Body and Labour Power. A Legal Dissociation.

Natalia Delgado



This paper addresses the question of how modern Labour Law has been structured by a dissociation between the body of the worker and his/her labour power. This dissociation was inherited from ancient Roman law and helped Marx to explain capitalist surplus value.

Marx created the category of labour power as commodity, supported by legal fictions: free workers, labour power as property, seller and purchaser as equals in the eyes of the law. In the labour theory of value, Marx’s categories of labour and labour power come from the explanation of the source of surplus value. He defined labour power as those mental and physical capabilities existing only in the living body, the living personality of a human being, capabilities which he sets in motion whenever he produces a use-value of any kind. Labour power is the unique commodity with the unique property of being able to create value.

These legal fictions remain a legacy of slavery in Antiquity. In ancient Rome, the productive capacity of slaves could not be named and thought independent of the body that performed it. However, according to the legal historian Yan Thomas, between the 1st century A.C. and the 3rd century D.C., Roman juridical operations, when dealing with the question of the location of the slave’s work, arrived to distinguish the person of the worker being a slave and the product of his/her work. Thomas’s work gives attention to the market of slave work via the contract locatio operarum, a contract between a slave owner and a slave tenant. Roman lawyers broke up the legal concept of property as bare ownership, use and fruits, to isolate a category of work as a market value separate from the body of the slave.

Modern labour law continues attached to its slave origins. Alain Supiot argues that the history of labour law is a progressive discovery of the personal dimension of labour, and with him the body of workers. He states that human labour finds itself locked in the binomial: object of law –commodity- / subject of rights –workers-. On the one hand, abstract labour as a legal fiction erases the body of workers behind the patrimonial universe of contracts. The person is not the core of the juridical labour relation but, rather, the wage in the contract, the price of his/her workforce that conceptually absorbs the person and the body. On the other hand, the law does not hesitate to state that the human body has a supra-patrimonial nature, that it is not a commodity and is unavailable for trade. Nevertheless, the body is the place, is the mandatory passage required for the realization of the contractual obligations of the worker. A physical mastery, a muscular and mental energy is present in an inseparable manner.

Thus, in times of deregulation of classical labour legislation in favour of a precarious working life, roman legal fictions and our bodies remain. I argue that Labour Law should move beyond this dissociation and consider the inseparability of body and labour power. In contemporary society this is needed more than ever.

labour law - labour power - Marx - Rome - slavery - body