“Who is this man who is distinct from this citizen?” Revisiting Marx’s Critique of Liberal Rights

Introduction¹

In his widely read article “Can a Marxist Believe in Human Rights?” and subsequent book Marxism and Morality, Steven Lukes argued that Marx was hostile to human rights.² Lukes contributed to a lively debate over whether Marx condemned capitalism as unjust and specifically to the question of how human rights fit into the framework of Marx’s thought. This debate over the role of justice in Marx’s thought arose from how, on the one hand, Marx rejects socialist critiques of capitalism that appeal to universal moral standards, maintaining that moral standards are socially and historically situated in social formations and relative to that mode of production. According to one reading, Marx shows in Capital that the capitalist purchase and employment of labor-power—however contrary to the class interests of the proletariat—do not involve any violation of the rights and moral standards inherent in the capitalist mode of production. On the other hand, however, Marx’s condemnation of capitalism often appears to have either an implicit or explicit moral content.³ Lukes argued that Marx rejected “the morality of Recht” based on concepts of justice, fairness, rights, and obligations that Marx regarded as inherent to particular modes of production (although Lukes maintains that Marx nevertheless valued freedom, social unity, and self-realization).⁴ For Lukes, Marx treated human rights only as expressions of the egoism and individualism of bourgeois society and, as they were only necessitated by conflicting economic interests within class societies, communist society could dispense with rights.⁵ According to Lukes, Marx dangerously underestimated the protection afforded by individual rights as moral constraints on goal-directed behavior.⁶ Lukes offers not “another anti-marxist tract” but a “diagnostic” of “congenital defects” of Marxism,⁷ concluding that Marx’s position is incompatible with defending human rights and therefore Marxism and socialism should sever this link with Marx’s thought.⁸

Some of the responses to Lukes focused on the question of whether a Marxist should believe in human rights or on Lukes’ understanding of the Marxist tradition.⁹ This essay shall contribute to the section of the literature that Lukes’ reading fails to do justice to Marx’s critique of rights and liberalism.¹⁰ This is important because, a hundred and fifty years since the publication of the first volume of Capital, the suspicion around Marx’s attitudes towards rights persists and the claim that Marx was hostile to the very idea of rights remains, as David Leopold put it, “an interpretative commonplace.”¹¹ In this essay, I challenge Lukes’ interpretation and show that there is no evidence that Marx was hostile to the very idea of rights. Since Lukes finds the “roots” of Marx’s supposedly “impoverished” view of human rights in “On the Jewish Question,” the first part of this essay shows four problems with his reading of this text.¹² After noting, as other commentators have, that Marx does not critique all rights as egoistic and indeed values some rights, for example citizens’ rights, I discuss a second issue: Marx both criticizes citizens’ rights as limited in their current form and recognizes a progressive aspect to the rights of man. My alternative reading, and the contribution of this essay to this section of the literature, is that Marx in “On the Jewish Question” criticizes rights in relation to a teleological conception of social and historical progress. I conclude this section of the essay by noting that while Marx finds the idea that individual rights are “natural” alienating because it externalizes a product of the human mind, this does not mean he did not consider the winning of rights to be important victories in the historical struggle for freedom, and that Marx’s critique of arbitrary political power (both between feudal master and servant and in the instrumental relations of bourgeois civil society) is a central problem of his political thought, especially of his writings from this period.

In the second section of the essay, I turn to Marx’s critique in Capital of the “very Eden of the innate rights of man.” I show that Marx’s critique of rights in the sphere of capital circulation is not a critique of rights per se, not least because an important part of his critique is that the establishment of these rights requires the dispossession of pre-capitalist rights. Marx treats rights as legal relations internally related to political forces, forms of consciousness, social relations, and productive forces specific to certain historical moments, not universal or timeless. His critique of rights in Capital, then, is first and foremost a critique of the historically specific rights that underpin bourgeois political economy, not a critique of rights as expressions of egoism.

 1. The rights of man and the rights of the citizen

Marx wrote “On the Jewish Question” in 1843–4, shortly before he produced his first communist texts.¹³ Marx examines the rights proclaimed in the French Declarations of 1789 and 1793 and in the state constitutions of Pennsylvania and New Hampshire. He concludes:

Therefore not one of the so-called rights of man goes beyond egoistic man, man as a member of civil society, namely an individual withdrawn into himself, his private interest and his private desires and separated from the community . . . The only bond which holds them together is natural necessity, need and private interest, the conservation of their property and their egoistic persons.¹⁴), 230.]

This comment and others like it provide the basis for Lukes’ reading of the text and his claim that Marx’s later writings inherit a dismissive attitude towards rights. Here, Marx critiques the rights to liberty, equality, and security as fundamentally the rights of the owner of private property to enjoy and dispose of goods, revenues, and fruits of labor according to arbitrary will and self-interest—without regard for, or interference from, others. Equal treatment under the law and security guarantee this individual freedom to all property owners.¹⁵

Lukes understands Marx’s critique as treating rights as merely the expressions of the egoism and individualism of bourgeois civil society. He construes rights as “typically the basis for claims by individuals to be treated in certain ways: rights offer the interests of these individuals as sufficient grounds for holding another or others to be under an obligation to treat them in certain ways”¹⁶ and understands human rights to override other goals (such as the accumulation of value in a capitalist economy) or less central rights.¹⁷ As Lukes argues, “taking some rights seriously is positively to demand a certain form of social life in which social relationships flourish free of arbitrary power. To think of them merely as expressing the egoism of civil society and the contradictions between civil society and the state is precisely to fail to take them seriously.” ¹⁸ Lukes concentrates on what are often categorized “first generation” civil and political rights, as well as economic and social rights or “second generation rights.” But, as Christopher Boyd points out, “[a]cceptance of the modern recognition of the heterogeneity of rights is an important step in the realisation that whether Marx believed in human rights is a different question from whether a Marxist can believe in human rights.”¹⁹ So-called “third generation” solidarity rights are claimed by groups or even by humanity and are thus not reflective of an inherent egoistic individualism.

Lukes follows Marx who, writing in the nineteenth century, concentrated on “first generation” rights. Lukes points to how not all the rights guaranteed in the American constitution and the French declarations can be easily called “egoistic” in the way Marx claims. Freedom of speech, the presumption of innocence, and protection from arbitrary arrest are “passed over in silence” by Marx because, Lukes supposes, they cannot be easily construed as bourgeois and “do not lend themselves to his interpretation.”²⁰ To support this reading, Lukes quotes Marx as writing that “the so-called rights of man” are “simply the rights of the member of society, that is of egoistic man, of man separated from other men, and from the community.”²¹ This is not, however, the full passage. What Marx actually writes is “the so-called rights of man, as distinct from the rights of the citizen, are quite simply the rights of the member of society, i.e. of egoistic man.”²² The first problem, then, with Lukes’ reading is how it omits this important distinction within what we can call “first generation” rights. Marx describes citizens’ rights as “political rights, rights which are only exercised in community with others . . . [in] participation in the political community or state. They come under the category of political freedom, of civil rights.” After this brief acknowledgement, Marx turns to “consider the other aspect, the droits d’homme, as distinct from the droits d’citoyen.”²³

The full passage shows that Marx refers to two sub-categories of rights: the rights of the member of civil society that he critiques as “egoistic” and the rights of the citizen that he treats as rights of participation in the political community. As Amy Bartholomew has noted, this full passage shows that Marx’s critique of rights as egoistic does not apply to all rights.²⁴ Marx does not claim this distinction as his own, but made in the French Declarations. As David Leopold has noted, Marx rather unhelpfully uses the label Menschenrechte to refer to both rights generally and the rights of man, but the distinction is clear enough in the text.²⁵ Marx’s example of a citizens’ right is freedom of religious conscience (given the context of Jewish emancipation), although he could have as easily chosen freedom of speech, assembly, and the right to participate in the formation of the law, i.e. examples of rights Lukes claims Marx ignores. As well as defending the right of religious conscience, Marx criticized the subordination of citizens’ rights under “egoistic” rights, and criticized the way the modern state acted as the guardian of bourgeois civil society and not of its own avowed ideals. He cites censorship in revolutionary France as an example of the modern state willingly sacrificing the freedoms it idealizes for “public security,” showing the state to be fundamentally the guardian of bourgeois civil society and in contradiction with its own avowed ideals.²⁶ When, in the published introduction to his Critique of Hegel’s Philosophy of Right (1844), Marx criticizes how Germany “combine[s] the civilised defects of the modern political world, whose advantages we lack, with the barbaric defects of the ancien régime, of which we have our full measure,” he specifically cites “combining the torments of censorship with the torments of the French September Laws.”²⁷ His citing of the French September Laws of 1835, which restricted freedom of the press and the powers of juries, shows how Marx valued certain rights and distrusted the modern state’s commitment to protecting them. This was not the first time Marx defended the freedom of the press either—he criticized censorship as a journalist in 1842.²⁸ Lukes recognizes that Marx does defend individual rights in his writings; what the distinction between the rights of man and the rights of the citizen shows is that, contra Lukes, Marx’s defence is not inconsistent with his critique of “egoistic rights” (indeed, Marx supported rights that went further than these citizens’ rights, discussed below).²⁹

Marx still criticizes the winning of citizens’ rights as a limited or merely political form of emancipation and he even recognizes a progressive side to these “egoistic” rights. I argue that understanding Marx’s position requires recognizing the teleological view of history he defended in these early democratic republican writings, when he remained in some respects a young Hegelian.³⁰ According to this view, universal, rational freedom was the final cause or end to the development of human society, which in the Critique of Hegel’s Philosophy of Right Marx identified with “true democracy.”³¹ In “On the Jewish Question,” the final end of the political and social developments he identifies is “human emancipation.” Political emancipation (the process involving the separation of state from society, and the transformation of religion into private faith—of which the contemporary debate over Jewish emancipation served as a prime example) is “a big step forward . . . [it] may not be the last form of general human emancipation, but it is the last form of emancipation within the prevailing scheme of things.”³² Human emancipation consists in overcoming the contradiction between the state and civil society, and the citizen and the egoistic individual—reconciling human beings with the social world they have created. Instead of being restricted by these social contradictions, human beings can self-determine or freely shape the social world according to their nature. Therefore, Marx in 1843–4 is not against rights per se but judges their value in relation to historical progress understood in this sense.³³ This shows that Marx did not simply criticize bourgeois society for failing to live up to its own standards but critiqued, in characteristically Young Hegelian fashion, bourgeois society for both its contradictions and how these contradictions contain the potentiality for the realization of freedom in a new form of society.

To see the full picture, then, Marx’s critique of the historical limitations of bourgeois society has to be placed alongside his recognition of its historical achievements. Marx treated political emancipation as historically progressive because productive life under feudalism was simultaneously political for being organized in terms of social rank, with membership of estates, guilds, and corporations existing as “separate societies within society.”³⁴ For Marx, this meant a servile form of social existence under a feudal master. In his letters to Arnold Ruge published in the Deutsch-französische Jarbücher alongside “On the Jewish Question” and the introduction, Marx attacks the “hereditary masters” of the estate who act as “slave-owners” and treat the people on their estate as a “breed of slaves or a stud of horses.”³⁵ Marx objects to such objectification and subordination under an arbitrary power and regards the establishment of the modern republic, a general community of citizens with universal rights, as a progressive step forward.³⁶ The establishment of a separate political sphere allowed for a civil society based on formally non-political (Marx recognizes their informal political character), instrumental relations between egoistic individuals.³⁷ Marx characterizes the “egoistic” life in bourgeois civil society as both a liberation and a “reduction.”³⁸ This liberating aspect refers to the dissolution of the old estates, guilds, and corporations, which allowed—as Marx sympathetically quotes Hegel in the Critique—”personal choice of [one’s] station in life” or for the activity in civil society to be mediated by individuality and self-interest.³⁹ While this progressive aspect may include the universalization of property rights, the universalization of these property relations reduces the members of civil society into egoistic individuals. Indeed, Marx writes that “[p]olitical emancipation is the reduction of man on the one hand to the member of civil society, the egoistic, independent individual, and on the other to the citizen, the moral person.”⁴⁰ Marx critiques this social division and the way that the universal political association based on citizens’ rights consoles the individuals of civil society for the lack of community in their everyday, productive lives in a way comparable to religious consolation. Marx argues that final human emancipation will only be achieved once “real, individual man resumes the abstract citizen into himself” and that human powers and relationships are reorganized as social forces.⁴¹

Bartholomew is right to note that Marx’s criticism of the rights of this commercial civil society was that not one of them “goes beyond egoistic man.”⁴² For Marx, it is insufficient because it dissolves these communities, however oppressive they were, leaving human beings to act in the market as individuals. It is true that Marx finds that these external relations between human beings as egoistic individuals “cannot sustain the individual as a member of a community, as a communal being.”⁴³ But, contrary to Lukes, the problem Marx finds with bourgeois civil society is not simply its lack of community. It is the way that participating in a market means being treated instrumentally by others, and treating them alike in return, and how this creates a new form dependence on an egoistic or arbitrary will. This new form of dependence in bourgeois civil society—”the slavery of egoistic need”—is more impersonal than in feudalism because laborers are not tied to any one private property owner but dependent on the market.⁴⁴ The universalization of property rights generalizes a new set of class relations. In the “Critique of Hegel,” Marx recognizes the precarious position of the propertyless “class of immediate labour” whose life in this civil society is in large part determined by the vicissitudes of the market.⁴⁵ The “domination of private property and money” has debased everything, Marx writes in “On the Jewish Question,” into an object of exchange, including human beings.⁴⁶ They are “the plaything of alien powers.”⁴⁷ “On the Jewish Question” also emphasizes how this dependence on the arbitrary will of another is not tied to any one particular person, as in the ancien regime, but is instead experienced as a generalized subordination under money:

As long as man is restrained by religion he can objectify his essence only by making it into an alien, fantastic being. In the same way, when under the sway of egoistic need he can act practically and practically produce objects only by making his products and his activity subordinate to an alien substance and giving them the significance of an alien substance—money.⁴⁸

Political emancipation, then, liberated human beings from the servitude under the ancien regime. However, the modern dualism of an externalized state and bourgeois civil society had created new forms of alienation and servitude. Marx therefore defends what he sees as the progressive aspects of this transformation and critiques the limits. He does this because one of his aims of the essay was to defend Jewish entitlement to both the rights of the citizen and the “egoistic” rights of bourgeois civil society. Frederick Wilhelm IV had in part reignited debate on Jewish emancipation by proposing to reintroduce Jewries in 1841 as a way of realizing his romantic ideals of medieval Christian Prussia.⁴⁹ For Marx, the exclusion of Jews was a vestige of the old order that enforced a society of separate societies and an anathema to his political views. In a letter explaining why he had agreed to help Jews in Cologne with a particular petition, he wrote “[t]he point is to punch as many holes in the Christian state and smuggle in rational views as far as we can.”⁵⁰

This aim required a response to Bruno Bauer’s radical attack on Jewish emancipation. Bauer, a Young Hegelian philosopher and theologian who had been Marx’s teacher and friend in Berlin, was drawn into this debate over Frederick Wilhelm’s proposal after an exchange between between Carl Hermes, editor of the Kölnische Zeitung and Ludwig Philippson, editor of the Allgemeine Zeitung des Judentums. Bauer argued, contrary to both liberals and conservatives, that Christians and Jews were not in a position to grant and receive freedom respectively, which responded to the concerns that both camps had on the implications of emancipation on the Christian nature of Prussia and whether Jews were fit to become citizens.⁵¹ Bauer’s argument was that, given how the rights entitled to Christians were privileges on the basis of birth and grace, and since extending such privileges to non-Christians would be a contradiction in the eyes of Christians, the Jewish demand that Christians compromised their religious identity while Jewish people clung to theirs was hypocritical. Bauer demanded that both Jews and Christians should renounce religion and demand universal rights recognizing their humanity. Additionally, he criticized Judaism as an “oriental” religion that fostered a self-segregating form of consciousness with a materialistic and irrational attachment to ritual and law.⁵² Marx entered the debate to defend Jewish entitlement to rights by pointing out that freedom of religious conscience is a right won on the basis of common humanity and thus there was nothing hypocritical about their demand for the same rights as other citizens, while wanting to keep their religion.⁵³ At the same time, Marx insisted, that the secular state created the legal framework for the renewed flourishing of religion as a private faith revealed the persistence of social alienation. Therefore, he wanted to both argue for Jewish entitlement to universal rights, implying their value, while also pointing out how far political emancipation fell short of real, human emancipation.

Marx does agree with Bauer that rights are not natural. He approvingly quotes Bauer’s claim that rights are rather “the product of culture” and “the prize of the struggle against the accident of birth and the privileges which history has handed down from generation to generation” and he tends to refer to these rights as the “so-called rights of man.”⁵⁴ Therefore, the third problem with Lukes’ reading concerns Marx’s contempt for the description of the rights of bourgeois civil society as natural. For Lukes, this serves as further evidence of his hostility towards rights but this does not recognize how Marx treated rights as important victories in what he saw as the struggle for freedom. Marx found the celebration of rights as natural to be an undignified act of self-alienation because, as with religious consciousness, it externalizes a product of the human mind as an alien other with an independent, natural existence.⁵⁵ Treating rights as natural obscures from humanity its own agency in the world, its own historical achievements, and the need to complete the task of realizing freedom in the social world through a democratic transformation of society. Marx objected to how the rights of the egoistic owner of private property, who treats others as means to his or her own ends, are naturalized, or, how their interests are presented as universal rights. In this way, Marx insists on treating rights as specific to certain forms of society and objects to misrepresenting rights as human rights.

Finally, Lukes argues that Marx’s critique of the rights of man shows he underestimates the importance of how rights act as “side constraints” or set limits to social policies and to the individual pursuit of goals.⁵⁶ But, as we have seen, Marx is both aware of how rights helped liberate human beings from subordination under the old regime and repositioned individuals as dependent on the bourgeois owner of private property and the arbitrariness of the market. Marx chose to critique the rights of man, at least in part, because they provided the legal framework for this new system of subordination. In his “Critique of Hegel’s Philosophy of Right,” Marx had rejected what he saw as the arbitrary power of the monarchy, aristocracy, and bureaucracy of Hegel’s state. Furthermore, he rejected the division of society into egoistic civil society on the one hand and an abstract association of citizens on the other. He argued instead for a “true democracy” that would dissolve the externalization of the political association from civil society. Contrary to Hegel, Marx thought that a society governed by universal and impartial laws and conventions could only be realized through democratic means, including an elected legislature⁵⁷ and replacing professional bureaucracy with citizen participation,⁵⁸ rather than through Hegel’s “enlightened” institutions. Freedom required the people to choose their laws rather than having laws imposed on them by a particular individual or group who treat the state as their private property.⁵⁹ Furthermore, democratic participation through universal suffrage would reunite civil society with the political association and reunite individuals with their political identities as citizens. Boyd rightly notes, “If Marxism is compatible with human rights, it is the task of the Marxist to determine how rights may be involved in taking ‘the abstract citizen back into himself,’ as Marxism requires” and the right to vote, along with the other citizens’ rights, fit this criterion.⁶⁰ This radical, democratic republican argument underlines the importance Marx attributed to the rights of the citizen:⁶¹ to realize a universal, rational freedom based on impartial laws required, in his analysis, a democratic community and this required winning rights that enable such participation, such as freedom of conscience, speech and the press, assembly, and—importantly—the right to vote.⁶² The freedom with others in a true democracy requires these rights. But universal democratic participation in the formation and implementation of laws for Marx prevented the domination of the state by the arbitrary interests or personalities of particular individuals or groups.

In “On the Jewish Question,” Marx assumes that no self-respecting democracy would tolerate a sphere of generalized impersonal subordination or dependency. He assumes instead that a democratic community of self-ruling citizens would reject this distinction between politics and civil society, or the political and supposedly non-political, and ultimately this distinction between the rights of the citizen and the rights of man that expresses and mystifies it—”[w]ho is this man,” he asks, “who is distinct from this citizen?”⁶³ For many commentators, this would amount to illiberal, political interference in civil society.⁶⁴ For Marx, this would be an attempt by a democratic community to free itself from subordination under arbitrary power.⁶⁵ What I find interesting is that Marx’s support of citizens’ rights, as rights of participation in the community, raises questions about whether he anticipated this dualism of rights being replaced by rights to participate in both public administration and productive life and what those rights might have been.

 2. Marx’s critique of rights in Capital

The section above refuted Lukes’ interpretation of “On the Jewish Question” as showing hostility towards rights. But the significance Lukes attributed to this text was that it formed the “roots” of a later hostility towards rights. I have found no reason to think that Marx’s writings after his adoption of communism  inherited an earlier, dismissive conception of rights and this section will show this by examining Marx’s critique in volume I of Capital of the sphere of circulation in Capitalism as the “Eden of the rights of man.”⁶⁶

The sphere of circulation in capitalism refers to the exchange of commodities, including the capacity to labor, or labor-power. Marx describes this sphere as “a very Eden of the innate rights of man. It is the exclusive realm of Freedom, Equality, Property, and Bentham.” He continues in a well-known passage:

Freedom, because both buyer and seller of a commodity, let us say of labour-power, are determined only by their own free will. They contract as free persons, who are equal before the law . . . Equality, because each enters into relation with the other, as with a simple owner of commodities, and their exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to his own advantage…this sphere of simple circulation . . . provides the “free-trader vulgaris” with his views, his concepts and the standard by which he judges the society of capital and wage-labour.⁶⁷

The exchange of commodities, then, requires certain rights to take place, particularly rights of ownership over commodities. Marx’s treatment of the ideals of freedom and equality as fundamentally the freedom and equality of owners of private property recalls his critique in “On the Jewish Question.” Lukes’ claim is that Marx critiqued all rights because they express the individualism of capitalism and this passage, particularly the swipe against Bentham, may seem to support this reading. However, Marx’s view is that bourgeois rights require the alienation of the traditional rights of laborers. The “free-trader vulgaris” takes these rights and the ideals they embody as universal but Marx treats them as a part of specific historical circumstances and as ideological.⁶⁸ The freedom of the laborer to own and sell their labor-power to whomever they choose, for a certain period of time, is a case in point. This is a historically specific right because it requires the externalization of formal, political relations from the economic structure of society, absolving laborers from political obligations, such as those that tied the serf to the lord and estate. To be sure, the establishment of the right to own property, including both one’s own labor-power and the means of production, as a supposedly natural right marks a significant historical departure in the universalization of rights and their mystification of natural expresses this universalization. But in capitalism, these universal property rights reproduce a class structure through the universalization of property relations over labor-power, the means of production, and the surplus value produced by the worker but owned by the capitalist. This bourgeois freedom also involves being “free” of the land or being separated from the means of reproducing life, which obliges those with only their labor-power to sell to enter the sphere of circulation looking for employment.⁶⁹ Bourgeois political economy explained the social division between capitalists and workers in terms of the natural inequality of talents, frugality, and work ethic, and Marx dedicates some of the most memorable chapters in Capital to show how this sphere of exchange is actually predicated on a process of separation “written in the annals of mankind in letters of blood and fire.”⁷⁰ Marx presents this process of separating producers from land, and land from producers, or primitive accumulation, as a violent process, involving enclosure, forced evictions, brutal state punishments, genocide, and colonialism.⁷¹ Taking the British Isles as his case study, Marx describes how they transformed lands used for subsistence farming for generations were forcibly transformed into commercial sheep farms (not to mention hunting grounds for the nobility). Along with the disbanding of feudal retainers and the dissolution of the monasteries, Marx explains that the initial waves of expropriation in the fifteenth and sixteenth centuries were driven to expand the English wool industry. After the abolition of serfdom, these estates had become embedded in commercial relations and the enclosures violated the traditional system interpersonal dependence under which the peasants could rightfully claim to live on the estate.⁷² This is important because it shows how Lukes’ interpretation that rights for Marx can only express bourgeois individualism is mistaken. For Marx, the creation of bourgeois rights was a violent attack on traditional rights that were based on customary usage and multiple claims on the land. Indeed, Marx notes how these enclosures were initially illegal. Primitive accumulation, then, was part and parcel of the separation of the political from the productive that was central in establishing capitalism. Primitive accumulation amounted to theft of land and the alienation of the customary rights of the immediate producers,⁷³ and it turned the former into constant capital and the latter into “rightless proletarians” (emphasis added) or—from the perspective capital accumulation—variable capital.⁷⁴

This shows that Marx does not critique rights per se as expressions of individualism. He treats rights as legal relations that are internally connected to the class structure and forces of production, not to mention forms of the state and social consciousness. That is, he treats the form and functioning of legal relations as explicable only in relation to these other moments as a totality or ensemble. When one is examined, it reveals the others because they co-evolve together.⁷⁵ His critique of primitive accumulation shows how the bourgeois right to own the means of production privately were established by attacking the feudal system of customary rights based on common use and traditional ties to the estate. Of course, Marx recognizes the abolition of serfdom and the achievement of self-ownership as a positive side to this development. Therefore, the problem is not with rights per se; the problem is that the specific rights of bourgeois society are are predicated on making the former immediate producers wage-slaves or producers dependent on wages for the reproduction of their lives. In “On the Jewish Question,” Marx critiqued the dependence of the property-less laborer on the egoistic will of the bourgeois owner of private property. In Capital, he critiques the dependency of the worker on the social relation of value personified by the capitalist.⁷⁶

This reading will be disputed by some because it implies that Marx criticized capitalism as unjust. Referring to the passage quoted above, and to others,⁷⁷ some commentators argue that because Marx made the theoretical assumption that labor-power was generally exchanged in capitalism for its value—the cost of reproducing labor-power—Marx showed how the capitalists’ extraction of surplus-value from the proletariat is consistent with their holding the rights of freedom of exchange, equality under the law, and with notions of fairness and justice within capitalism.⁷⁸ This is because it is a free exchange of equivalent for equivalent by rightful owners of property and while it may involve the extraction of surplus-value, it is not unjust. Proponents of this view, then, understand Marx’s critique of rights and by extension moral standards as corresponding to, or conditioned by, a certain mode of production to mean that the only standard of justice applicable to capitalism is the one that accords with the capitalist mode of production.⁷⁹ Nevertheless, there is a great deal of textual evidence of Marx condemning the extraction of surplus-value as a form of robbery, which implies an injustice in a non-capitalist sense.⁸⁰ It has been persuasively argued that Marx shows in the passage quoted above that it is the bourgeois “free-trader vulgaris” who thinks that capitalist exchange is performed on the basis of freedom, equality, and justice. Marx’s critique shows this to be a superficial view, reminding his reader that these require the proletariat experience wage-dependency and the loss of independent access to the means of production. As for the fact that labor-power can produce more value than required to reproduce it, this means that part of the working-day is unpaid labor-time; this unequal exchange only appears an equal one superficially in the sphere of circulation, and only in the eyes of the “free-trader vulgaris.”⁸¹ Moral standards are therefore not only conditioned by the mode of production but by the class structure of society and are contested along class lines.⁸² Moreover, as Sean Sayers has convincingly argued, for Marx the capitalist mode of production has also produced the material basis for a socialist mode of production and different moral standards that correspond to it, which means that bourgeois moral standards can be challenged by socialists as unjust without false appeal to universal moral truths.⁸³ Marx’s position is underpinned by an idea of historical progress; namely that human needs, capacities, and powers as progressively developed by the successive social formations in history.⁸⁴ As should be clear, this idea of historical progress in Marx’s materialist conception of history should not be identified with the idea of progress in “On the Jewish Question,” which was written before Marx developed this conception of history and indeed became a communist.

Marx’s argument in Capital implies that an alternative set of new legal relations would be needed for “an association of free men, working with the means of production held in common.”⁸⁵ The “Critique of the Gotha Programme” (written 1875) confirms this. Marx’s criticism of the vague Lassallean demand in the draft program of the German socialists for “a fair distribution of the proceeds of labour”⁸⁶—and his reminder to the Lassalleans that distribution under capitalism is consistent with the standards of fairness based on the present mode of production—has been cited as evidence that Marx did not view capitalism as unjust.⁸⁷ “Right,” he argues, “can never be higher than the economic structure of society and its cultural development conditioned thereby.”⁸⁸ But his main point is that the standards of distributive justice of a society are internally related to the mode of production. A cooperative mode of production reusing organization and technological development from capitalism would be “still stamped with the birth marks of the old society from whose womb it emerges.” Thus in the lower phase of communism, the labor certificates the individual receives for their contribution to the common stock of use-values continues to reflect the amount of labor they have contributed, and therefore their natural abilities. While class differences have been abolished in this society, this form of distribution cannot take into account the differences in individual needs. Its limitation is that this “equal right is an unequal right for unequal labour,” as Marx puts it. This will benefit some over others. “To avoid all these defects,” he claims, “right instead of being equal would have to be unequal”; that is, the right to use-values will need to be based on these individual needs.⁸⁹ This would be the form of distribution that would correspond to the higher phase of communism, a mode of production in which “the enslaving subordination of the individual to the division of labor . . . has vanished” and in which “labor has become not only a means of life but life’s prime want,” possible if “the productive forces have also increased with the all-round development of the individual, and all the springs of co-operative wealth flow more abundantly.” “[O]nly then,” he concludes, “can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: from each according to his ability to each according to his needs!”⁹⁰

Marx critiques the Lassallean program by insisting that distribution cannot be considered in isolation from production, or that rights and standards of fairness are internally related to social relations and productive forces. His argument is also that only with new social relations and productive forces can there be new forms of distribution, involving new rights and standards of fairness. In this case, the principle of distributive justice of the higher phase of communism, distribution according to need, is internally related to the advanced mode of production and the conditions of abundance Marx expects of a fully developed communist society. In such a society, rights are possible that would seem unfair or absurd from the perspective of bourgeois conceptions of fairness, conditioned by a different mode of production and level of development. These rights may be as different to those in capitalism as those in capitalism are different from feudalism. Some commentators have extrapolated from this that standards of justice can only be appropriately applied to the mode of production within which they have arisen.⁹¹ As noted above, this has been challenged by the argument that Marx regards capitalism as creating the technological, organizational, and material possibilities for a cooperative mode of production and so regarding capitalism and the lower phase of communism as external to one another is mistaken.⁹² That Marx regards the standards of fairness for a communist society in its lower phase as recognizably bourgeois in origin (in the sense of allocating goods in accordance with ability, not in the sense of the distribution of private property) not only confirms this, it confirms that inherent to the capitalist mode of production is the possibility for a more cooperative form of social organization and different forms of distributive justice. The point, then, is not to argue for any universal rights or notions of fairness, but to demand a “cooperative society based on common ownership of the means of production” and the rights and standards of fairness which form a part of this society.⁹³ I can find no evidence of Lukes’ claim that Marx’s post-capitalist society would dispense with rights altogether.

3. Conclusion

There is no reason, then, to read either “On the Jewish Question” or Capital as attacking the very idea of rights. Nor does describing Marx as criticizing bourgeois rights for being mere expressions of egoism do justice to his argument. “On the Jewish Question” contains a complex appraisal of the rights of bourgeois society based on what can be considered as progressive in relation to general human emancipation. Accordingly, he broadly criticizes rights that defend, in his view, forms of arbitrary power and he defends rights that secure social participation. Capital tries to show how the superficial appearance of free and fair exchange between rightful owners of commodities in the sphere of circulation masks the exploitation or the exchange of non-equivalents; coercion in the form of wage-dependency; and the alienation of rights incompatible with the capitalist mode of production. The “Critique of the Gotha Programme” raises profound questions over what standards of fairness and rights would be compatible with a cooperative mode of production. While a common thread is Marx’s critique of the mystification of rights as universal or natural, I have no found no inconsistency between these views and defending rights per se.

In addition to demonstrating the problems with Lukes’ reading of Marx, I have argued that a reassessment is due of the role of rights in Marx’s thought and Marxism more generally. Marx’s various critiques of bourgeois rights, not least in his magnum opus Capital, have helped give the view that he placed little value on rights. But his defence of citizens’ rights in “On the Jewish Question” is based on how they secure an individual’s participation in a community, which Marx argued was a prerequisite for creating a society governed by general and impartial laws and conventions rather than laws or decrees expressing arbitrary interests. I raised the question in section one about whether his defense of rights securing participation in political communities means he may have anticipated that the struggle to create a democratic society could or should involve a struggle for rights to participate in civil society and, if so, what those rights could be. Marx later in life continued to support rights of political participation, including universal suffrage. His defense of the Paris Commune shows that he valued democratic participation not only as giving power to the working-masses but, for example, as a way of ensuring that the branches of state act in the general interests of society rather than in the interests of class, bureaucracy, or heads of state.⁹⁴ What I find curious is that, while he supports and praises cooperative production, for having “shown that production on a large scale, and in accord with the behests of modern science, may be carried out without the existence of a class of masters employing a class of hands,”⁹⁵ there is little recognition in his writings that democratic participation in cooperative production should be a right in post-capitalist society, although it may be inferred from his description of such as a society as a “co-operative society based on common ownership of the means of production.”⁹⁶ This may be because of Marx’s suspicion of the way that demands for rights tended to take the form of universalizing these rights in a way he not only found degrading (as discussed in section one) but also as “perverting . . . the realistic outlook, which it cost so much effort to instil into the Party but which now taken root in it, by means of ideological nonsense about right and other trash so common among the democrats and French socialists.”⁹⁷

But there is no need for Marxism or socialism to be as stringent as Marx in this respect. His main insight was that rights are internally related to historically specific social relations of production; productive forces; forms of social consciousness; and political and legal relations. Given this, a reassessment is due on what kind of rights and standards of fairness would be appropriate for a society with a more cooperative and democratic mode of production. Marx’s writings prompt socialist movements to avoid framing their arguments in terms of bourgeois rights, which he tries to show are inextricably bound up with exploitation, and to avoid putting abstract utopian thinking in political programs. Instead, his writings suggest labor and socialist movements examine the development of productive forces, social relations, forms of social consciousness, and political and legal relations in capitalism; to look to the alternative forms of society these developments currently make possible; consider what kind of rights are consistent with these concrete possibilities; and center their demands for rights on those. Marx’s writings suggest that these rights may take the form of securing an individual’s capacity to participate in community or cooperative efforts. This discussion is beyond the present scope but made necessary by capitalism’s continual revolutionizing of the productive forces of society. (Marx in the Grundrisse pinned hopes on automation creating the possibility for a reduction in labor-time and for new forms of distribution.)⁹⁸ Revisiting Marx’s critique of liberal rights in Capital, then, should prompt a constructive discussion for socialists around rights.