm suffered and the responsibility awarded, as in the case of harms derived from the enclosure of knowledge represented by essential medicine patents. This could shed light on the relative increase in economic value caused by artificial scarcity as an extraction of value from human lives, i.e. by the maintenance of a state of suffering that is tantamount to the value caused by drug scarcity.
The third step of my research, started in 2022, has been devoted to a detailed examination of the legal mechanics of exploitation, albeit no longer on the grounds of intellectual property. As a means to test the suitability of the impetus sustaining the notion of ablegality in other realms where exploitation takes hold, I have been working on the role of court dispute resolution in labour litigation as a core driver for the reproduction of the conditions of exploitation. The resulting article is my most developed piece of research so far and tackles the different moments where legal contingency impairs the restorative drive of a court award.
Distinctively, though, the article does not challenge the nature of court awards in terms of their immediate insufficiency, e.g. as a mode of compensation that could otherwise be incrementally improved. Rather, it claims that, given the current framework of legal epistemology, even the most well-intended court award will still fall short of a just outcome when the structural and temporal effects of labour litigation are taken into account. For these reasons, my critique acknowledges and builds on the efficient dimension of court awards to highlight their structural insufficiency. It delves into and subsequently challenges the assumptions that render the notions of legal/illegal semantically similar to those of just/unjust, namely by taking issue with the scope of the freedom to contract, the distinction between discrete and structural liability, and the historically specific ways under which complexity is managed within the legal system.
Those features insulate the recuperation between harm caused by systemic exploitation and the consequent responsibility it would have normally entailed, contingent upon the possibility of ruling that this arrangement is legal in the first place. Even though this might sound trivial, an examination of its internal aspects is troubling. For instance, the circumstance that the infringement of labour regulation (i.e., an illegal act) might be rendered legal against payment might pose a paradox to Luhmann’s articulation of the legal system. This is because it would have created a scenario where an act is legal and illegal at the same time, and as such, irresolvable in legal terms. If this diagnosis is correct, the reflexivity of law in relation to politics is not simply restored but set permanently open, profoundly challenging technicist approaches that aspire to insulate law as a self-standing entity.
Project members
Project managers
Daniel Augusto Pinheiro Astone
Doktorand
