[This is the second in a series of posts comprising a symposium on Igor Shoikhedbrod’s recently published book, Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights (2019). For the first post, authored by Mai Taha, see here.]
In his wonderful book, Revisiting Marx’s Critique of Liberalism [1], Igor Shoikhedbrod makes a strong case for a return to Marx’s “reflections on the antinomy of equal rights in capitalist democracies”, so that we may move beyond the “narrow and contradictory horizon of liberal justice”. [2] By returning to Marx, Shoikhedbrod does not wish merely to restate Marx’s critique of liberalism. Rather, he wants to put an end to a particular interpretation of Marx, shared by many Marxists and liberals alike, that construes Marx’s position as an outright dismissal of the “liberal ideals of freedom and equality as ideological mystifications”. [3] In place of this interpretation, Shoikhedbrod argues that rather than seeking to transcend liberal rights and liberties, Marx’s “dialectical approach pointed to the transformation of civil and political rights on the basis of a communist mode of production”. [4]
Shoikhedbrod frames Marx’s critique of liberalism as an attempt to demonstrate how liberal ideals “are subverted by capitalist economic arrangements and the prevailing system of property relations”. [5] As he himself has observed elsewhere, Shoikhedbrod’s aim is to re-Hegelianize the interpretation of Marx’s views on justice, legality, and rights. [6] Shoikhedbrod makes his case by drawing from all periods of Marx’s writing, thereby building a compelling argument that there is a clear trajectory in Marx’s thought, notwithstanding the numerous and well-known discontinuities.
Shoikhedbrod divides his book into two parts. The first part, comprising a first introductory chapter and two substantive chapters, is Shoikhedbrod’s reconstruction and defence of Marx’s position against subsequent interpretations that suggest his vision of communist society does not have room for anything resembling liberal rights or legality. The second part of the book, made up of two substantive chapters and a concluding chapter, situates Shoikhedbrod’s interpretation of Marx in the context of contemporary Marxist, critical, and liberal theories of legality and rights.
Following a concise and helpful introductory chapter, Chapter Two, entitled “Situating Marx with Respect to Justice and Right”, details the evolution of Marx’s position regarding legality and rights. In broad terms, according to Shoikhedbrod, Marx’s early critique of bourgeois legality (circa 1842) uses a Hegelian concept of “rational law” [7] as a normative standard against which to measure positive law and rights. [8] Eventually, as is well known, Marx comes to believe that positive law is an expression of the “material conditions of life” within a given “mode of production”, rather than a more or less distorted expression of rational law. [9] This means that for any given mode of production there is a “specific form of the state, of morality, and of right”. [10] Shoikhedbrod argues that Marx uses a given mode of production as the standard of justice against which to evaluate positive laws. As Shoikhedbrod puts it, “Marx views the mode of production as the ultimate foundation for right”. [11] That said, to avoid outright relativism, Shoikhedbrod shows that Marx nonetheless appeals to a “higher standard”, a transhistorical one, that “is based on the degree to which human freedom is realized or hindered across various modes of production”. [12] Another way of putting this is that, in order for Marx to even have a reason to critique capital or any mode of production in the first place, given his mode of production view of justice, he needs a meta-standard as an overall guide.
Chapter Three consists of Shoikhedbrod’s argument for the thesis that, despite being highly critical of “the right to capitalist private property … Marx took the recognition of equal rights as the starting point for his assessment of modern freedom”. [13] Following a close look at Marx’s distinction between “political rights” and “so-called rights of man”, the latter being subject to heavier criticism, Shoikhedbrod argues that, ultimately, for Marx bourgeois rights end up masking domination and exploitation by having “not gone nearly far enough in achieving human emancipation”. [14] Beyond this Shoikhedbrod’s analysis of Marx’s critique of bourgeois legality in the Grundrisse, demonstrates that according to Marx such legality fails to deliver according to its own standard. [15] After his reconstruction of Marx’s negative critique of bourgeois rights, Shoikhedbrod spends the remainder of the chapter making a preliminary positive case for the view that Marx “sees these [bourgeois] rights as preconditions for communist society”, relying heavily on the relevance of Hegel’s concept of Aufhebung to show that Marx did not think that a transition to communism would negate or transcend rights. [16]
In Chapter Four, Shoikhedbrod shifts tactics, moving from his interpretation of Marx’s “functional” account of rights to constructing Marx’s “normative” case for communist legality that would explain “why legality has moral value that is independent of the class-based social structures”. [17] This chapter rightfully frames Evgeny Pashukanis’ commodity form theory of law as the main foil against Shoikhedbrod’s view that legality and communism are compatible. While presenting Pashukanis’ theory as a “definite advance over class-instrumentalist theories of law” [18], Shoikhedbrod argues against Pashukanis’ well-known view that the law would be replaced by “technical regulation” in communist society. [19] According to Shoikhedbrod, given that for Pashukanis “the legal form rises and falls with the commodity form” [20], Pashukanis cannot account for Marx’s historical understanding of legality, which postulates the possibility and actual existence of laws existing according to different modes of production. [21] Summing up, Shoikhedbrod writes as follows:
“In contrast to Pashukanis, Marx’s understanding of law is not confined to transactions between self-interested market actors. Positive law predates generalized commodity exchange and will survive the abolition of commodity exchange under associated or communist production.” [22]
Entwined with this apparent deficiency in Pashukanis’ understanding of the historical nature of law, Shoikhedbrod claims that the concept of technical regulation does not provide Pashukanis with a “normative basis for evaluating the validity of means or ends” [23], leading to potentially devastating consequences for Marx’s critique of capital, especially in light of Marx’s prioritization of human freedom as a transhistorical normative standard of evaluation (described above). In place of the “‘withering away’ of law tout court” [24], Shoikhedbrod builds a framework for communist legality consistent with Marx’s views of a “radical form” of “mutual recognition” and a “socialized process of production” [25] that nonetheless leaves room for a limited amount of coercion, as long as it is disassociated from the “external and coercive character of the state” [26]. Near the end of Chapter Four, Shoikhedbrod draws on Georg Lukács’ The Ontology of Social Being [27] to sketch how communist legality requires a far more robust, materially grounded ethics than Pashukanis’ technical regulations can provide. [28]
Having reconstructed an interpretation of Marx that leaves room for a positive assessment of law, in Chapter Five, Shoikhedbrod puts his interpretation in dialogue with contemporary theorists. He argues that many contemporary critics and allies of Marx, such as John Rawls, Jürgen Habermas, Axel Honneth, and Nancy Fraser, rely on the “shared assumption concerning Marx’s dismissal of justice and rights as such”. [29] It is precisely this assumption that Shoikhedbrod has dismantled in the first part of his book. Given Shoikhedbrod’s re-interpretation of Marx, their critiques largely miss their mark. More importantly, Shoikhedbrod goes to some effort to show that each of these thinkers, given their shared recognition of “the importance of restructuring property relations” [30], might benefit from engaging with Shoikhedbrod’s Marx. [31]
In Chapter Six, Shoikhedbrod makes an appeal to current Marxists to “reconsider the rule of law and the rational kernel of constitutionalism as bridges to a democratic socialist alternative”. [32] He suggests examining Marx’s interest in constitutionalism in comparison with E. P. Thompson’s jarring claim, in Whigs and Hunters, that the rule of law is an “unqualified human good”. [33] While Shoikhedbrod is careful to note that “recourse to the rule of law and the constitution will not produce the radical transformation of property relations sought by Marxists” [34], he nonetheless maintains that these can be used as tools in “anti-capitalist struggles and become necessary components in the quest for human emancipation”. [35]
Shoikhedbrod makes a compelling case for how the tension between legality and revolution might be resolved. But in my opinion, Shoikhedbrod’s efforts may have been somewhat hamstrung by another tension he identifies (but does not discuss directly at length). This second–underlying–tension is between what Shoikhedbrod identifies in his concluding chapter as Marx’s “two seemingly conflicting methodological aims”: a “social scientific analysis” of capital, and a “value-laden critique of exploitation and class domination”. [36] Although Shoikhedbrod does not exclude Marx’s scientific methodology, more prevalent in Marx’s later works, he rightfully emphasizes the need to identify the continuous elements in Marx’s approach to law across his body of work. This leads him to focus primarily on Marx’s value-laden critique. In itself, this is not a flaw, given that a book of this significance will be faced with certain limitations, many of which Shoikhedbrod takes care to identify in his conclusion. [37] However, I think that this limitation, coupled with Shoikhedbrod’s insufficient emphasis of the distinction between normativity writ large (broadly, the ascription of correctness or incorrectness to practices, including concept use, within a social setting or according to a given standard that in part determines the content of the given practices) [38] and other types of normativity like bourgeois morality and normative ethics, raises a few important issues about his critique of Pashukanis, on the one hand, and his qualified endorsement of Thompson, on the other.
Marx uses the logic of bourgeois normativity to critique the capitalist mode of production, on its own terms and in accordance with its own standards. [39] But he also deploys another type of normativity, based on what I called above his meta-standard, to critique a mode of production outside of its own conceptions of justice (e.g. bourgeois justice in the case of the capitalist mode of production). Both of these types of normative critique fall under the genus of normativity writ large. But they are different species. Let us call them mode of production or MOP normativity (e.g. capitalist normativity) and meta-normativity (i.e. the normativity issuing from Marx’s transhistorical meta-standard of human freedom, as described by Shoikhedbrod [40]). (For the purposes of this review, I will simply use “capitalist normativity” or “communist normativity” in place of “the MOP normativity of capitalism/communism”.) Each of these normativities is governed by its own standards. For example, capitalist normativity is governed by the standards of the capitalist mode of production, whereas Marx’s meta-normativity is governed by his meta-standard of human freedom. While Shoikhedbrod is clearly aware of this distinction, it remains largely implicit in his work (and he sometimes seems to lose sight of its importance).
When Shoikhedbrod states that “[c]ommunist legality is normatively warranted because it would enable the free development of each individual in a way that is consistent with the free development of all individuals” [41], he rightfully argues, tacitly at least, that the communist MOP would be normatively warranted according to both communist normativity and meta-normativity. Shoikhedbrod also demonstrates how Marx critiques capitalism for failing to accord to capitalist normativity–for undermining its own standard of “formal equality and freedom of workers” in “capitalist production” [42]–and also failing to accord with the requirements of meta-normativity [43]. In such cases, the distinction between MOP normativity and meta-normativity is left implicit, without raising any explicit difficulties. However, Shoikhedbrod also gives his qualified endorsement to Thompson’s view of law as an unqualified good. [44] Here he stops using the distinction between MOP normativity and meta-normativity, even tacitly. Bringing this distinction back into play would require that Shoikhedbrod add further limitations to his already limited, yet important, endorsement of Thompson.
It is my view that Thompson’s Whigs and Hunters ought to be viewed primarily as a critique of bourgeois law operating at the level of capitalist normativity. Importantly, the passages that Shoikhedbrod cites from Thompson’s book confirm this claim. For example, Shoikhedbrod cites the following passage:
“If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just. It cannot seem to be so without upholding its own logic and criteria of equity.” [45]
With respect to this passage, Shoikhedbrod claims that “the rule of law offers a benchmark for assessing and criticizing unjust legislation”. [46] But he does not explicitly state that this type of assessment and criticism would accord with capitalist normativity as such, since the benchmarks provided by the rule of law under capitalism are governed by capitalist normativity. To be fair, both Shoikhedbrod and Thompson are right to point to the fact that law provides a site of contestation, however constrained, for the working class [47]–although it also equally fulfills this function for the capitalist class. However, notwithstanding Marx’s own support for this type of working-class contestation in his writing on the English Factory Acts and elsewhere [48], it should be clear that, because such contestation occurs in the space of capitalist normativity, it is constrained according to the limits of capitalism. It is precisely capitalist normativity that creates the conditions for the possibility of contestation in the first place. To this end, although Shoikhedbrod provides reasons to support Thompson’s positive assessment of the law as a mediator of class interests, effectively preventing brute class instrumentalism [49], he does not draw out the implications of the fact that capitalism is itself premised on this mediating role of law. Without formal equality and the ability to buy and sell labour as commodities–enforced through the rule of law–capitalism would cease to function as capitalism. Rather than framing law as a good, or even a qualified good, it might be more apt to call it a necessary condition of capitalism or perhaps even a necessary evil.
Thompson’s analysis concerns the strong link between the critique of law based on capitalist normativity and the critique of positive law in general. For example, Shoikhedbrod claims that “Thompson’s broader theoretical point is that the rule of law offers a benchmark for assessing positive law. Bad laws generate condemnation because they are perceived as having violated shared legal norms.” [50] It is true that Thompson provides some resources for critiquing positive law, but they are resources that must be deployed within the constraints of bourgeois legality, often molded in the crucible of capitalism itself. More important, however, is Thompson’s emphasis on the critique of positive law according to capitalist normativity. This reveals his emphasis on law as it appears or manifests, largely to the neglect of that which expresses law, which, as Shoikhedbrod argues throughout his book, is the mode of production in question, in this case capitalism. In this way, Thompson’s approach leads him to view law primarily as the “mediation” [51] of class power, rather than also as the result of class struggle. His view of law as an “unqualified human good” [52] rests on the reification of law.
My point is not to suggest that Thompson’s analysis of law would have been better served by simply orienting himself according to Marx’s meta-normativity. Rather by leveraging Marx’s tools for the “social-scientific analysis” of capital [53] and using Marx’s meta-normativity as a guiding reference point, Thompson might have provided a critical edge to his paradoxically cautious and over-optimistic conclusion, looking beyond the surface of law to its “roots … the material conditions of life”. [54] Barring this, given Shoikhedbrod’s reference to the tension between Marx’s social-scientific aims and his normative aims, it would be useful for Shoikhedbrod to drive this point home and perhaps better resolve the apparent antinomy between them.
It is important to note that Marx’s scientific analysis–his approach to analyzing modes of production, forces of production, relations of production, labour, class struggle, the commodity form, and so on–allows him to sidestep MOP normativity, without claiming to be anti-normative tout court. In a Hegelian manner [55], Marx’s scientific use of concepts allows him to connect the mode of production which expresses a particular phenomenon, like law, to the phenomenon itself, thereby forming a relation between appearance and essence. [56] With this in mind, I wish to suggest that, without fully endorsing Pashukanis, Shoikhedbrod could have nonetheless strengthened his interpretation of Marx by drawing on elements of Pashukanis’ attempt to adhere closely to the social-scientific aspects of Marx’s methodology.
For example, as Shoikhedbrod summarizes in his book, the starting premise of Pashukanis’ theory of law is that the commodity form is closely related to the legal form. [57] To this end, Pashukanis claims in direct reference to Marx that “[i]n as much as the wealth of capitalist society appears as ‘an immense collection of commodities’, so this society itself appears as an endless chain of legal relations”. [58] Whereas Pashukanis begins his investigation by using Marx’s social-scientific method, Thompson seems to flout it. In fact, Pashukanis invites a direct critique of Thompson’s approach when he writes that an “aggregate of norms obtains real significance only because of those relationships which are conceived of as having arisen and, in fact, have arisen according to these rules …. In material reality, a relationship has primacy over a norm.” [59] Despite this prima facie correspondence between Marx’ and Pashukanis’ methodologies and starting-points, Shoikhedbrod raises a number of arguments against Pashukanis that are worthy of attention. I will focus specifically on Shoikhedbrod’s critique of Pashukanis’ apparently “static and ahistorical conception of law” and his own “‘withering away’ thesis” [60], since these seem to be the most crucial for Shoikhedbrod’s qualified endorsement of Thompson.
Shoikhedbrod claims that, for Pashukanis, “the legal form rises and falls with the commodity form”. [61] Elaborating on this, Shoikhedbrod states, “[t]he adoption of Pashukanis’ commodity exchange theory renders Marx’s discussion of ‘new’ and ‘old’ laws utterly incoherent, and this is because Pashukanis subscribes to a static and ahistorical conception of law whereas Marx does not”. [62] However, there are two points to note here. First although Pashukanis does claim that “the existence of a commodity and money economy is the basic precondition” [63] of law and the legal subject, he does not claim that the specific existence of a capitalist commodity and generalized commodity exchange are preconditions for law. As China Miéville argues, while Pashukanis does not develop a coherent historical narrative of the legal form, a “history of the development of the legal form can be developed using Pashukanis’ theory”. [64] Drawing from the third volume of Capital, Miéville shows how Pashukanis’ commodity-form theory is consistent with Marx’s account of the transition from “pre-capitalist forms of commodity exchange” to a “generalised form that permeates every level of society given the universalization of market relations”. [65]
Second, and in addition to the first point, Matthew Dimick argues that
“[a]lthough Pashukanis does not explicitly state it, one gets the sense that the differentiation and opposition of interests to which he refers exists not only under capitalism, but in any type of class society in which forms of private property, and hence private interests, obtain.For this reason, the ‘juridical factor’ in social life appears wherever private exchange or private property exist, in however rudimentary a form.” [66]
These two points make a compelling case that, although Pashukanis’ views the legal form of law as having a transhistorical quality contingent on the activity of exchanging commodities for money, the legal form’s generalization follows the generalization of commodity exchange. While the transhistorical aspect of Pashukanis’ legal form is clearly Shoikhedbrod’s target, it does not seem that his rejection of Pashukanis fully considers the historical dimension of the legal form. In this sense, it seems that Shoikhedbrod’s characterization of Pashukanis’ theory of law as “ahistorical” and “static” is an exaggeration based on an incomplete reconstruction of Pashukanis’ argument. More to the point, Pashukanis can make sense of “Marx’s discussion of ‘new’ and ‘old’ laws” [67] by comparing the level at which commodity exchange is generalized within different modes of production.
Shoikhedbrod is correct to claim that, according to Pashukanis, law will wither away in communism. [68] As Pashukanis puts it, “[t]he withering away of the categories of bourgeois law will, under these conditions, mean the withering away of law altogether, that is to say the disappearance of the juridical factor from social relations”. [69] In place of law, Pashukanis argues that, since the “basic prerequisite for legal regulation is therefore the conflict of private interests”, a communist society will operate according to “technical regulation”. [70] For Shoikhedbrod and others, this appeal to technical regulation raises a number of red flags. [71] Specifically Shoikhedbrod argues that
“[t]he divergence between legal regulation and technical regulation mirrors the conceptual difference between practical and instrumental reason in Kantian morality. While a purely technical account of regulation may point to the most efficient means for realizing collective ends, it does not offer a normative basis for evaluating the validity of means or ends.” [72]
In this way, Shoikhedbrod argues that there is a normative vacuum in Pashukanis’ theory of communist legality. On this view, by rejecting juridical relations altogether, Pashukanis is throwing out the baby (e.g. Marx’s positive conception of “political rights” of emancipation [73]) along with the bathwater (e.g. Marx’s negative view of the “so-called rights of man” [74]). Although it is correct to note that Pashukanis’ notion of technical regulation is, at best, sketchy, I think Shoikhedbrod’s charge that it is bereft of normativity is wide of the mark and overlooks the distinction between capitalist normativity and meta-normativity. First, it is crucial, as Miéville notes, to quickly set aside the notion that Pashukanis’ theory necessarily reinforces totalitarian regimes, such as Stalinism, since “[i]t was after all, the strengthening of law, rather than technical regulation, which characterized Stalinism, and made the commodity-form theory of law inimical to it”. [75] Second, it is important to highlight the role of the admittedly vague concept of “unity of purpose” which Pashukanis characterizes as the “prerequisite for technical regulation”. [76] Dimick provides a useful characterization of unity of purpose , reconstructing what Pashukanis is striving for, by contrasting what the latter describes as regulation’s “unity of purpose” with the form that regulation takes under capitalism, an “administrative order” [77] He states that “[a]n order, administrative or otherwise, immediately implies some sort of duty; to speak of a duty, in turn, is only valid whether there is the potential for the opposition of interests, not their unity”. [78] In this way, Pashukanis provides a sketch of how his theory aligns with both communist normativity (i.e. the abolition of the commodity form) and Marx’s meta-normativity (i.e. the replacement of law with unity of purpose).
In this sense, the concept of unity of purpose implies that technical regulation, in Pashukanis’ sense, cannot be imposed by an external entity, such as the state, even when state power is mediated by law. While Shoikhedbrod concurs with Pashukanis that Marx wished to abolish the “external state”, he argues that it does not entail that a communist society would be “devoid of rights” and, importantly, be entirely free of “coercion”. [79] In fact, he relies on support from Thompson to argue that the state’s law will reign in the state’s power. While, as I mentioned earlier, this view has some prima facie legitimacy it ultimately rests on the reification of law. Firstly, as Dimick points out,
“Reverent intonations to rule of law’s transhistorical significance obscure its premise: the existence of an organisation wielding violence and therefore in need of restraint. Legitimate violence is still violence.By all means, state violence should be restrained by the rule of law. But the more fundamental aim is to build a society without violence.” [80]
Law as a mediator of class power or state violence implies a certain degree of externality, a reification or expression of material conditions, which Shoikhedbrod seems to accept grudgingly [81]. In doing so, however, he misses the force of Pashukanis’ withering away thesis. By largely remaining within the idiom of Marx’s social-scientific analysis, Pashukanis makes a strong link between the commodity form and the legal form. On his account, both are expressions of underlying material conditions within different modes of production. The notion of law as a mediator is problematic for Pashukanis not because law can constrain class power, but because the very fact of law’s role as mediator is an expression of a mode of production generated through class struggle and the opposition of interests that necessarily exist in “any type of class society in which forms of private property, and hence private interests, obtain”. [82] Therefore, according to Pashukanis, once the commodity form is obsolete, the state and law will also become obsolete.
Without committing to a full-throated endorsement of Pashukanis’ commodity-form theory of law, it is important to note that it excels where Thompson’s unqualified endorsement of the rule of law proves deficient. Whereas Thompson remains wedded to an internal critique of capitalist normativity without having significant recourse to Marx’s social-scientific methodology, Pashukanis makes the social-scientific method, grounded in Marx’s meta-normativity, a necessary component of his critique of capitalist normativity. Once these advantages are granted to Pashukanis, one must also question whether Shoikhedbrod is still entitled to claim that “Marx’s dialectical approach pointed to the transformation of civil and political rights on the basis of a communist mode of production” [83], by which he means, in light of his appraisal of Thompson, that there would be rights and laws that would significantly resemble certain bourgeois rights and laws, including their mediating role.
Given that Marx’s Aufhebung clearly indicates the abolition of the commodity form under communism, it would be unsurprising to learn that other bourgeois practices and concepts would also be abolished rather than transformed. Clearly, not everything is preserved, if only in a transformed state, through the dialectical process. Furthermore, since Pashukanis develops a strong link between the commodity form and the legal form under conditions of generalized commodity exchange, Pashukanis has an at least prima facie social-scientific case that the legal form, as such, would be abolished in Marx’s Aufhebung. Put differently, one worries that Shoikhedbrod’s reconstruction of Marx’s Aufhebung of law is too closely aligned with Thompson’s reified conception of right qua bourgeois positive law and does not draw enough from the notion of right qua unity of purpose achieved through class struggle, as outlined by Pashukanis.
Despite these tentative criticisms, Shoikhedbrod’s Revisiting Marx’s Critique of Liberalism provides one of the most thorough and well-argued appraisals of Marx’s understanding of justice, legality, and rights available. Moreover, as I hope my criticisms indicate, I believe that Shoikhedbrod’s argument, with the exception of a few amendable conclusions, remains largely intact. Shoikhedbrod lays out the means to bridge the apparent antinomy between Marx’s value-laden critique and social-scientific analysis. This is a major accomplishment in and of itself. That said, it is my hope that in the future, Shoikhedbrod’s interpretation of Marx is more thoroughly put to work using Marx’s social-scientific analysis of capital in order to diffuse this often seemingly irresolvable tension.
Acknowledgements: I would like to thank Matthew Dimick for his time and insightful feedback regarding a draft version of this review, as well as for the opportunity to draw from his forthcoming chapter on Pashukanis. I would also like to thank Jeremiah Heinrichs for spending hours discussing Marxism and legality with me. Finally, I wish to thank the editors at Legal Form for their invaluable work editing my submission and hosting such an important resource.
Dom Taylor will be commencing doctoral studies in law and legal studies at Carleton University in Fall 2020.
___________________
[1] Igor Shoikhedbrod, Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality, and Rights (Cham: Palgrave Macmillan, 2019).
[2] Shoikhedbrod, Revisiting Marx’s Critique, 214.
[3] Shoikhedbrod, Revisiting Marx’s Critique, 214.
[4] Shoikhedbrod, Revisiting Marx’s Critique, 208 (original emphasis).
[5] Shoikhedbrod, Revisiting Marx’s Critique, 214.
[6] Igor Shoikhedbrod, “Re-Hegelianizing Marx on Rights“, (2019) 40 Hegel Bulletin 281.
[7] Shoikhedbrod, Revisiting Marx’s Critique, 28.
[8] Shoikhedbrod, Revisiting Marx’s Critique, 28. Shoikhedbrod clarifies that although rational law bears similarities to natural law, Marx’s conception of rational law is derived from Hegel and is “thoroughly secular and humanistic in character”.
[9] Shoikhedbrod, Revisiting Marx’s Critique, 35. Shoikhedbrod is careful to distinguish his emphasis on the role of modes of production from outright economism. In opposition to narrow economism, he argues that “Marx and Engels conceive the mode of production instead as a broader window into how human beings reproduce themselves in the world through their labour and the way in which their labour is expressed in philosophical, juridical, and aesthetic terms at different points of historical development” (36). See Patrick Murray, The Mismeasure of Wealth: Essays on Marx and the Social Form (Leiden: Brill, 2016), 1–51.
[10] Shoikhedbrod, Revisiting Marx’s Critique, 37.
[11] Shoikhedbrod, Revisiting Marx’s Critique, 43.
[12] Shoikhedbrod, Revisiting Marx’s Critique, 45.
[13] Shoikhedbrod, Revisiting Marx’s Critique, 55.
[14] Shoikhedbrod, Revisiting Marx’s Critique, 66.
[15] Shoikhedbrod, Revisiting Marx’s Critique, 73.
[16] Shoikhedbrod, Revisiting Marx’s Critique, 55, 86–88.
[17] Shoikhedbrod, Revisiting Marx’s Critique, 97–98.
[18] Shoikhedbrod, Revisiting Marx’s Critique, 99.
[19] Shoikhedbrod, Revisiting Marx’s Critique, 104.
[20] Shoikhedbrod, Revisiting Marx’s Critique, 108.
[21] Shoikhedbrod, Revisiting Marx’s Critique, 109.
[22] Shoikhedbrod, Revisiting Marx’s Critique, 109.
[23] Shoikhedbrod, Revisiting Marx’s Critique, 110.
[24] Shoikhedbrod, Revisiting Marx’s Critique, 109.
[25] Shoikhedbrod, Revisiting Marx’s Critique, 116.
[26] Shoikhedbrod, Revisiting Marx’s Critique, 124.
[27] Shoikhedbrod, Revisiting Marx’s Critique, 124.
[28] Shoikhedbrod, Revisiting Marx’s Critique, 127.
[29] Shoikhedbrod, Revisiting Marx’s Critique, 137.
[30] Shoikhedbrod, Revisiting Marx’s Critique, 137.
[31] Shoikhedbrod, Revisiting Marx’s Critique, 174.
[32] Shoikhedbrod, Revisiting Marx’s Critique, 182.
[33] Shoikhedbrod, Revisiting Marx’s Critique, 185.
[34] Shoikhedbrod, Revisiting Marx’s Critique, 201.
[35] Shoikhedbrod, Revisiting Marx’s Critique, 201.
[36] Shoikhedbrod, Revisiting Marx’s Critique, 213.
[37] Shoikhedbrod, Revisiting Marx’s Critique, 210–13.
[38] See Robert B. Brandom, A Spirit of Trust: A Reading of Hegel’s Phenomenology (Cambridge: Belknap Press of Harvard University Press, 2019), 9–12, for an overview of the role of normativity in Kant and Hegel.
[39] Shoikhedbrod, Revisiting Marx’s Critique, 73.
[40] Shoikhedbrod, Revisiting Marx’s Critique, 45.
[41] Shoikhedbrod, Revisiting Marx’s Critique, 13.
[42] Shoikhedbrod, Revisiting Marx’s Critique, 72.
[43] Shoikhedbrod, Revisiting Marx’s Critique, 76.
[44] Shoikhedbrod, Revisiting Marx’s Critique, 186.
[45] Shoikhedbrod, Revisiting Marx’s Critique, 184.
[46] Shoikhedbrod, Revisiting Marx’s Critique, 184.
[47] Shoikhedbrod, Revisiting Marx’s Critique, 185–86.
[48] Shoikhedbrod, Revisiting Marx’s Critique, 187.
[49] Shoikhedbrod, Revisiting Marx’s Critique, 185.
[50] Shoikhedbrod, Revisiting Marx’s Critique, 185.
[51] E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (London: Allen Lane, 1975), 266.
[52] Thompson, Whigs and Hunters, 267.
[53] Shoikhedbrod, Revisiting Marx’s Critique, 213. See Frederick Engels, Socialism: Utopian and Scientific, trans. Edward Aveling (Chicago: Charles H. Kerr & Company, 1908), 94–139.
[54] Cited in Shoikhedbrod, Revisiting Marx’s Critique, 35.
[55] Georg W. F. Hegel, The Science of Logic, trans. George Di Giovanni (Cambridge: Cambridge University Press, 2010), 339 (§ 243). Karen Ng, “From Actuality to Concept in Hegel’s Logic” in Dean Moyar (ed), The Oxford Handbook of Hegel (Oxford: Oxford University Press, 2017), 273, provides a succinct description of Hegel’s understanding of the relation between essence and appearance: “[O]n the one hand, essence must appear, essence must manifest itself in appearances; on the other hand, appearances themselves are nothing but the manifestations of essence. In determining this essential relation between the inner and the outer in terms of manifestation, Hegel begins to move away from the dualistic framework presumed in the very distinction between essence and appearance.”
[56] See Helena Sheehan, Marxism and the Philosophy of Science: A Critical History (Atlantic Highlands: Humanities Press, 1993), 21–66, for a detailed analysis of how Marx and Engels’ social-scientific method differs from “positivist” scientific methodology.
[57] Shoikhedbrod, Revisiting Marx’s Critique, 101.
[58] Evgeny Bronislavovich Pashukanis, The General Theory of Law and Marxism, trans. Barbara Einhorn (New Brunswick: Transaction Publishers, 2002), 85.
[59] Pashukanis, General Theory, 87.
[60] Shoikhedbrod, Revisiting Marx’s Critique, 99, 109.
[61] Shoikhedbrod, Revisiting Marx’s Critique, 108.
[62] Shoikhedbrod, Revisiting Marx’s Critique,109.
[63] Shoikhedbrod, Revisiting Marx’s Critique, 93.
[64] China Miéville, Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2006), 97 (original emphasis).
[65] Miéville, Between Equal Rights, 97.
[66] Matthew Dimick, “Evgeny Pashukanis’ Commodity-Form Theory of Law” in Paul O’Connell and Umut Ӧzsu (eds), Research Handbook on Law and Marxism (Cheltenham: Elgar, 2021, forthcoming), 11–12.
[67] Shoikhedbrod, Revisiting Marx’s Critique, 109.
[68] Shoikhedbrod, Revisiting Marx’s Critique, 109.
[69] Pashukanis, General Theory, 61.
[70] Pashukanis, General Theory, 81.
[71] Shoikhedbrod, Revisiting Marx’s Critique, 110. See Dimick, “Evgeny Pashukanis”, 38–39, for an overview of “trenchant criticisms” of Pashukanis’ ‘withering away’ thesis.
[72] Shoikhedbrod, Revisiting Marx’s Critique, 110.
[73] Shoikhedbrod, Revisiting Marx’s Critique, 59–60.
[74] Shoikhedbrod, Revisiting Marx’s Critique, 63–66.
[75] Miéville, Between Equal Rights, 99. For a similar point, see Dimick, “Evgeny Pashukanis”, 38: “[O]ne has to remember that Pashukanis was ‘liquidated’ precisely because his withering away thesis was incompatible with Stalin’s bureaucratic-collectivist objectives. Pashukanis was opposed to the idea of ‘proletarian law’, but proletarian law is exactly what Stalin needed to justify the massive deployment of coercion in his bureaucratic state-build-ing project. The argument that Pashukanis’ rejection of proletarian law paved the way to Stalin’s ‘jurisprudence of terror’ is therefore not entirely persuasive.”
[76] Pashukanis, General Theory, 81.
[77] Dimick, “Evgeny Pashukanis”, 39.
[78] Dimick, “Evgeny Pashukanis”, 39.
[79] Shoikhedbrod, Revisiting Marx’s Critique, 82.
[80] Dimick, “Evgeny Pashukanis”, 43–44.
[81] Shoikhedbrod, Revisiting Marx’s Critique, 82–83.
[82] Dimick, “Evgeny Pashukanis”, 11.
[83] Shoikhedbrod, Revisiting Marx’s Critique, 208.
Legal Form 