Retrieving the Critical Dialectic of Right: A Response — Igor Shoikhedbrod

[This is the fifth and final post 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 previous posts, authored by Mai Taha, Dom Taylor, Amy Bartholomew, and Christine Sypnowich respectively, see hereherehere, and here. In this concluding post, Shoikhedbrod responds to Taha, Taylor, Bartholomew, and Sypnowich.

For video recordings of two symposia on Revisiting Marx’s Critique of Liberalism, see here (for an American Political Science Association panel with Terrell Carver, Nancy Love, August H. Nimtz, and Melissa Williams) and here (for an “author meets critics” panel at the University of Toronto with James Ingram, Emily Nacol, Leo Panitch, and Melissa Williams).]

Before launching into a response, I would like to extend my gratitude to the editors of Legal Form for featuring a symposium on my book and inviting such a talented group of commentators to engage with the book’s arguments. I am grateful to Amy Bartholomew, Christine Sypnowich, Mai Taha, and Dom Taylor for reading my book with care and taking the time to offer incisive comments and criticisms during an ongoing pandemic. Needless to say, I will not be able to do justice to all of their rich insights and criticisms. However, I will try to address three underlying themes that come up in each of the respective commentaries: my intended audience and scope, the contemporary relevance of Evgeny Pashukanis’ ghost, and the challenges of theorizing the movement beyond “the narrow horizon of bourgeois right”. [1]

Revisiting Marx’s Critique of Liberalism grew out of a doctoral thesis I wrote at the University of Toronto. Despite my best efforts, the book still carries the birthmarks of the old dissertation whose child it remains—a point that Mai Taha thoughtfully raises in her commentary. The central motivating force of the book was to offer a critical reconstruction of Karl Marx’s reflections on justice, legality, and rights against the grain of established interpretations and to demonstrate its contemporary relevance. In this sense, Christine Sypnowich is correct when she notes that my book could have easily been three separate books. [2] While I take Sypnowich’s point, it is important to reiterate that the book’s ambition is to follow through with the Marxist yearning to bridge theory and practice. Consequently, in addition to challenging political theorists and activists to reconsider commonplace assumptions about Marx’s critique of liberalism, I also invite readers to reflect on those features of Marx’s approach to justice and right that remain relevant to contemporary politics. Since the latter was mostly intended as an invitation, its purpose was not to be elaborate and exhaustive, as Amy Bartholomew correctly acknowledges, but to lay the groundwork for a critical dialogue that previously seemed foreclosed, whether because of the Cold War or due to the abrupt collapse of the Soviet Union. 

My book intentionally seeks to provoke liberals, Marxists, and critical theorists of all stripes to revisit established orthodoxies and assumptions. As I show in an earlier article, there has been a peculiar convergence of interpretations concerning Marx’s supposed “anti-law” and “anti-rights” views across interpretive and political divides. [3] Even seemingly sympathetic commentators, like Jürgen Habermas, take for granted that Marx rejected the legal sphere as a whole. [4] Are such one-sided interpretations of Marx necessarily confined to self-serving liberal and conservative critiques that evoke the spectre of totalitarianism at every turn, as Taha contends? For better or worse, they are not. Taha is right that there are many Marxist-inspired theorists and activists, particularly outside the Anglo-American world, who do not see an incompatibility between radical political mobilization and legal struggles. However, this does not detract from the prevailing reception of Marx on those topics among leading Anglo-American academics, as well as would-be revolutionaries who willfully denounce the discourse of rights and the medium of law as merely so many police traps. Rather than confronting the established orthodoxy solely on the basis of textual evidence—a method that Sypnowich fittingly called “Talmudic” in a different context—the book takes a problem-oriented approach and considers what Marx’s broader theoretical views commit him to with respect to justice, legality, and rights. More specifically, I critically examine Marx’s stance on these topics precisely when their respective fates were critically at stake—the Rhenish Jewish community’s petition for equal rights in 1843 (a partial inspiration for Marx’s “On the Jewish Question”), the reactionary aftermath that ensued following the defeat of the 1848 revolutions across the continent, and the struggles of the working class to legally limit the length of the working day. The virtue of this approach is that it presents Marx as a political actor in his own right who is responding to political events on the ground. Fast forward to the present, and it is especially instructive to compare Marx’s reflections on constitutional backsliding and assaults on civil liberties in the years 1848–51 with the resurgence of authoritarianism in our own era of financialized capitalism. As all of the commentators acknowledge, Marx was a lifelong champion of freedom and a vociferous critic of despotism in its manifold forms. This brings me to the ambivalent legacy of Pashukanis’ ghost and its contemporary relevance.

I devote a considerable part of the book to grappling with Pashukanis’ General Theory of Law and Marxism. Pashukanis’ theory remains the most systematic attempt to elaborate a Marxist theory of law on the basis of Marx’s account of the commodity in Capital. I will be the first to acknowledge that Pashukanis offers the most formidable challenge to any Marxist attempts at theorizing law and rights. In his painstaking review, Dom Taylor challenges my critique of Pashukanis’ theory on two fronts. The first challenge is that, contrary to my view, Pashukanis’ theory can indeed make coherent sense of pre-capitalist conceptions of law by tracking the historical development of commodity exchange. Taylor’s second challenge holds that Pashukanis’ theory cannot be faulted for lending itself to Stalinist totalitarianism because Stalinism was characterized by an intensification of law rather than its erosion. For the record, I give a more detailed appraisal of Pashukanis in a recent article. [5] In this article, I argue that contemporary Marxists should follow through with Pashukanis’ unfinished attempt to uncover the historically limited and defective bourgeois legal form without succumbing to his uncritical endorsement of technical regulation. I therefore remain open to contemporary reconstructions of Pashukanis’ thought that nonetheless address his most serious shortcomings.

Pashukanis was on firm ground when he inferred that class instrumentalists cannot explain why the ruling class does not actually rule under capitalism. [6] This is because they reduce law to the content of class domination or to some other feature that is external to the specific form of law. However, Pashukanis made the reverse error of reducing the form of law to commodity exchange. [7] This is a major shortcoming, in my view, because then all law is equated with bourgeois law in its embryonic or consolidated forms, which is exactly what Lon Fuller celebrates in his positive appraisal of Pashukanis. [8] How can Pashukanis make cogent sense of pre-capitalist and non-Roman varieties of law, not to mention Indigenous legal orders that colonial powers are still reluctant to recognize as law? As far as I can tell, Taylor’s counter-argument is that Pashukanis can make sense of pre-capitalist forms of law by tracking the degree to which commodity exchange is developed historically. This is precisely the target of my critique. Not only is Pashukanis’ view teleological and question-begging on this score; it actually undermines his objective to lay bare the historically limited character of the bourgeois legal form. What is more, Pashukanis’ theory prevents contemporary Marxists and socialists from theorizing post-capitalist varieties of law and right. This dimension of Pashukanis’ thought cannot be reconstructed however hard one tries because it constitutes the theory’s core. As for Taylor’s Miéville-inspired rebuttal that Stalinism meant an intensification of law, which was at loggerheads with Pashukanis’ “withering away thesis” [9], there is sufficient evidence that points to the contrary. I refer here to Pashukanis’ neglected remarks in his 1930 address. In that address, which begins by praising Stalin’s collectivization efforts, Pashukanis affirms that “for us [Soviets] revolutionary legality is a problem which is 99 percent political”. [10] The danger is precisely that Pashukanis subsumed under the category of “technical regulation” that which was indeed 99 percent political, meaning that it could change in an ad hoc fashion whenever deemed necessary by Joseph Stalin and his collaborators, including Andrey Vyshinsky. The weaknesses of Pashukanis’ account of technical regulation can already be discerned in his 1924 book. Arguably, the most dangerous example that Pashukanis provides in his General Theory of Law and Marxism is the doctor-patient relationship. He grants that the doctor exercises some coercion over the patient. However, this coercion, in Pashukanis’ view, is guided strictly by knowledge of medical science, which would ultimately be overseen by government bureaus and agencies. [11] Pashukanis’ theory should not be interpreted in abstraction from the political circumstances in which he found himself. Surely, Marxists must draw upon his theory’s strengths but also dispense with those dimensions that lend themselves to technocratic totalitarianism. 

This brings me to the question concerning the challenge of moving beyond the “narrow horizon of bourgeois right”, which was raised in different ways by all of the commentators. The first thing to note is the emphasis on movement. In The German Ideology, Marx and Engels submit: “Communism is for us not a state of affairs which is to be established, an ideal to which reality [will] have to adjust itself. We call communism the real movement which abolishes the present state of things. The conditions of this movement result from the premises now in existence.” [12] I agree with Taha that one must distinguish between Marx’s treatment of rights under capitalism and prospective rights under communism. Marx gives glimpses of what such rights could look like in his critical dissection of the “Constitution of the French Republic Adopted November 4, 1848”, in the Grundrisse, in Capital, in The Civil War in France, and, of course, in the Critique of the Gotha Programme. I would hasten to add that any discussion of rights beyond capitalism must start with the premise that communism was conceived by Marx (and Engels) as a movement in the making, drawing on premises already in existence, rather than an ideal or utopia that is to be willed into social reality. For this reason, we must look to contemporary political movements against capitalism for a sense of what rights should look like beyond capitalism. Neither Marx nor Engels should be taken as offering definitive guides to the content of rights that will obtain under communism. That much should be clear based on what Marx writes in The Civil War in France:

“The working class did not expect miracles from the Commune. They have no ready-made utopias to introduce par décret du peuple. They know that in order to work out their own emancipation, and along with it that higher form to which present society is irresistibly tending by its own economical agencies, they will have to pass through long struggles, through a series of historic processes, transforming circumstances and men.” [13] 

The “poetry of the future” therefore remains to be written as the working classes and their allies pass through long struggles, transforming circumstances and themselves. 

A corollated approach, which I take in the book, is to consider what Marx’s conception of freedom commits him to inasmuch as right and rights are concerned. Taylor argues that law and rights are best viewed as “necessary evils”, which I address when discussing Edward Andrew’s under-appreciated book, Shylock’s Rights. [14] It is precisely because Marx’s account of communism was not meant as a utopia for saints that we should think twice about the supposed redundancy of law and rights for human beings under communism. This does not mean, as Sypnowich correctly adduces, that socialists and communists should celebrate formalist proceduralism and the cult of juridicism that accompanies it. I maintain that “one need not be a Marxist to appreciate the corrosive effects of perpetually invoking one’s rights against others”. [15] Sypnowich also references my claim that associated producers will need rights against one another and against the community of producers, because disagreements will remain, even in the absence of class antagonisms. Contrary to prevailing orthodoxy, Marx and Engels did not think that everyone would agree under communism in the manner of Pashukanis. Engels’ 1845 “Speeches in Elberfeld” and Marx’s 1859 “Preface” should cast doubt on such simplistic views. The history of the International Workingmen’s Association is perhaps even more instructive about the likelihood of disagreement. If that is not enough, Marx makes it clear in the Grundrisse that “mediation must, of course, still take place …. [Under communist production] the social character of production is presupposed, and participation in the world of products, in consumption, is not mediated by the exchange of mutually independent labours or products of labour. It is mediated, rather, by the social conditions of production within which the individual is active.” [16] If mediation must still take place under communist production, why would associated producers not have individual recourse to rights and a system of justice that accords with the presuppositions of communist production?

In fairness, Marx was arguably far too optimistic about the degree to which conflicts would dwindle under communism and the rapid pace of the transition from capitalism to communism. What is clear is that Marx regarded the transition from capitalism to communism as a dialectical process, in which communist society would have to be approached “just as it emerges from capitalist society; which is thus in every respect, economically, morally, and intellectually, still stamped with the birthmarks of the old society from whose womb it emerges”. [17] Contrary to Sypnowich’s claim that I evade the question of rights under communism with rhetorical references to “higher content”, this is the very language that Marx uses in the Critique of the Gotha Programme when he submits that “right can never be higher than the economic structure of society and its cultural development conditioned thereby”. [18] As I demonstrate in the book, similar invocations of higher forms of society can be found in the Grundrisse and Capital. Notwithstanding its destructive tendencies (social and ecological), Marx regarded capitalism as a progressive form of production that brings with it not only technological but also moral and political progress. [19] There is indeed a substantive normative standard in the background, but the evaluative basis for this standard is determined with reference to the degree to which human freedom is realized. I agree with Sypnowich that Marx has a substantive conception of the good life, which challenges liberal neutralism in powerful ways, but I do not share the view that this conception is oriented towards realizing the ideal of equality. Rather, Marx’s conception of the good life is oriented towards realizing the free development of individuals and their manifold needs under conditions of cooperative production. One could sum up his view as the “equal realization of freedom”, but this seems to miss an important distinction in Marx’s thought between right and freedom that I wish to retain.

Along similar lines, Taylor’s commentary raises the distinction between immanent and transhistorical standards of judgment in Marx’s thought. With the exception of the 1844 “Manuscripts” and occasional references to human nature in the Grundrisse and Capital, Marx mostly makes reference to immanent juridical standards, showing the various ways that capitalist societies fail to deliver on their own juridical promises. Marx’s motivation here as elsewhere is foremost political, and not theoretical. After all, human beings cannot overleap their own age or its juridical standards without first transforming the material conditions that give rise to these standards and forms of social consciousness. Marx reminds us that we are free to make history within constraints that are inherited from the past. However, we cannot change the world and make the free development of each a concrete reality unless we confront the past and struggle collectively to change the present. A part of this ongoing struggle involves revisiting Marx’s critique of liberalism and rethinking the future of justice, legality, and rights beyond the narrow horizon of bourgeois right. The struggle continues!

Igor Shoikhedbrod is a lecturer in political science at the University of Toronto at Mississauga.


[1] Karl Marx, “Critique of the Gotha Program” [1875], in Robert C. Tucker (ed), The Marx-Engels Reader, 2nd ed. (New York: Norton, 1978) 525, at 531.

[2] I regret occasionally misspelling the title of Christine Sypnowich’s book (The Concept of Socialist Law (Oxford: Clarendon Press, 1990)) in the original publication. Unfortunately, there remains much about the publication process that goes on “behind the backs” of authors’ intentions.

[3] Igor Shoikhedbrod, “Re-Hegelianizing Marx on Rights“, 40 (2019) Hegel Bulletin 281.

[4] Igor Shoikhedbrod, “Revolution or Legality? Confronting the Spectre of Marx in Habermas’s Legal Philosophy“, Contemporary Political Theory (2020, forthcoming). 

[5] See Igor Shoikhedbrod, “Estranged Bedfellows: Why Pashukanis Should Worry Contemporary Formalists“, 33 (2020) Canadian Journal of Law & Jurisprudence 461.

[6] Evgeny Pashukanis, The General Theory of Law and Marxism, ed. Chris Arthur, trans. Barabara Einhorn (London: Ink Links, 1978 [1924]), 139.

[7] Pashukanis, General Theory, 100–1.

[8] Lon L. Fuller, “Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal Theory“, 47 (1949) Michigan Law Review 1157, at 1159.

[9] China Miéville, Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2006), 99. 

[10] Evgeny Pashukanis, “The Situation on the Legal Theory Front” [1930], in John Hazard (ed), Soviet Legal Philosophy (Cambridge MA: Harvard University Press, 1951), 280. For a helpful discussion of Pashukanis’ 1930 address, see Bill Bowring, Law, Rights and Ideology in Russia: Landmarks in the Destiny of a Great Power (Abingdon: Routledge, 2014).

[11] Pashukanis writes: “To take another example: healing a sick person presupposes a set of rules, for the patient as well as for the medical personnel. In so far as these rules have been prescribed for the express purpose of rehabilitating the sick person, they are technical in nature. The enforcement of these rules can be associated with some degree of constraint on the sick person. So long as this constraint is viewed from the standpoint of a goal which is the same for the person exercising the coercion as it is for the person coerced, it is a technically expedient act and no more. The content of the regulations is specified within these limits by medical science and undergoes change as medical science progresses. The lawyer has no place here. His role begins at the point where we are forced to leave the realm of unity of purpose and to take up another standpoint, that of mutually opposed separate subjects, each of whom represents his own private interests. Doctor and patient are thereby transformed into subjects with rights and duties, and the regulations which govern them are transformed into legal norms. Simultaneously with this, coercion is no longer considered under the rubric of expediency, but from the point of view of formal, that is of legal, admissibility.” Pashukanis, General Theory, 81–82. 

[12] Karl Marx and Frederick Engels, The German Ideology, ed. Chris Arthur (New York: International Publishers, 1970 [1846]), 56–57. Needless to say, the German Ideology should not be treated as a complete text.

[13] Karl Marx, “The Civil War in France” [1871], in Robert Tucker (ed), The Marx-Engels Reader (New York: Norton, 1978), 635–36.

[14] Edward Andrew, Shylock’s Rights: A Grammar of Lockian Claims (Toronto: University of Toronto Press, 1988). See further Igor Shoikhedbrod, Revisiting Marx’s Critique of Liberalism: Rethinking Justice Legality and Rights (New York: Palgrave Macmillan, 2019), 88–89, n 3.

[15] Shoikhedbrod, Revisiting Marx’s Critique, 132–33, n 89.

[16] Karl Marx, Grundrisse, trans. Martin Nicolaus (Harmondsworth: Penguin, 1973 [1858]), 171–72.

[17] Marx, “The Critique of the Gotha Program”, 529.

[18] Marx, “The Critique of the Gotha Program”, 531.

[19] For a helpful account along similar interpretive lines that demonstrates, through a careful reading of Marx’s writings, the extent of Hegel’s influence on Marx’s conception of right, see Allegra de Laurentiis, “Hegel’s Legacy in Marx’s Conception of Right“, 17 (2001) Southwest Philosophy Review 25.