Against the Grain — Amy Bartholomew

[This is the third 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). For the first two posts, authored by Mai Taha and Dom Taylor respectively, see here and here.]

In light of contemporary trends in radical legal and political theory that reject or at best grudgingly accept rights, legality, and constitutionalism, Igor Shoikhedbrod’s new book, Revisiting Marx’s Critique of Liberalism, is very important indeed. [1] It is, in fact, a smashing book, both in the sense of being original and wonderfully argued and in the sense of demolishing the simplistic dogma that has accompanied the reception of Marx’s (and Engels’) scattered comments on rights, legality, and the “withering away of the state” under communism. It presents a fundamental challenge to these trends by reconstructing Marx’s treatment of law and arguing that Marx rejected neither rights nor legality (under capitalism or communism). It also makes an affirmative case for the importance of Marxist theory, with its commitment to rights and legality, in the twenty-first century, the age of authoritarian “financialized capitalism” (108). In doing so, Shoikhedbrod shreds shibboleths that have long prevented the scholarly left from developing a serious interest in rights and legality, to its great disadvantage.

Shoikhedbrod does this on the basis of a very thorough review and sensitive reconstruction of Marx’s work, which shows that Marx embraced legal struggles, that he was critical of but did not reject the liberal “rights of man” and rights of citizenship, and that he showed an interest in constitutionalism and the “rule of law” for working-class struggles in capitalist democracy (and in communist democracy itself). Drawing on Marx’s theoretical works, as well as his speeches, journalistic writings, and legal defenses, Shoikhedbrod argues that Marx’s move from his Hegelian youth, in which he adopted an “abstract and transhistorical view of rational law”, to a post-Hegelian materialism, in which he sought to conceive law and rights anew, demonstrates that “different standards of right apply in different modes of production” (21, 35). This, in turn, implies—indeed, it presupposes—the importance of legality within communism itself. Shoikhedbrod’s reconstruction of Marx’s comments on rights and legality thus leads to an alternative reading of Marx, one according to which the “revolutionary transformation of capitalism leads to the development of a communist conception of right and a structure of rights that would be appropriate to the needs of socialized (as opposed to atomized) individuals under a communist mode of production” (7). Shoikhedbrod develops this reading by examining the implications of Marx’s materialist methodology and his commitment to a conception of freedom as “self-development”, and also through a Hegelian reading of Marx that emphasizes the role of Aufhebung, a “process of negation, preservation, and supersession” (86). The result is a tour de force that no critic—liberal or, more importantly, radical—can now ignore, for it persuasively challenges the all-too-easy and often dangerous stance against law, rights, and constitutionalism staked out by many Marxist (and non-Marxist) political and legal scholars today.

In an age marked by metastasizing political authoritarianism and financialized neoliberal capitalism, but also renewed socialist struggle, Shoikhedbrod’s lucid philosophical argument, which admirably avoids theoretical obscurantism, provides an important opportunity for radical politico-legal theory to reconsider its “legal nihilism” (2)—which extends far beyond Marxist analyses to include Foucauldian and post-colonial work—and move to a more defensible, principled, and strategically productive mode of engaging law and rights, one that is not hamstrung by faux radicalism. To put it starkly, who really wants communism or socialism in the absence of a commitment to rights, the rule of law, and legality? And who can sincerely support an “anti-rights” or “anti-rule of law” position in the current context?

Revisiting Marx’s Critique of Liberalism is also—and this is rare for such a serious scholarly endeavour—so well-written and lucidly argued that it should be considered a key resource in graduate and undergraduate teaching, especially when used alongside original sources. This is important not just for professors but also for students, who are now open to socialist theory—perhaps more so than in decades—and yet have often missed out entirely on Marxist theory, both classical and contemporary. 

Joining the tradition not just of Marx but also of Carol Gould, C. B. Macpherson, E. P. Thompson, Alan Hunt, Leo Panitch, Ralph Miliband, and Nicos Poulantzas [2]—all socialists, most Marxists, and a tradition that is much richer, in my view, than much contemporary “radical” politico-legal scholarship—Shoikhedbrod successfully contests the dominant view that Marx and Engels reject rights and legality. This idea has fed the claim by “liberals” like Leszek Kołakowski and Jürgen Habermas (Shoikhedbrod takes on the latter), and others like Claude Lefort and Jean L. Cohen, that Marxism is, if not doomed to be totalitarian, certainly destructively “anti-modern” in its implications. [3]

On the one hand, radical scholars of law and politics today are influenced not so much by Marxist theories of law as by Foucauldian and post-colonial critiques of rights and legality. While there are exceptions to such Foucauldian antipathy to law (in some of Foucault’s own writings, as well as the work of scholars like Ben Golder), Foucauldians have often viewed rights and legality as simply oppressive regulation or biopolitical governance. [4] Similarly, influential post-colonial scholars like Ratna Kapur often emphasize the “dark side” of human rights and abjure law and rights for their “discriminatory universality”, even while admitting that “we ‘cannot not want'” human rights (without seriously addressing why not). [5]

On the other hand, contemporary political and legal theorists like Costas Douzinas take up the thesis that Shoikhedbrod refutes—namely, that Marx rejected rights—and then rely on that claim to inform current analyses. This line of argument often assumes that rights under capitalism depoliticize struggle, block radical possibilities, and constitute little more than “legitimation myths”, or even an “insurance policy for the established order”. Rights today, Douzinas claims, are primarily “rewards for accepting the dominant order, but they are of little use to those who challenge it”. [6] Others draw on Pashukanis’ conception of the legal form as specific to capitalism, and thus to its “withering away” under communism. This is yet another thesis that Shoikhedbrod refutes, deftly and importantly. Although I will not address it here, his refutation is important, and not simply an “academic” dispute, because commodity-form theories of law conspire with anti-statism in much politico-legal socialist scholarship to relieve us of the necessity of theorizing law and legality in a socialist democracy. [7]

I cannot, of course, do justice to the richness of Revisiting Marx’s Critique of Liberalism in this short review. Instead, I will sketch some of the broad lines of argument that I find most interesting, and which, I believe, make up the core of Shoikhedbrod’s argument. [8] And I am caught in that most worrisome of positions for an academic reviewer: I have few criticisms of this book. While perhaps an embarrassment to me, this is a tribute to Shoikhedbrod’s compelling argument. I will simply mention in passing here the few criticisms I have: Shoikhedbrod’s discussion of the importance of Marxism (and rights) in the age of financialized capitalism is a bit too thin (137–180), and I wish he had been able to extend his philosophical analysis in a more explicitly political direction so as to attend to contemporary struggles around rights, legality, and constitutionalism. For it is here, I believe, that the disabling “reform versus revolution” dichotomy, which haunts Marxism and Marxist critiques of rights and legality in particular, must be rethought. [9]

Responding to the debate ignited in the early 1980s over Marx, Marxism, and rights by Steven Lukes, who argued that Marx rejected rights and concluded that a Marxist “cannot … believe in human rights” without being hypocritical [10], Shoikhedbrod shows that Marx’s critique of rights under capitalism is a nuanced one, far from “scornful” of rights [11], and not at all contemptuous of the “concept of the rights of man and of civil and political rights”. [12] While he acknowledges that Marx provides nothing like a “comprehensive theory of rights” (5), Shoikhedbrod rereads not just “On the Jewish Question”, the primary vehicle for the simplistic conclusion that Marx rejected rights, but Marx’s general body of work, from his “early” to his “late” period, to demonstrate that Marx distinguishes the “so-called rights of man” from political rights or the “rights of the citizen”, that he understood that “different standards of right apply in different modes of production”, and that he repeatedly explained that law may play an important role in the class struggle (21, 35, 38, 47).

Shoikhedbrod is keen on the distinction Marx draws between the “so-called rights of man” and the rights of citizenship introduced in the eighteenth-century rights declarations, particularly the French Declaration of the Rights of Man and Citizen and the American declarations. This distinction is often ignored by those who maintain that Marx rejected rights. Shoikhedbrod delineates it clearly, showing that Marx’s criticism of the “rights of man” was far more biting than it was of political rights, and that he treated “political emancipation” after the eighteenth-century revolutions as a “great progress” even while it was (and remains) submissive to capitalism and fell far short of full “human emancipation” (3, 63). Nowhere in “On the Jewish Question” or any other writing, Shoikhedbrod notes, 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). Marx even argued that socialist victory was possible through the vote. [13] In general, it is worth quoting Marx’s response to a piece in the Rheinischer Beobachter regarding demands for rights prior to the March Revolution of 1848:

“The proletariat was certainly incapable of showing any interest in the Privileges of the Estates. But a Diet demanding trial by jury, equality before the law, the abolition of the corvée system, freedom of the press, freedom and association and true representation, a Diet having once and for all broken with the past and formulating its demands according to the needs of the present instead of according to the old laws—such a Diet could count on the strongest support from the proletariat.” [14]

For Marx socialist transformation required the defense of such rights, for these were the very rights upon which the working class depended in its struggle against capital and the capitalist state. These rights were (and are) crucial for protecting (albeit very imperfectly) the spaces of class struggle, and their “school of development” for working-class capacities. [15]

Far from rejecting rights under capitalism or treating them as “bourgeois shams”, as merely ideological mystifications or functional instruments for capitalism, Marx’s view of rights was thus more subtle. But what does Shoikhedbrod make of Marx’s more scathing criticisms of the “rights of man”, that is, the rights to life, liberty, equality, security, and private property? Here Shoikhedbrod parses Marx’s critique of those liberal rights of which he was most critical on the grounds that they are atomizing, ideological, constitutive of capitalism, and so on. And yet Marx viewed them, too, as “historical achievements” (56). As Shoikhedbrod shows in an excellent discussion of Marx’s critique of Bruno Bauer, Marx does not even reject the right to religious freedom in “On the Jewish Question” (58). Marx’s pointed criticism of the “rights of man” is directed against their specific formulations, which he disembowels, not their conceptual “life” as such. Thus, “it is the content of these rights that will change in the communist society of the future”, not the necessity of their existence (62). Furthermore, for Marx, the fundamental problem with liberalism (besides its commitment to private property) is not its commitment to rights but the fact that it cannot realize its own ideals of freedom and equality, not least because these ideals play a crucial role in constituting and sustaining capitalist social relations (6). For Marx, as Shoikhedbrod shows, the critical point concerns the “normative limits of the ‘so-called rights of man’ [and citizenship or political rights] as they operate in capitalist society”, as well as the fact that the “formal equality and freedom of workers are effectively undermined” in capitalism (72–74).

It would be difficult if not impossible to make a convincing argument about the supersession of the “so-called rights of man” under communism simply on the basis of “On the Jewish Question”. But Shoikhedbrod does not attempt to do this. Instead, he analyzes Marx’s reactions to the March Revolution of 1848, the Paris Commune, his own legal defenses, and his comments in The Communist Manifesto. He shows, for example, that, in the Manifesto, Marx and Engels did not demand the abolition of private property per se. Rather, they demanded the “abolition of bourgeois private property”, that is, the private ownership of the means of production. And Marx argued elsewhere that “‘personal property is not thereby transformed into social property'” (quoted at 78); instead, it is, as Shoikhedbrod puts it, raised “to a higher level” (71, 77–79, 87). Similarly, with respect to the “bourgeois right to equality”, Shoikhedbrod argues that Marx “never repudiates legal equality and procedural justice”, and nicely defends this claim with Marx’s comments on the Paris Commune. (Marx supported the “Communal Constitution” not simply in general, but specifically in connection with its conception of legal equality (79).) And finally (for this review), Shoikhedbrod argues that the right to liberty “would also undergo transformation” in communism by drawing out the important conception of “rich individuality” in Marx. Thus, the better conclusion, the one that goes against the grain, is that rather than becoming superfluous and “withering away” under communism, rights would instead have a “richer” substance, having crossed the “‘narrow horizon of bourgeois rights'”. [16] 

This is the most controversial argument Shoikhedbrod makes—that Marx’s materialist conception of rights, coupled with his conception of freedom as the “free development of individuals”, grounds the conclusion that communist legality and rights are necessary components of communism, including, “presumably”, for Marx (7, 83). As “bourgeois right represents an advance over feudal right”, so too would communist right over bourgeois right, as evaluated by the increase in human freedom (6). Leaving aside the question of what precisely is meant by communism, there are three issues here. The first issue is that some readers of the book will likely think that Shoikhedbrod goes too far in accepting individualism under communism. This, however, would be mistaken. As Shoikhedbrod shows, Marx had remarkable concern for individual self-development and rich individuality, as when he famously described communism as a society in which “the free development of each is the condition for the free development of all”. [17] Marx was highly critical of egoistic, atomistic individualism, but distinguished between such individualism, endemic under capitalism, and his own conception of rich individuality. And it is only in communism that each can develop her “‘gifts in all directions'”, and therefore only in communism that true freedom is really possible (117). 

The second issue concerns the thesis about the “withering away” of the state and law. The lack of development of this thesis in Marx and Engels has raised a host of fundamental questions (for those of us who do not accept the thesis at face value) of the institutional requirements of socialism (and communism). But as is already implied, Shoikhedbrod rejects the bald claim that the state and its laws will and should “wither away”, and the implication that this meant for Marx that there would be nothing like a state under communism. Rather, he interprets the slogan as meaning the absence of a state as an “external organ of class repression” (99, 123). This, too, will be a matter of controversy. But returning to Marx’s comments on the Paris Commune, with its state-like characteristics (of which Marx approved), and “Critique of the Gotha Programme”, where Marx writes that “freedom consists in converting the state from an organ superimposed upon society into one completely subordinate to it” (124), Shoikhedbrod distinguishes between Marx’s conception of political power as the power of repression and public power as the power of legality (123). 

The third and related issue is whether Shoikhedbrod shows convincingly that Marx’s conception of freedom and self-development necessarily implies that communism requires legality, particularly rights, or that Marx himself viewed them as necessary “preconditions” of communism (155). These are two slightly different claims, and Shoikhedbrod is committed to the former more strongly than the latter. To support the argument that Marx explicitly viewed them as necessary to communism, he turns to Marx’s work on the Paris Commune. He shows that Marx supported its “Communal Constitution” and its commitment to the “rights of man” tradition, which seems to suggest that Marx supported a “system of legal justice” under the communism of the future (77, 82). Re-reading Marx on the Paris Commune alongside Shoikhedbrod’s discussion helps to reveal this possibility. When coupled with the insight that Marx developed a new materialist conception of rights, it is plausible to maintain that Marx may have supported a future communist form of legality, as he did the Commune’s constitution and institutions, and it is important to develop a Marxist conception of communist legality and rights. But the argument for viewing them as necessary elements of communism for Marx seems less clear. Shoikhedbrod maintains that there is “considerable textual evidence confirming that there is a place for rights in Marx’s account of communist society” (76). This likely overstates the case given that Shoikhedbrod appeals to Marx’s comments on the Commune and the 1848 Revolution, the latter of which had nothing in common with communism. It should be acknowledged, I think, that Marx said little about communism, even if it was not a “deathly silence”. [18] But the more compelling claim that Shoikhedbrod makes—and the much more important one—is that, on the basis of Marx’s materialist theory, his conception of freedom and mutual recognition, his “ontology of the social individual” (117), and Shoikhedbrod’s own Hegelian reading of Marx’s work as oriented toward Aufhebung, Marx is logically committed to communist law and rights (98, 88). 

It is here that Shoikhedbrod makes the normative case for law and rights under communism. While capitalist social relations are based on the merely “cold respect” of possessive, instrumental individualism issuing in exploitation, egoism, and the accompanying “negative prescriptions of non-interference”, Marx’s “radical understanding of mutual recognition” is based on respect for human needs and free individuality within sociality (112, 113). The important legal implication that follows, contrary to many critics’ claims, is that Marx’s view thus “presupposes a reconstituted notion of juridical personhood”, one necessary for rich individuality within communism (118). 

This is what is most important in Shoikhedbrod’s reconstruction of Marx and rights on communism, when read alongside his recuperation of Marx’s critical but not rejectionist view of rights within capitalism. Shoikhedbrod’s alternative reading of Marx grounds the conclusion that, instead of the “withering away of rights”, “the revolutionary transformation of capitalism” should lead “to the development of a communist conception of right and a structure of rights that would be appropriate to the needs of socialized (as opposed to atomized) individuals” (6). And surely, not just the experiences of actually existing socialism but also those of actually existing capitalism have shown us that “the right to freedom under communism requires both the negative right of freedom from external domination and the positive right to realize one’s capacities in accordance with self-chosen ends” (84). But we should not suppose that Marx or Engels themselves established a sufficient basis for a developed theory of human rights, the rule of law, or the role and form of legality under socialism (or communism). This is a point that Alan Hunt made compellingly, and which, to his credit, Shoikhedbrod also acknowledges. [19]

This, then, leaves us with the important and difficult task of conceptualizing socialist or communist legality. And this is one of the chief virtues of Revisiting Marx’s Critique of Liberalism. Once we accept that Marx provides a groundwork for arguing that the communist “standard of right would be a higher form than bourgeois right—judged in terms of the growing expansion of human freedom” (6, 45), we must ask ourselves how they should be conceptualized. What content should they have? What should be the relationship between private autonomy rights and public autonomy rights? In the transition from capitalism to the early stages of socialism, how can we reconceive property rights and institute what Macpherson called “counter-extractive liberty”? [20] And so on. This is not just a matter of the mode of production dictating certain types of legal form or content; it is also a matter that Marxist and socialist intellectual work, practice, and struggle must consider, and ultimately influence. As Shoikhedbrod puts it in the closing sentence of his book, “[r]eturning to Marx in the twenty-first century means revisiting his critique of liberalism and rethinking what is entailed in moving beyond the narrow and contradictory horizon of liberal justice” (214). Shoikhedbrod’s challenge here is compelling, and it should motivate Marxist and socialist scholars of law and politics to take up this work.

The final chapter on the rule of law is especially important in this respect. Shoikhedbrod argues that contemporary Marxists—and I would add other radicals—”should reconsider the rule of law and the rational kernel of constitutionalism as bridges to a democratic socialist alternative that is in keeping with the goal of human emancipation” (182). This, I believe, is precisely correct and sorely needed today, much as it was in Thompson’s era. Shoikhedbrod shows that Thompson’s demand that the left understand the importance of the rule of law is not heresy. In fact, Thompson’s argument “turns on Marx’s position concerning the possibility of achieving progressive victories through the medium of law and the discourse of rights” (186). For example, in The German Ideology, Marx argued that workers may achieve class unity “‘only through the long process of development in which the appeal to their right (Recht) also plays a part'” (quoted at 38). To further support this case, Shoikhedbrod turns to Marx’s discussion in Capital of the struggle to limit the working day legally (186). Quoting Marx’s famous dictum that “between equal rights force decides”, he shows that, contrary to the rather typical deployment of this quote which stops here (certainly in politico-legal studies), the full passage continues: “‘Hence is it that in the history of capitalist production, the determination of what is a working-day, presents itself as the result of a struggle, a struggle between collective capital, i.e., the class of capitalists, and collective labour, i.e., the working class'” (quoted 188). He thus emphasizes that in Marx, as in Thompson, law is an “arena for contestation” rather than a mere instrument of class rule. [21] Importantly, Shoikhedbrod contends that the “antinomy of rights that Marx invokes here is inconceivable without there being in the background the idea of the rule of law, understood here as a system of legal rules that confers equal formal protections on all rights bearers” (188). This recognition is crucial, as is the recognition that the phrase “rule of law” may be wielded ideologically, as we can see when Trumpsters maintain that protests and rebellions such as those in Portland violate the rule of law, treating “law and order” as if it were the rule of law. Authoritarians thus express a “rule by law” position, an “authoritarian legalism”, in which law is treated merely as an arcanum dominationis, but they are able ideologically to draw upon and distort the little-understood concept of rule of law to raise alarm. [22] By contrast, Shoikhedbrod shows that in Marx’s journalistic writings, his own legal defenses, and all the way through Capital, Marx, like Thompson, understood and appreciated the importance of the rule of law. “No democracy without socialism, no socialism without democracy.” [23] And both, as Shoikhedbrod shows, require the restrictions on arbitrary power that lie at the heart of all defensible conceptions of the rule of law. 

Shoikhedbrod’s argument for the rule of law should be read by all critics of human rights and the rule of law who consider themselves to be radical—that is, those who do not simply seek academic distinction by marking out a “more left than thou” intellectual territory through legal nihilism, but who instead seek to analyze and support radical movements of the socialist left. The argument that Shoikhedbrod develops—that Marx viewed “‘true democracy'” as the “answer to the riddle of all constitutions”, dependent on the withering away of the specifically repressive “external” state (196) but implying the need for a future state-like structure—means that socialists (and communists) must seriously consider the forms of law, rights, and constitutions that are appropriate to socialism. And these are important not just to the future of any socialism or communism but also to the further development of a socialist culture, which is necessary for socialist transformation and which must itself be oriented toward self-development within sociality. [24] One might maintain that the book should have considered the necessary features of any socialist or communist system beyond current conceptions of right, forms of law, and the rule of law. But that work, too, can now be done on the basis of Shoikhedbrod’s arguments. He is, in my view, absolutely right when he maintains that “[t]he revival of Marxism requires an adequate conception of right” (127).

While it may be true that we, too, should reject “recipes for the cook-shops of the future” [25], it is necessary to offer, debate, and formulate answers to the question of which kinds of rights demands—and, ultimately, which forms of politics—contribute to “structural reform” rather than mere reformism today. [26] It is also necessary to understand which kinds of rights are desirable within socialist democracy—which, I contend, is now on our horizon. Such considerations are necessary both to answer the question of whether socialism is totalitarian and, far more importantly for our own sakes, to formulate our own politics on the basis of respect for (the legal and political-institutional conditions of) rich individuality within sociality. For if we are Marxists and socialists, this is crucial to our aspirations. Shoikhedbrod’s Revisiting Marx’s Critique of Liberalism is a key contribution to this project.

Amy Bartholomew is an associate professor of law and legal studies at Carleton University.

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

[2] Carol Gould, Marx’s Social Ontology: Individual and Community in Marx’s Theory of Social Reality (Cambridge: MIT Press, 1980); C. B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962); E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (London: Allen Lane, 1975); Alan Hunt, “A Socialist Interest in Law” 192 (1992) New Left Review 105; Leo Panitch, Renewing Socialism: Transforming Democracy, Strategy and Imagination (London: Merlin Press, 2008); Ralph Miliband, Marxism and Politics (Oxford: Oxford University Press, 1977); and Nicos Poulantzas, State, Power, Socialism, trans. Patrick Camiller (London: New Left Books, 1978).

[3] Leszek Kołakowski, “Marxism and Human Rights” 112 (1983) Daedalus 81; Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: MIT Press, 1996 [1992]); Jürgen Habermas, “Natural Law and Revolution”, in Theory and Practice, trans. John Viertel (Boston: Beacon Press, 1973 [1971]); Claude Lefort, The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism (Cambridge: MIT Press, 1986); and Jean L. Cohen, Class and Civil Society: The Limits of Marxian Critical Theory (Amherst: University of Massachusetts Press, 1982). For an interesting recent reading of Marx and Lefort, see Christian Boonen, “Limits to the Politics of Subjective Rights: Reading Marx after Lefort” 30 (2019) Law and Critique 179. It should be noted that in chapter 5 of Revisiting Marx’s Critique of Liberalism, Shoikhedbrod interestingly critiques Rawls, Habermas, Honneth, and Fraser for their shared assumption that Marx dismissed rights and justice. This is well-argued and his critique of Habermas is pursued further in an excellent article; see Igor Shoikhedbrod, “Revolution or Legality? Confronting the Spectre of Marx in Habermas’s Legal Philosophy“, Contemporary Political Theory (2020, forthcoming)

[4] See, e.g., Louiza Odysseos, “Human Rights, Liberal Ontogenesis and Freedom Producing a Subject for Neoliberalism?” 38 (2010) Millennium: Journal of International Studies 747. See also Michel Foucault, “Confronting Governments: Human Rights” in James D. Faubion (ed), Essential Works of Foucault, 1954–1984, vol. 3, Power, trans. Robert Hurley et al. (New York: New Press, 2000), 474–75; and Ben Golder, Foucault and the Politics of Rights (Stanford: Stanford University Press, 2015). On Foucault’s occasional “critical affirmation” of rights, see Golder on Foucault’s support for a “right to suicide” (ibid., 128–47).

[5] Ratna Kapur, “Human Rights in the Twenty-First Century: Take a Walk on the Dark Side” 28 (2006) Sydney Law Review 665, at 673, 675–676, also 682. One might also cite Talal Asad, “What Do Human Rights Do? An Anthropological Enquiry” 4 (2000) Theory and Event np. Analyzing the “ambiguity”, “ambivalence”, or, what is better, the contradictions of rights, is not itself a problem, of course. In fact, it is central to critical analysis. This is something to which Marx was deeply attuned. For recent analyses that recognize this, see Joe Hoover, “Towards a Politics for Human Rights: Ambiguous Humanity and Democratizing Rights” 39 (2013) Philosophy and Social Criticism 935; Golder, Foucault and the Politics of Rights; and Ayten Gündogdu, “On the Ambivalent Politics of Human Rights” 14 (2018) Journal of International Political Theory 367.

[6] Costas Douzinas, “Adikia: On Communism and Rights”, in Costas Douzinas and Slavoj Žižek (eds), The Idea of Communism (London: Verso, 2010), 81, at 92–93 and 96. Douzinas also follows Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University Press, 1995).

[7] Evgeny Bronislavovich Pashukanis, The General Theory of Law and Marxism, trans. Barbara Einhorn (New Brunswick: Transaction Publishers, 2002). The contemporary standard bearer for Pashukanis’ commodity-form theory is China Miéville, Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2006). Also see Giso Amendola, “The Abolition of Law or Law of the Common(s)? Pashukanis and the Revolution” 116 (2017) South Atlantic Quarterly 707; Boonen, “Limits to the Politics of Subjective Rights”; and Dom Taylor, “Shoikhedbrod’s Aufhebung of Law“, Legal Form (21 August 2020). For earlier Marxist and socialist critiques of Pashukanis’ theory see Poulantzas, State, Power, Socialism, 49–51; and Paul H. Hirst, On Law and Ideology (Atlantic Highlands, NJ: Humanities Press, 1979), 96–176. For critiques of Shoikhedbrod’s argument about Pashukanis, see Taylor, “Shoikhedbrod’s Aufhebung of Law”; and Mai Taha, “Reflections on Marxism and Law: A Review of Igor Shoikhedbrod’s Revisiting Marx’s Critique of Liberalism“, Legal Form (11 August 2020). As is obvious from the text, I disagree with Taylor and Taha on this.

[8] For other important recent work in this vein, see Paul O’Connell, “On the Human Rights Question” 40 (2018) Human Rights Quarterly 962; Martin Moorby, “‘Who Is This Man Who Is Distinct From This Citizen?’ Revisiting Marx’s Critique of Liberal Rights” 7 (2018) Lateral: Journal of Cultural Studies Association; David Leopold, The Young Karl Marx: German Philosophy, Modern Politics and Human Flourishing (Cambridge: Cambridge University Press, 2007); and Justine Lacroix and Jean-Yves Pranchere, “Was Karl Marx Truly Against Human Rights? Individual Emancipation and Human Rights Theory” 62 (2012) Revue française de science politique 47 (trans. by Sarah-Louise Raillard).

[9] On the distinction between “structural reform” and reformism, as well as an excellent consideration of the inadequacy of the “reform v. revolution” dichotomy, see Ed Rooksby, “‘Structural Reform’ and the Problem of Socialist Strategy Today” 46 (2018) Critique 27.

[10] Steven Lukes, “Can a Marxist Believe in Human Rights?” 4 (1982) Praxis International 334, at 344. Also see Steven Lukes, Marxism and Morality (Oxford: Clarendon Press, 1985). For the debate, see Drucilla Cornell, “Should a Marxist Believe in Rights?” 4 (1984) Praxis International 45; William L. McBride, “Rights and the Marxian Tradition” 4 (1984) Praxis International 57; and Amy Bartholomew, “Should a Marxist Believe in Marx on Rights?” in Ralph Miliband and Leo Panitch (eds), The Socialist Register 1990 (London: Merlin Press, 1990) 244. Shoikhedbrod also takes up the argument around Marx and justice that was lively at the time. See Allen W. Wood, “The Marxian Critique of Justice” 1 (1972) Philosophy and Public Affairs 244; and Allen E. Buchanan, Marx and Justice: The Radical Critique of Liberalism (Totowa, NJ: Rowman and Littlefield, 1982).

[11] Lukes, Marxism and Morality, 27.

[12] Buchanan, Marx and Justice, 67–68; and Shoikhedbrod, Revisiting Marx’s Critique of Liberalism, 3.

[13] Miliband, Marxism and Politics, 76–81; Bartholomew, “Should a Marxist”, 248; and Shoikhedbrod, Revisiting Marx’s Critique of Liberalism, 60.

[14] Karl Marx, “The Communism of the Rheinischer Beobachter” [1847], in Karl Marx and Frederick Engels, Collected Works, vol. 6 (Moscow: Progress Publishers, 1976) 220, at 228 (original emphasis); quoted at Shoikhedbrod, Revisiting Marx’s Critique of Liberalism, 76. 

[15] Miliband, Marxism and Politics, 76–81.

[16] Shoikhedbrod, Revisiting Marx’s Critique of Liberalism, 86. Marx speaks of “rich individuality” in Karl Marx, Grundrisse, trans. Martin Nicolaus (London: Penguin Books, 1973 [1857–1858]), 325.

[17] Karl Marx and Friedrich Engels, “The Manifesto of the Communist Party” [1848], in Robert C. Tucker (ed), The Marx-Engels Reader (Princeton: W. W. Norton, 1972), 331, at 353; and Shoikhedbrod, Revisiting Marx’s Critique of Liberalism, 112–121. On rich individuality, see Bartholomew, “Should a Marxist Believe Marx on Rights?”

[18] Hunt, “A Socialist Interest in Law”, 110.

[19] Shoikhedbrod, Revisiting Marx’s Critique of Liberalism, 200. In addition to the article Shoikhedbrod cites, see Hunt, “A Socialist Interest in Law”.

[20] C. B. Macpherson, Democratic Theory: Essays in Retrieval (Oxford: Oxford University Press, 1973), 118.

[21] Thus implicitly adopting the important debates about the “relative autonomy” of the capitalist state and law, and the Poulantzasian conception of the capitalist state as an unequal terrain of struggle rather than merely an instrument. See Poulantzas, State, Power, Socialism. See further the passage from Marx quoted by Shoikhedbrod, Revisiting Marx’s Critique of Liberalism, 190.

[22] On authoritarian legalism see Jürgen Habermas, “Civil Disobedience: Litmus Test for the Democratic Constitutional State“, 30 (1985) Berkeley Journal of Sociology 95. On arcanum dominationis see Franz Neumann, Behemoth: The Structure and Practice of National Socialism 1933–1944 (New York: Harper & Row, 1966 [1944]), 448.

[23] Ernst Bloch quoting Rosa Luxemburg in Natural Law and Human Dignity, trans. Dennis J. Schmidt (Cambridge: MIT Press, 1986 [1961]), 199.

[24] See Panitch, Renewing Socialism, esp. ch. 7.

[25] Karl Marx, Capital: A Critique of Political Economy, vol. 1 (Harmondsworth: Penguin, 1976 [1867]), 99.

[26] See Rooksby, “‘Structural Reform’ and the Problem of Socialist Strategy Today”.