In response to critiques of rights as moralistic and depoliticising, a literature on the political nature and contestability of rights has emerged. In this view, rights are not merely formal, liberal and moralistic imperatives, but can also be invoked by the excluded in a struggle against domination. This article examines the limits to this practice of rights-claiming and its implication in forms of domination. It does this by returning to Marx’s blueprint for the critique of subjective rights. This engagement with Marx will, however, take a particular form. I will read Marx first through the eyes of Claude Lefort and thereafter against Lefort. The latter’s critique of Marx still constitutes the strongest case against the dismissal of subjective rights. Introducing a reading of Lefort into the argument allows us to discover what is dead and what is well alive in the Marxist theory of rights. What is dead, I will argue, is Marx’s early conception of subjective rights as ideology and illusion. However, the more mature Marx developed a theory and critique of the legal form that is able to explain why the politics of rights—despite its undeniable advances—has not been able to overcome certain forms of domination.
This is a preview of subscription content, access via your institution.
Buy single article
Instant access to the full article PDF.
Tax calculation will be finalised during checkout.
Subscribe to journal
Immediate online access to all issues from 2019. Subscription will auto renew annually.
Tax calculation will be finalised during checkout.
Therefore, I will not engage with David Leopold’s argument that the young Marx, to the extent that he formulated a theory of human flourishing, held onto a concept of human rights (Leopold 2007; also see Lacroix and Pranchère 2012). Even if this argument is convincing, I believe it does not tell us enough about the role rights might play in the transition towards this more ideal society.
As many commentators have pointed out, Marx’s reading of the modern declaration of the rights is very selective at this point in his intellectual formation (e.g. Fine 2002, p. 83; Balibar 2010, pp. 35–65). Nonetheless, I think it is more productive to adopt Justine Lacroix and Jean-Yves Pranchère’s suggestion that Marx may have recognised the heterogeneity of the declarations but denounced the lexical prioritising of civil rights and particularly the right to private property (Lacroix and Pranchère 2012, p. 52).
This does not mean that Marx has a fully worked out conception of the implication of state and right in capitalist domination. On the contrary, as Bob Fine notes, Marx still ‘portrayed the relation between civil society and state as an antagonistic one, based on their mutual opposition. Civil society appeared as the sphere of pure egoism and slavery, while the rational state appeared as the sphere of pure universality and freedom’ (Fine 2002, p. 85). Consequently, and this is very important, ‘Marx was not yet able to connect form and content, freedom and exploitation’ (idem).
As Samuel Moyn notes, this might not be Lefort’s strongest argument. The problem with this reasoning is that it leaves the individualist social ontology of rights in place: public debate is still the result of an interaction among individuals. In this sense Lefort merely replicates the liberal proposition that an aggregate of individual actions creates a public benefit (Moyn 2012, p. 298). I would like to add to this argument that Marx himself would probably not deny that the right to freedom of opinion establishes relations. What is salient in this case is that this right establishes these relations in a field that is already structured by unequal relations of power and, at the same time, abstracts from these relations of power.
Nonetheless, it can be argued that Lefort’s thought is marked by a certain blindness towards the (important) fact that the invocation of rights is dependent on an array of practical factors: the make-up of the legal apparatus, the disposition of and ideological notions shared by legal experts, media framing of rights struggles in civil society, etc. This could be a consequence of his innovative (but limited) conceptualisation of power and the state. More specifically, as Antoon Braeckman argues, Lefort proposes an epistemic-ontological view of the state in which it figures both as ‘the expression and materialization of society's instituting principles and the prism through which these principles may be hermeneutically disclosed’ (Braeckman 2018, p. 9). Therefore, he remains blind to the internal setup of the state (the different functions it performs) and the relations between the different state apparatuses (2017, pp. 1, 9–10).
The word ‘developed’ should be taken with a pinch of salt. The young Marx—still heavily occupied with Hegel’s philosophy—wrote extensively on modern right, but the later ruminations on right (in Grundrisse, Capital and Critique of the Gotha Program) are fragmentary to say the least. However, taking Marx’s own method and these fragments together should allow us to develop a more coherent concept of right.
I should clarify that Menke distinguishes between modern right, as a more general category, and subjective right as one specific instance of modern right. In Menke’s argument, subjective right (or bourgeois right) is both the most prominent—if not the only actually existing—actualisation of modern right and a betrayal of the concept of modern right. Subjective right blocks modern right’s self-reflection: by naturalising the modern bourgeois subject, it obstructs modern right’s inherently self-revolutionising character. It is, Menke adds, a post-revolutionary right (Menke 2015, p. 165).
This is a rough sketch of William Clare Roberts’s convincing reinterpretation of the concept of commodity fetishism. Instead of seeing commodity fetishism as a phenomenon that sees human beings becoming subject to the movement of commodities (and thus objects), Roberts defines it as a form of impersonal domination of individuals by the ‘changing relations of interdependency’ between people (Roberts 2017, p. 93). The force that is exercised by a market might look like a force exercised by objects, but any clear-eyed account should see it for what it is, namely the force of human actions mediated by an impersonal mechanism (2017, p. 92). The rationale for rejecting the first interpretation (fetishism as domination by the movement of objects) is that domination—even impersonal domination—can only make sense as a relation between human beings. This is the only way in which it can be considered as a problem with political traction.
As my more concrete description will show, we should not take the word ‘personal’ too literally. The relations of personal subordination are also—and increasingly so—mediated by impersonal techniques (e.g. algorithms determining employee schedules). On top of that, domination in the workplace is also mediated by a type of subjection to machines. The increased centrality of machines to the modern production process, as James Tully notes, can generate a sense of passivity and powerlessness in the modern worker (Tully 1993, pp. 253–261).
However, this is not to suggest that the domination of wage labour is the only form of domination in capitalist society. As Nancy Fraser argues, we should develop an expanded conception of capitalism that not only highlights the domination of wage labour, but also of unpaid labour (as, for example, housework) (Fraser 2014).
Already in Grundrisse, Marx responds in a similar manner to Proudhon’s claim that the equality and freedom inherent in exchange were perverted by money and capital. On the contrary, Marx replies, ‘the money system is in fact the system of equality and freedom, and […] the disturbances which they encounter in the further development of the system are disturbances inherent in it, are merely the realization of equality and freedom, which prove to be inequality and unfreedom’ (Marx 1973, p. 248).
This critique was, for instance, formulated by Nicos Poulantzas in his take on Evgeny Pashukanis’ derivation of the legal form from the sphere of exchange (Poulantzas 2008 , p. 28). For a defence of Pashukanis’ concept of the legal form against Poulantzas, see Elbe (2008) and Buckel (2011, pp. 162–165). On the broader question of the relative autonomy of law in capitalist society see Tomlins (2007).
Of course, we could also invert the terms of the question: we could ask not how the modern legal form prevents emancipatory movements from achieving their aims, but how it allows problematic subjects to do so. Lefort only sees promises in the indeterminacy of the ‘man’ of rights which, he argues, gives it ‘a basis which, despite its name, is without shape’ and therefore ‘eludes all power’ (Lefort 1986, p. 258). The blind spot in this argument is that the legal form also allows for the appearance of things as non-human legal persons. To give an example, the Fourteenth Amendment to the US Constitution, initially adopted to protect the rights of former slaves, was instrumental in the creation of corporate personhood. However, corporate personhood—the assigning of rights to corporations as if they were natural persons—leads to all kinds of unwanted consequences. To give an example, because of the Burwell v. Hobby Lobby landmark court decision, corporate personhood grants US corporations the right to be exempt from regulations to which they religiously object. Conceding corporations this right to religious freedom, however, enables them to curtail the rights of their employees in turn (Lütticken 2017, p. 121). The flexibility of legal personhood often has, as this case shows, problematic consequences (also see Neocleous 2003).
This being said, I agree with Wendy Brown that it is possible to both see the limits to these rights struggles and, nonetheless, perceive their necessity. In a world in which rights are currency, the advice to not fight redundancies or acts of discrimination with rights could be irresponsible (Brown 1995, p. 123).
In this sense there is an overlap with Jürgen Habermas’ analysis of the process of juridification (Habermas 1987, pp. 356–373). The difference, however, is that my analysis does not restrict the nefarious influence of the legal form to the fourth wave of juridification (namely, that involving social rights) (Tweedy and Hunt 1994, p. 308) but also includes the earlier ones.
Aitchison, Guy. 2017. Foucault, democracy and the ambivalence of rights. Critical Review of International Social and Political Philosophy 1–17. https://philpapers.org/rec/AITFDA-3. Accessed 13 March 2019.
Anderson, Elisabeth. 2017. Private government: How employers rule our lives (and why we don’t talk about it). Princeton: Princeton University Press.
Anderson, Nancy, and David Greenberg. 1983. From substance to form: The legal theories of Pashukanis and Edelman. Social Text 7: 69–84.
Balibar, Étienne. 2014 . Equaliberty: Political essays. Durham and London: Duke University Press.
Balibar, Étienne. 2017 . The philosophy of Marx (updated new edition). London: Verso Books.
Basso, Luca. 2015. Marx and the common: From capital to the late writings. Leiden: Brill.
Baynes, Kenneth. 2000. Rights as critique and the critique of rights: Karl Marx, Wendy Brown, and the social function of rights. Political Theory 28(4): 451–468.
Braeckman, Antoon. 2018. The hermeneutics of society: On the state in Lefort’s political theory. Constellations 25(2): 242–255.
Brown, Wendy. 1995. States of injury: Power and freedom in late modernity. Princeton: Princeton University Press.
Buckel, Sonja. 2008. Zwischen Schutz und Maskerade: Kritik(en) des Rechts. In Kritik und Materialität, ed. Alex Demirovic, 110–131. Münster: Westfälisches Dampfboot.
Buckel, Sonja. 2010. ‘La forme dans laquelle peuvent se mouvoir les contradictions’: Pour une reconstruction de la théorie materialiste du droit. Actuel Marx 47: 135–149.
Buckel, Sonja. 2011. The juridical condensation of relations of forces: Nicos Poulantzas and law. In Reading Poulantzas, ed. Alexander Gallas, Lars Bretthauer, John Kannankulam, and Ingo Stutzle, 154–169. London: Merlin Press.
Christodoulidis, Emilios. 1998. Law and reflexive politics. Dordrecht: Springer.
Christodoulidis, Emilios. 2017. Social rights constitutionalism: An antagonistic endorsement. Journal of Law and Society 44(1): 123–149.
Cohen, Jean. 1999. Changing paradigms of citizenship and the exclusiveness of the demos. International Sociology 14(3): 245–268.
Cohen, Jean. 2013. Rethinking the politics of human rights and democracy with and beyond Lefort. In Claude Lefort: Thinker of the political, ed. Martin Plot, 124–135. Houndmills: Palgrave Macmillan.
Colliot-Thélène, Catherine. 2011. La démocratie sans demos. Paris: PUF.
D’Souza, Radha. 2017. What’s wrong with rights?. London: Pluto Press.
Douzinas, Costas. 2000. The end of human rights: Critical thought at the turn of the century. London: Bloomsbury.
Elbe, Ingo. 2008. Rechtsform und Produktionsverhältnisse. Anmerkungen zu einem blinden Fleck in der Gesellschaftstheorie von Nicos Poulantzas. In Philosophieren unter Anderen. Beiträge zum Palaver der Menschheit, eds. Urs Lindner et al., 225–237. Münster: Westfälisches Dampfboot.
Fine, Bob. 2002. Democracy and the rule of law: Marx’s critique of the legal form, new ed. Caldwell: Blackburn Press.
Flynn, Bernard. 2005. The philosophy of Claude Lefort: Interpreting the political. Evantston, Illinois: Northwestern University Press.
Foucault, Michel. 2001 . Les mailles du pouvoir. In Dits et Écrits II: 1976–1988, eds. Daniel Defert and François Ewald, 1001–1020. Paris: Gallimard.
Fraser, Nancy. 2014. Behind Marx’s hidden abode: For an expanded conception of capitalism. New Left Review 86: 55–72.
Garo, Isabelle. 2008. Entre démocratie sauvage et barbarie marchande: Á propos de Claude Lefort, le temps présent – Écrits 1945–2000. La Revue Internationale des Livres et des Idées 3.
Geuss, Raymond. 2001. History and illusion in politics. Cambridge: Cambridge University Press.
Golder, Ben. 2014. Beyond redemption? Problematising the critique of human rights in contemporary international legal thought. London Review of International Law 2(1): 77–114.
Gourevitch, Alex. 2015. From slavery to the cooperative commonwealth: Labor and republican liberty in the nineteenth century. Cambridge: Cambridge University Press.
Habermas, Jurgen. 1987 . The theory of communicative action (Vol. 2). Boston: Beacon Press.
Horowitz, Morton. 1975. The rise of legal formalism. The American Journal of Legal History 19(4): 251–264.
Hunt, Alan. 1985. The ideology of law: Advances and problems in recent applications of the concept of ideology to the analysis of law. Law and Society Review 19(1): 11–38.
Ingram, James. 2006. The politics of Claude Lefort’s political: Between liberalism and radical democracy. Thesis Eleven 87: 33–50.
Ingram, James. 2013. Radical cosmopolitics: The ethics and politics of democratic universalism. Princeton: Princeton University Press.
Isaac, Jeffrey C. 1990. The lion’s skin of politics: Marx on republicanism. Polity 22(3): 461–488.
Jessop, Bob. 1980. On recent Marxist theories of law, the state, and juridico-political ideology. International Journal of the Sociology of Law 8: 339–368.
Klare, Karl. 1978. Judicial deradicalization of the Wagner Act and the origins of modern legal consciousness, 1937–1941. Minnesota Law Review 62: 265–339.
Klare, Karl. 1979. Law-making as praxis. Telos 40: 123–135.
Knox, Robert. 2009. Marxism, international law, and political strategy. Leiden Journal of International Law 22(3): 413–436.
Knox, Robert. 2016. Law, neoliberalism and the constitution of political subjectivity: The case of organised labour. In Neoliberal legality: Understanding the role of law in the neoliberal project, ed. Honor Brabazon, 104–130. London: Routledge.
Kouvélakis, Stathis. 2005. The Marxian critique of citizenship: For a rereading of On the Jewish Question. South Atlantic Quarterly 104(4): 707–721.
Lacroix, Justine. 2013. A democracy without a people? The ‘rights of man’ in French contemporary political thought. Political Studies 61: 676–690.
Lacroix, Justine, and Jean Y. Pranchère. 2012. Was Marx truly against human rights? Revue Française de Science Politique 62(3): 433–451.
Lefort, Claude. 1986. The political forms of modern society: Bureaucracy, democracy, totalitarianism. Cambridge, Massachusetts: MIT Press.
Lefort, Claude. 1988. Democracy and political theory. London: Polity Press.
Lefort, Claude. 2007a. La pensée politique devant les droits de l’homme. In Le temps présent: Écrits 1945–2005, 405–421. Paris: Belin.
Lefort, Claude. 2007b. Droit international, Droits de l’homme et politique. In Le temps présent: Écrits 1945–2005, 1019–1036. Paris: Belin.
Lefort, Claude. 2015. Les Droits de l’Homme et la Pensée Politique de Gauche au Brésil. In Problèmes d’Amérique Latine, 98: 11–20.
Leopold, David. 2007. The young Karl Marx: German philosophy, modern politics, and human flourishing. Cambridge: Cambridge University Press.
Lindahl, Hans. 2013. Fault lines of globalization: Legal order and the politics of A-legality. Oxford: Oxford University Press.
Lütticken, Sven. 2017. The juridical economy: Notes on legal form and aesthetic form. New Left Review 106: 105–123.
Marion Young, Iris. 1989. Polity and group difference: A critique of the ideal of universal citizenship. Ethics 99: 250–274.
Marks, Susan. 2009. False contingency. Current Legal Problems 62(1): 1–21.
Marx, Karl. 1973 . Grundrisse. London: Penguin University Press.
Marx, Karl. 1976 . Capital: Volume 1. London: Penguin University Press.
Marx, Karl. 1992. Early writings. London: Penguin University Press.
McLoughlin, Daniel. 2016. Post-Marxism and the politics of human rights: Lefort, Badiou, Agamben, Rancière. Law and Critique 27(3): 303–321.
Menke, Christoph. 2015. Kritik der rechte. Berlin: Suhrkamp.
Menke, Christoph. 2017. Law and domination. In Critical theory in critical times, ed. Cristina Lafont, 117–138. New York: Columbia University Press.
Mezzadra, Sandro. 2007. ‘Property of the self’: Individual autonomy and the modern European discourse of citizenship. In Autonomy: Beyond Kant and hermeneutics, ed. Paula Banerjee and Samir Kumar Das, 37–48. London: Anthem Press.
Mezzadra, Sandro, and Brett Neilson. 2013. Border as method, or the multiplication of labor. London: Duke University Press.
Miéville, China. 2005. Between equal rights: A Marxist theory of international law. Brill: Leiden.
Moyn, Samuel. 2010. The last utopia. Cambridge, Massachusetts: Harvard University Press.
Moyn, Samuel. 2012. The politics of individual rights: Marcel Gauchet and Claude Lefort. In French liberalism from Montesquieu to the present day, ed. Raf Geenens and Helena Rosenblatt, 291–310. Cambridge: Cambridge University Press.
Moyn, Samuel. 2014. A powerless companion: Human rights in the age of neoliberalism. Law and Contemporary Problems 77: 147–169.
Neocleous, Mark. 2003. Staging power: Marx, Hobbes, and the personification of capital. Law and Critique 14(2): 147–165.
Nichols, Robert. 2018. Theft is property! The recursive logic of dispossession. Political Theory 46(1): 3–28.
Pashukanis, Evgeny, B. 2003 . The general theory of law and Marxism. New Brunswick: Transaction Publishers.
Picciotto, Sol. 1979. The theory of state, class struggle and the rule of law. In Capitalism and the rule of law: From deviancy theory to Marxism, ed. Bob Fine, 164–177. London: Hutchinson.
Postone, Moishe. 1993. Time, labor, and social domination. Cambridge: Cambridge University Press.
Poulantzas, Nicos. 2008 . Marxist examination of the contemporary state and law and the question of the ‘alternative’. In The Poulantzas reader: Marxism, law and the state, ed. James Martin, 25–46. London: Verso Books.
Pranchère, Jean-Yves. 2019. Un monde habitable par tous: Claude Lefort et la question du social. Esprit 2019(1): 111–122.
Read, Jason. 2003. The micro-politics of capital: Marx and the prehistory of the present. Albany: SUNY.
Rehmann, Jan. 2008. Einführung in die Ideologietheorie. Hamburg: Argument Verlag.
Roberts, William C. 2017. Marx’s inferno: The political theory of capital. Princeton: Princeton University Press.
Tomlins, Christopher. 2007. How autonomous is law? Annual Review of Law and Social Science 3: 45–68.
Tully, James. 1993. An approach to political philosophy: Locke in contexts. Cambridge: Cambridge University Press.
Tully, James. 2008. Public philosophy in a new key, vol. II. Cambridge: Cambridge University Press.
Tweedy, John, and Alan Hunt. 1994. The future of the welfare state and social rights: Reflections on Habermas. Journal of Law and Society 21(3): 288–316.
Yeatman, Anna. 2014. Rival doctrines—The politics of human rights. In The aporia of rights: Explorations in citizenship in the era of human rights, ed. Peg Birmingham and Anna Yeatman, 205–226. London: Bloomsbury.
Zivi, Karen. 2012. Making rights claims: A practice of democratic citizenship. Oxford: Oxford University Press.
I would like to thank Professor Toon Braeckman for his comments on the first draft of this article. This research is funded by a Ph.D.-fellowship of the Research Foundation-Flanders.
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
About this article
Cite this article
Boonen, C. Limits to the Politics of Subjective Rights: Reading Marx After Lefort. Law Critique 30, 179–199 (2019). https://doi.org/10.1007/s10978-019-09238-7
- Claude Lefort
- Karl Marx
- Legal form
- Subjective rights