Reviewed by James Furner
Revisiting Marx’s Critique of Liberalism aims to vindicate Marx’s critique of liberalism, understood as a critique employing liberal ideals. For Igor Shoikhedbrod’s Marx, ‘liberalism cannot realize its own ideals of freedom and equality because the political-economic context in which liberal rights are articulated is characterized by exploitation and domination’ (7). Part I defends this reconstruction of Marx’s critique, while the bulk of Part II reaffirms its relevance vis-à-vis four philosophers – John Rawls, Jürgen Habermas, Axel Honneth and Nancy Fraser – selected on the basis that each sees the dangers posed by wealth inequalities as a reason to engage with Marx. While Part I is self-explanatory, Part II presupposes some knowledge of these philosophers’ work.
Chapter 2 examines Marx’s changing attitude to positive law. While in his early journalism of 1842 Marx evaluates positive law by ‘an abstract and transhistorical view of rational law’ (21), the ‘mature’ Marx evaluates positive law by ‘the historical mode of production and the social needs stemming from it’ (24). Shoikhedbrod attempts to explain this change by saying that Marx came to realise that the laws of the then Prussian state ‘were not mere deviations from the rationality of the law; rather, they represented concrete forms of political life that were themselves rooted in “civil society” and the material conditions of life’ (33). This begs the question: why should a new causal explanation of positive law lead Marx to revise the criteria for its normative assessment?
For Shoikhedbrod, when the mature Marx invokes a ‘“higher” standard of right’, this is ‘an appeal to a transhistorical standard of evaluation […] based on the degree to which human freedom is realized across various modes of production’ (45). That is, any condemnation of capitalism by Marx in terms of right rests on a standard viewed as realisable in a freer mode of production. Fine. Yet the author claims that ‘Marx is opposed to transhistorical accounts of right’ (46). Surely an ‘account’ of right is ‘transhistorical’ if it can be used to evaluate phenomena across multiple modes of production. But then, following the elaboration on page 45, the mature Marx is not opposed to all transhistorical accounts of right.
Chapter 3 considers Marx’s attitude to individual rights. It begins by defining ‘liberalism’ as an outlook committed to ‘the freedom and equality of individuals’ that need not defend the ‘private ownership of the means of production and unfettered exchange’ that ‘classical liberalism champions’ (56). This frames Marx’s endorsement of ‘the demand for equal civil and political rights as a freedom-enabling project’ (58) and critique of how ‘individuals are unequal and unfree insofar as they remain dependent on private property and the imperatives of the market’ (61) as evidence of Marx’s liberalism.
Civil rights, for Marx, are ‘victories […] over direct relations of domination’ (63). However, ‘formal rights also serve an ideological function in capitalist society because they conceal exploitative relations’ (68). Although market actors appear free, this conceals the fact that the worker is ‘“forced to sell”’ (72) their labour power on terms that suit the capitalist. Although market actors appear equal, this conceals the fact that only the capitalist has ‘“the right […] to appropriate the unpaid labour of others”’ (73). But it does not follow that ‘Marx is criticizing capitalism for failing to deliver on its own juridical standard’ (91). Capitalism is irreducible to market transactions. So, capitalism’s ‘own juridical standard’ cannot be identified with a standard apparent from merely one of its aspects. The standard the author presents Marx as employing is the prevention of direct domination while avoiding ideology, viewed (following the argument on page 45) as realisable in a freer mode of production.
Perhaps the author only wishes to say that Marx challenges ‘liberalism for failing to deliver on its own juridical promise’ (73). This makes a bit more sense: even if an aspect of a person is not a standard of capitalism, provided that capital accumulation frustrates it, a liberal who values it ought not to fail to condemn capitalism. But insofar as Marx assesses capitalism by the standard of an ideology-free society, Marx is not appealing to liberal ideals. Moreover, to talk of ‘liberalism’ here is misleading. To adopt a liberal ideal is to put fundamental value on some determinate aspect of a person. If the author believes that Marx argues that capitalism fails on all liberal ideals, whichever aspect of a person is valued, no defence is offered.
The aim in chapter 4 is to develop ‘a normative argument for legality’ (97) in communism. Here we learn that communist legality does not just prevent direct domination while avoiding ideology. It reflects ‘Marx’s radical account of recognition’ (110). While people in capitalism are recognised ‘solely in terms of their status as owners of their bodies and of their property’, people in communism recognise one another as beings who are ‘producing for others’ (113). Communist legality advances on capitalist legality insofar as it guarantees this ‘community’-based freedom (117). But if communism exhibits ‘increased solidarity’ because it upholds ‘rights, short of property rights that result in exploitation and class domination’ (120), what principle of communist legality limits rights to this end?
Chapter 4 also distances Marx from Pashukanis: Pashukanis reduced law to private law, and envisaged that communism, by abolishing commodity exchange, abolishes the need for law; Marx thought that communism would develop its own legal relations, even if these ‘would not require a professional apparatus of coercion’ (97-9). True, ‘socialized production’ requires more than efficient administration (104). Each individual’s personal security, safety, shares of toil and consumption goods remain of special concern to them. As regulations that address these matters are legal, not technical, right does not wither away. Rights are required as policies differentially affect individuals, even if individuals are not commodity possessors. Yet Pashukanis later realised that law survives ‘“even in the sphere of relationships having nothing in common with the market and exchange”’ (105). So why frame Marx’s relation to Pashukanis by a thesis that Pashukanis came to reject?
Chapter 5 turns to the contemporary theories of Rawls, Habermas, Honneth and Fraser. Each is said to aim to reform property relations, as ‘accumulative imperatives […] erode democratic lawmaking’, while wrongly reading Marx’s works as a ‘dismissal of justice and right’ (137). The reader might struggle to connect this chapter and Part I. Chapter 5’s theme is contemporary theorists’ attitude to the effect of wealth inequalities on democracy. But Part I did not present this effect as key to Marx’s critique of liberalism, undermining the invitation to regard this attitude as a ‘response to Marx’s challenge’ (8).
Rawls is said to acknowledge that ‘neither laissez-fair capitalism nor welfare-state capitalism can address Marx’s critique’ (146). Both Rawls’ justificatory device of the original position and his proposed regime of property-owning democracy (designed to disperse capital) are viewed as a response to Marx’s critique (143-4). Rawls claims that this regime can mitigate egoism, and allow citizens a fair opportunity to exert political influence (146). Yet Rawls ‘underestimates the difficulties of sustaining dispersed ownership’ in the face of global financial capitalism, for he proposes this regime ‘while assuming a “closed state”’ (148-9). Property-owning democracy therefore cannot address Marx’s critique either. And while a ‘liberal (market) socialist regime’ is also consistent with Rawls’ principles of justice, the recommendation of either regime is said to ‘violate Rawls’s own justificatory strategy’ in that each fails to ‘resonate with citizens living in liberal democracies’ (148-9).
Marx and Habermas disagree over ‘the compatibility between democractically enacted law and capitalism’ (152). Habermas points to socio-economic rights as evidence ‘that rights can no longer be dismissed as ideological veneers for vested class interests’ (153). Moreover, in Between Facts and Norms, Habermas defends a ‘co-originality thesis’ that aims to reconcile ‘private and public autonomy’ even where the economic structure retains ‘capitalist markets’ as ‘functional requirements’ (153-5). The problem is that ‘Habermas does not differentiate between markets […] and the property regime corresponding to capitalist markets’ (157). This lack of differentiation deprives Habermas’s theory of ‘what it needs for curtailing the colonizing reach of corporate power’ (157-8), a need underlined in his remark that ‘democratic will-formation can flourish “ideally,” in “an egalitarian public”’ that has ‘“thrown off […] social stratification and exploitation”’ (158).
Honneth criticises ‘the proceduralist theories’ of Rawls and Habermas in Freedom’s Right, opting instead to reconstruct ‘the immanent potential’ within ‘existing liberal democratic institutions’ (160). For Honneth, ‘the capitalist market embodies a sphere of social freedom’ as it rests on ‘moral rules’ of ‘cooperative solidarity’ (160-2). However, Honneth exaggerates the extent to which capital accumulation allows of any solidarity: ‘an ethos of “cooperative solidarity” […] is simply not there’ (165). In a rejoinder to Freedom’s Right, Honneth grants that markets can exist in forms other than capitalism (166). But if Honneth’s position is now that cooperative solidarity recommends market socialism (166-7), he fails to reconcile this with his method of normative reconstruction (168).
Fraser’s engagement with Marx, by contrast, aims at ‘supplementing’ rather than challenging Marx (169). Marx’s insights need supplementing with systematic analyses of gender, ecology and political power as spheres on which capital relies, and that provide their own source of crises, in part because corporate interests block any adequate public policy responses (172). Fraser’s analysis, Shoikhedbrod suggests, ‘only underscores the relevance of Marx’s critique’ (173).
Finally, chapter 6 affirms the idea that Marx valued ‘the rule of law and constitutionalism’ as means whereby ‘asymmetrically positioned groups can resist domination’ (181). The ‘best evidence’ that Marx identified law’s ‘contestable nature’ is Capital’s account of the working day (186). A ‘struggle between capital and labour’ shapes the laws that govern the working day, and only a backdrop of ‘legal rules’ that apply to ‘all rights bearers’ makes this struggle possible (187-8). Laws of general application are ‘tools for resisting capitalist exploitation’ (189). That ‘Marx was a champion of constitutionalism’ (191) is shown by passages in The Eighteenth Brumaire where he warns of legal language that allows security restrictions to prevent the exercise of constitutional rights. For Marx, ‘constitutional rights are either genuinely universal […] or they are rights only in name’ (193-4).
Both discussions left this reviewer disappointed, because the author (like most interpreters) sidesteps the fact that Marx is discussing antinomies. Regarding Marx’s analysis of the working day, the author says: ‘the antinomy of rights that Marx invokes here is inconceivable without their being in the background the idea of the rule of law’ (188). If ‘the idea of the rule of law’ is a premise of an antinomy, how is that an endorsement? Regarding Marx’s view of constitutionalism, Shoikhedbrod follows up the comment that ‘Marx sarcastically infers that “both sides can appeal with perfect justice to the constitution”’ with the underwhelming remark that ‘the wording of the constitution matters’ (193). How do we explain the presence of an antinomy that allows constitutional rights to be proclaimed or restricted with equal justification?
The rule of law and a constitution may be ‘necessary conditions’ for a free society (200) and ‘tools’ in the struggle for freedom (189), but they are not therefore constitutive of a ‘promise’ that capital can be said unambiguously to ‘thwart’ (198). Shoikhedbrod assumes that Marx either understood right as derived entirely from abstract, transhistorical premises or else his normative judgments came to rest on the ‘professed ideals’ of an existing mode of production (35). This overlooks a third option (that is also distinct from Rawls’ ‘original position’ and Honneth’s ‘normative reconstruction’): in Marx’s words, to ‘develop new principles for the world out of the world’s own principles’ (Marx 1975: 144; emphasis added) – by resolving antinomies.
25 February 2021
- 1975 Letters from Deutsch-Französische Jahrbücher Marx & Engels Collected Works, Volume 3 London: Lawrence Wishart.