‘Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights’ by Igor Shoikhedbrod reviewed by James Furner

Reviewed by James Furner

About the reviewer

James Furner, Ph.D., lectures in philosophy, politics and international studies at the Independent …

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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

References

  • Marx, Karl 1975 Letters from Deutsch-Französische Jahrbücher Marx & Engels Collected Works, Volume 3 London: Lawrence Wishart.

3 comments

  1. I am grateful to James Furner for writing a review of my book. One of the virtues of his review is that it quotes and paraphrases various passages from my book, which can provide a helpful context for readers. It is most unfortunate that the reviewer was disappointed with the book in the end. Having read the review, it appears to me that much of Furner’s disappointment is rooted in a misunderstanding of the book’s central arguments and the basis on which these arguments are defended. Rather than initiating a protracted and fruitless debate, I will respond to the most relevant critical questions that were posed in the review by clarifying the book’s arguments and pointing to evidence that is supplied in the book. I do so in the interests of prospective readers. After all, the main intention of my book was to encourage readers to rethink established orthodoxies concerning Marx’s critique of liberalism and his understanding of justice, legality and rights.

    1.“Why should a new causal explanation of positive law lead Marx to revise the criteria for its normative assessment?”

    Anyone who sets out to establish the continued functional and normative significance of Recht in Marx’s considered thought must explain why Marx abandoned the transahistorical standpoint of rational right and developed an historically informed conception of right that does not succumb to moral relativism and legal nihilism. This is exactly what the first chapter sets out to do. I am by no means the first to argue that Marx was influenced by Hegel’s historically informed conception of right. Allen Wood (2004) and Sean Sayers (2015) demonstrated this long before I did. Drawing on these earlier views, I argue that Marx had an internal and an external basis for critiquing Prussian positive law (Landgesetz). On the internal perspective, Prussian positive law failed to actualize the more adequate form of modern law (the principles of generality, equity, predictability, non-retroactivity, etc.) that Marx associated with the Napoleonic Code at the time, in part because of the history of the Napoleonic Code in Rhenish Prussia. Readers are encouraged to consult the recent work of German historian Jurgen Herres (2016, 2018, 2020) on this point. As for the external critique, Marx continued to make references to “higher” forms of production and of “right” throughout his work. Rather than collapsing freedom into right, as some interpreters do, I make it clear, with reference to textual evidence, that the normative basis for judging between “higher” and “lower” standards must be a transhistorical standard other than an historically situated standard of right. That transhistorical standard is freedom—a value—which is realized to a greater or lesser extent across different modes of production. This transhistorical value of freedom and its development is thoughtfully captured in the work of Carol Gould (1978). Although Marx is no longer able to invoke a transhistorical and unchanging conception of rational right, he develops an internal and external basis for normative judgment/critique, and this is what allows him to criticize positive law without being mired in self-contradiction.

    2. “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.”

    The book does not claim that Marx assesses capitalism primarily on the basis of an “ideology-free society.” Instead, Marx assesses capitalism foremost on its own juridical standards and promises, including the practice of commodity exchange between equal rights bearers under capitalism, which turns into its opposite in the “hidden abode of production.” I explain in the book that Marx had no patience for invocations of “natural” and “eternal” justice. Readers are encouraged to revisit Marx’s critique of Proudhon’s invocations of “justice éternelle” in Capital and elsewhere for textual evidence. For this and other reasons, talk of “liberalism” is hardly misleading in this context. Liberalism was the prevailing ideology of industrial capitalism and remains a central ideological force for financialized capitalism today. Marx engages explicitly with liberal ideology in Capital when he discusses the noisy sphere of exchange, which is characterized by such cherished liberal ideals as Freedom, Equality, Property and Bentham.

    3. 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?

    I maintain throughout the book, following Marx’s arguments in the Grundrisse, Capital, and the Critique of the Gotha Program, that every form of production creates its own legal relations. If that is the case, then communist society would also create legal relations that are appropriate to communist production. These legal relations would inform the principle of communist legality that limits rights to the extent that there would remain individual disagreements and conflicts between socialized individuals, even with increased solidarity. After all, socialized individuals would still be human beings rather than saints.

    4. Why frame Marx’s relation to Pashukanis by a thesis that Pashukanis came to reject?

    I make it clear in the book that Pashukanis remains the most formidable Marxist theorist of law, whose lifelong goal was to demonstrate the inevitable withering away of law and rights under conditions of developed communism and planned production. However, Pashukanis’ thought cannot be viewed in abstraction from the political-economic context in which he developed his views and was later compelled to change them. Pashukanis’ changed views concerning the importance of law and rights appear in 1936—a year before he was executed for being a “Trotskyist wrecker.” Surely, this political context should factor in any objective assessment of his theoretical and political commitments. We will never know what Pashukanis really thought. However, at the very least, we owe him a fair trial when assessing his radical commitments to the withering away of law. For those interested in reading more about Pashukanis and his continued relevance, see Igor Shoikhedbrod, “Estranged Bedfellows: Why Pashukanis Should Worry Contemporary Formalists” in the Canadian Journal of Law and Jurisprudence. More broadly, I approach the question of law and rights in specific political contexts rather than in the abstract—Marx’s support for the equal rights of Jews in 1843, as well as his unambiguous support for civil rights and liberties in 1848-51–during the only revolutionary upheaval in which he and Engels were active participants. Readers can find additional support for this position in the work of Richard Hunt, Hal Draper, August Nimtz, and Terrell Carver.

    5 “How do we explain the presence of an antinomy that allows constitutional rights to be proclaimed or restricted with equal justification?”

    The reference to antinomy in Capital refers to the struggle between two equal rights claimants—capital and labour, capitalists and workers. One cannot make sense of right against right in the absence of a juridical framework that recognizes workers and capitalists as equal legal persons, even if they are de facto unequal in practice. All I claim in the book is that that this juridical presupposition of formal equality opens an arena for class struggle that matters politically, even if it is limited. After all, I also cite Marx’s incisive point that “revolutions are not made by laws” (191).

    6. “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.”

    Unfortunately, the reviewer has neglected one of the more original contributions of the book, namely its emphasis on the conceptual relevance of Aufhebung for understanding the material foundation and transformation of right in Marx’s thought. For those unfamiliar with this Hegelian concept, it means three things at once—negation, preservation, and supersession (or the raising to qualitatively higher and new level). The reviewer claims that the book overlooks a third possibility: “to develop new principles for the world out of the world’s own principles’.” On the contrary, this is exactly what I maintain in my discussion of the revolutionary Aufhebung of bourgeois right, which would transform the content of communist Recht, while negating exploitative production and preserving the rational elements of bourgeois right, the most important of which is the idea that individuals should not be reduced to the status of things/property. The virtue of my approach is that it can explain important continuities in Marx’s reflections on justice, legality and rights beyond his earlier and middle writings.

    I hope that prospective readers and critics will find these comments helpful.

  2. Focussing on the author’s points 5 & 6: in the subsection entitled ‘the Supersession of Rights and the Conceptual Relevance of Aufhebung’ (pp. 84-8), the author argues that communism does not annihilate rights, as that would preclude freedom by restoring ‘direct domination’ (87). Rather, communism ‘negates’ capitalism’s ‘exploitative relations of production’, while retaining rights that serve a ‘higher’, because more ‘community’-friendly, function (87-8). If one social system takes some features from its predecessor, repurposes them, and drops some of the latter’s other features, then that, for the author, is an instance of Aufhebung, ‘in which elements of the preceding mode of production are simultaneously negated, preserved, and raised to a higher level’ (86-7).

    I fail to see how this is ‘to develop new principles for the world out of the world’s own principles’ (MECW, 3, p. 144), as the author insists in reply to my review. If exploitation ceases, then the rights that permit exploitative relations must be removed. What new principle of communist legality removes them? How is it developed from – rationally grounded by appeal to – defects in capitalism’s principles? Revisiting Marx’s Critique of Liberalism does not say, and its version of Aufhebung does not help. To say that communist legality jettisons some elements of capitalist legality but retains and repurposes others is not to say that the normative standard by which communist legality is to be regarded as an improvement on capitalist legality is grounded by appeal to defects in capitalism’s principles.

    We might do better with a version of Aufhebung defined by overcoming an irrationality. If an antinomy is a type of irrationality, then Marx’s account of communist legality constitutes an application of the concept of Aufhebung if it contains a principle whose adoption is a rational requirement of resolving one or more of capitalism’s antinomies. Communist legality could then be presented as an Aufhebung of capitalist legality containing ‘new principles’ developed ‘out of the world’s own principles’ (MECW, 3, p. 144). But this would require us to pay more attention to the antinomies that Marx identifies.

  3. Thanks for revisiting the discussion of Aufhebung in the book. As a concluding point, I’d like to reiterate that my discussion of Aufhebung is amenable to your concern with paying more attention to the ‘antinomies that Marx identifies’–something that extends well beyond his 1844 writings.
    I will of course leave it for readers to decide whether my ‘version’ of Aufhebung is helpful or not.

    My point regarding the Aufhebung of bourgeois right is firmly anchored in Marx’s texts, which are cited in that specific section of the book. For the benefit of readers, I include the most relevant passages below.

    From the Grundrisse:

    ‘Relations of personal dependence (entirely spontaneous at the outset) are the first social forms, in which human productive capacity develops only to a slight extent and at isolated points. Personal independence founded on objective [sachlicher] dependence is the second great form, in which a system of general social metabolism, of universal relations, of all-round needs and universal capacities is formed for the first time. Free individuality, based on the universal development of individuals and on their subordination of their communal, social productivity as their social wealth, is the third stage. The second stage creates the conditions for the third.’

    From Capital:

    ‘The capitalist mode of appropriation, the result of the capitalist mode of production, produces capitalist private property. This is the first negation of individual private property, as founded on the labour of the proprietor. But capitalist production begets, with the inexorability of a law of Nature, its own negation. It is the negation of negation. This does not re-establish private property for the producer, but gives him individual property based on the acquisition of the capitalist era: i.e., on cooperation and the possession in common of the land and of the means of production.’

    From the Critique of the Gotha Program:

    ‘What we have to deal with here is a communist society, not as it has developed on its own foundations, but, on the contrary, 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.’

    ‘Here, obviously, the same principle prevails as that which regulates the exchange of commodities, as far as this is exchange of equal values. Content and form are changed, because under the altered circumstances no one can give anything except his labor, and because, on the other hand, nothing can pass to the ownership of individuals, except individual means of consumption.’

    ‘Hence, equal right here is still in principle – bourgeois right, although principle and practice are no longer at loggerheads, while the exchange of equivalents in commodity exchange exists only on the average and not in the individual case.’

    ‘In spite of this advance, this equal right is still constantly stigmatized by a bourgeois limitation. The right of the producers is proportional to the labor they supply; the equality consists in the fact that measurement is made with an equal standard, labor.’

    ‘But these defects are inevitable in the first phase of communist society as it is when it has just emerged after prolonged birth pangs from capitalist society. Right can never be higher than the economic structure of society and its cultural development conditioned thereby.’

    ‘In a higher phase of communist society, after the enslaving subordination of the individual to the division of labor, and therewith also the antithesis between mental and physical labor, has vanished; after labor has become not only a means of life but life’s prime want; after the productive forces have also increased with the all-around development of the individual, and all the springs of co-operative wealth flow more abundantly – only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs!’

    Readers will have to judge for themselves whether or not these passages (and my discussion of them in the book) speak to Marx’s call ‘to develop new principles for the world out of the world’s own principles.’

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