[This is the fourth post 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 earlier posts, authored by Mai Taha, Dom Taylor, and Amy Bartholomew respectively, see here, here, and here.]
A worldwide pandemic has thrown in sharp relief a plethora of injustices in the world’s capitalist democracies. Particularly striking is the callous disregard for the health and well-being of the most vulnerable—the elderly and the chronically ill housed in squalid facilities; non-unionised workers in precarious service jobs; impoverished persons with few health options, who are particularly likely to be racialized, Indigenous, or from “have-not” countries. However, another set of injustices pertains to accountability, as elected officials meet in online forums with less frequency and transparency than regular assemblies; court proceedings are delayed; secrecy and misinformation attend many government decisions; and individual rights are circumscribed or overridden.
In this context, Igor Shoikhedbrod’s stimulating monograph, Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights, provides a timely opportunity to reflect on how legal procedures might be conceptualised against the background of a radical progressive project, and how justice, in all its forms, might be achieved in an ideal socialist society. The book’s mission is to defend Marx against critics who contend that the concept of justice is either rejected or seriously compromised by Marx’s historical-materialist commitments and communist ideals. Shoikhedbrod discharges this mission with impressive scholarship and political insight.
Shoikhedbrod’s theme of justice, in all its variants, makes for a wide-ranging, consistently interesting book, but its broad scope risks overlooking complexity. To discuss justice in both the procedural sense (legality, the rule of law, rights and constitutionalism), and also in the economic and social sense (productive relations, distributive shares, workers’ self-governance), is a tall order. All the more so given that the book also has a chapter that contrasts Marx’s arguments with those of a handful of contemporary political theorists, from Rawls to Honneth. At times what is one book looks like it should have been two or three.
I will focus here on the question of socialist legality. [1] Shoikhedbrod mentions and then puts to one side my views on socialism and law, which he describes as “outside of, and in critical response to”, Marxist theory (43). However, in my work, I have sought to provide analysis which is indeed a critical response to, but also draws upon, Marx’s views. And, in turn, it might be said that it is a pity that a more critical response, one that subjects Marx’s writings to rigorous scrutiny, is not forthcoming in Shoikhedbrod’s analysis.
Shoikhedbrod makes a valuable case for distinguishing between Marx’s ideas on law and rights, and those of the Soviet legal theorist, Evgeny Pashukanis (106–110). For Shoikhedbrod, Pashukanis’ famous contention that legality is in essence a vehicle for commodity exchange, usually taken to elaborate further the scepticism about law in Marx’s key writings, in fact contradicts Marx’s historical-materialist account, where law and state are shaped by whatever economic relations obtain in a particular society. Thus, there could be feudal law, capitalist law, and, for that matter, socialist law. This is a stimulating argument, and Shoikhedbrod couches his case with care and attention, drawing on many of Marx’s lesser-known works to provide evidence for his claims.
However, there are places where the evidence adduced seems to miss the point of the controversy. It is hardly surprising that Marx did not go on record to disavow any role for universal suffrage or freedom of expression upon communist revolution (77). And that Marx understood the Paris Commune as a model for the transitional period of the dictatorship of the proletariat, with scope for political and legal institutions, does not inform us one way or another on the status of the “withering away thesis” about politics and law upon the full realisation of communism.
It seems worth thinking more about why it is commonly supposed that rights are not a feature of Marx’s communism. Certainly, Pashukanis developed a full-blown legal nihilism that cannot be laid simply at Marx’s door. However, Pashukanis understood his work as consistent with Marx’s view, producing a sophisticated argument for the end of law which nonetheless ventured a complex understanding of its vital, transitional role. [2] This was a position that was not just challenging to put into practice after the October Revolution, but also turned out to be politically self-destructive for the Bolshevik jurist who in 1937 was named an enemy of the people and disappeared. [3] Pashukanis’ central claim, namely that the contestation of opposed interests for which law is a vehicle had no place in Marx’s ideal society, is in keeping with Marx’s famous view in “On the Jewish Question” that bourgeois rights were those of “man separated from the community, from himself and from other men”, and, as such, found their apogee in capitalist market relations. [4]
It is thus surprising that Shoikhedbrod does not really address this point about the character of the legal form, distinct from its content. It is no answer to note that Marx saw capitalist legality as an advance on feudal privilege and as such a precondition for socialism (55, 63), that he condemned slavery (43) and the arbitrary use of power in capitalist press laws (182), that he saw the rule of law as an important advance over absolutism (197), and that he supported workers’ rights under capitalism, though he astutely noted that such rights were destined to be unfulfilled (72–73, 76). What is critical is that Marx viewed rights in their essential form as articulating opposed interests, a role that he thought would largely disappear in socialist community. Shoikhedbrod evades this challenge with rhetoric about rights being “raised to a higher level” or taking on “a higher and more adequate form” or having “richer content” (86). But such dialectical sleights of hand leave unanswered difficult questions of law’s role in articulating and adjudicating individuals’ interests in opposition to each other and in opposition to the state.
Shoikhedbrod comes close to addressing the problem of conflict in his remark that communist society would protect positive freedom to realise one’s self-chosen ends, but also negative freedom “from external domination”, though he is silent on what and from whence that domination might be (84). More promising, he later notes that “the associated producers” would “need rights vis-à-vis each other and vis-à-vis the collective body of associated producers” (120). However, he is quick to add that these rights would be “social rather than pre-social in origin and not framed as absolute trumps” (a view held by practically no contemporary legal theorist, however bourgeois) and that “the associated producers would find fewer occasions for insisting upon their rights under conditions of increased solidarity and material abundance” (120). [5] Further, Shoikhedbrod admits that rights are “needed to mediate between different teleological projects” (127), but the word “different” occludes whether they might in fact be at odds.
In my work I have noted that Marx’s theoretical approach provides valuable resources to correct his own suspicion of law. As I wrote in 1990, “Marxism should be regarded, not as a biblical canon, but as a dynamic approach to political and social questions …. [I]t is possible to give up some of its purportedly orthodox tenets without giving up what is essential to that approach”. [6] I noted that Marx’s understanding of workers’ self-interest, the objectification of value in nature, the obstacles of class and property to the proper functioning of the rule of law—these are just some Marxist insights that would be constitutive of a socialist theory of law. Shoikhedbrod and I should therefore find much to agree upon. However, his objective, to exonerate Marx, means that he is unwilling to take on a more complex (dare I call it dialectical?) approach to exploring the ambivalence of Marx on law.
I would like to make one final point about legal formalism and the socialist ideal. It is worth sounding a note of caution on the potential overreach of proceduralist values, which have had considerable influence on political philosophy, particularly liberalism. [7] This is not just because of the valuable liberal idea that law should rule all of us, government and governed, but also because liberal political philosophy has been dominated by “neutralist” approaches to distributive justice. Even egalitarian liberals like Rawls have maintained that, in order to respect individuals’ capacity to choose how to live, the state (and indeed political philosophy itself) should be agnostic about what counts as a good life. [8] Part of the motivation for this view is a proceduralist ethic, which dictates that state power be constrained by formal rules, familiar in the laissez-faire views of Hayek. [9] Certainly, Rawls parts company with Hayek in insisting that economic disadvantage should be remedied so that citizens may enjoy the genuine “worth” or “fair value” of equal political liberties [10], within democratic socialism or a property-owning democracy. [11] Nonetheless, Rawls’ political liberalism does not reject Hayek’s counsel altogether, retaining a preoccupation with keeping the community at bay.
In particular, Rawls contends that “the basic institutions and public policies of justice” should be understood as “neutral with respect to comprehensive doctrines and their associated conceptions of the good”. [12] Rawls’ “neutrality of aim” [13] reflects what Joseph Raz dubbed an “epistemic withdrawal from the fray” whereby the scope of the political is constrained by formal procedures such as the decision process of the original position; the tenets of public reason; or political liberalism’s explicit exclusion of considerations about the good life. [14] Indeed, Rawls’ proceduralist ethic became especially prominent in his later work, where the focus on constitutional questions came to supersede his interest in the remedy of economic disadvantage. [15]
Rawls admitted that perfectionist views about valuable ways of living might play a role in legislative decisions about “suitably circumscribed questions” such as the protection of wildlife habitat. [16] However, he retained a traditional view of perfectionism as in principle inegalitarian, involving the idea that “some people have special claims because their greater gifts enable them to engage in the higher activities that realise perfectionist values”. [17]
Marx’s critique of inequality, in contrast, embraces perfectionist ideas in his arguments for the overcoming of alienation and the all‐round development of the individual. His case against capitalism centres on its affront to the “nobility of man”, how it makes people “stupid and one‐sided”, and “overturns individualities”. [18] Thus, though I stress the importance of legal procedures to mediate conflict in even the most ideal of societies, I also insist on retaining that sense of the ideal. I argue for an “egalitarian perfectionism” which holds that it is human flourishing that we should seek to make more equal in our theories of justice. On this view, the concern for impartiality in the law should not be allowed to have “imperialistic designs” on all political questions [19], so that the community forfeits its responsibility to foster equal human well-being. It strikes me as an irony of Shoikhedbrod’s project that he is so intent on showing the scope for the juridical in Marx that he passes up the opportunity to note the deleterious effect of a preoccupation with the juridical in contemporary liberal philosophy, to which Marx’s rich understanding of justice and community provides an effective corrective.
In sum, the rule of law is crucial for a society guided by the institutions and social ethos of a robust egalitarianism. Shoikhedbrod is right to say that Marx’s theory has room for legality, even if, as I would suggest, Marx himself did not fully realise this. Shoikhedbrod’s theme, that bourgeois society “cannot deliver on its juridical promise of equal freedom so long as productive property remains in private hands” (210), and thus that a Marxist approach to law is both possible and necessary, is expressed with power and persuasion, and the book is an impressive achievement. An appreciation for the value of the rule of law should not mean the juridicalisation of politics, and the forfeit of what is essential to the socialist ideal, in which the community provides the material resources, but also the cultural context, needed for each member to flourish equally. In this I share with Shoikhedbrod the important conviction that our appreciation for the rule of law should not entail sacrificing what is integral to the socialist ideal.
Christine Sypnowich is a professor of philosophy (and chair of the philosophy department) at Queen’s University, Canada.
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[1] A subject about which I have written for some decades now. See Christine Sypnowich, The Concept of Socialist Law (Oxford: Clarendon, 1990); “The Future of Socialist Legality: A Reply to Hunt” 193 (1992) New Left Review 80; “Social Justice and Legal Form” 7 (1994) Ratio Juris 72; “Proceduralism and Democracy” 19 (1999) Oxford Journal of Legal Studies 649; “The Civility of Law: Between Public and Private“, in Maurizio Passerin d’Entreves and Ursula Vogel (eds), Public and Private: Legal, Political and Philosophical Perspectives (London: Routledge, 2000); “Taking Britain’s Human Rights Act Seriously” 58 (2008) University of Toronto Law Journal 105; “Cultural Heritage and the Marxist Critique of Law”, in Judy Fudge and Eric Tucker (Eds), The Class Politics of Law: Essays Inspired by Harry Glasbeek (Blackpoint, NS: Fernwood Press, 2019); “Law and Ideology“, Stanford Encyclopaedia of Philosophy (2019).
[2] Sypnowich, Concept of Socialist Law, 3–8.
[3] Sypnowich, Concept of Socialist Law, 18.
[4] Karl Marx and Friedrich Engels, “On the Jewish Question” [1844], in Robert S. Tucker (ed.), The Marx-Engels Reader, 2nd ed. (New York: Norton, 1992); and Sypnowich, Concept of Socialist Law, 3.
[5] Whatever hopes one might have for solidarity, assumptions about abundance, smack of an implausible nineteenth-century industrial optimism, striking a dissonant note in our times of environmental destruction.
[6] Sypnowich, Concept of Socialist Law, ix.
[7] This discussion draws on Sypnowich, “Law and Ideology”; I am grateful to the editors of the Stanford Encyclopedia of Philosophy for their permission to include this.
[8] John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971).
[9] F. A. Hayek, The Road to Serfdom (London: Routledge and Kegan Paul, 1971 [1944]), 57–59.
[10] John Rawls, Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge: Harvard University Press, 2007), 148–49.
[11] John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge: Harvard University Press, 2001) 135–36.
[12] Rawls, Justice as Fairness, 153 n27.
[13] Rawls, Justice as Fairness, 153 n27.
[14] Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon, 1994), 46.
[15] This attracted much critical comment at the time. See Brian Barry, “John Rawls and the Search for Stability“, 105 (1995) Ethics 4; Susan M. Okin, “Political Liberalism by John Rawls”, 87 (1993) American Political Science Review 4; Bernard Williams, “Rawls Rethinks Rawls”, London Review of Books (13 May 1993). I comment on this in Christine Sypnowich, Equality Renewed: Justice, Flourishing and the Egalitarian Ideal (London and New York: Routledge, 2017).
[16] Rawls, Justice as Fairness, 152 n26.
[17] Rawls, Justice as Fairness, 152.
[18] Karl Marx, “Economic and Philosophic Manuscripts” [1844], in Tucker (ed), Marx-Engels Reader, 105.
[19] Sypnowich, Equality Renewed, 85–87.
Legal Form 