When I was an undergraduate specializing in human rights (don’t ask how long ago), we were told two things about Karl Marx: that he wasn’t a fan of capitalism, and that he was a critic of liberal rights. From his essay “On the Jewish Question” onward, Marx was taken to expose the fundamental contradictions and hypocrisies of rights discourse, revealing the meaninglessness of liberal freedoms in a world of vast inequalities in property and power. To paraphrase Anatole France, liberal property rights meant that beggars and CEOs alike were allowed to buy mansions.
In the communist society to come, this account of Marx continued, the state, and thus the very idea of “rights,” would wither away. Resources would be distributed based on the principle “from each according to his ability, to each according to his needs,” and humans would finally be able to develop all sides of their nature: the free development of each would be engendered by the free development of all. This would be real and substantive freedom, rather than the purely formal liberty of liberalism.
In his new book Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights, the political philosopher Igor Shoikhedbrod sets out to challenge this conventional reading. According to Shoikhedbrod, Marxism’s radical critique of liberalism is precisely radical in the Latin sense of radix: it grows out of a set of shared convictions that Marx thinks liberalism is unable to realize.
Marx on Liberalism
Shoikhedbrod’s project is to “reconstruct” Marx’s writings — a necessary task, because even though the famed thinker wrote a great deal about liberalism and law, very little of it was systematic. His magnum opus Capital, while a sweeping work, was an exploration of how capitalism works. Very little directly incorporated an analysis of the liberal state. So Marx’s interpreters have had to build a coherent view out of his other writings.
This is a daunting intellectual task, not least because any such reconstruction always runs the risk of being less than faithful to the original project. But perhaps the focus should be less on fidelity and more on achieving the “goal” that a theory sets for itself.
In Shoikhedbrod’s case, his rereading of Marx is intended to accomplish two tasks: first, to show that Marx believed liberalism and liberal rights were an impressive historical accomplishment; and second, to argue that overcoming the limits of liberalism in a classless society wouldn’t necessarily mean the end of legality and some transliberal conception of rights. As Shoikhedbrod puts it:
This approach can also shed light on a puzzle that has perplexed leading commentators, who have difficulties in making sense of why Marx would praise the emancipatory value of certain liberal rights while concluding that none of these rights rises above the atomism and egoism of bourgeois society. In addition to offering a reconstruction of Marx’s views on rights, this book advances a normative argument for communist legality that is rooted in Marx’s commitment to the free development of individuals…. A classless communist society would still need a system of legal justice that would mediate among the diverse and potentially conflicting projects pursued by socialized individuals.
Both of these positions are bound to be controversial; the first, since many of liberalism’s more resolute Marxist critics will be allergic to any claim he said nice things about that hated doctrine, and the second, because much of the appeal of Marx’s theorizing on communism comes from the hope that one day law and right — and thus legal coercion — will disappear entirely.
It is to Shoikhedbrod’s great credit that he manages to be highly convincing on both counts, writing an eminently readable book that gives us a better understanding of the relationship between Marxism and liberalism.
The first substantive chapter of Shoikhedbrod’s book is the most important. Over the better part of a hundred pages he stitches together Marx’s fragmented works on liberal rights and the law, assembling them into a coherent whole. The image that emerges is considerably more nuanced than the stock takes outlined above.
In Shoikhedbrod’s reading, Marx is very much a dialectical critic of liberalism rather than a straight-up naysayer. He admires the liberties provided by liberal law — particularly freedom of the press — touting them as an enormous gain over the restrictions of feudal aristocracy. Early in his career Marx even juxtaposes the liberatory potential of “rational” liberal law to the prejudices of “tradition.”
However, as his thinking developed, Marx became skeptical of transhistorical appeals to values like freedom, contending that liberalism was unreflective about its own roots in changing economic relations. This blinded liberals to how the freedoms guaranteed by liberal law were still constrained by the inequality and exploitation of capitalism. Marx believed that these would be overcome in the future communist society, but famously never provided many details about how this would be achieved.
Rights and Law in the Communist State
This gap is the impetus for Shoikhedbrod’s primary theoretical innovation: developing a communist account of legality and rights inspired by Marx’s work. This is a tricky business, since, as Shoikhedbrod acknowledges, the primary appeal of communism is supposed to be its promise that the state and law will vanish. It also seems to run counter to the dialectical and historical insights of Marxism: when one begins making purely normative claims on Marx’s behalf, doesn’t that just reduce him to another utopian socialist?
Shoikhedbrod sidesteps this problem by pointing out that the idea that law and the state will simply disappear owes more to thinkers like Soviet theorist Evgeny Pashukanis than Marx, who believed that law would eventually be superseded by “technical regulation.”
Shoikhedbrod disputes this interpretation of Marxism, insisting that there is little reason to assume Marx believed all forms of law and rights would vanish under communism.
Although Marx assumes that the development of productive forces under communism will generate levels of material abundance sufficient for meeting the diversity of human needs while decreasing necessary labour time, at no point does he suggest that technical judgements will take the place of ethical and juridical considerations…. A mode of production captures the concrete way in which human beings express themselves in the world based on what they produce and the manner in which they produce at a given point in time.
Shoikhedbrod takes this as license to sketch out a theory of what rights and law would look like in a communist society. He argues that many of the conventional liberal rights would be maintained, but in highly altered form. In particular they would no longer define relations between “atomistic individuals but among explicitly social individuals.”
The specifically capitalist rights that enable exploitation and class domination would indeed wither away, and the “external state” that imposes itself upon citizens would give way to a democratic polity where individuals had the social freedom to cooperatively establish laws for themselves in the common interest. As Marx once claimed, “democracy is the solved riddle of all constitutions.”
Shoikhedbrod doesn’t spell out his Marx-inspired vision comprehensively; I suspect he will sketch out a full “materialist theory of right” in a future work. But the general argument Shoikhedbrod puts forward is powerful, particularly its insistence that nothing could be further from the historical spirit of Marxism than expecting a post-capitalist state to reject all the features of its parent historical epoch.
Liberalism and Socialism
Shoikhedbrod has produced an excellent book that deserves a large audience. It rebuts many unhelpful stereotypes about Marx’s approach to law and rights, and teases a full materialist theory of right that will no doubt be an event.
My one substantive critique is that for a “Hegelian” reading of Marx there is very little about the philosophy of history underpinning his work (something Shoikhedbrod seems to acknowledge in the last chapter.) This is unfortunate, because the teleological quality of Marx’s theory of history is a big part of both its power and its weakness.
Reduced to normative critique, Marxism becomes a powerful mirror to the limitations of liberal law and rights, but simply one moral and philosophical voice among many. So too does a potential materialist theory of right. Shoikhedbrod obviously doesn’t want this, but it isn’t clear how to avoid the dilemma without a sustained defense of Marx’s approach to history that acknowledges the critiques and overcomes them.
Still, this should not detract from the significant accomplishment that is Revisiting Marx’s Critique of Liberalism. Rebutting the usual reading of Marx as a mere opponent of liberalism, Shoikhedbrod shows that Marx celebrated liberalism’s accomplishments while excoriating its apologetics for capitalism.
In our own push for a fairer society, we can recognize the commonalities between liberalism and socialism at the level of ideas — without allowing private property rights to torpedo our democratic project.