Reflections on Marxism and Law: A Review of Igor Shoikhedbrod’s Revisiting Marx’s Critique of Liberalism — Mai Taha

[This is the first in a series of posts comprising a symposium on Igor Shoikhedbrods recently published book, Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights (2019).]

Igor Shoikhedbrod’s Revisiting Marx’s Critique of Liberalism is a welcome addition to the literature on law and Marxism. [1] The book complicates the common narrative that Marx was the quintessential critic of liberal rights. Shoikhedbrod’s close and careful reading of Marx’s texts is insightful and targeted. The book helps readers to think about the role of law and rights under capitalism, and also to imagine its future in a communist society. It builds upon (and complicates) the leftist legal tradition that refuses to dismiss law as simply an instrument of class power. Shoikhedbrod uses Hegel’s concept of Aufhebung, often translated as “sublation”, to argue that rights under communism would be transformed rather than rendered superfluous. Examining Marx’s scattered observations on post-capitalist society, he assembles an argument to demonstrate that rights would continue to serve a juridical role under communism.

In what follows, I engage with three large questions provoked by Shoikhedbrod’s book.

The first question is primarily about the distinction between rights under capitalism and rights under communism. Shoikhedbrod claims that Marx is often interpreted as having “scorn for liberal rights” (10). He refutes this interpretation by showing that Marx understood freedom as a “positive good” (25). He reminds his readers that “[a]t no point does Marx argue against the right to a free press, freedom of conscience, due process, association, movement, or freedom from arbitrary detention and oppression, nor does he oppose the rights of citizens to democratically administer their own political affairs” (61–62).

This is certainly true. I am just not sure to whom Shoikhedbrod is responding here. Marx did not argue against such rights. Indeed, it would be rather strange if he is interpreted as opposing the right not to be arbitrarily detained or the right not to be silenced by censors in the press. After all, Marx’s political activism and intellectual contributions, including Capital, imagine futures that are free from oppression and exploitation. Contra Bruno Bauer, Marx also supported the rights of Jewish people within the framework of the state. Political emancipation, he famously argued, is not the final form of human emancipation in general. Instead, it is merely the final form of emancipation within capitalism’s existing social order, or what Marx calls “the prevailing scheme of things”. [2] While the successes of political emancipation, most notably the annulment of private property as a condition for suffrage, are important, such emancipation is not ultimately emancipatory. Political emancipation does not annul private property as such. In fact, it presupposes private property as a condition for its existence. [3]

Using Marx’s important essay, “On the Jewish Question”, Shoikhedbrod argues that Marx’s call for human emancipation was not a demand for the abolition of individual rights, “as some commentators have wrongly suggested” (64). This sounds reasonable. But other than some liberal theorists who misinterpret Marxism as synonymous with totalitarianism, who is it that makes this claim? While many Marxist legal scholars have written scathing criticisms of contemporary human rights [4], not many would argue that Marx called for the abolition of rights under capitalism. If the traditional Marxist story holds, rights, like the state, will not be abolished; they will “wither away”. [5] A critique of rights does not automatically entail a call for their abolition in a capitalist society, as Shoikhedbrod rightly demonstrates using Marx’s texts. Similarly, in Anti-Dühring, Engels was critical of the human rights that came with the bourgeois revolutions. Yet he did not call for their abolition, writing that

“in a system of independent states dealing with each other on an equal footing and at approximately the same level of bourgeois development, it was a matter of course that the demand for equality should assume a general character reaching out beyond the individual state, that freedom and equality should be proclaimed human rights. And it is significant of the specifically bourgeois character of these human rights that the American constitution, the first to recognize the rights of man, in the same breath confirms the slavery of the coloured races existing in America: class privileges are proscribed, race privileges sanctioned.” [6]

The constitutional guarantees of human rights could not remedy the fact that these rights were not contradictory to white supremacy, manifested most concretely in the brutal system of slavery. Hence, the very meaning of rights under those conditions entailed the oppression and exploitation of black bodies. While the abolition of class privilege was a bourgeois demand in these revolutions, the proletarian demand was “the abolition of classes” themselves. [7]

It is important here to distinguish between rights under capitalism and rights under a future communist society. On some occasions, Shoikhedbrod collapses this distinction. This slippage is theoretically confusing. It is fairly easy for a Marxist to argue that rights have a role under capitalism, even if they are not ultimately emancipatory. The argument becomes more complicated under communism, since the content of a classless future could only be extrapolated from bits and pieces of Marx and Engels’ own work, or alternatively imagined in the fiction of writers like Ursula Le Guin and China Miéville. Leftist fantasy fiction perhaps has good answers, but as Shoikhedbrod himself recalls, Marx was wary of “writing recipes for the cook-shops of the future” (76, quoting Marx). He nonetheless argues that Marx recognizes a juridical role for rights under communism. The difficulty here is that the example he gives, the 1848 Revolution, only shows that he opposed the rollback of previously acquired bourgeois rights. Marx pushed for the affirmation of bourgeois rule to break up the remnants of feudal society in the pages of the Neue Rheinische Zeitung. [8] But during the course of the revolution, he observed that an alliance with liberal democrats was impossible. In fact, his “Eighteenth Brumaire” is a brilliant study of how the bourgeois revolutions, which ushered in liberal rights, were insufficient. The phantasmagoria of the French Second Empire represented not only an erosion of basic principles of liberal democracy, but also an attack on proletarian demands. This is not to say that Marx was opposed to freedom of the press or universal suffrage, or that he was not willing to fight for them, but simply that the two revolutions–the bourgeois and proletarian–collided while following separate paths. Hence, the fight for bourgeois rights was insufficient. “[L]et the dead bury their dead”, and get out of the farcical repetition of bourgeois revolutions. [9] As Massimiliano Tomba argues, Marx’s intention “was to represent as a farce the history of the aftermath of the Revolution of 1848 … to get rid of that ‘tradition of all the dead generations’ that ‘weighs like a nightmare [Alp] on the brain of the living’”. [10] Marx was not opposed to rekindling the “spirit of revolution”, but he was anxious of its “spectres”, which haunted the present. [11] It is not clear to me how Marx’s engagement with the 1848 Revolution supports the claim that there would be a juridical role for rights in a future communist society, as Shoikhedbrod argues. Again, Marx was simply opposed to rolling back some of the gains of bourgeois revolutions.

The second question I would like to discuss relates to the book’s engagement with the work of Evgeny Pashukanis. There have been many important criticisms of Pashukanis’ work over the years, yet he remains one of central figures in Marxist legal theory. [12] Excellent scholarship has been produced to build on the work done by Pashukanis, using Marxist feminism [13] and anti-racist Marxism. [14] The most prevalent critique of Pashukanis concerns problems of economic determinism, since, as the critique goes, he reduces the legal form to the commodity form. Skoikhedbrod argues that Pashukanis’ focus on the labour contract collapses the distinction between public and private law, and reduces all law to the commodity form. But Pashukanis himself acknowledges that he is collapsing this distinction, on purpose. As Miéville puts it, a “complex legal system regulating all levels of social life can be thrown up which appears to differentiate itself from private law, but it ultimately derives from the clash of private interests“. [15] For Pashukanis, the labour contract is exemplary for distinguishing between formal and substantive equality. This relationship is mirrored in different degrees in public law. In the principle of equality before the law, one of the most basic principles of liberal democracies, we also see the work of ideology, where class positions are cloaked under the appearance of formal equality. Rights abstract from the material conditions of their subjects, as Marxists [16], feminists [17], and critical race theorists [18] have consistently argued. Consequently, before the law and its gatekeeper, we appear as unraced, unclassed, and ungendered, when in fact we are, of course, all those “at the same time and at once”, as Himani Bannerji puts it. [19]

This is not necessarily a defence of Pashukanis in general. It is, rather, an invitation to think further about the implications of Shoikhedbrod’s argument for a communist society. Shoikhedbrod argues that since positive law predates generalized commodity exchange, it will persist despite the abolition of commodity exchange in a system of communist production (109). It is not clear what his theory of the state would then be, or what law and rights would mean, or what kinds of institutions would be needed in a communist society in order to fulfil these juridical roles. If the legal form does not presuppose capitalism, and if it has transhistorical application, then what would it look like under communism? The book does not answer this question, even partly, for answering it fully would be the work of mere speculation.

Perhaps Shoikhedbrod’s interesting engagement with Hegel’s concept of Aufhebung would be one way to think about different interpretations of the “withering away” thesis. All Marxists agree that communism and the abolition of classes will bring about a fundamental change in social relations and governance. While the state as an arbiter of social relations will disappear, some remnants of it are likely to develop, at least on a very elementary level, as some form of collective governance. I had hoped to see in the book a deeper engagement with how law and rights would take a richer form under communism. The example of the 1848 Revolution does not quite take the reader there.

The third and final question relates to the “rule of law” debate. Shoikhedbrod argues that critics of the “rule of law” wrongly maintain that “recourse to legal strategies usually results in a damaging form of depoliticization that reasserts existing hierarchies” (181). Instead, he argues that the “rule of law” depends upon “the extension and deepening of democracy, since otherwise the law is unjust and conceals the arbitrary interests of a minority” (182). It is worth considering how the “rule of law” has actually been used in concrete historical cases. The “rule of law” has long been invoked to silence and police communities, especially workers, and even more especially those among them who identify as communists. The “rule of law” also has a colonial history, one in which intervention has been deemed necessary to quell the anarchy of rioting masses. Even the legal right to strike has been used to delegitimate wildcat strikes and anti-colonial uprisings as unlawful–all in the name of the “rule of law”. [20] As such, labour rights, while constituting important gains for the working classes, have often had the effect of depoliticizing social struggles. More generally, the realm of the juridical nearly always abstracts and depoliticizes. The answer to this predicament is not to dismiss law and rights altogether, but rather to embrace them cautiously and perhaps temporarily. And, most importantly, this entails finding or creating spaces for illegality.

These discussion points do not, however, reduce from the importance of Shoikhedbrod’s excellent book, which is particularly timely given that new waves of authoritarianism are emerging even in states that have long been described as liberal democracies and presumed to be immune from such developments. Suddenly, defending the gains of the old bourgeois revolutions seems to be necessary once more. While rights now have a bad name in much left legal scholarship, radical movements continue to invoke and use them in litigation and organizing. There is a reason for this, and Marxists need to grapple with its reality more directly and seriously. Revisiting Marx’s Critique of Liberalism has helped me to ground those struggles in Marx’s own writings. I had the opportunity to hear a much earlier version of Igor’s argument just under a decade ago, when we were both graduate students, and I am thrilled to see that it has now developed into this important piece of scholarship.

Mai Taha is an assistant professor of law at the American University in Cairo.

[1] Igor Shoikhedbrod, Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights (Cham, Switzerland: Palgrave Macmillan, 2019).

[2] Karl Marx, “On the Jewish Question” [1843], in Karl Marx, Early Writings, trans. Rodney Livingstone and Gregor Benton (Harmondsworth: Penguin, 1990) 211, at 221.

[3] Marx, “Jewish Question”.

[4] Jessica Whyte, The Morals of the Market: Human Rights and the Rise of Neoliberalism (London: Verso, 2019); Susan Marks, “Human Rights and Root Causes” (2011) 74 Modern Law Review 57; Paul O’Connell, “The Death of Socio-Economic Rights” (2011) 74 Modern Law Review 532.

[5] On the “withering away” thesis, see, e.g., Frederick Engels, “Socialism: Utopian and Scientific” [1880], in Robert C. Tucker, The Marx-Engels Reader, 2nd ed. (New York: W. W. Norton, 1978) 713. Shoikhedbrod also engages with this theory in his critique of Pashukanis.

[6] Frederick Engels, Anti-Dühring: Herr Eugen Dühring’s Revolution in Science (Moscow: Foreign Languages Publishing House, 1962 [1877]), 146 (original emphasis).

[7] Engels, Anti-Dühring, 147 (original emphasis).

[8] Massimiliano Tomba, Marx’s Temporalities (Leiden: Brill, 2010), 41.

[9] Karl Marx, “The Eighteenth Brumaire of Louis Bonaparte” [1852], in Karl Marx, Later Political Writings, ed. Terrell Carver (Cambridge: Cambridge University Press, 1996) 31, at 34.

[10] Tomba, Marx’s Temporalities, 37.

[11] Marx, “The Eighteenth Brumaire”, 33.

[12] See, e.g., Paul H. Hirst, On Law and Ideology (London: Macmillan Press, 1979), 106–22; Scott Newton, Law and the Making of the Soviet World: The Red Demiurge (New York: Routledge, 2015), 107–12.

[13] Ruth Fletcher, “Legal Form, Commodities and Reproduction: Reading Pashukanis” in Maria Drakopoulou (ed), Feminist Encounters with Legal Philosophy (New York: Routledge, 2013) 138.

[14] Robert Knox, “Valuing Race? Stretched Marxism and the Logic of Imperialism” (2016) 4 London Review of International Law 1; and Brenna Bhandar, Colonial Lives of Property: Law, Land and Racial Regimes of Ownership (Durham: Duke University Press, 2018), 98–99.

[15] China Miéville, Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2005), 86 (original emphasis).

[16] Brenna Bhandar, “Property, Law, and Race: Modes of Abstraction” (2014) 4 U.C. Irvine Law Review 203.

[17] Sara Ahmed, Differences that Matter: Feminist Theory and Postmodernism (Cambridge: Cambridge University Press, 1998), 36.

[18] Kimberlé Williams Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law” (1988) 101 Harvard Law Review 1331.

[19] Himani Bannerji, Thinking Through: Essays on Feminism, Marxism and Anti-Racism (Toronto: Women’s Press, 1995), 12.

[20] Elsewhere I have written about this in a colonial context; see Mai Taha, “Reading ‘Class’ in International Law: The Labor Question in Interwar Egypt” (2016) 25 Social & Legal Studies 567.