Listen to the Full Introduction to Marx 3/13 here:
By Bernard E. Harcourt
In February 1844, Marx published two articles in the Deutsch-französische Jahrbücher (“German-French Annals”), which he and Arnold Ruge edited in Paris: “A Contribution to the Critique of Hegel’s Philosophy of Right: Introduction” and “On the Jewish Question.”[1]
The first article, Jean Hyppolite referred to as “a first communist manifesto.”[2] The working class—the proletariat, in Marx’s terms—bursts forth onto the scene for the first time. Praxis, understood as practical activity in the form of revolutionary action, becomes a “categorical imperative.” Marx calls for radical revolution in Germany, by force, to overthrow social conditions that “debase” and “enslave” ordinary people. This all follows necessarily, Marx writes, from an understanding and criticism of Hegel’s philosophy of law and the state.
The second article, “On the Jewish Question,” called for human, as opposed to merely legal or political emancipation. Political revolution, though necessary to overthrow a feudal regime, is not sufficient to produce real emancipation because it merely empowers people to pursue their private, egotistical, self-interests. Even a human rights framework like the Declaration of the Rights of Man and of the Citizen (1793) is inadequate to fully emancipate people from the yoke of servitude. What is necessary instead is a social upheaval that transforms self-interested individuals into members of a shared community.
Together, these two articles in the Deutsch-französische Jahrbücher in 1844 push Marx beyond the legal remedies that he had proposed in his 1842 articles on the thefts of wood, which we discussed at Marx 2/13. There, you will recall, Marx called for a legal settlement based on an internationalist customary right of the poor, universal as to the class of poor peoples of all countries, because of their condition in the social order. By contrast, in these 1844 articles, Marx recognizes the thoroughgoing political and social nature of the struggle and turns instead to the working class and to social revolution for the realization of human emancipation.
From Marx’s juridical writings in 1842, then, we turn now in Marx 3/13 to his political writings on the state and the true nature of human emancipation. At Marx 3/13, we will read and discuss Marx’s 1844 articles with the philosopher and political theorist Jean Louise Cohen of Columbia University, in conversation with a commentary on Marx’s “On the Jewish Question” by the French political philosopher Claude Lefort. A former Trotskyist and co-founder with Cornelius Castoriadis of the journal and social movement Socialisme ou Barbarie (“Socialism or Barbarism”) in the 1950s, Claude Lefort became a staunch critic of the Soviet régime and an expert on questions of totalitarianism. In an article published in 1980, under the title “Politics and Human Rights,” Claude Lefort returned to Marx’s article “On the Jewish Question” to discuss the rise of human rights discourse within dissident movements in the East Bloc.[3]
Our guide to these materials will be Jean Louis Cohen, the Nell and Herbert Singer Professor of Political Theory and Contemporary Civilization in the Department of Political Science at Columbia University. She has written numerous books and articles including Class and Civil Society: The Limits of Marxian Critical Theory; Civil Society and Political Theory (co-authored); Regulating Intimacy, Globalization and Sovereignty; and most recently Populism and Civil Society (co-authored). She has recently published work on “Hybrid Regimes: the U.S. Case” published in Constellations, and has a piece submitted for publication on “Cycles of Oligarchy, Democracy and Authoritarianism,” part of a larger project. In conversation with Claude Lefort’s essay, Jean Cohen will actualize the import of Marx’s 1844 texts for our current political situation.
In this short introduction, let me provide some background on Marx’s 1844 articles and on the influence of those works on critical legal theory, as well as some context for the discussion of Claude Lefort. The debate over the status of human rights and over rights discourse, I will argue, offers the perfect point of entry to imagine, with Lefort, “new modes of thought and action”[4]—new modes of critique and praxis—centered on values of cooperation and democratic self-governance.
Background
A few months after the publication in the Rheinische Zeitung of Marx’s articles on the thefts of wood (October/November 1842[5]), on proposed reforms to Prussian divorce law (November/December 1842[6]), and other polemical articles, the Prussian authorities decided, by decree dated January 21, 1843, to prohibit the Gazette effective April 1, 1843.[7] Marx stepped down as editor-in-chief on March 18, 1843, citing, in his words, “the present conditions of censorship.”[8] Marx was already developing plans to edit another publication with Arnold Ruge, the Deutsch-Französische Jahrbücher, from Paris.[9]
It is about then, in March or April 1843, that Marx began working on a close exegetic analysis and critique of a portion of the subsection on “The State” (paragraphs 261-313) of Hegel’s Philosophy of Right (1820).[10] At the time, Marx was 25 years old. He had moved to Kreuznach to spend time with his fiancée, Jenny von Westphalen, at the summer residence of her mother in preparation for their wedding. (They would marry there on June 19, 1843.) Marx was doing research in political theory and history, and trying to prepare articles ahead of time for possible publication in the Deutsch-Französische Jahrbücher.[11] It is believed that Marx spent the summer of 1843 at work on his Critique of Hegel.[12]
Marx had the idea for a critique of Hegel from earlier date. In a letter to Arnold Ruge dated over a year before (March 5, 1842), Marx had expressed his intent to engage in a detailed critique of Hegels’ Philosophy of Right. Marx explained to Ruge: “Another article which I also intended for the Deutsche Jahrbücher is a criticism of Hegelian natural law, insofar as it concerns the internal political system. The central point is the struggle against constitutional monarchy as a hybrid which from beginning to end contradicts and abolishes itself. Res publica is quite untranslatable into German.”[13]
That is the work, with a slightly different emphasis, that Marx would conduct during the summer of 1843. And after completing the exegetic work on Hegel’s Philosophy of Right, Marx synthesized the resulting argument into an article, which he wrote during the period September 1843 to January 1844. It is during that time, in October-November 1843, that Marx goes into self-imposed exile in Paris; and there he edits, along with Arnold Ruge, the Deutsch-französische Jahrbücher.[14]
Marx published his synthetic article under the title “A Contribution to the Critique of Hegel’s Philosophy of Right: Introduction” (Zur Kritik der Hegel’schen Rechts-Philosophie. Einleitung) in the Deutsch-französische Jahrbücher in February 1844. Earlier, in Autumn 1843, Marx also wrote another article “On the Jewish Question,” which developed themes from his Critique. That article was also published in the same issue of the Deutsch-französische Jahrbücher in February 1844.
The Introduction to the Critique of Hegel
Marx’s article on Hegel is a call to revolution in Germany. Marx advocates for the radical overthrow, by force, of the social conditions that oppress ordinary German people. Marx calls for total human emancipation through the dissolution of society and the universalization of the working class. This follows logically and necessarily, Marx argues, from an analysis and criticism of Hegel’s philosophy of law and of the state.
Marx’s argument proceeds in three steps: first, Marx affirms and pushes further Feuerbach’s critique of Christianity; second, Marx criticizes Hegel’s Philosophy of Right, using a Feuerbachian method to invert the relationship between the state and civil society; and third, Marx resolves the criticism of Hegelian philosophy by turning to praxis, here radical revolutionary practical activity.
Step 1: Laying a Foundation with and beyond Feuerbach
The starting point is Ludwig Feuerbach’s philosophical maneuver, in The Essence of Christianity(1841), reversing the relationship between the earth and heavens.
Marx begins his analysis where Feuerbach left off. He starts at the point at which human and social inquiry are focused entirely on the secular realm and are no longer projected onto religions. The reader gets an immediate feel for this. The very first clause of the first sentence of the article reflects this point of departure: “For Germany, the critique of religion is essentially completed,” Marx declares. Without doing so explicitly, Marx invokes Feuerbach’s name. And he makes clear that Feuerbach’s critique is the foundation of his own philosophical and political critiques.
In the introduction to Marx 1/13, I spelled out in detail Feuerbach’s critique of religion. Suffice it here to simply reproduce two lines from the third paragraph of Marx’s “Introduction” itself, which succinctly summarize Feuerbach’s argument: “man makes religion; religion does not make man. Religion is, in fact, the self-consciousness and self-esteem of man who has either not yet gained himself or has lost himself again.”[15] It is in this context that Marx famously refers to religion as “the opium of the people.”[16]
So the point of departure is Feuerbach’s critique of religion and his method of philosophical inversion. But already at this stage, Marx pushes Feuerbach’s critique a bit further: beyond the critique of religion, Marx argues that the critical impulse must now take, as its object and task, the critique of law and politics—of the earthly realm. In other words, Feuerbach’s critique of religion is not an end point, but a new beginning for the necessary critique of the earthly realm. And this, Marx contends, is the job of philosophy and history—or, as Marx writes, it is “the task of philosophy, which is in the service of history.”[17]
Thus, Marx marshals Feuerbach not only to eliminate all questions of religion, to secularize all political debate, to get rid of all other-worldly considerations, to make the world atheist. He also turns Feuerbach’s method onto what remains, namely human relations in all their social and political forms. Feuerbach limited himself to understanding (and critiquing) human self-alienation in its religious forms, i.e. the way in which humans alienated themselves and their human essence by projecting all that into the heavens. Marx now wants to apply that inquiry onto the way in which humans alienate themselves in their human relations.
In this sense, Marx aspires to do to the human realm what Feuerbach did to the heavenly: to unearth the ongoing conflicts and struggles of humans in society; to reveal, or render conscious, everything that is going on in society; not to dictate from above, or to impose ideas or projects on others, but to expose the ongoing struggles and alienations taking place in society. As Marx writes, the fundamental task now (of philosophy in the service of history) is “to unmask human self-alienation in its secular forms.”[18] Marx spells this out: “Thus, the critique of heavens is transformed into the critique of the earth, the critique of religion into the critique of law, the critique of theology into the critique of politics.”[19]
This reflects the ambition that Marx expressed in his famous letter to Arnold Ruge from September 1843, setting out his vision for the Deutsch-französische Jahrbücher before setting off to Paris: “a ruthless criticism of everything existing.”[20] In fact, that letter, which was published in the same volume of the Deutsch-französische Jahrbücher as the “Introduction”— the only published issue of that journal—helps understand this first step of the critique of Hegelian philosophy. In that letter, Marx explains that the purpose of the journal is to help people understand what they are going through consciously, to raise their consciousness about present reality, to dispel illusions and clarify reality. “We only show the world what it is fighting for,” Marx writes. “The reform of consciousness consists only in enabling the world to clarify its consciousness, in waking it from its dream about itself, in explaining to it the meaning of its own actions.”[21] In that task, Marx explicitly builds on and goes beyond Feuerbach’s critique of religion to demand a critique of the political state and human affairs.[22] It is only there—within the political sphere, by contrast to the religious sphere—that Marx will be able to locate all social truths, social needs, and social struggles. As Marx writes, “Just as religion is the catalogue of the theoretical struggles of mankind, so the political state is the catalogue of its practical struggles.”[23]
Two things follow. First, admiration for Feuerbach and his critique of religion—as well as a borrowing of the Feuerbachian method, as we will see in step two. No surprise, then, that Marx sends Feuerbach a copy of his “Introduction” along with a cover letter dated August 11, 1844, which I discussed in the introduction to Marx 1/13, expressing his respect and love. Second, the logical necessity of turning next to the critique of the political state and law.
Step 2: Criticism of German Politics and Philosophy of Law and the State: Inverting the Relationship between the State and Civil Society
Rather than take on German politics directly, Marx decides to focus instead on what he calls its “copy,” namely German political and legal philosophy, in its most pristine form: Hegel’s philosophy of law and the state, as reflected in Hegel’s 1820 teaching manual, the Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse (“Fundamentals of the Philosophy of Law, or Natural Law and Political Science in Outline,” what is usually referred to as Hegel’s Philosophy of Right).[24]
Marx sidesteps German politics—in a lengthy, caustic aside—because it is so backwards, on his view. He describes the current German political condition as grossly out of step with other European countries, such as France or England. Germany has experienced no modern reforms, nor a revolution, but has nevertheless endured the functional equivalent of a counter-revolution and restoration—in effect, a restoration without a reformation, a counterrevolution without a revolution.[25] The present German régime, Marx writes, is “an anachronism, a flagrant contradiction of universally recognized axioms, the nullity of the ancien régime revealed to the whole world.”[26]
Anticipating his opening line of The Eighteenth Brumaire of Louis Bonaparte about history repeating itself first as tragedy and then as farce, Marx dismisses the German present ancien régime as comedy. “History is thorough and passes through many phases when it conveys an old form to the grave,” he writes. “The final phase of a world-historical form is its comedy.”[27] With that, Marx dismisses current German politics and focuses instead on German political philosophy.
By contrast, German political philosophy is a proper target of criticism because it captures the modern moment. While French politics may capture the current political situation and struggles, in Germany it is the philosophy of law and politics that is the locus of present day struggles. It is in the philosophical domain that the Germans are actual, up-to-date. As Marx writes, “We [Germans] are philosophical contemporaries of the present day without being its historical contemporaries. German philosophy is the ideal prolongation of German history.”[28]
It is here, at this juncture, that Marx would have done the work of his full and unpublished Contribution to the Critique of Hegel’s Philosophy of Right—his lengthy annotations and commentary on Hegel’s manual. But in this “Introduction,” Marx only hints at this work.[29] He merely gestures to it, enough to suggest to the reader that Hegel’s theory of the modern state bears internal contradictions and imperfections that reveal the internal struggles within society, or what he calls “the damaged condition of the flesh itself.”[30]
Marx borrows the Feuerbachian method of inversion to reveal the conflicts and self-alienation within society. Marx performs another of these inversions—turning Hegel on his head, or putting him back right side up: instead of the state being the foundation of civil or bourgeois society, as Hegel argued, it was instead civil society that was at the foundation of the state.
Marx only gestures at this in his “Introduction.” Marx had laboriously done this work in the full Critique of Hegel’s Philosophy of Right. He intimated that he would publish that larger work, the Critique, but leaves it for later, never returning to the full manuscript. He only hints at the substance in his “Introduction” and develops it a bit more in his article “On the Jewish Question” and then, the next years, in his Paris manuscripts, the Economic and Philosophical Manuscripts of 1844, and his manuscript with Engels, The German Ideology (1845).
Later, in 1859, looking back on his intellectual trajectory, Marx described the work he had accomplished in his Critique of Hegel in the following terms:
The first work which I undertook to dispel the doubts assailing me was a critical re-examination of the Hegelian philosophy of law; the introduction to this work being published in the Deutsch-Franzosische Jahrbucher issued in Paris in 1844. My inquiry led me to the conclusion that neither legal relations nor political forms could be comprehended whether by themselves or on the basis of a so-called general development of the human mind, but that on the contrary they originate in the material conditions of life, the totality of which Hegel, following the example of English and French thinkers of the eighteenth century, embraces within the term “civil society”; that the anatomy of this civil society, however, has to be sought in political economy.
In a similar vein, Frederick Engels explained the thrust of this critique of Hegel in his book Ludwig Feuerbach and the Outcome of Classical German Philosophy, published in 1888. Engels writes:
the state—the political order—is the subordinate, and civil society—the realm of economic relations—the decisive element. The traditional conception, to which Hegel, too, pays homage, saw in the state the determining element, and in civil society the element determined by it. Appearances correspond to this. As all the driving forces of the actions of any individual person must pass through his brain, and transform themselves into motives of his will in order to set him into action, *so also all the needs of civil society—no matter which class happens to be the ruling one—must pass through the will of the state in order to secure general validity in the form of laws. That is the formal aspect of the matter—the one which is self-evident. The question arises, however, what is the content of this merely formal will—of the individual as well as of the state—and whence is this content derived? Why is just this intended and not something else? If we inquire into this, we discover that in modern history the will of the state is, on the whole, determined by the changing needs of civil society, by the supremacy of this or that class, in the last resort, by the development of the productive forces and relations of exchange.[31]
Step 3: The Turn to Praxis
Marx argues, then, for a break from the Hegelian theory of the state, but not from philosophy itself. Rather than turning his back on philosophy, Marx proposes a different solution: to actualize philosophy in praxis. “In short,” Marx exclaims, “you cannot transcend philosophy without actualizing it.”[32] And that actualization takes the form of revolutionary practical activity.
This is the third step in his argument, perhaps the most important: the call to praxis. Here, Marx is explicit. There is only one means to resolve the contradictions of Hegel’s theory of law and the state, and that one means is practical activity.[33] “Praxis” serves as the pivot for Marx’s argument: praxis is what resolves his criticism of Hegel’s philosophy and gives place to his own political philosophy.
Marx has in mind a radical praxis, a revolutionary praxis, the use of material force, both tangible and theoretical, insofar as philosophy “becomes a material force once it seizes the masses.”[34] Marx defines radical as “to grasp matters at the root.”[35] Invoking Kant, Marx speaks of the “categorical imperative” to revolution—he writes of “the categorical imperative to overthrow all conditions in which man is a debased, enslaved, neglected, contemptible being.”[36]
Marx calls for a revolution in Germany, “a revolution that will raise it not only to the official level of modern nations, but to the human level which will be the immediate future of these nations[.]”[37] In this, Marx is indexing the theory of human emancipation that he develops in “On the Jewish Question” and prefiguring the idea of communism that he will expand on in the Paris manuscripts of 1844 and, with Engels, in The German Ideology (1845) and, of course, The Communist Manifesto (1848).
As for how this revolution might occur in Germany at the time, Marx imagines only one answer: the proletariat class, consisting of the industrial workers, the poor, and the ongoing victims of serfdom.[38] The proletariat alone represents the class in society that has a universal and universalizable character, according to Marx, because it is wronged by everyone and has no particular interests or titles to anything.
In the “Introduction,” the argument becomes somewhat abstract—at this point, Marx is still trying to weave a philosophical justification for the transcendent role of the proletariat. Marx writes, of the proletariat class:
a class in civil society that is not of civil society, an estate that is the dissolution of all estates, a sphere of society having a universal character because of its universal suffering and claiming no particular right because no particular wrong but unqualified wrong is perpetrated on it; a sphere that can claim no traditional title but only a human title; . . . a sphere, finally, that cannot emancipate itself without emancipating itself from all the other spheres of society, thereby emancipating them; a sphere, in short, that is the complete loss of humanity and can only redeem itself through the total redemption of humanity.[39]
The proletariat, then, is the class that can produce a revolution by universalizing its condition.
Marx ends the article by calling for a fundamental revolution in Germany that would universalize and thereby abolish the proletariat class and simultaneously actualize philosophy. “The head of this emancipation is philosophy, its heart is the proletariat.”[40]
“On the Jewish Question”
Professor Jean Cohen will discuss and analyze the second article, “On the Jewish Question,” at Marx 3/13, in conversation with Claude Lefort’s commentary and argument in his 1980 essay, “Human Rights and Politics.” By way of background and to help the reader, I will offer just a few thoughts about the article in this short introduction.
Published simultaneously with his “Introduction” to the critique of Hegel, Marx’s article “On the Jewish Question” makes two additional arguments: first, that the liberal political framework of rights, and liberalism more generally, can only secure a limited form of freedom for individuals to pursue their private interests; and second, that beyond a political revolution, necessary to overthrow a monarch, what is needed is a complete social transformation that would bring about human emancipation from private needs and self-interest and allow humans to live their true human essence in full community.
The first argument nourished important strands of critical legal theory, including Critical Race Theory in the United States. The second argument anticipates a tenet of Marxist-Leninism, articulated for instance in Lenin’s April Theses, namely that a first revolution (or what is generally referred to as a “bourgeois revolution”) overthrowing the sovereign power of a ruler, can only achieve the limited end of enacting a bourgeois civil society, and that it must be followed by a second revolution that takes power out of the hands of the bourgeois and places it in the hands of the people. Let’s review them more carefully, but first let’s set the stage.
The occasion for Marx’s article is a debate over the legal status of Jewish people in Germany, and more broadly in Europe, at mid-century—what was referred to, on the Continent, as “the Jewish question.” During the French Revolution, in 1791, all French Jews were granted citizenship and afforded civil rights. That model was debated widely. In two studies published in 1843, the Left Hegelian Bruno Bauer took the position that Jews should renounce their Judaism—and others, their religion as well—in order to achieve a secular state and political emancipation. As Marx writes, summarizing Bauer’s argument, “Bauer demands, on the one hand, that the Jew should renounce Judaism, and in general that man should renounce religion, in order to be emancipated as a citizen.”[41]
Marx criticizes Bauer for posing the Jewish question through the lens, exclusively, of political emancipation and for not asking the question of what type of emancipation they should be pursuing. He criticizes Bauer for mounting a critique of the Christian state, and not of the state more broadly.[42] So he pushes the debate to the question of the kind of emancipation that people should be striving for. Marx writes: “The question of the relation between political emancipation and religion becomes for us a question of the relation between political emancipation and human emancipation.”[43]
Marx’s reformulation of the Jewish question in broader terms—namely, in terms of the relationship between religious, political, and human emancipation—is helpful, for purposes of this seminar, because it allows us to let go of the specific questions surrounding Judaism, as well as of the controversy over Marx’s antisemitism. The second part of the article “On the Jewish Question” has been the source of great controversy because Marx there uses Judaism as a stand-in for capitalism and equates the culture of the Jewish people with “huckstering.”[44] In our seminar, we will not address that second part of the article and set aside for another time the question of Marx’s antisemitism. Instead, based on the reformulation that Marx operates in the first part, we will focus on the broader questions concerning, in Marx’s words, “the relation between political emancipation and human emancipation.”[45]
This is fully consistent with Marx’s argument in the first part of the article. In fact, he makes this move explicitly through a comparative analysis of the resolutions of the Jewish question in Germany, France, and the United States.[46] This leads him, expressly, to set aside the theological questions—and to set aside Bruno Bauer with them—and deal only with the political stakes. As Marx writes, “Criticism then becomes criticism of the political state. And at this point, where the question ceases to be theological, Bauer’s criticism ceases to be critical.”[47]
As reformulated, Marx’s inquiry leads him to develop two main theses, both grounded on his critique of Hegel’s Philosophy of Right—grounded, that is, on the idea that the state is not the rational culmination of the family and civil society, as Hegel argued, but instead harbors and enables all the internal contradictions within civil society, such as religious identities and conflicts. Political emancipation, in this sense, does not lead to the rational administration of life by the state, but to a situation of social turmoil, as civil society is wracked by the competition and conflict of private interests and religions, and all the forms of alienation that take place in civil society. As Marx writes, anticipating his Paris manuscripts, “What prevails in the so-called Christian state is not man but alienation.”[48]
First Thesis: The Inadequacy of Rights
The first thesis is that the distinction between civil rights (the political rights of the citizen) and human rights (for instance, the Declaration of the Rights of Man) is an inconsequential category difference, that both types of rights presume a liberal framework of individualized and egotistical interests, and that both are inadequate to the task of true emancipation. Marx writes:
Let us notice first of all that the so-called rights of man, as distinct from the rights of the citizen, are simply the rights of a member of civil society, that is, of egoistic man, of man separated from other men and from the community. […]
None of the supposed rights of man, therefore, go beyond the egoistic man, man as he is, as a member of civil society; that is, an individual separated from the community, withdrawn into himself, wholly preoccupied with his private interest and acting in accordance with his private caprice. […] The only bond between men is natural necessity, need and private interest, the preservation of their property and their egoistic persons.[49]
This first thesis represents Marx’s critique of rights and of liberalism: namely, his critique that the framework of rights serves only to promote individualism and self-interest. Liberal political theory—the priority of rights to a vision of the good—on Marx’s reading, simply ensures competition between individuals’ egotistical self-interests. It does not create a community of shared interest.
Here too, Marx is engaged in a Feuerbachian move of inversion, this time with regard to the relation between liberty and individual rights. Marx argues that the framework of human rights is upside down: it defends political arrangements to protect the individual’s right to pursue their narrow self-interest. Marx considers this an error, an “optical illusion” in his words, an inversion of the proper relationship between means and ends. The end, he argues, should be humans living to their fullest potential, not their narrow self-interest. That notion of humans’ fullest potential is captured by the Feuerbachian idea of “species-life” or “species-being,” which is intended to capture the human essence of recognizing and being part of a human community.[50]
Marx’s argument inspired a long tradition of critiques of political liberalism—ranging from communitarian or civic republican (for instance, Michael Sandel, Frank Michelman, and others) to multicultural, to Marxist strands. It would also motivate a critique of rights at the heart of CLS and CRT—which I will come back to in a moment.
Second Thesis: The Need for Human Emancipation
The main distinction—namely, between an individual pursuing their self-interest and human beings achieving their human essence as members of the human community (what Marx calls becoming a “species-being”)—undergirds Marx’s call for human, as opposed to merely political emancipation.
Political emancipation through political revolution achieves a change in political sovereignty—for instance, the end of monarchy and with it, the end of feudalism. But, Marx argues, that political transition from feudalism only liberated people to pursue their private interests, whether it be their religious beliefs, their private property, or their merchant interests.[51] In the process, it unleashed competition and conflict in civil society. So political revolution, though necessary to end autocratic rule, is not sufficient to emancipate people.
What is necessary instead, Marx argues, is what he calls “human emancipation” and defines as humans achieving genuine membership in the human community, not as individuals merely pursuing their egotistical interests and personal welfare, but as people who are community oriented in all aspects of their lives, or as Marx concludes, “in his everyday life, in his work, and in his relationships.”[52]
It is on this note that Marx concludes his article “On the Jewish Question”: calling for a radical, revolutionary form of human emancipation.
The Debate over the Critique of Rights
Marx’s article, “On the Jewish Question,” gave rise to significant debates over the place of civil and political rights in Marx’s thought. Some critical thinkers, like Steven Lukes, were adamant that Marx’s writings were simply compatible with any form of rights discourse.[53] Other critical thinkers, like Justine Lacroix and Jean-Yves Pranchère, proposed ways to reconcile Marx’s emancipatory vision with the tradition of human rights.[54] Still others sought to extend Marx’s critique of rights further.
Specifically, Marx’s article became a touchstone for the “critique of rights” developed by the Critical Legal Studies (“CLS”) movement in the 1970s. Duncan Kennedy summarized the main elements of this critique in Chapter 13 of his book, A Critique of Adjudication.[55] In that chapter, titled “The Critique of Rights,” Kennedy recaps the genealogy and main arguments of the CLS critique of rights. He discusses how critical legal theorists or “crits” began to lose faith in rights as it becomes clear to them that rights arguments merely reduced to policy analyses, balancing tests, and veiled political assertions.[56] Duncan Kennedy described the “manipulability of legal rights reasoning and of its reduction to balancing tests,” and argued that “once it is shown that the case requires a balancing of conflicting rights claims, it is implausible that it is the rights themselves, rather than the ‘subjective’ or ‘political’ commitments of the judges, that are deciding the outcome.”[57] Kennedy also demonstrated how rights discourse can easily be coopted by conservative movements—something we witnessed since the 1960s, with “states’ rights,” through the 1990s, with “victims’ rights,” to the present, with gun rights and the rights of the unborn. In that work, Kennedy specifically traced and compared the CLS critique to Marx’s critique of rights from 1844.[58]
Critical Race Theory (“CRT”) developed its own unique critique of rights. The CRT movement emerged, in part, from dissatisfaction with the civil rights framework and civil rights litigation tradition.[59] A central argument of CRT was that civil rights remedies tend to reify the idea that racial discrimination is a problem of individual actors, rather than a broader structural problem. Civil rights litigation identifies specific state actors and pursues relief against them—such as a racist police officer who has unjustifiably killed a Black motorist, or a racist landlord who has unjustifiable excluded a Black tenant; but those litigation strategies do not adequately address the underlying or real harm, which is not the individual actors, but the broader social system that reproduces forms of racial hierarchy. Affirmative action programs—many of which are no longer constitutional because of conservative rights discourse—tend to justify relief based on narrow historical exceptions to a liberal political theory of merit; but that reasoning merely bolsters the idea that American society is otherwise governed by merit and is racially and culturally neutral, when in fact it is shot through with racial, gender, and other hierarchies and forms of domination. On CRT’s view, a civil rights framework serves to mask the thoroughgoing racialized nature of society.
In the international human rights context, Sam Moyn developed a related critique of rights.[60] Moyn argued that the framework of human rights served to undermine and coopt more ambitious Leftist projects like socialism or more radical liberalism.[61] Moyn also argued that human rights institutions, counter-intuitively, facilitated or enabled more inhumane conditions—such as endless wars—by rendering warfare more (supposedly) humane.[62] In his work, Moyn formulated a Leftist critique of the ascendant international human rights paradigm.
Karen Engle, an international critical legal scholar, argues that international human rights discourse in general has become increasingly punitive over the past few decades. In the mid- to late-twentieth century, human rights tended to be used more as a shield to protect individuals who were being persecuted by states. Amnesty International’s campaigns focused on protecting dissidents and political prisoners. Since the beginning of the twenty-first century, though, human rights organizations have increasingly focused on the fight against impunity and the prosecution of people for human rights violations. Engle refers to this as the “turn to criminal law in human rights” and documents it in several articles and book chapters, such as “A Genealogy of the Criminal Turn in Human Rights” and “Anti-Impunity and the Turn to Criminal Law in Human Rights.”[63] Engle critiques this development, arguing that “the movement’s focus on criminalization has narrowed and distorted its view both of human rights harms and of possible remedies for them.”[64] Essentially, she argues that the shift has reenforced the attention to individualized versus collective harms and stunted the potential of other political responses to injustice.
In general, these critical legal theories are aligned with Marx’s critique. They tend to be more pragmatic. They are not derived from a critique of Hegel. Instead, they argue for the counter-productivity of rights discourse—either because the language of rights is ineffective and collapses into policy analysis and political argument, or because it is positively counter-productive in that it undermines more progressive movements and is easily coopted by conservatives.
By contrast, Claude Lefort’s writings on human rights offer more of a challenge to Marx.
Claude Lefort and the Debate over Human Rights
Claude Lefort directly engaged Marx’s article “On the Jewish Question” in an essay he wrote in 1979 entitled “Droits de l’homme et politique” (“Human Rights and Politics”). Lefort published the essay in February 1980 in an annual revue titled Libre. Politique, anthropologie, philosophie, that he founded in 1977 with Cornelius Castoriadis, Miguel Abensour, Pierre Clastres, Marcel Gauchet, and Maurice Luciani.
A former Trotskyist, Lefort had co-founded in 1946, with Cornelius Castoriadis, a political movement within the Internationalist Communist Party (“PCI-SFQI”) in France.[65] A couple of years later, in 1949, Lefort broke with the PCI-SFQI and cofounded with Castoriadis the revolutionary movement and journal Socialisme ou Barbarie (1949-1967). Socialisme ou Barbarie was anti-Stalinist and anti-Trotskyist, generally favored workers’ councils, and began to support strongly the uprisings in the East Bloc. Lefort stayed associated intermittently with Socialisme ou Barbarie, eventually founding other journals and becoming an expert on totalitarianism.
By 1980, Claude Lefort is a directeur d’études (chaired professor) at the École des hautes études en sciences sociales (“EHESS”) in Paris. He is involved in the publication of the annual review, Libre, founded in 1977, which is publishing writings by authors such as E.P. Thompson, Marshall Sahlins, Louis Dumont, in addition of course to the editors, Castoriadis, Abensour, Clastres, and Gauchet. He has just published a book on Alexander Soljenitsyne, titled Un homme en trop (1976), and is a staunch critique of the post-Stalinist Soviet régime and supporter of dissident movements in the East Bloc.
It is in this context that he published his article “Human rights and politics” in the journal Libre in 1980. He would then include the article in a collection of his titled L’Invention démocratique, in 1981, focused on the questions of totalitarianism and democracy.
Anissa Braham, a brilliant master’s student at the EHESS, has written an insightful intellectual biography of Claude Lefort for Marx 3/13, which you can read here in English or in French, under the title “La pensée de Claude Lefort.” Braham’s essay provides invaluable background information for our discussion, and I encourage you to read it.
“Human Rights and Politics”
Reading Lefort’s article as a foil to Marx’s 1844 article is salutary—and I thank Jean Cohen for proposing this pairing—because Lefort’s article presents one of the most compelling historical challenges to Marx’s position. It presents what we call, in jurisprudence, the “hard case,” perhaps the hardest case: a situation where human rights discourse is very legitimately being deployed against communism—of course, against Soviet-style, totalitarian communism in the wake of the outright repression and crackdowns of social movements (Hungary 1956, Prague 1968, Poland 1970), but still, against a communist regime nonetheless.
Jean Cohen will analyze closely Lefort’s intervention. Here, let me just give some background and share a few preliminary thoughts. I hope to develop these during my comments on Professor Cohen’s detailed presentation.
Lefort is writing, evidently, at a very different historical conjuncture than Marx and in a very different political context than American critical legal scholars. In those other contexts, rights are being deployed as an affirmative strategy seeking progressive change—in Marx’s time, as a way to emancipate citizens and Jewish persons, in the 1970s in the United States as a way to promote civil rights and a more egalitarian society. By contrast, in the context in which Lefort is intervening in 1980, human rights discourse is being deployed to protect dissidents within communist countries against forms of political repression, in a political situation where organized protest is dangerous and repeatedly crushed. The reversal of circumstances ambiguates the question of human rights.
Lefort sees in the new discourse and struggles over human rights, both within communist countries and within democratic societies, the possibility of a new politics that privileges what he calls social power. After deconstructing the distinction between human rights and bourgeois civil society in Marx, Lefort argues that human rights discourse is promoting a new kind of social force and social vision. He identifies this new relation to politics in the movement for worker self-management (autogestion) that is gaining popularity at the time on the Left.
Lefort mentions several times the worker uprising at the Lip watch factory in 1973-74, which we discussed last year in Coöperism 5/13 in connection with the documentary about Lip.[66] You will recall that there, the workers not only occupied the factory, but began operating it as a worker cooperative. Lefort argues that the workers at Lip were imagining a new relationship to the political by invoking their rights—in Lefort’s words, “in the name of their rights.”[67]
The invocation of rights, the claim to human rights, is generative of a new political vision. This resonates with the writings of the American legal scholar, Robert Cover, who developed an argument about what he called the “jurisgenerative” aspect of law. It bears a family resemblance as well to the critical philosopher Seyla Benhabib’s theory of international human rights as generative of political subjectivities. In her recent work, Benhabib argues that human rights discourse creates arguments that can be deployed by social actors as tools in political debate. It allows new social movements to deploy rights “to empower themselves by introducing new subjectivities into the public sphere, by articulating new vocabularies of claim-making, and by anticipating new forms of togetherness.”[68]
This is a different model of politics, Lefort argues, one that does not seek to create a dictatorship of the proletariat, nor to seize state power. “They are not looking for an overall solution to conflicts through the conquest or destruction of established power,” Lefort writes. “Their ultimate objective is not that famous inversion which would place the dominated in the position of the dominators and pave the way for the dissolution of the state.”[69] Rather than trying to seize power, these strategies aim to jumpstart forms of cooperation that can support a self-sufficient solidarity economy that is not governed by state power.
Lefort advocates for an alternative path. He eschews revolutionary praxis but is not content being merely reformist. He embraces instead a more “libertaire” (liberty-oriented) form of Leftism that is anchored in the values of liberty, equality, cooperation, and autogestion, and that privileges social power. Lefort suggests that rights talk serves as a way to open up this social space. As he explains, he is “trying to catch a glimpse of a dimension of the social space which is generally obscured.”[70]
In all this, Lefort positions himself in a very distinctive way. He is fully conscious of this and explicit about it. He positions himself as someone who is post-Marxist, “no longer satisfied with an analysis in terms of relations of production,” beyond the idea of communism, but still searching for “new modes of thought and action.”[71]
My sense is that Lefort’s political vision—which is evidently different than Marx’s—does not depend on a human rights framework or on human rights discourse. I think that it is more of a historical coincidence, than logical necessity, that rights talk arose in the dissident context in the Eastern Bloc. Human rights discourse was at the time conveniently packaged to sound politically neutral. But the substance of human rights, I would argue, was somewhat orthogonal to Lefort’s vision of politics.
In fact, only a few months after Lefort published his article, the “Solidarność ” (Solidarity) trade union movement erupted in Poland, in August 1980, not so much under the banner of human rights as under the rubric of trade union “solidarity.” The political vision associated with Solidarność was linked more, if I recall correctly, to a secular philosophical viewpoint, reflected for instance in Leszek Kołakowski’s 1971 essay Theses on Hope and Hopelessness, as well as, to some extent, repressed Catholic faith. This would require much longer treatment, but the point is that there are many different discourses—human rights or other discourses—that can nourish a Lefortian vision of politics.
Some Thoughts to Actualize the Debate
The central lesson of Marx’s conception of history—of Claude Lefort’s as well, and of most theorists influenced by Marx—is that we should not speak in the abstract but place our analyses in their historical context and in relation to practice.
Claude Lefort, in 1980, within the European Left, was addressing a practice of invocation of human rights by dissidents in the East Bloc and supporters in the West. At that unique historical juncture, evidently, rights talk was a weapon, a tool, a strategy. One of the few available weapons at the time.
And the fact that human rights were presented as non-political was important for their efficacy: it was possible to argue that, in espousing basic human rights, dissidents were not taking a political position against communism; and similarly, that when others, outside the East Bloc, were invoking human rights, they too were not taking a position in the struggle between Soviet and American power. It was important to maintain that human rights were not political in the same was as other arguments or principles that were being deployed in the Cold War.
That does not mean, of course, that rights discourse was not in fact political. It was, deeply so. It represented a political intervention along numerous dimensions: It was protective of dissidents who were challenging communist authoritarianism and being persecuted at the time; it undermined the legitimacy of Soviet power and Soviet-controlled governments in the East Bloc, and inversely bolstered Western liberal regimes; it forged a possible reformist agenda in the East Bloc, perhaps paving the way for new kinds of socialisms in the Soviet orbit; and it strengthened a growing human rights framework (discourse, practices) that would consolidate power in the hands of certain international organizations.
Marx, of course, understood human rights discourse as political, as forming part of a political revolution. He did not portray them as non-political, but rather as not sufficiently political. They were not sufficient, for Marx, in the same way that Moyn argues that human rights are not enough. To stop at individual human rights was not adequate, according to Marx, because they do not allow citizens to become fully human, members of a shared community.
In all this, though, it is crucial not to reify the rights that are the subject of rights discourse. The rights themselves do not have agency and do not do things. They are only put into effect when people interpret them and enforce them. They are tools for those who can enforce or deploy them. They do not have a fixed or independent meaning.
Perhaps this is where Marx’s argument falters. Rights discourse per se is not necessarily self-interested or egotistically oriented—as Lefort tried to demonstrate, using as examples the due process rights surrounding criminal punishment.[72] Rights do not speak for themselves. Everything turns on how they are interpreted, deployed, enforced. Someone could propose and enforce a “right to equality” or a “right to cooperation” that could be very effective in dismantling capitalism.
By the same token, this is perhaps where Lefort’s argument is not at its strongest. From the get-go, Lefort positioned human rights in a very distinctive way. Lefort defined totalitarianism as opposed to human rights: “Totalitarianism is built on the ruin of the rights of man,” he claimed.[73] Lefort identified two central features to totalitarianism: first, a state or ruling party that tries to control all power; and second, a destruction of human rights.[74] If that is the starting point for an analysis of totalitarianism, then human rights discourse is primed to be a valuable antidote—whether true or not.
But the question is whether it is worth fighting on that territory. It might be if human rights talk is the only available discourse, or a hegemonic way of speaking. To a large extent, that is what the dissidents were doing: deploying rights discourse because it was their only or best weapon at the time. And certainly, there are times when one has nothing better. A person sentenced to death may have few other options. They may have nowhere else he can turn to. But there are other times when there may be more effective or resonant discourses. At a political assembly like Occupy Wall Street, for instance, or a temporary autonomous zone or zone à défendre, an appeal to a share vision of community, to solidarity, to cooperation may be more convincing or consonant. A lot will depend on one’s political ambitions and goals. In a liberal democratic state with progressive values, people may find it most convincing to talk about a woman’s right to control her body. In a socialist country, people may be brought to talk about a human right to equality and well-being. In a communist country, perhaps human rights are still not enough—but even that would depend on the historical circumstances.
One thing feels certain. In a punitive society like ours, it is hard to escape rights discourse. In the face of racialized mass incarceration, wide-spread racial profiling, the death penalty, and so on, it is difficult to avoid invoking the Eighth Amendment prohibition on cruel and unusual punishment. But here’s the hitch: that right is about to get eviscerated. The Supreme Court is angling to overturn the decades-old progressive standard, the “evolving standards of decency that mark the progress of a maturing society.”[75] The Court is likely going to roll us back to originalist interpretations of cruel and unusual punishment from 1791.
That is precisely the risk or fragility of rights—they come, and they go, as we saw recently with the evisceration of Roe v. Wade, fifty years after it was enshrined. (But that may be true of all politics.)
It is precisely to avoid these risks that some advocates turn to other or additional strategies. Some turn to penal abolitionism. Others turn increasingly to cooperation: to replace the punitive paradigm with a cooperation paradigm. This would avoid reliance on an Eighth Amendment that the Supreme Court is likely to retrench. Perhaps we can avoid the risks of rights talk and imagine instead a society based on cooperation. Meanwhile, though, in my death penalty cases, I have no alternative but to invoke constitutional rights. I have no choice in the matter.
Conclusion
As I write this introduction, I am simultaneously drafting a lengthy, 500-page amended habeas corpus petition for one of my clients who is awaiting execution on Alabama’s death row. The entire 500-page pleading is one long series of rights claims, invoking the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Every page speaks to my client’s individual right to due process, to a fair trial, to the effective assistance of counsel, to receive exculpatory evidence, to suffer just punishment, and so on. It is a litany of rights—the ones precisely that Lefort mentioned in his 1980 article as conspicuously missing from Marx’s discussion.[76]
In the pleading, I have no alternative but to claim violations of federal constitutional rights. The minute my client forgoes those rights claims, he will be executed. It is that simple. If we dropped the rights talk, my client would be considered a volunteer and swiftly escorted to the execution chamber. We have no alternative. We can work on the political front, try to abolish the death penalty and life imprisonment without parole, seek clemency, work on public opinion, etc.—none of which is going to save my client, in his life time—but regardless of those other efforts, we simply cannot relinquish our rights claims, all the while recognizing that none of the constitutional rights we are asserting have any consistency or substance apart from what the federal judge assigned to our case, and later federal appellate judges, will give them. There is nothing natural, nor essential about those rights. They do not reflect human nature. They are not fixed, nor defined ahead of time. They are malleable. Here today, open to interpretation, very possibly gone tomorrow.
Malleable, and so we too try to shape them. To create new ones, or new interpretations. In the amended petition, we are now struggling to alter federal court deference to state courts under new constitutional interpretations from the US Supreme Court. My colleagues Jim Liebman at Columbia and Tony Amsterdam at NYU have a new paper, available on SSRN, in which they argue that the Supreme Court’s new decision, Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), upending the Chevron doctrine on the grounds that deference to administrative agencies violates the Supremacy Clause, actually also applies to deference to state judicial opinions under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The AEDPA, signed into law by President Clinton, forced federal courts to defer to state court interpretations of federal constitutional rights. Liebman and Amsterdam argue that too violates the Supremacy Clause. Yes, we too fight to create new rights and interpretations of rights all the time…
What does this say about rights? That the discourse of rights is a weapon, a strategy, a tool, at a given historical moment, in a given political context.
I am comfortable with that. In fact, I am comfortable holding onto those two opposite poles simultaneously—human rights and politics, as Lefort titled his piece: arguing for the human rights of my client on death row and, at the same time, arguing for a horizon of cooperation where rights talk will no longer be necessary.
I do imagine a time in the future when the punitive society will be replaced by a paradigm of cooperation, by coöperism—a fully integrated social, political, and economic realm governed by cooperation. In a cooperative society, I expect, the need for individual human rights will wither. Instead, we will dedicate ourselves to democratic self-governance in every aspect of our lives—work, housing, sustenance, exchange—and to providing mutual support and aid to ensure that our neighbors have what they need to be fully human.
I do believe we are headed towards a time of cooperation. Truth is, we have no choice. Given our unprecedented level of human interdependence, today, in the face of global climate warming, we will embrace cooperation.
In the meantime, though, I must interrupt this introduction to return to work on the amended habeas corpus petition. It is due on Tuesday.
So let me stop here and welcome you to Marx 3/13!
To watch the Marx 3/13 seminar (Nov. 14, 2024), proceed here.
Notes
[1] Karl Marx, “On the Jewish Question,” 26-52, in The Marx-Engels Reader, Second Edition, ed. Robert C. Tucker (New York: W.W. Norton & Co., 1978); Karl Marx, “A Contribution to the Critique of Hegel’s Philosophy of Right: Introduction,” 129-142, in Karl Marx, Critique of Hegel’s “Philosophy of Right,” ed. Joseph O’Malley (Cambridge: Cambridge University Press, 1970).
[2] Jean Hyppolite, “La conception hégélienne de L’État et sa critique par Karl Marx,” Cahiers Internationaux de Sociologie, Nouvelle Série, Vol. 101 (1966 [1947]), 267-284, at 267; also in Jean Hyppolite, Études sur Marx et Hegel (Paris, Marcel Rivière et Cie, 2eme edition, 1965).
[3] Claude Lefort, “Droits de l’homme et politique,” in Libre, vol. 7 (1980), reproduced in Claude Lefort, L’Invention démocratique (Paris: Fayard, 1981); Claude Lefort, “Politics and Human Rights,” in The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism, ed. John B. Thompson (Cambridge: MIT Press, 1986).
[4] Lefort, “Politics and Human Rights,” at 240.
[5] See, generally, Marx 2/13.
[6] Karl Marx, “The Divorce Bill. Editorial Note. Criticism of a Criticism,” pp. 274-276, and “The Divorce Bill,” 307-310, in Karl Marx-Frederick Engels, Collected Works, Volume 1 (Karl Marx: 1835-1843) (New York: International Publishers, 1975).
[7] Karl Marx, “To Arnold Ruge in Dresden,” letter dated January 25, 1843, pp. 396-398, in Karl Marx-Frederick Engels, Collected Works, Volume 1 (Karl Marx: 1835-1843) (New York: International Publishers, 1975), at 396 and 754 n.170; see also Huub Sanders, “Prussian censorship and Karl Marx’s brief career as an editor for the Rheinische Zeitung,” International Institute of Social History, 3 April 2009, available at https://iisg.nl/collections/rheinischezeitung/history.php.
[8] Karl Marx, “Announcement,” in Karl Marx-Frederick Engels, Collected Works, Volume 1 (Karl Marx: 1835-1843) (New York: International Publishers, 1975), at 376.
[9] Karl Marx, “To Arnold Ruge in Dresden,” letter dated March 13, 1843, pp. 398-400, in Karl Marx-Frederick Engels, Collected Works, Volume 1 (Karl Marx: 1835-1843) (New York: International Publishers, 1975), at 399.
[10] The exact date of the writing of the full Critique is not known, and some early editors placed it in 1841-42; however, the consensus among historians and editors is now that the work was written during the period March through August 1843, mostly during the summer of 1843, while Marx was at Kreuznach for the summer. See Joseph O’Malley, “Introduction,” ix-lxvii, in Karl Marx, Critique of Hegel’s “Philosophy of Right,” ed. Joseph O’Malley (Cambridge: Cambridge University Press, 1970), ix.
[11] Marx, “To Arnold Ruge in Dresden,” letter dated March 13, 1843, p. 399; O’Malley, “Introduction,” ix.
[12] See generally Bert Andréas, “Marx et Engels et la gauche hégélienne,” in: Annali dell’ Istituto Giangiacomo (Milan: Feltrinelli, 1964/5), vol. 7 (1965), 353-526.
[13] Karl Marx, “To Arnold Ruge in Dresden,” letter dated March 5, 1842, pp. 382-283, in Karl Marx-Frederick Engels, Collected Works, Volume 1 (Karl Marx: 1835-1843) (New York: International Publishers, 1975), at 382-383.
[14] Joseph O’Malley, “Introduction,” ix-lxvii, in Karl Marx, Critique of Hegel’s “Philosophy of Right,” ed. Joseph O’Malley (Cambridge: Cambridge University Press, 1970), at x.
[15] Marx, “Introduction,” at 131.
[16] Marx, “Introduction,” at 131.
[17] Marx, “Introduction,” at 132.
[18] Marx, “Introduction,” at 132.
[19] Marx, “Introduction,” at 132.
[20] Karl Marx, “For a Ruthless Criticism of Everything Existing,” Letter to Arnold Ruge dated September 1843 published in the Deutsch-französische Jahrbücher in February 1844, 12-15, in The Marx-Engels Reader, Second Edition, ed. Robert C. Tucker (New York: W.W. Norton & Co., 1978), at 13.
[21] Marx, “For a Ruthless Criticism of Everything Existing,” at 15.
[22] Marx, “For a Ruthless Criticism of Everything Existing,” at 15 (“Our whole task can consist only in putting religious and political questions into self-conscious human form—as is also the case in Feuerbach’s criticism of religion.”).
[23] Marx, “For a Ruthless Criticism of Everything Existing,” at 14.
[24] I will use the standard English version, Hegel’s Philosophy of Right, trans. and ed. T. M. Knox (Oxford: Oxford University Press, 1981) [originally published in 1952 by the Clarendon Press; I am using the 1981 paperback reprint from Oxford University Press]. I will also refer to the French edition, G.W.F. Hegel, Principes de la philosophie du droit, ou Droit naturel et science de l’état en abrégé, trad. et ed. Robert Derathé (Paris: Librairie philosophique J. Vrin, 1975).
[25] This was what I argued we are living through in the United States now, a counter-revolution without a revolution, or what I have called the Counterrevolution. See, generally, Bernard E. Harcourt, The Counterrevolution: How Our Government Went to War Against Its Own Citizens (New York: Basic Books, 2018).
[26] Marx, “Introduction,” at 134.
[27] Marx, “Introduction,” at 134.
[28] Marx, “Introduction,” at 135.
[29] He hints at it, for instance, when he writes of a “discrepancy between civil society and the state, and within civil society itself[.]” Marx, “Introduction,” at 138.
[30] Marx, “Introduction,” at 137.
[31] Frederick Engels, Ludwig Feuerbach and the Outcome of Classical German Philosophy, ed. C. P. Dutt (New York: International Publishers, 1978 [1888]), 52-53.
[32] Marx, “Introduction,” at 136.
[33] Marx, “Introduction,” at 137.
[34] Marx, “Introduction,” at 137.
[35] Marx, “Introduction,” at 137.
[36] Marx, “Introduction,” at 137.
[37] Marx, “Introduction,” at 137.
[38] Marx, “Introduction,” at 142.
[39] Marx, “Introduction,” at 141-142.
[40] Marx, “Introduction,” at 142.
[41] Marx, “On the Jewish Question,” at 29.
[42] Marx, “On the Jewish Question,” at 29-30
[43] Marx, “On the Jewish Question,” at 31.
[44] Marx, “On the Jewish Question,” at 48.
[45] Marx, “On the Jewish Question,” at 31.
[46] Marx, “On the Jewish Question,” at 30-31.
[47] Marx, “On the Jewish Question,” at 31.
[48] Marx, “On the Jewish Question,” at 38.
[49] Marx, “On the Jewish Question,” at 42 and 43.
[50] Marx, “On the Jewish Question,” at 33-34 (“The perfected political state is, by its nature, the species-life of man as opposed to his material life.”)
[51] Marx, “On the Jewish Question,” at 45 (“Thus man was not liberated from religion; he received religious liberty. He was not liberated from property; he received the liberty to own property. He was not liberated from the egoism of business; he received the liberty to engage in business.”)
[52] Marx, “On the Jewish Question,” at 46.
[53] Steven Lukes, “Can a Marxist Believe in Human Rights,” Praxis International, 1 (4), January 1982, p. 334-345.
[54] Justine Lacroix and Jean-Yves Pranchère, “Karl Marx fut-il vraiment un opposant aux droits de l’homme ? Émancipation individuelle et théorie des droits,” Revue française de science politique, Vol. 62(3), 433-451 (2012), available at https://doi.org/10.3917/rfsp.623.0433.
[55] Duncan Kennedy, A Critique of Adjudication {fin-de-siècle} (Cambridge: Harvard University Press, 1997).
[56] Kennedy, A Critique of Adjudication, at 317-320.
[57] Kennedy, A Critique of Adjudication, at 319.
[58] Kennedy, A Critique of Adjudication, at 335-337. For a related discussion of the critique of rights and the problem of praxis, see Bernard E. Harcourt, “The Critique and Praxis of Rights,” University of Colorado Law Review, Vol. 2, p. 975-984 (2021), available at https://lawreview.colorado.edu/print/volume92/the-critique-and-praxis-of-rights/.
[59] See generally Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, “Introduction,” xiii-xxxii, in Critical Race Theory: The Key Writings that Formed the Movement (New York: The New Press, 1995).
[60] Moyn does not trace his critique directly to Marx, but rather to a critical legal tradition. Moyn does discuss Marx’s “On the Jewish Question,” and traces an evolution of Marx’s thought on rights, in an article entitled “A Powerless Companion: Human Rights in the Age of Neoliberalism,” in Law and Contemporary Problems, Vol. 77, 147-169 (2015), available at: https://scholarship.law.duke.edu/lcp/vol77/iss4/7, at 152-155.
[61] Samuel Moyn, Not Enough: Human Rights in an Unequal World (Cambridge: Harvard University Press, 2019); Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Belknap Press, 2012).
[62] Samuel Moyn, Humane: How the United States Abandoned Peace and Reinvented War (New York: Farrar Strauss, 2021).
[63] Karen Engle, “A Genealogy of the Criminal Turn in Human Rights,” 15-67, in Karen Engle, Zinaida Miller and D.M. Davis, eds., Anti-Impunity and the Human Rights Agenda (Cambridge University Press, 2016); Karen Engle, “Anti-Impunity and the Turn to Criminal Law in Human Rights,” 100 Cornell L. Rev. 1069 (2015), available at: https://scholarship.law.cornell.edu/clr/vol100/iss5/2.
[64] Engle, “Anti-Impunity and the Turn to Criminal Law in Human Rights,” at 1072.
[65] The Internationalist Communist Party (Le Parti communiste internationalist – Section française de la Quatrième Internationale, or “PCI-SFQI”) was a Trotskyist political party created in France in 1944, following the Fourth International, which was organized by Trotsky in France in 1938 in opposition to Stalin.
[66] Lefort, “Politics and Human Rights,” at 261 and 263.
[67] Lefort, “Politics and Human Rights,” at 261.
[68] Seyla Benhabib, “Claiming Rights Across Borders: International Human Rights and Democratic Sovereignty,” American Political Science Review 103, no. 4 (2009): 691–704, reproduced in Seyla Benhabib, Dignity in Adversity: Human Rights in Turbulent Times (New York: Polity, 2011), 117–137, at 118-119; see also Seyla Benhabib, “The Return of Political Theology: The Scarf Affair in Comparative Constitutional Perspective in France, Germany, and Turkey,” in Dignity in Adversity: Human Rights in Turbulent Times, ed. Seyla Benhabib (New York: Polity, 2011), 166–183; Seyla Benhabib, “Carl Schmitt’s Critique of Kant: Sovereignty and International Law,” Political Theory 40, no. 6 (2012), 688–713.
[69] Lefort, “Politics and Human Rights,” at 262.
[70] Lefort, “Politics and Human Rights,” at 270.
[71] Lefort, “Politics and Human Rights,” at 240.
[72] Lefort, “Politics and Human Rights,” at 252.
[73] Lefort, “Politics and Human Rights,” at 246.
[74] Lefort, “Politics and Human Rights,” at 248 (“totalitarianism appears as that regime in which the ‘political illusion’ is at its peak, in which it is materialized in a state that possesses all power (or at least tries to do so). At that point, the rights of man are destroyed…”)
[75] Duncan Hosie, “The Hollowing of the Eighth Amendment,” New York Review of Books, June 18, 2024, available at https://www.nybooks.com/online/2024/06/18/the-hollowing-of-the-eighth-amendment/?srsltid=AfmBOorco0dR1tfSG5_4d5YG19EDOzFnZjUbARZ60tW2hHW27exaiEiG.
[76] Lefort, “Politics and Human Rights,” at 252.
