Karl Marx’s Radical Critique of Liberalism and the Future of Right(s) [DRAFT-Please do not cite or reproduce this without the author’s permission]

Igor Shoikhedbrod Doctoral Student Department of Political ScienceUniversity of Toronto1

“No man combats freedom; at most he combats the freedom of others. Hence every kind of freedom has always existed, only at one time as a special privilege, at another as a universal right.”—Karl Marx, Debates on the Freedom of the Press.2

“Right can never be higher than the economic structure of society and its cultural development conditioned thereby.”—Karl Marx, Critique of the Gotha Program.3

The aim of this paper is to re-examine Marx’s radical critique of liberalism and to

question the prevailing orthodoxy surrounding his critical reflections on right and rights. It is

important to note from the outset that the German word for right (Recht) refers to legal claims

and entitlements as well as to normative standards of justice that guide relations between

individuals.4 Although these different meanings of Recht are related, I will mainly consider

Marx’s account of rights as legal claims when discussing “On the Jewish Question”, the

Grundrisse and Capital, and I will address his position on standards of right as they relate to

distributive justice when examining the Critique of the Gotha Program. A holistic reading of

Marx’s position on Recht is warranted because he wrote in different periods as a philosopher, a

journalist, a critic of political economy, as well as a revolutionary involved in the International

Workingmen’s Association. Moreover, unlike his predecessors—Kant and Hegel—Marx never 1*An earlier version of this paper was presented at the Marx and Philosophy Society’s 10 th Annual Conference on ‘Marxism and Liberalism’. I would like to thank Professors Alan Brudner, Richard Day and Danny Goldstick, all from the University of Toronto, for helpful comments and criticisms on earlier drafts. 2 Karl Marx.“Debates on the Freedom of the Press”. Collected Works, Vol.1 (International Publishers: New York, 1975).3 Karl Marx. “Critique of the Gotha Program”. The Marx-Engels Reader, ed. Robert Tucker (New York: Norton, 1978), 531.4 When approaching Marx’s position on Recht, I have in mind his outlook on standards of right and legal rights-claims within and beyond capitalist society. Gesetz is usually the German word that is used to denote positive law or legislation. My usage of Recht follows in the familiar footsteps of leading commentators in the literature, such as Allen Wood, Allen Buchanan, and Steven Lukes, who interpret Marx simultaneously as an opponent of rights-claims and standards of right. Needless to say, I reach a different conclusion than these commentators.

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wrote a single treatise on right. I will argue that Marx did not envision the abolition of right and

rights in communist society, even as human needs are satisfied in unprecedented ways by the

development of society’s productive forces under associated production. The logic of Marx’s

dialectical analysis points instead to the conclusion that right would assume a higher and more

adequate foundation that could not have been realized under capitalism. To make the case for the

continued relevance of right and rights, I will extrapolate from Marx’s work as a whole and

highlight two Hegelian concepts: sublation5 (Aufhebung) and recognition (Anerkennung) that

have been neglected in the scholarly literature on this topic. Marx retains these concepts and

provides them with a historical-materialistic basis even after he criticizes Hegel’s Philosophy of

Right.6 I hope to demonstrate that Aufhebung and Anerkennung are essential for understanding

the future of right and the free development of socialized individuals beyond the narrow

parameters of liberalism and ‘bourgeois right’.

In the history of Western political thought Karl Marx is still regarded as one of the most

powerful critics of liberalism. Liberalism consists of many diverse political outlooks and

movements, but it will understood here foremost by its principled commitment to the freedom

and equality of individuals, whose dignity and moral worth are secured primarily through

constitutional rights. It is commonplace to view Marx’s critique of liberalism through his

dismissal of rights as the manifestations of the estranged and egotistic individual of bourgeois

5Aufhebung is often translated as ‘sublation’ in English. Unfortunately, there is no equivalent word in the English language that captures the nuanced meaning that Aufhebung has in German.6 At a time when Hegel was being dismissed by Marx’s contemporaries as a “dead dog”, Marx declared: “I therefore openly avowed myself the pupil of that mighty thinker, and even here and there, in the chapter on the theory of value, coquetted with the modes of expression peculiar to him. The mystification which the dialectic suffers in Hegel’s hands by no means prevents him from being the first to present its general form of working in a comprehensive and conscious manner. With him it is standing on its head. It must be turned right side up again, if you would discover the rational kernel within the mystical shell.” Karl Marx, “Afterword to the Second German Edition” [1873]. Capital Vol. 1, ed Frederick Engels. (New York: International Publishers, 1967), 59-60. The claim that Marx appropriated important concepts from Hegel should not be interpreted as an attempt to underplay important differences between the two thinkers, the most obvious being the absence of Geist in Marx’s materialistic theory of history, which basis itself on the interchange between human beings and nature. Unfortunately, I cannot pursue this topic further due to space restrictions.

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society in “On the Jewish Question”. According to an interpretation that is now widespread,

Marx sees rights only as barriers and never as bridges to human freedom. Thus it is argued that

Marx’s earliest and most mature assessment of right and rights is consistently negative, which

presumably explains why both must be abolished, along with private property and classes, before

human emancipation can be realized under communism. This interpretation of the withering

away of law and right was first proposed in a systematic way by the notable Soviet legal theorist

Evgeny Pashukanis, who argued that the concept of right was derivative from the commodity

form and from generalized exchange relations between buyers and sellers on the capitalist

market. Pashukanis maintained that the abolition of the commodity form and of exchange

relations would lead to the abolition of right and the replacement of the latter with technical

regulation. Rights would be abolished as a matter of course.7

The consensus around Marx’s negative depiction of right and rights, and their historical

irrelevance under communism, was not confined to Marxists such as Pashukanis. A myriad of

Marx scholars followed suit in arguing that right was essentially a juridical concept for Marx,

and that the end of class domination would spell the end of right and rights. Marx, it was argued,

had no patience for such narrow bourgeois considerations in the emancipated society. Allen

Wood inferred that “the end of class society will mean the end of the social need for the state

mechanism and the juridical institutions within which concepts like ‘right’ and ‘justice’ have

their place.”8 Not too long after Wood, Steven Lukes inquired whether Marxists could endorse 7 See Evgeny Pashukanis. Law and Marxism: A General Theory (London: InkLinks, 1978). Pashukanis castigates socialist thinkers who suppose that proletarian law and standards of right would prevail in place of the bourgeois legal form. He writes: “the withering away of the categories of bourgeois law will, under these conditions, mean the withering away of law altogether, that is to say the disappearance of the juridical factor from social relations” (Pashukanis, 61). Pashukanis concludes that “Marx conceives of the transition to developed communism not as a transition to new forms of law, but as a withering away of the legal form as such, as a liberation from the heritage of the bourgeois epoch which is fated to outlive the bourgeoisie itself” (Pashukanis, 63). 8 Allen Wood. “The Marxian Critique of Justice”, Philosophy & Public Affairs , Vol. 1, No. 3 (Spring, 1972), 271. I had the privilege of discussing this topic in person and over a series of email exchanges with Allen Wood, who remains adamant that Marx had no positive use for right and rights in communist society. From my understanding, Wood takes aufhebung to mean negation in Marx.

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human rights; the answer to his query was resoundingly negative.9 Lezek Kolakowski went even

further when he insisted that Marxist philosophy is inhospitable to the idea of human rights

because it is based on “the belief that progress can be measured only by the ability of mankind to

control the conditions, both natural and social, of its life, and that, consequently, an individual’s

value is not related to his personal life, but to his being a component of the collective ‘whole’ ”.10

Kolakowski concluded that “one should naturally expect that the ultimate liberation of humanity

would consist in the coercive reduction of individuals into inert tools of the state, thereby

robbing them of their personality, of their status as active subjects”.11 It is not my intention to

engage in a refutation of all the prominent interpretations associated with Marx’s treatment of

right and rights, nor do I wish to claim that these interpretations are without some merit.

However, I will suggest an alternative method of approaching this topic, which should provide

good reasons for doubting conventional liberal and Marxist interpretations on the abolition of

right and rights in communist society.

1. On the Jewish Question: Marx’s Selective Critique of Rights

Marx’s earliest appraisal of the Declaration of the Rights of Man and of the Citizen, in

“On the Jewish Question”, is an appropriate starting point for such an inquiry because critics

usually point to this work as the clearest evidence of Marx’s disdain for rights. “On the Jewish

Question” was written in 1843, at a time when Marx was not yet acquainted with political

economy and the decisive role that classes played in history. Marx would recount in a letter to

Arnold Ruge that he was asked by members of the Jewish community to endorse a parliamentary

9 Steven Lukes. “Can a Marxist believe in human rights?”, Praxis International 4, (1982). 10 Leszek Kolakowski. “Marxism and Human Rights” Daedalus , Vol. 112, No. 4, (Fall, 1983), 92.

11 Ibid.

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petition in favour of granting equal civil and political rights to Jews in Prussia, an initiative he

actively supported. Marx makes it clear in this letter that despite his distaste for Judaism (and all

forms of organized religion), “the point is to punch as many holes as possible in the Christian

state and smuggle in rational [my emphasis] views as much we can. That must at least be our

aim—and the bitterness grows with each rejected petition.”12 In the essay that become “On the

Jewish Question”, Marx takes issue with Bruno Bauer, his former mentor and fellow left

Hegelian, who argued that Jews should not be granted civil and political rights until they

renounced their religious commitments to Judaism. Marx demonstrates the flaws in Bauer’s

argument while also revealing the limitations of political emancipation.

Political emancipation refers to a liberal constitutional state that has emancipated itself

from formally prescribed privileges in favour of religion and private property at the level of

politics. Marx’s first step is to refute Bauer’s claim that the liberal constitutional state

presupposes the renunciation of religion. Marx points to the United States as the only country

where the political state had actually been emancipated from the influence of religion. However,

religion was not abolished in the United States; instead, it was relegated to the private sphere—

the sphere of civil society—where it continued to prevail.13 The enduring influence of religion in

the United States reveals the fundamental error in Bauer’s assertion that Jews could not be

granted equal rights so long as they refused to abandon their religious convictions. The liberal

state presupposes the constitutional protection of religion rather than its abolition, so there could

be no legitimate grounds for denying civil and political rights to Jews.14 If anything, the logic of

political emancipation requires that Jews be granted these rights as free and equal citizens of the

12 Karl Marx cited in David McLellan. Karl Marx: A Biography, 4th ed. (New York: Palgrave Macmillan, 2006), 79.13 Karl Marx. “On the Jewish Question”, The Marx-Engels Reader, ed. Robert Tucker, (New York: Norton, 1978), 31.14 Ibid.

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liberal state. Any liberal state that fails to secure civil and political rights for its citizens is

therefore deemed hypocritical on its own standard of right.

Marx makes the important observation that religious influence is relegated to civil society

by the liberal state, along with private property and such arbitrary distinctions as inheritance,

social status, education, and occupation. He notes that some states in America went so far as to

abolish the property qualification for democratic participation and representation. However,

Marx reasons that despite the avowed claims of the liberal state to treat all individuals as free and

equal citizens before the law, “the state, none the less, allows private property, education,

occupation, to act after their own fashion...far from abolishing these effective differences, it only

exists insofar as they are presupposed.”15 The liberal state claims its universality by pursuing the

public good rather than any particular interests. However, in substance the liberal state does not

transcend these particular interests as much as it presupposes their continued existence. This

demonstrates for Marx that while the state can free itself from the influences of religion and

private property, this does not mean that individuals have been emancipated from religion and

private property in their everyday lives. There exists a contradiction between the free and equal

citizens that live in the liberal state and their empirical existence as warring egotists in civil

society, where they are unequal and unfree.16 Marx therefore asserts that “The limits of political

emancipation appear at once in the fact that the state can liberate itself from a constraint without

man [Mensche] himself being really liberated; that a state may be a free state without man

himself being a free man.”17 It is in this context that Marx formulates his critique of the rights of

man as they operate in bourgeois civil society.

15 Karl Marx, “On the Jewish Question”, 33.16 Karl Marx, “On the Jewish Question”, 33.17 Karl Marx, “On the Jewish Question”, 32.

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What is most striking about Marx’s critical assessment of the rights of man is his decision

to focus almost entirely on the inalienable rights of equality, liberty, security and property in the

Declaration of the Rights of Man and of the Citizen.18 To be sure, these inalienable rights were

the historical achievements of the French Revolution. Bearing this in mind, Marx will show that

these rights are characterized by the limitations that necessarily befall bourgeois society. Aside

from referencing the constitutional protection of religious freedom in the United States to refute

Bauer’s claims against the political emancipation of Jews, the inalienable rights of equality,

liberty, security and property form the crux of Marx’s critique of the rights of man in “On the

Jewish Question”, and for good reason. Nowhere does Marx argue against the right to a free

press19, freedom of conscience, due process, association, movement, and the right not to

arbitrarily detained, assaulted, or oppressed, nor does he oppose the rights of citizens to

collectively administer their political affairs. In fact, we will see that Marx takes these rights for

granted in any modern society that has surpassed the vestiges of feudalism.

Marx goes on to show that the inalienable rights of equality, liberty, security, and

property cannot rise above the contradictions of bourgeois civil society. Marx argues that the

right to liberty amounts to little more than the protection of the atomistic and competitive

individual from certain physical harms done by other competing individuals.20 The right to

equality does not extend beyond the formal protection of this individual from external

impediments and threats before the law. The right to property authorizes individuals to own and

exchange private property without any concern for the welfare of others. Security is also defined

18 Karl Marx, “On the Jewish Question”, 42.19 On the contrary, in addition to criticizing Prussian censorship, which inspired the opening quote of the paper from the Debates on the Freedom of the Press, Marx points out that the liberal rights to security and unlimited freedom of expression are compromised in practice through violations of privacy and the stifling of free expression as soon as these rights are deemed to conflict with ‘public liberty’ and ‘political life’. See Karl Marx.“On the Jewish Question”, 44.20 Karl Marx. “On the Jewish Question”, 42.

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as the legal protection of personhood, rights, and private property.21 Given the serious limitations

that he identifies with these inalienable rights, Marx concludes that “None of the supposed rights

of man, therefore, go beyond [my emphasis] the egoistic man, man as he is, as a member of civil

society [bürgerliche Gesellschaft], that is, an individual separated from the community,

withdrawn into himself, wholly preoccupied with his private caprice.”22 By this time, however,

most interpreters jump to the conclusion that these remarks prove without a reasonable doubt that

Marx saw no positive use for rights.

The main problem with this interpretation is that it disregards Marx’s preceding

declaration that political emancipation, despite all of its flaws and limitations, constitutes a

necessary and progressive step in the struggle for human emancipation. Marx writes that

“Political emancipation certainly represents a great progress. It is, not, indeed, the final form of

human emancipation, but it is the final form of human emancipation within the framework of the

prevailing social order.” 23 Why would Marx value political emancipation if he had no positive

use for rights? Or, put differently, why would Marx support a petition in favor of granting equal

civil and political rights to Jews if he only saw rights as barriers to human freedom? Although

the ideals of liberty and equality are undermined by the empirical reality of inequality and

unfreedom in civil society, the recognition of personhood and the protection of one’s rights

before the law constitute major victories over the arbitrary will of the feudal lord and the direct

relations of domination that preceded bourgeois society.24 Political emancipation is limited

insofar as the liberal state emancipates itself from formally prescribed privileges in favour of

21 Karl Marx. “On the Jewish Question”, 43.22 Ibid.23 Karl Marx. “On the Jewish Question”, 35. It is worth noting that even in this formative work, Marx maintains that the rights of man do not constitute the ultimate form of human emancipation; rather, they constitute “the final form of human emancipation within the framework of prevailing social order”. The prevailing social order is none other than bourgeois or capitalist society. In his later writings, Marx will refer to prevailing social orders as ‘modes of production’. 24 Karl Marx. “On the Jewish Question”, 45. We will see that this point is reiterated throughout Marx’s work.

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religion and private property without actually resolving any of these contradictions in civil

society. This leads Marx to argue that the “the political revolution dissolves civil society into its

elements without revolutionizing these elements themselves or subjecting them to criticism”.25

At this point in Marx’s intellectual development, he insists that the contradictions of

political emancipation will be superseded when the private individual retrieves his or her

individual powers as social powers rather than projecting these powers onto the external state.26

However, the act of retrieving one’s abstract powers as genuine social powers—what Marx

would later refer to as self-determination in the context of community—does not preclude the

recognition of one’s rights as a member of a community or association. Far from dispensing with

rights, Marx takes for granted the idea of equal rights27 and the recognition of personhood as

necessary preconditions for modern freedom. The historic achievement of political emancipation

consists in the recognition that all individuals residing in a liberal state are entitled to civil and

political rights. Hence, the chief issue for Marx is not that liberalism has gone too far with its

emancipatory agenda (in this regard, he often refers to liberal thinkers as ‘political liberators’);

on the contrary, liberalism has not gone far enough in achieving substantive human

emancipation. Liberalism reaches its apex in bourgeois or capitalist society. However, the

contradictions of capitalist society cannot be resolved within its contradictory political horizons.

Human emancipation requires a revolutionary change in the material conditions of life and in the

social relations of individuals. If Marx is right, then such a revolutionary change would usher in

a transformation in human consciousness, culture, and values, while also creating the conditions

25 Karl Marx. “On the Jewish Question”, 46.26 Ibid.27 The significance of the egalitarian supplement to conventional rights doctrine (i.e. its emphasis on ‘equal’ rights) consists in the historical fact that individuals—to the extent that they possessed any rights at all—did not always possess equal formal rights.

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for a qualitatively distinct standard of right and a corresponding set of rights. The latter remains

to be shown.

In his later works, particularly in the Grundrisse and in Capital, Marx seeks to

demonstrate that the freedom and equality of persons in the arena of exchange is undermined by

capitalist production, where the domination of capital over labour prevails under the banner of

equal rights. Whereas Marx located a definite contradiction between the abstract citizen of the

liberal state and the empirical individual of civil society in “On the Jewish Question”, equal

rights and freedoms now give way to inequality and unfreedom in the sphere of capitalist

production. By this time, however, Marx has developed a historically grounded critique of

political economy, and he also has a heightened awareness of the significance of class struggle in

revolutionary transformation. Marx actually reflects on his intellectual development, particularly

his shift from the critique of political and juridical categories to the critique of political economy,

in a telling passage from the Preface to the Critique of Political Economy:

I was taking up law, which discipline, however, I only pursued as a subordinate subject along with philosophy and history. In the year 1842-44, as editor of the Rheinische Zeitung, I experienced for the first time the embarrassment of having to take part in discussions on so-called material interests...The first work which I undertook for a solution of the doubts which assailed me was a critical review of the Hegelian philosophy of right, a work the introduction to which appeared in 1844 in the Deutsch–Französische Jahrbücher, published in Paris. My investigation led to the result that legal relations as well as forms of state are to be grasped neither from themselves nor from the so-called general development of the human mind, but rather have their roots in the material conditions of life, the sum total of which Hegel, following the example of the Englishmen and Frenchmen of the eighteenth century, combines under the name of ‘civil society,’ that, however, the anatomy of civil society is to be sought in political economy.28

Marx would follow through with a systematic critique of capitalist political economy. He would

also return to the important claim that legal and political categories are informed and constrained

28 Karl Marx. “Marx on the History of His Opinions”, The Marx-Engels Reader, ed. Robert Tucker, (New York: Norton, 1978), 3-4.

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by the mode of production in a dialectical totality. This will have important implications for my

claim that each mode of production, including the future communist mode of production, is

characterized by a distinct form and a corresponding content of right.29

2. Capitalist Production: The Betrayal of Freedom and Equality

Marx’s preliminary outline of Capital was published posthumously under the title of the

Grundrisse. The Grundrisse is an influential work in part because it revisits the central themes of

estrangement and emancipation that inspired Marx’s early manuscripts, and it also reveals

Hegel’s continued influence in Marx’s mature writings. The main difference, however, is that

Marx’s arguments are now grounded in a careful historical analysis of different political-

economic formations, and he occasionally provides glimpses into the future communist society.

More importantly, Marx takes up his earlier assessment of equal rights and the ways in which

these rights manifest themselves in the buying and selling of labour power. Marx contrasts these

juridical relations with the relations that prevailed under slavery and feudalism:

The first presupposition, to begin with, is that the relation of slavery or serfdom has been suspended. Living labour capacity belongs to itself, and has disposition over the expenditure of its forces, through exchange. Both sides confront each other as persons. Formally, their relation has the equality and freedom of exchange as such. As far as concerns the legal relation, the fact that this form is a mere semblance, and a deceptive semblance, appears as an external matter....Nevertheless, in this way everything touching on the individual, real person leaves him a wide field of choice, of arbitrary will, and hence of formal freedom [my emphasis]. In the slave relation, he belongs to the individual, particular owner, and is his labouring machine. As a totality of force-expenditure, as labour capacity, he is a thing [Sache] belonging to another, and hence does not relate as subject to his particular expenditure of force, nor to the act of living labour. In the serf relation he appears as a moment of property in land itself, is an appendage of the soil, exactly like draught-cattle.30

29 I agree with Olufemi Taiwo when he argues that each mode of production has a distinct nature or essence for Marx. In this regard, Taiwo places Marx in the legal naturalist tradition. However, like other Marxists, he concludes his argument with the prognosis that law and right will wither away. I disagree with Taiwo’s conclusion. See Olufemi Taiwo. Legal Naturalism: A Marxist Theory of Law. (Ithaca: Cornell University Press, 1996).30 Karl Marx. Grundrisse, Trans. Martin Nicolaus (Middlesex: Penguin, 1973), 464-5.

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Although Marx states in the aforementioned passage that the rights of persons are actually a

‘deceptive semblance’ under capitalist production, he assumes without any reservations that the

recognition of personhood rules out direct juridical relations of domination that characterized all

preceding modes of production.. Thus, there are two dimensions to Marx’s assessment of these

rights. On the one hand, Marx identifies the rights of persons as an historical advance; on the

other hand, he suggests that these rights also serve an ideological purpose in capitalist society

insofar as they mask exploitative relations of production in a society that claims to be free and

equal. Although Marx will identify the exploitative basis of capitalist production, it is a mistake

to conclude that he conceives of the rights of persons merely as semblances or facades.

Similarly, while Marx’s analysis of commodity fetishism31 will demonstrate that the social

relation between persons is transformed into a relation between things, his point is that capitalist

production endows commodities with independent and fetish-like characteristics while reducing

the ‘active status’ of persons to things, that is, to beings who do not exercise control over the

products of their labour and are not in a position to consciously determine their lives. Nowhere

does Marx say that the rights of persons are somehow to be undone, and this becomes all the

more evident by his repeated contrasts between capitalist society and all preceding modes of

production that relied on direct domination and hierarchy, beginning with antiquity.

Scholars tend to overlook the significance of Marx’s remarks in the opening chapter of

Capital concerning Aristotle’s inability to arrive at a unifying concept of value. Despite

Aristotle’s insight that value requires some standard of equality, his analysis came to a halt as

soon he chanced upon two qualitatively distinct commodities (e.g. houses and beds) that could

nonetheless be exchanged. Marx explains that Aristotle could not conceive of human labour as

the equalizing standard of value because he lived in a society that was defined by slavery, and

31 See Karl Marx. Capital Vol. 1, ed Frederick Engels. (New York: International Publishers, 1967), 72-3.

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therefore by inequalities between individuals and their labour-powers. The ancients lacked the

concept of personhood because slaves, women, and children were viewed, albeit in different

ways, as the property of masters, men, and fathers. Marx writes:

There was, however, an important fact which prevented Aristotle from seeing that, to attribute value to commodities, is merely a mode of expressing all labour as equal human labour, and consequently as labour of equal quality. Greek society was founded upon slavery, and had, therefore, for its natural basis, the inequality of men and of their labour powers. The secret of the expression of value, namely, that all kinds of labour are equal and equivalent, because, and so far as they are human labour in general, cannot be deciphered, until the notion of human equality has already acquired the fixity of a popular prejudice. This, however, is possible only in a society in which the great mass of the produce of labour takes the form of commodities, in which, consequently, the dominant relation between man and man, is that of owners of commodities.32

Marx acknowledges that equal rights constitute a positive achievement for the freedom of

individuals, which is also why he takes abstract commodity producers as his starting point in

Capital. Marx speaks of independent commodity producers, whose social relations are mediated

through the exchange of commodities on the market.33 Elsewhere, Marx cautions his readers that

“In the form of society now under consideration, the behaviour of men in the social process of

production is purely atomic. Hence their relations to each other in production assume a material

character independent of their control and conscious individual action. These facts manifest

themselves at first by products as a general rule taking the form of commodities”.34 Marx’s

depiction of abstract commodity producers is reminiscent of Hegel’s description of abstract and

atomistic persons in the Philosophy of Right. The overriding principle of abstract right is the

formal recognition of persons as bearers of rights. Marx builds upon Hegel’s formulation of the

person to describe the exchange of commodities on the market. Marx explains:

In order that these objects may enter into relation with each other as commodities, their guardians must place themselves in relation to one another, as persons whose will resides

32 Karl Marx. Capital Vol. 1, 59-60.33 Karl Marx. Capital Vol. 1, 72-3.34 Karl Marx. Capital Vol. 1, 92-3.

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in those objects, and must behave in such a way that each does not appropriate the commodity of the other, and part with his own, except by means of an act done by mutual consent. They must, therefore, mutually recognise in each other the rights of private proprietors.35

The exchange of commodities assumes that agents enter into voluntary contractual relations with

one another and respect each other’s rights as proprietors, that is, as owners of their person and

property. Marx extends his analysis to describe the formal contractual relations between wage-

labourers and capitalists on the market. As soon as labour-power becomes a commodity for sale

on the market, it is assumed that buyers and sellers of labour-power meet as equals on the

market, and that the worker maintains sovereignty over his person, which is to say that the

worker cannot sell his labour-power indefinitely to the capitalist, for this would make him into

the private property of another. Marx observes that

in order that our owner of money may be able to find labour-power offered for sale as a commodity, various conditions must first be fulfilled. The exchange of commodities of itself implies no other relations of dependence than those which result from its own nature [my emphasis]. On this assumption, labour-power can appear upon the market as a commodity, only if, and so far as, its possessor, the individual whose labour-power it is, offers it for sale, or sells it, as a commodity. In order that he may be able to do this, he must have it at his disposal, must be the untrammelled owner of his capacity for labour, i.e., of his person. He and the owner of money meet in the market, and deal with each other as on the basis of equal rights, with this difference alone, that one is buyer, the other seller; both, therefore, equal in the eyes of the law [my emphasis]. The continuance of this relation demands that the owner of the labour-power should sell it only for a definite period, for if he were to sell it rump and stump, once for all, he would be selling himself, converting himself from a free man into a slave, from an owner of a commodity into a commodity.36

Marx cites §67 of Hegel’s Philosophy of Right approvingly in a footnote to the above-

cited passage because Hegel, following Kant, recognized that the achievement of abstract right

consists in the formal recognition of personhood, which rules out the possibility of regarding

persons as things, just as it prohibits the alienation of one’s labour-power for an indefinite

35 Karl Marx. Capital Vol. 1, 84.36 Karl Marx. Capital Vol. 1, 168.

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period. Once again, the idea of persons as bearers of rights is acknowledged by Marx to be a

dialectical advance37 for human freedom. However, Marx will demonstrate, as Hegel had done in

a different context38, that the formal rights of persons are substantively negated in the sphere of

capitalist production, where the capitalist class dominates and exploits the class of wage-

labourers. Far from dispensing with the idea of equal rights, Marx demonstrates the extent to

which these rights are necessarily subverted under capitalist production. Once again, Marx will

show how liberalism’s celebrated ideals of freedom and equality turn into their opposites in the

capitalist mode of production.

Marx’s attempt to uncover the exploitative nature of capitalist production begins with his

characterization of the sellers of labour-power as being free in two senses. On the one hand,

workers enjoy equal rights and have ownership of their labour-power. On the other hand, short of

starvation, these same workers are compelled to sell their labour-power to the capitalists because

they are also ‘free’ from owning and having access to the means of production. Marx writes: “for

the conversion of his money into capital, therefore, the owner of money must meet in the market

with the free labourer, free in the double sense, that as a free man he can dispose of his labour-

power as his own commodity, and that on the other hand he has no other commodity for

sale....”39 Marx argues that the unequal relation between wage-labourers and capitalists is

historically situated and is the product of social and economic circumstances: “this relation has

no natural basis, neither is its social basis one that is common to all historical periods. It is

clearly the result of a past historical development, the product of many economic revolutions, of

the extinction of a whole series of older forms of social production”.40

37Dialectical in the sense that ancient and feudal hierarchies are historically negated in capitalist society while personhood is formally recognized, even if it is not always respected in substance. 38 It is not a coincidence that Hegel’s section on ‘Abstract Right’ concludes with ‘Wrong’ in the Philosophy of Right.39 Karl Marx. Capital Vol. 1, 169.40 Ibid.

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After outlining the immediate disparities between buyers and sellers of labour-power,

Marx calls attention to a shift in his analysis from the formal realm of exchange to the sphere of

production, where capital actively exploits and dominates labour through the extraction of

surplus value.41 However, before he considers the sphere of production, Marx leaves readers with

a satirical summary of the inalienable rights of man that underpin the realm of exchange—the

realm where individuals meet as free and equal rights-bearers. 42 It is worth noting that these

remarks mirror Marx’s formative critique of the rights of man in “On the Jewish Question”:

This sphere that we are deserting, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to himself. The only force that brings them together and puts them in relation with each other, is the selfishness, the gain and the private interests of each. Each looks to himself only, and no one troubles himself about the rest, and just because they do so, do they all, in accordance with the pre-established harmony of things, or under the auspices of an all-shrewd providence, work together to their mutual advantage, for the common weal and in the interest of all.43

Just as the move from the liberal state to civil society revealed the persistence of

inequality and hierarchy, the shift from free exchange to production exposes the substantive

inequality and unfreedom that characterizes capitalist production. Marx draws attention to the

profound change that is experienced by the worker upon entry into the sphere of production,

referring to this transformation as “a change in the physiognomy of [this] dramatis personae”.44

Paying particular attention to the struggle of workers to limit the length of the working day,

Marx demonstrates, once again, the limits of the ‘inalienable rights of man’:

41 Karl Marx. Capital Vol. 1, 176.42 N.B. Marx places the inalienable rights of man in quotations. 43 Ibid,176. 44 Karl Marx. Capital Vol. 1, 176.

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It must be acknowledged that our labourer comes out of the process of production other than he entered...The contract by which he sold to the capitalist his labour-power proved, so to say, in black and white that he disposed of himself freely. The bargain concluded, it is discovered that he was no ‘free agent,’ that the time for which he is free to sell his labour-power is the time for which he is forced to sell it...for ‘protection’ against ‘the serpent of their agonies,’ the labourers must put their heads together, and, as a class, compel the passing of a law, an all-powerful social barrier that shall prevent the very workers from selling, by voluntary contract with capital, themselves and their families into slavery and death. In place of the pompous catalogue of the ‘inalienable rights of man’ comes the modest Magna Charta of a legally limited working-day...45

Far from discarding the equal rights of persons, Marx goes to great lengths to show how

the equality and freedom of workers is effectively undermined by capitalist production. Marx

makes a point of this in the Grundrisse when he states that “in present bourgeois society as a

whole, the positing of prices and their circulation etc. appears as the surface process, beneath

which, however, in the depths, entirely different processes go on, in which this apparent

individual equality and liberty disappear”.46 This inference has led scholars such as Carol Gould

to argue persuasively “that the deeper relations between capital and labor, namely, those in the

sphere of production, are in fact characterized by the very opposite qualities from those that mark

the exchange process. These social relations in production are nonreciprocal relations, which are

unfree and unequal…” 47 In this regard, Marx can be seen as a one of a handful of radical

thinkers in the history of political thought to challenge liberalism for failing to live up to its

cherished ideals of freedom and equality. In capitalist society, the rights of capitalists to increase

the working day collide with the rights of wage-labourers to shorten it for reasons of health and

personal integrity, leading to a protracted class struggle that determines the length of the working

day, and I would add, the future of right. Marx submits:

45 Karl Marx. Capital Vol. 1, 301-2.46 Karl Marx. Grundrisse, Trans. Martin Nicolaus, 247.47 Carol Gould. Marx’s Social Ontology (Cambridge: MIT, 1978), 149-150.

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There is here, therefore, an antinomy, right against right, both equally bearing the seal of the law of exchanges. Between equal rights force decides. Hence is it that in the history of capitalist production, the determination of what is a working-day, presents itself as the result of a struggle, a struggle between collective capital, i.e., the class of capitalists, and collective labour, i.e., the working-class.48

3. Right and Rights in Communist Society

So far I have only considered Marx’s remarks on the limited and contradictory nature of

‘bourgeois rights’ under capitalist production. It remains to be shown, however, that Marx did

not envision the abolition of right and rights under communism. However, before going any

further, I would like to entertain a series of powerful objections against my interpretation. The

first objection, articulated by such notable thinkers as John Rawls and Allen Buchanan49, holds

that Marx thought that the achievement of material abundance and the fulfillment of human

needs would lead to the withering away or transcendence of right and rights. Another objection,

shared by Evgeny Pashukanis and Allen Wood, maintains that the negation of the commodity

form and the end of class antagonisms will lead to the abolition of right altogether rather than its

reestablishment on a new basis.

The withering away of right and rights is based upon the assumption that there would be

no need for standards of right or rights-claims among social individuals as soon as material

abundance is achieved and human needs are satisfied under communism. John Rawls, following

David Hume, notes that the circumstances of justice arise whenever a society is defined by

material scarcity and the presence of conflict between individuals.50 If communism is viewed as a

48 Karl Marx. Capital Vol. 1, 235.49 See Allen Buchanan. Marx and Justice: The Radical Critique of Liberalism (Totowa: Rowman and Littlefield, 1982).50 John Rawls. A Theory of Justice, Rev. Ed (Cambridge: Harvard University Press, 1999), 110-111.

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society of material abundance, where labour has become life’s prime want, then on this view,

communism is a society that that has transcended the need for justice and right. It is true that

Marx thinks that the unprecedented development of productive forces under associated

production would extend the length of leisure time. Consider, for instance, his prediction of

greater disposable labour time in the Grundrisse:

Once they have done so [once the associated producers appropriate the means of production following a period of social revolution]—and disposable time thereby ceases to have an antithetical existence—then, on one side, necessary labour time will be measured by the needs of the social individual, and, on the other, the development of the power of social production will grow so rapidly that, even though production is now calculated for the wealth of all, disposable time will grow for all. For real wealth is the developed power of all individuals. The measure of wealth is then not any longer, in any way, labour time, but rather disposable time.51

Nevertheless, Marx still sees the realm of freedom as being constrained by the realm of necessity

(economically-necessary labour) under communism; and if this is the case, then standards of

right and justice will continue to prevail in communist society, albeit in a different form. Marx

states the following in Capital Vol.III:

Just as the savage must wrestle with Nature to satisfy his wants, to maintain and reproduce life, so must civilized man, and he must do so in all social formations and under all possible modes of production [my emphasis]. With his development this realm of physical necessity expands as a result of his wants; but, at the same time, the forces of production which satisfy these wants also increase. Freedom in this field can only consist in socialized man, the associated producers, rationally regulating their interchange with Nature, bringing it under their common control, instead of being ruled by it as by the blind forces of Nature; and achieving this with the least expenditure of energy and under conditions most favourable to, and worthy of, their human nature [my emphasis]. But it nonetheless still remains a realm of necessity. Beyond it begins that development of human energy which is an end in itself, the true realm of freedom, which, however, can blossom forth only with the realm of necessity as its basis [my emphasis]. The shortening of the working day is its basic prerequisite.52

51 Karl Marx, “Grundrisse”, The Marx-Engels Reader, ed. Robert Tucker, (New York: Norton, 1978), 287.52 Karl Marx Capital Vol. III, ed Frederick Engels. (New York: International Publishers, 1967), 920.

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The important implication is that the realm of freedom and the scope of human needs will

still be bound by the realm of necessity, even with the automation of the most mundane forms of

production. Moreover, Marx did not think that improvements in technology—alone—could

facilitate the transition to communism. He also presupposed a qualitative transformation in social

relations, including a corresponding transformation in the standard of right. If it were simply a

matter of achieving material abundance53, why would Marx concern himself with the realm of

necessity and “achieving [economically necessary labour] with the least expenditure of energy

and under conditions most favourable to, and worthy of...human nature”? After all, Marx is

appealing here to some standard of Recht that he thinks will be favourable to, and worthy of,

human nature. In keeping with the humanistic spirit of his early writings, Marx thinks that

human beings have a right to be treated as ends with moral worth simply by virtue of their

capacity to consciously produce and reproduce the material world for one another through

objectified labour. Marx grants that even in capitalist society this phenomenon is acknowledged

to some extent:

In this respect, however, they are not indifferent with one another, but integrate with one another, have need of one another; so that individual B, as objectified in the commodity is a need of individual A, and vice versa; so that they stand not only in an equal, but also in a social, relation to one another. This is not all. The fact that this need on the part of one can be satisfied by the product of the other, and vice versa, and that one is capable of producing the object of the need of the other, and that each confronts the other as owner of the object of the other’s need, this proves that each of them reaches beyond his own particular need., as a human being, and that they relate to one another as human beings; that their species-being [Gattungswesen] is acknowledged by all. It does not happen elsewhere—that elephants produce for tigers, or animals for other animals.54

53 By material abundance, I do not have in mind the universal provision of food, clothing, shelter, healthcare and education, which can already be met by advanced capitalist societies (in principle if not in practice). The critics to whom I am responding have a tendency to regard Marx’s depiction of communist society as one that will satisfy the unlimited consumptive needs of human beings, forgetting that individual needs and desires will also change with historical circumstances according to Marx’s theory. Judging by the passage in quotation, Marx also assumed that human beings would have an interest in ‘rationally governing their interchange with nature’. One would be hard-pressed find passages in Marx’s work that attest to the claim that communist society would be informed by a culture of ‘conspicuous consumption’ and ‘possessive individualism’. 54 Karl Marx. Grundrisse, 242-3.

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Although capitalism broadens the scope of individual freedom and the interdependence of human

needs, it realizes the moral worth of individuals only to a limited degree. When it comes to the

question of producing in a way that is worthy of human nature, Marx does not think such a

standard can be realized under capitalist production but could potentially be achieved under

communist production.

To say that Marx’ argument presupposes that a standard of right will continue to prevail

in communist society is not to say this standard is somehow transhistorical, even if some

elements of human nature remain the same while others change55 . Marx would oppose the idea

of pre-political or natural rights, just as he would oppose eternal concepts of justice because they

represent abstractions that are detached from the historical specificity of social relations.

However, one of the virtues of Marx’s materialistic theory of history is that it enables him to

claim that slavery and conquest are unjust according bourgeois standards of right without

succumbing to relativism because capitalism is still recognized as an advance over slavery and

feudalism, just as communism would be recognized as an advance over capitalism. The criterion

for distinguishing between higher and lower standards of right is based upon the degree to which

human freedom is developed or stultified in a given mode of production. Marx says the

following in Capital on the subject of justice:

To speak here of natural justice, as Gilbart does...is nonsense. The justice of the transactions between agents of production rests on the fact that these arise as natural consequences out of the production relationships. The juristic forms in which these economic transactions appear as wilful acts of the parties concerned, as expressions of their common will and as contracts that may be enforced by law against some individual party, cannot, being mere forms, determine this content. They merely express it. This content is just whenever it corresponds, is appropriate, to the mode of production. It is

55 As we have seen, Marx thinks that the capacity of human beings to objectify nature and to realize their ends socially through labour is a quintessential part of human nature, one that applies in all historical modes of production.

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unjust whenever it contradicts that mode [my emphasis]. Slavery on the basis of capitalist production is unjust; likewise fraud in the quality of commodities.56

On this view, it is perfectly fine to say that capitalist societies are unjust when they

violate their own standards of right and justice. Marx did just that when he condemned slavery in

the United States57, as well as the violation of treaties by capitalist Britain in its aggression

against China during the Second Opium War.58 Marx also affirmed in his Inaugural Address to

the International Workingmen’s Association that similar conduct in international affairs had

taught the workers “to vindicate the simple laws or morals and justice, which ought to govern the

relations of private individuals, as the rules paramount of the intercourse of nations”.59 This

statement of Marx’s certainly lends credence to the claim that he acknowledged the importance

of honouring rights and duties as far as relations between individuals and nations were

concerned.

However, critics of this Recht-friendly interpretation, such as Steven Lukes, will no doubt

point to a letter that Marx wrote to Engels in 1864, regarding the General Rules of the

International Workingmen’s Association, where Marx indicates that “The Sub-Committee [of the

Association] adopted all my proposals. I was, however, obliged to insert two sentences about

‘duty’ and ‘right’, and ditto about ‘Truth, Morality and Justice’ in the preamble to the rules, but

56 Karl Marx. Capital Vol. III, ed Frederick Engels. (New York: International Publishers, 1967), 339-40.57 Marx drafted an address to Abraham Lincoln in 1864 on behalf of The International Workingmen’s Association, congratulating President Lincoln on his re-election and, more importantly, his determination to end slavery in America. In the same address, Marx praised the historical achievements of the American nation, where “hardly a century ago the idea of one great Democratic Republic had first sprung up, whence the first Declaration of the Rights of Man was issued, and the first impulse given to the European revolution of the eighteenth century...” See Karl Marx. “Address of the International Workingmen’s Association to Abraham Lincoln”. Collected Works, Vol.5 (New York: International Publishers, 1976), 323. These are hardly the words of someone who only had scorn for the rights of man.58 Marx referred to the Second Opium War as “this most unrighteous war”. See Karl Marx. “Whose Atrocities?” Collected Works, Vol. 15 (New York: International Publishers: 1986), 234. I owe this argument to Professor Danny Goldstick, who also brought to my attention Marx’s description of British aggression against China in the New-York Daily Tribune.59 Karl Marx. “Inaugural Address of the International Workingmen’s Association”. Collected Works, Vol.20 (New York: International Publishers: 1985), 13.

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these are so placed that they can do no harm” 60. Lukes interprets this statement as conclusive

evidence of Marx’s opposition to Recht. Yet, if we approach Marx’s foregoing remarks in light

of what has already been said about his understanding of justice, then it should not come as a

surprise that he was critical of abstract appeals to justice and right. The harm of appealing to

such abstract and eternal standards lies in their depoliticizing consequences for a movement that

is interested in revolutionary transformation. If one is interested in bringing an end to capitalist

exploitation, it does not help to denounce capitalist exploitation as unjust because exploitation

forms the basis of the capitalist mode of production and its standard of right. On the other hand,

communist society would view the same practice as unjust according to its standard of right. If

one were to accept Lukes’ argument that Marx was principally opposed to Recht, then he could

have no normative recourse for criticizing the violation of treaties and rights, whether by

capitalist nations or by individuals, but this does not square with the reality of Marx’s statements.

The most cogent way of approaching Marx’s attitude towards Recht, then, is to view it in relation

to the historical mode of production.

When discussing Marx’s scattered remarks about the future communist society, liberal

commentators such as John Rawls and Allen Buchanan point out that communism is predicated

upon unlimited benevolence and spontaneous cooperation among human beings, which makes

standards of right and rights-claims superfluous.61 To the extent that Rawls sees communism as a

society beyond justice, he hints that communism typifies a society of saints.62 It is worth noting

that this depiction of communism was first levelled against Marx and Engels by Max Stirner,

who claimed that communism presupposed universal altruism and self-sacrifice. Marx and

60Steven Lukes. “Can a Marxist believe in human rights?”, Praxis International 4, (1982), 338. For Marx’s letter to Engels of November 4, 1864, see Karl Marx. Collected Works, Vol. 42 (New York: International Publishers: 1987), 18.61 Allen Buchanan. Marx and Justice: The Radical Critique of Liberalism (Totowa: Rowman and Littlefield, 1982),84-5.62 John Rawls. A Theory of Justice, Rev. Ed, 112.

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Engels took Stirner’s challenge seriously, and they refuted him by historicizing the conditions for

the free development of individuals, which they argued would not be based on universal love or

on egoism. Marx and Engels did think that communist society would be characterized by greater

solidarity among individuals, such that the instrument coercion could be reduced to a minimum.63

However, this increased solidarity between individuals does not imply universal altruism and the

suppression of individual self-assertion. Below are two passages that attest to this point:

The communists do not preach morality at all, such as Stirner preaches so extensively. They do not put to people the moral demand: love one another, do not be egoists etc.; on the contrary, they are very well aware that egoism, just as much as self-sacrifice, is in definite circumstances a necessary form of the self-assertion of individuals. Hence, the communists by no means want... to do away with the ‘private individual’ for the sake of the ‘general’, self-sacrificing man...64

And, again:

Within communist society, the only society in which the genuine and free development of individuals ceases to be a mere phrase [my emphasis], this development is determined precisely by the connection of individuals, a connection which consists partly in the economic prerequisites and partly in the necessary solidarity of the free development of all, and, finally, in the universal character of the activity of individuals on the basis of the existing productive forces. Here, therefore, the matter concerns individuals at a definite historical stage of development and by no means merely individuals chosen at random, even disregarding the indispensable communist revolution, which itself is a general condition for their free development. The individuals’ consciousness of their mutual relations will, of course, likewise become something quite different, and, therefore, will no more be the ‘principle of love’ or dévoûment, than it will be egoism...[my emphasis].65

Rawls and Buchanan may have conceived of communist society as a society of universal

benevolence and sainthood, but Marx anticipated this charge and disagreed.

63 I will not consider the possibility of rights existing without the state’s organized monopoly over coercion in this paper. My objective is only to demonstrate that right and rights have a future in communist society. There is a sense in which citizens may internalize various laws and norms of conduct in communist society, but there is no evidence that coercion will be reduced entirely, nor is there evidence that increased solidarity signals the end of individual rights. I am often reminded in this context of Hegel’s claim about moral education in § 151 of the Philosophy of Right, where he submits that “when individuals are simply identified with the actual order, ethical life (das Sittliche) appears as their general mode of conduct, i.e., as custom (Sitte), while the habitual practice of ethical living appears as a second nature...” See Hegel’s Philosophy of Right. Trans T.M Knox (Oxford: Oxford University Press, 1967), 108. 64 Karl Marx and Frederick Engels. “The German Ideology”. Karl Marx: Selected Writings, ed. David McLellan, (New York: Oxford University Press, 2000), 199.65 Ibid, 207-208.

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If communist society is still defined by some standard of right, then the corresponding

rights of social individuals will differ in content from the exclusionary rights of the capitalist

epoch.66 The associated producers would now 1) have a right to own the means of production in

common, 2) have a share in the social product, 3) have a right to participate in the administration

of collective affairs, and 4) have the universal right to develop freely and without hindrance. As

we have seen, it is the mode of production that sets the basis for the nature and content of right in

any given society for Marx. To argue, as Marx does in the Critique of the Gotha Program, that

“right can never be higher than the economic structure of society and its cultural development

conditioned thereby”67, is not to conclude that right becomes irrelevant or superfluous, as some

would have it. Right assumes a form under communism that could not have been achieved under

the “narrow horizons” of bourgeois right and the capitalist mode of production that gave rise to

it.68

4. Sublation/Aufhebung

I now confront the objection that the abolition of the commodity form and the end of

class antagonisms will lead to the abolition of right and rights altogether. Here, Hegel’s influence

on Marx’s dialectical method is crucial for understanding the future of right beyond bourgeois

right. The concept of Aufhebung is especially relevant in this context. Hegel defines Aufhebung

in his Science of Logic to describe a simultaneous historical process of negation, preservation,

and supersession. Hegel points out in his Science of Logic that “To ‘sublate’ has a twofold

meaning in the [German] language: on the one hand it means to preserve, to maintain, and

equally it also means to cause to cease, to put an end to…Thus what is sublated is at the same

66 Thanks are due to Professor Richard Day for highlighting this important distinction between inclusionary and exclusionary rights.67 Karl Marx, “Critique of the Gotha Program”. The Marx-Engels Reader, ed. Robert Tucker, (New York: Norton, 1978), 531.68 Ibid.

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time preserved; it has only lost its immediacy but is not on that account annihilated [my

emphasis]”.69 To the extent that Aufhebung is a dialectical concept, it demonstrates how the

rudimentary and contradictory character of self-consciousness is negated while its positive

development is retained and vindicated. One is reminded of Hegel’s suggestion in the Preface to

the Philosophy of Right that “the great thing is to apprehend in the show of the temporal and

transient the substance which is immanent and the eternal which is present”.70 Hegel

demonstrates how this process unfolds in the Philosophy of Right from abstract right to morality

and from morality to ethical life, where right is vindicated and given objective validity in the

context of a modern ethical state.71 Marx follows a similar line of argument, except that he

theorizes that the irreconcilable contradictions of the capitalist mode of production and its

standard of right will be superseded by another form of right in the context of associated

production, where a new standard will inform relations between social individuals. For Hegel,

the abstract rights-bearers become citizens of the law-governed state, whose rights and duties

coalesce.72 For Marx, “in place of the old bourgeois society, with its classes and class

antagonisms”, [there shall be] an association, in which the free development of each is the

condition for the free development of all”73, whereby each individual will acknowledge the

other’s universal right to develop freely and without hindrance in the context of community.

What does this passage reveal if not the reconstitution of right on another basis?

If we think back to Marx’s critical appraisal of the rights of man in “On the Jewish

Question” and in Capital, he recognizes that these rights are a necessary and progressive step in

the struggle for human emancipation, even if they do not constitute the final or most adequate

69 Hegel, G.W.F. Science of Logic. Trans. A.V. Miller. (London: George Allen & Unwin, 1969), § 185, 107.70 G.W.F Hegel, Preface. Philosophy of Right, Trans T.M Knox (Oxford: Oxford University Press, 1967), 10.71 Hegel’s remarks in §155 of the Philosophy of Right are particularly instructive in this regard.72 Ibid.73 Karl Marx and Frederick Engels.“Manifesto of the Communist Party”, The Marx-Engels Reader, ed. Robert Tucker, (New York: Norton, 1978), 491.

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form of emancipation. After all, what is the prevailing political-economic framework of

bourgeois right according to Marx? Human beings confront each other in antagonistic manner

and they live a double-life, as free and equal citizens of the liberal state and as warring egotists

of civil society who are at once unequal and unfree. In On the Jewish Question, this contradiction

is revealed by the fact that bourgeois right “leads every man to see in other men, not the

realization, but rather the limitation of his own liberty”.74 The bourgeois form of right is

therefore falsified by its content under capitalism because the majority of individuals are subject

to inequality and unfreedom by virtue of class domination and exploitative relations of

production. It is a great misfortune, then, that most commentators have failed to grasp the

immanent nature of Marx’s critique of bourgeois right and the extent to which the ‘sublation’ of

bourgeois right and rights in communist society does not imply the abolition of right and rights.

The failure to comprehend Marx’s critique of bourgeois right stems from his

critical comments about bourgeois right but also from a misapprehension of the Hegelian

meaning of Aufhebung in Marx’s work. The prevailing explanation for the ‘transcendence’ of

right and rights in communist society presupposes nothing more than their negation. The

problem with this reading is that it ignores the nuanced meaning of Aufhebung as a simultaneous

process of negation, preservation, and supersession. This interpretation also overlooks the

significance of bourgeois society and bourgeois right as necessary precursors to the development

of the future communist society. In the Critique of the Gotha Program Marx reiterates that

“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 birth marks of the old

74 Ibid, 142.

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society from whose womb it emerges [my emphasis]”.75 Marx conveys a similar, albeit more

general point in the Eighteenth Brumaire, where he asserts that “Men make their own history,

but they do not make it just as they please; they do not make it under circumstances chosen by

themselves, but under circumstances directly found, given and transmitted from the past. The

tradition of all dead generations weighs like a nightmare on the brains of the living”.76 There are

also Marx’s repeated remarks about the ‘civilizing’ aspects of capitalism that create the

foundation for ‘a new and higher form’ of society:

It is one of the civilising aspects of capital that it enforces this surplus-labour in a manner and under conditions which are more advantageous to the development of the productive forces, social relations, and the creation of the elements for a new and higher form than under the preceding forms of slavery, serfdom, etc. Thus it gives rise to a stage, on the one hand, in which coercion and monopolisation of social development (including its material and intellectual advantages) by one portion of society at the expense of the other are eliminated; on the other hand, it creates the material means and embryonic conditions, making it possible in a higher form of society to combine this surplus-labour with a greater reduction of time devoted to material labour in general.77

It is important to note that bourgeois right is still preserved in principle in the earliest

stages of communist society.78 Marx still sees bourgeois right as being preserved in the early

stage of communism because the exchange of equivalents that follows the revolutionary

transformation of capitalist society still overlooks significant empirical differences between

individuals, who possess different abilities and needs. Although bourgeois right is recognized as

an advance by Marx, individuals are still viewed here in an abstract and one-sided manner79,

which is one of the reasons why bourgeois right constitutes a defective standard of right. Marx

theorized that the form and content of right would be transformed at a later stage with the general

economic and cultural development of society.80 To be sure, this outlook assumes that the

75 Karl Marx. “Critique of the Gotha Program”, 529.76 Karl Marx. “The Eighteenth Brumaire of Louis Bonaparte”, The Marx-Engels Reader 595.77 Karl Marx. Capital Vol. III, 819.78 Karl Marx. “Critique of the Gotha Program”, 530.79Ibid. In other words, individuals are still viewed as equals in complete abstraction from their actual circumstances.80 Karl Marx. “Critique of the Gotha Program”, 531.

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productive forces and social relations of society are sufficiently developed to enable the free

development of individuals and the realization of their needs. However, the extent to which these

needs are realized will also depend on how the social individuals govern their interchange with

nature and with each other. After all, they will still need to determine the manner in which to

produce the social surplus.

As far as questions of distribution are concerned, both liberal and Marxist commentators

often point to Marx’s dismissal of distributive justice as “obsolete verbal rubbish” in the Critique

of the Gotha Program.81 However, careful readers will note that Marx is not dismissing standards

of right or distributive justice per se; rather, he is dismissing the tendency among ‘bourgeois’

economists and ‘vulgar’ socialists to detach questions of distributive justice from the

organization of production. Marx argues in the very next paragraph of the Critique that “if the

material conditions of production are the co-operative property of the workers themselves, then

there likewise results a distribution of the means of consumption different from the present

[capitalist] one.”82 The latter is further evidence that a different standard of distribution will

prevail in communist society. Marx theorized that “in the higher phase of communist society”,

the growth of society’s productive forces and the cultural transformation brought about by this

development will make it make it possible for “the narrow horizons of bourgeois right [to be]

crossed in its entirety and society inscribe upon its banner: From each according to his ability, to

each according to his needs.”83

Although the argument has been made countless times that Marx only has scorn for

bourgeois right, it is a mistake to conclude that Marx thought that the historical achievements of

81 Ibid82Ibid, 531-532. This passage follows the logic of Marx’s rhetorical question on p.528 of the Critique of the Gotha Program, where he inquires whether “economic relations [are] regulated by legal conceptions or do not, on the contrary, legal relations arise from economic ones?” Marx’s materialistic theory of history holds that the mode of production gives rise to different standards of right and relations between individuals rather than the reverse. 83 Karl Marx. “Critique of the Gotha Program”, 531.

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bourgeois right would be annihilated under communism. The mutual recognition of free and

equal persons is not negated under communism and neither are the rights that secure the free

development of individuals in their concrete unity and difference. It would be even more

troubling to conclude that Marx’s critique of bourgeois rights presupposed the negation of rights.

Abolishing elementary formal rights would mean reverting to pre-capitalist social relations,

where the direct domination of the master, lord, or despot actively inhibits the free development

of individuals. The execution of Evgeny Pashukanis at the behest of such a despot attests to the

dangers of rejecting the most elementary bourgeois rights that Marx took for granted in any

modern society.84 Marx did not wish to return to the ruins of the past; rather, he saw elements of

the past being preserved in a transcended or revolutionized form. If you are still not convinced of

this point, consider what Marx and Engels have to say on the future of ‘individual property’85 and

the family86 in communist society. It appears that ‘individual property’ is preserved in a new

form,that private relations between individuals are not obliterated, and that Recht is not

expunged in communist society.

The implication of Marx’s argument, here and elsewhere, is that right is not abolished in

communist society; on the contrary, it takes on a more adequate foundation that could not have

been achieved under capitalism. Communist society negates the exploitative relations of

production that characterized capitalist society. However, communism preserves the rights of

84 Pashukanis was framed and executed during Stalin’s criminal purges in 1937.85As far as the future of personal or individual property is concerned, Marx writes: “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 acquisitions of the capitalist era [my emphasis]”. See Karl Marx. Capital Vol. I, ed Fredrick Engels. (New York: International Publishers, 1967), 763. 86The future of the family and of private relations between the sexes is nicely captured by Engels’ assertion that communist society “will transform the relations between the sexes into a purely private matter which concerns only the persons involved and into which society has no occasion to intervene”. See Frederick Engels. “Principles of Communism”. The Communist Manifesto After 100 Years, Trans. Paul Sweezy. (New York: Modern Reader Paperbacks, 1968), 80.

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social individuals by creating the substantive conditions for their free development and its social

or objective validation. Recall that all pre-capitalist social-economic formations were

characterized by direct forms of dependence and domination, while individual relations were

embedded in community. Capitalist society, on the other hand, is characterized by legal relations

between formally free and equal individuals that are disaggregated from community. Communist

society negates the domination that characterizes the preceding political-economic formations by

preserving the rights of persons, while also creating the substantive conditions for the free

development of social individuals and its social validation. Marx summarizes this dialectical

process of Aufhebung succinctly in 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.87

5. Recognition/Anerkennung

Social validation presupposes a sphere where individual worth and self-assertion are

recognized, protected, and given their due. To be sure, this process no longer takes place among

atomistic individuals but among social individuals. Thus Marx and Engels write that “only in

community with others has each individual the means of cultivating his gifts in all directions;

only in community, therefore, is personal freedom possible”.88 The idea of social validation leads

me to another concept that Marx appropriated from Hegel, namely, the mutual recognition of end

87 Karl Marx. Grundrisse, 158. For an excellent summary and analysis of Marx’s three-stage argument, see Carol Gould’s Marx’s Social Ontology, 21-22. 88 Karl Marx and Frederick Engels. “The German Ideology”, The Marx-Engels Reader, 197.

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status. Mutual or intersubjective recognition implies that an individual’s freedom and moral

worth are validated only when they are given reciprocal acknowledgement or confirmation by

another agent of freedom. As Hegel puts it in the Phenomonology of Spirit, “self-consciousness

exists in and for itself when, and by the fact that, it also exists for another; that is, it exists only in

being acknowledged”.89 I certainly cannot do justice to Hegel’s account here, but suffice to say

that the struggle for recognition assumes its most rudimentary form through a struggle between

two consciousnesses, each trying to dominate the other in pursuit of recognition. The struggle

between the two consciousnesses is encapsulated in Hegel’s famous dialectic of lordship and

bondage, with the result that the bondsman recognizes his freedom and independence by

transforming nature into the objects of the lord’s desire. Hegel writes that “in fashioning the

thing, [the bondsman] becomes aware that being-for-self belongs to him, that he himself exists

essentially and actually in his own right”.90

It only takes a cognitive recognition on the part of the bondsman to bring an end to the

condition of bondage. Marx makes an analogous claim in the Grundrisse about the experience of

the wage-labourer under capitalism. He writes: “The recognition [Erkennung] of the product as

its own, and the judgment that its separation from the conditions of its realization is improper—

forcibly imposed—is an enormous awareness [Bewusstein], itself the product of the mode of

production resting on capital and as much the knell to its doom, as with the slave’s awareness

that he cannot be the property of another, with his consciousness of himself as a person, the

existence of slavery becomes merely a artificial, vegetative existence, and ceases to be able to

prevail as the basis of production”.91 However, the cognitive recognition of one’s freedom as a

person does not amount to achieving relations of mutual recognition. The latter presuppose

89 G.W.F Hegel. Phenomenology of Spirit, trans A.V Miller (Oxford: New York), 1977, §178. 90 G.W.F Hegel. Phenomenology of Spirit, 196.91 Karl Marx. Grundrisse, 463.

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relations of reciprocity, mutuality, and non-domination that have to be acknowledged on all

sides. In other words, relations of mutual recognition presuppose that the freedom and moral

worth of each individual, including his or her rights, are acknowledged by all.

It is true—as Axel Honneth and others have demonstrated—that Marx’s most explicit

remarks on recognition can be found in his early Commentary on James Mill, where recognition

is intricately tied to the process of associated and un-alienated production.92 In these early

comments, Marx considers relations between commodity owners in capitalist society and likens

them to relations of mutual servitude. Marx writes: “if this mutual enslavement to an object [the

commodity] at the beginning of the process appears now as in the relationship of lordship and

slavery, that is only the crude and open expression of our essential relationship...Our mutual

value is for us the value of our mutual objects. Thus man, himself is for us mutually worthless.”93

Marx contrasts these relations with those that would follow under associated or communist

production. Interestingly, Marx regards the institutions of private property in the means of

production and market exchange as contributing to a general process of misrecognition, while

Hegel sees these same institutions as integral mediums for recognition in modern society. 94 Marx

writes:

Supposing we had produced as human beings; each of us in his production would have doubly affirmed himself and his fellow man. I would have: (1) objectified in my production my individuality and its peculiarity and thus both in my activity enjoyed an individual expression of my life and also in looking at the object have had the individual pleasure of realizing that my personality was objective, visible to the senses and thus a power raised beyond all doubt. (2) In your enjoyment or use of my product I would have had the direct enjoyment of realizing that I had both satisfied a human need by my work and also objectified the human essence and therefore fashioned for another human being the object that met his need. (3) I would have been for you the mediator between you and the species and thus been acknowledged and felt by you as a completion of your own

92 Axel Honneth. The Struggle for Recognition, trans. Joel Anderson (New York: Polity, 1995), 149-50.93 Karl Marx. “On James Mill”. Karl Marx: Selected Writings, ed. David McLellan, (New York: Oxford University Press, 2000), 132.94 For a recent take on this issue, see Andrew Chitty. “Recognition and property in Hegel and the early Marx”. Ethical Theory and Moral Practice, 16 (2), (2013).

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essence, and a necessary part of yourself and have thus realized that I am confirmed both in your thought and in your love. (4) In my expression of my own life I would have fashioned your expression of your life, and thus in my own activity have realized my own essence, my human, my communal essence...Thus, in this relationship what occurred on my side would also occur on yours.95

To be sure, Marx’s thinking undergoes extensive change by the time he formulates the

major premises of the materialistic theory of history. The concept of recognition, like his

formative distinction between authentic and inauthentic human essence, loses its ahistorical

character and becomes grounded in the critique of political economy, particularly in the struggle

of the working class to bring an end to class domination. On Honneth’s account, Marx replaced

his earlier Hegelian-inspired formulation of recognition with a utilitarian, interest-based, and

economist theory that no longer emphasized the struggle for recognition as such.96 Aside from

the fact that Marx makes repeated references to recognition in the Grundrisse and in Capital, it is

regrettable that Honneth does not take up Marx’s and Engels’ famous assertion in the Communist

Manifesto that “in place of the old bourgeois society, with its classes and class antagonisms, we

shall have an association, in which free development of each is the condition for the free

development of all”.97 The recognition of the unhindered development of each individual is the

precondition for the free development of all individuals. Needless to say, Marx did not think that

relations of mutual recognition could be achieved under capitalist production because capitalism

remains—in spite all of its historical advances—a non-reciprocal political-economic system that

is based on the domination of the many by the few.

6. Conclusion

95 Ibid.96 Axel Honneth. The Struggle for Recognition, 149-50.97 Karl Marx and Frederick Engels. “Manifesto of the Communist Party”, The Marx-Engels Reader, 491.

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Far from envisioning the abolition of right and rights in communist society, Marx’s

dialectical analysis points instead to the possibility of transcending the narrow horizons of

bourgeois right by securing a universal right for each individual to develop freely and without

hindrance, and for this right to be recognized and protected by all. Without this recognition, the

free development of each remains an abstract and indeterminate thought rather than a concrete

reality. The virtue of Marx’s radical critique of liberalism consists in his painstaking

demonstration that liberalism cannot live up to its ideals of free and equal citizenship, and that

individual freedom has not been given its rightful due. The urgent task of Marx theorists today is

to reconstruct Marx’s radical critique of liberalism and make explicit what is left implicit and

underdeveloped in Marx’s work, that is, the future of right beyond the ‘narrow horizons’ of

liberalism and bourgeois right. The tragic lesson of Evgeny Pashukanis’ career was that he leapt

into the abstract future without rooting himself in concrete history and dialectics when they

mattered most. Marx leaves the future open so that it can be determined by human beings as they

struggle to transform their circumstances and themselves by inheriting the legacies of the past

while paving the path to a freer future. The benefit of historical hindsight should accompany the

critical foresight that right and rights cannot wither away if one is to take seriously the idea that

the free development of each is the condition for the free development of all.

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Bibliography

Buchanan, Allen. Marx and Justice: The Radical Critique of Liberalism. Totowa: Rowman and Littlefield, 1982.

Chitty, Andrew. “Recognition and property in Hegel and the early Marx”. Ethical Theory and Moral Practice, 16 (2), 2013.

Engels, Frederick. “Principles of Communism”. The Communist Manifesto After 100 Years, Trans. Paul Sweezy. New York: Modern Reader Paperbacks, 1968.

Gould, Carol. Marx’s Social Ontology. Cambridge: MIT, 1978.

Hegel, G.W.F. The Phenomenology of Spirit. Trans. A.V Miller. Oxford: New York, 1977.

Hegel, G.W.F. Philosophy of Right. Trans. T.M Knox. Oxford: Oxford University Press, 1967.

Hegel, G.W.F. Science of Logic. Trans. A.V. Miller. London: George Allen & Unwin, 1969.

Honneth, Axel. The Struggle for Recognition, Trans. Joel Anderson. New York: Polity, 1995.

Kolakowski, Leszek. “Marxism and Human Rights”. Daedalus , Vol. 112, No. 4, Fall, 1983.

Lukes, Steven. “Can a Marxist believe in human rights?”. Praxis International, No. 4, pp.81-92 1982.

Marx, Karl. “Address of the International Working Men's Association to Abraham Lincoln”. Collected Works, Vol.5. New York: International Publishers, 1976.

36

Marx, Karl. Capital Vol. I, ed Frederick Engels. New York: International Publishers, 1967.

Marx, Karl. Capital Vol. III, ed Frederick Engels. New York: International Publishers, 1967.

Marx, Karl. “Critique of the Gotha Program”. The Marx-Engels Reader, ed. Robert Tucker, New York: Norton, 1978.

Marx, Karl. “Debates on the Freedom of the Press”. Collected Works Vol.1 International Publishers: New York, 1975.

Marx, Karl. “Grundrisse”. The Marx-Engels Reader, ed. Robert Tucker, New York: Norton, 1978.

Marx, Karl. Grundrisse, Trans. Martin Nicolaus. Middlesex: Penguin, 1973.

Marx, Karl. “Inaugural Address of the International Workingmen’s Association”. Collected Works, Vol.20. New York: International Publishers, 1985.

Marx, Karl. “Marx on the History of His Opinions”. The Marx-Engels Reader, ed. Robert Tucker, New York: Norton, 1978.

Karl Marx and Frederick Engels, “Manifesto of the Communist Party”. The Marx-Engels Reader, ed. Robert Tucker, New York: Norton, 1978.

Marx, Karl. “On James Mill”. Karl Marx: Selected Writings, ed. David McLellan. New York: Oxford University Press, 2000.

Marx, Karl. “On the Jewish Question”. The Marx-Engels Reader, ed. Robert Tucker. New York: Norton, 1978.

Karl Marx, “Letter to Engels of November 4, 1864”. Collected Works, Vol. 42. New York: International Publishers, 1987.

Marx, Karl and Frederick Engels. “The German Ideology”. Karl Marx: Selected Writings, ed. David McLellan. New York: Oxford University Press, 2000.

Marx, Karl and Frederick Engels. “The German Ideology”. The Marx-Engels Reader, ed. Robert Tucker, New York: Norton, 1978.

Marx, Karl. “Whose Atrocities?” Collected Works, Vol. 15. New York: International Publishers, 1986.

McLellan, David. Karl Marx: A Biography, 4th ed. New York: Palgrave Macmillan, 2006.

Pashukanis, Evgeny. Law and Marxism: A General Theory. London: InkLinks, 1978.

37

Rawls, John. A Theory of Justice, Rev. Ed. Cambridge: Harvard University Press, 1999.

Taiwo. Olufemi. Legal Naturalism: A Marxist Theory of Law. Ithaca: Cornell University Press, 1996.

Wood, Allen. “The Marxian Critique of Justice”. Philosophy & Public Affairs, Vol. 1, No. 3 Spring, 1972.

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