By Jean Louise Cohen

The critique of rights, of formal (or, in today’s parlance, liberal) democracy, and of civil society has reemerged today. Once again ‘the rights of man” or human rights are seen as unpolitical or and a distraction, while constitutional democracy and the state are under attack from the right and the left as being tools of the establishment, a cover for oligarchy and/or structures that serve particularistic interests rather than public purposes for the public good. In response, populist strongmen on the right and the left purport to restore the popular sovereignty to the (true) people that has been usurped by political elites and “the establishment.” Insofar as the state (equated with the “deep state”) and (formal, procedural) democracy (deemed a sham) has been severed from any real connection to or control by the people, the call is for a more immediate or radical form of democracy that reunites state and civil society, social and political life, and leaders who embody the people with the people themselves, i.e. radical democracy. While much of the critique has real purchase, I will argue that the solution is a chimera that would only lead to authoritarianism and even more injustice instead of to democratization and real solidarity.

It is thus instructive to go back to the original version of this critique of formal (liberal) democracy, of the separation of the state from civil society, of the usurpation of popular sovereignty, and of forms of domination and injustice that all this apparently entails, that can be found in Marx’s “On the Jewish Question” of 1843. But it is also worth our while to reexamine the brilliant critical appropriation of Marx’s analysis—that of Claude Lefort—written over a hundred years after Marx’s famous essays on the topic. We can then discuss what in our own historical moment, 40 years later, we can learn from these analyses and, with the advantage of hindsight, how to improve on them regarding democracy, rights, civil society, and especially the threats posed by private power (monopoly and finance capital) and public power to freedom and justice today.

I. Marx

We need to reassess Marx’s “On the Jewish Question,” Marx’s brilliant critical analysis of modern democracy, rights, law, civil society, and the state, and Lefort’s critical interpretation of Marx’s ambivalent relation to all five. By 1843, Marx had moved from the Feuerbachian critique of religion (man makes god, god doesn’t make man) to the critique of civil society and politics, and from invertive to immanent critique (contrasting norm and reality). But as Lefort argues, Marx’ concern is not simply to show that the universalistic principles invoked in formal democracy and declarations of rights (freedom, equality, justice) are transgressed in practice or even that their expression permits their transgression. (Lefort, 252) Instead Marx tries to conceive of a society in which power, oppression, domination, and injustice no longer exist, obviating the need to reflect on institutions that can constrain power, moderate injustice or enable actors to contest it. I will return to this point. Marx’s analysis leads him to reject the differentiation of civil society and the state, of law, power and right as tantamount to political alienation. There lies the focus of the essay despite its title. According to Marx, Bauer and the other left Hegelians remain caught within the critique of religion and thus misunderstand the key developments and tasks of their own time, namely the meaning and limits of political emancipation ushered in by the French and American revolutions and the need for a second revolution that will accomplish “true human emancipation”. (We know Marx argued that only the proletariat and the communist revolution can realize universalistic principles.)

Marx does note that political emancipation is real, practical and entails great progress. He deduces the logic of political emancipation from its most advanced form (in the U.S. and the American states): the creation of a formally democratic state replete with the full panoply of political and civil rights (rights of man in the French declarations) for all citizens and individual members of civil society. Political emancipation involves the democratization of the state (giving all citizens equal access to participate in popular sovereignty through standing for and voting in elections) and its differentiation from civil society (itself constituted by sets of rights and the principle of equality before the law) in which the “rights of man” protect the individual’s everyday material and spiritual, intimate and other freedoms deemed private. As indicated, through immanent critique, Marx articulates the universalistic principles of free self-determining political communities of citizens and of autonomous self-determining individuals interacting with others in civil society and with equal right to social justice and satisfaction and solidarity. But his argument is that these principles are not and cannot be realized through the institutions and dynamics of political emancipation or in “bourgeois” civil society.

Accordingly political emancipation entails the emergence of the state as the formally democratic political domain, freed from extrinsic particularistic limits and qualifications, and civil society as the private sphere freed from politically imposed and legalized social and status hierarchies. Political emancipation creates the equal political rights of the citizen. The universalistic norms of citizenship, sovereignty of the people, autonomy, equality, democracy, etc. assure at least the formal/legal recognition of the individual as a citizen and as a person (rights bearing), enjoying equal protection of the law, thus dis-associating status and right.

Thus political emancipation means that there can be no religious tests, no religious qualifications for citizenship or rights to vote and participation in the political life, of the polity and in popular sovereignty, by choosing your representatives or standing for election yourself whatever your religion. Bauer’s mistake, still in the thrall of the critique of religion as unfreedom, was to assume that political emancipation or equal political rights for all citizens requires that they surrender religious identity. He does not see that political emancipation or formal democracy requires only that the state abolish religion in the form of freeing itself from any tie to religion in the form of a state religion and abandoning religious qualifications for citizenship and political participation. Bauer in short confuses political with full human emancipation. It is only the latter next step that would involve the abolition of religion and the renunciation of religious identity.

The same holds true for property qualifications for the vote: formal democracy formally renders property irrelevant to political rights of the citizen when it abolishes property qualifications for the suffrage (as it does education, rank, occupational and other distinctions). But and this is Marx’s most famous and seductive next move…by declaring these distinctions to be non-political i.e. irrelevant to citizenship rights, the political emancipation of the formally democratic state does not abolish such distinctions, it relegates them to the private sphere of civil society where they retain all their force. Indeed dynamism is located there, in civil society along with oppression, hierarchy, and injustice.

In short political emancipation of the state (citizenship rights) from religion, property, from legalized status hierarchies, does not emancipate the individual from their power in civil society. To the contrary, religion and property (his real concern) etc. constructed as private, hold full sway over the individual in civil society as the case of the U.S. shows perfectly. The secularized formally democratic state neither abolishes religion nor the power of property within civil society, it simply privatizes them. The product of the differentiation of state and civil society and political emancipation is thus the abstract citizen who participates in an imaginary, illusory, abstractly solidary, free and equal political community in reality in the state. But he exercises no real direct sovereignty. Political emancipation in the form of formal constitutional democracy is tantamount to political alienation.

What about the individual “member” of civil society? Marx plays on the ambiguity of the German term (bürgerliche) and construes it as bourgeois society where private property exercises fully its power to exploit and dominate. This becomes clear in his gloss on the French Declaration of the Rights of Man and Citizen. In asking who is this “man” the “rights of man” refers to, he argues that it is the individual in civil society. The man of civil society (counterposed to the citizen) is the material man who goes about his everyday workaday life pursuing his private interests in free competition with others. But this “human” as constituted by rights is the atomistic, isolated, egoistic, privatized individual whose liberty is based on the separation of man from man, whose security before the law is ultimately and primarily the security of property, and who is constructed as a self-sufficient monad. Despite the law being formally the same for all (the principle of equality), it is property that is placed at the core of all these rights according to Marx and reigns supreme under private law.

Thus, the “citizen” of political society and the “man” of civil society are a double abstraction: the citizen participates in an imaginary solidarity and an imaginary community in a formally democratic state that is differentiated from and rules over him; and the individual (man) is reduced to a profane, private, materialistic being shorn of social solidarity and community in his everyday life, perforce pursuing his egoistic interests in a civil (bourgeois economic competitive) struggle of each against all. This double abstraction obscures domination in each sphere.

Marx concludes that the principles enunciated with political emancipation cannot be realized on the terrain of the differentiation of civil society and the formally democratic state. In short Marx reduces the civil to the bourgeois and formal democracy to abstract illusory freedom. Formal democracy does not deliver freedom or equality or solidarity since it is predicated on the domination of private property in civil society and the separation of man from man therein. He calls for a second revolution that would transform the core of civil society, and realize full human emancipation by de-differentiating state and civil society, so that the individual man absorbs the abstract citizen no longer separating social power from himself as political power. Thus, despite noting the progress in emancipation accomplished in the democratic revolutions of the eighteenth century, Marx deems the civil and political freedoms to be ultimately ideological and illusory, obviated by the structures of domination and power in civil society, the state, ‘bourgeois” formal democracy, law and rights. The alternative he proposes gestures to some form of immediate radical democracy although it is unclear what that would be.

This is a powerful critique that has influenced many generations of thinkers critical both of the “merely” formal character of what is today called “liberal democracy” and of declarations of rights embedded in constitutions or in international human rights documents accused of reducing politics to a moralistic humanism that serves to justify and enable instead of limiting power and protecting individuals with a legal persona. There have been different answers to just who the human, aka the subject of rights discourse is… depending on whether it comes from Marxists (the bourgeois), communitarians (the atomistic individual), feminists (the male), critical race theory (the white man), post-colonial theorists (the western white bourgeois male), or queer theory (the heterosexual heteronormative as the subject of rights). But all of these answers follow the original Marxist move often with less talent, as Lefort noted, insofar as they reduce right and law to power and to quote Lefort, lose the ability to differentiate democracy from autocratic or totalitarian regimes, Lefort’s key concern.

The key question then is … did Marx get it right? Is his analysis of civil society, formal democracy and human rights, correct or is it one sided in a counter-productive way? According to Lefort the answer is yes, and no.

II. Lefort on Politics, Democracy and Right: Thinking with and beyond Marx

Coming from within the Marxist tradition, Lefort’s post- (not anti-) Marxist engagement with Marx’s critique of rights, law, civil society and democracy was triggered by the emergence of struggles for emancipation in “totalitarian” regimes—the USSR, East Europe and China—i.e. against a form of near total domination. The dissidents framed their struggles in terms of human rights, also claiming that their struggles were moral not political. But of course that was for strategic reasons (fear of brutal repression). Lefort sets out to demonstrate that the struggle for rights is indeed political, and theorizes such struggles as part and parcel of the struggle for democracy, indeed as its flip side.

Lefort situates his own return to Marx’s “On the Jewish Question” in the context of the discovery of the Gulag and the blindness of the French left to the significance of the dissidents’ struggle due to their devaluation of rights along the lines of Marx’s critique. If we don’t rethink the Marxian critique then we won’t be able to see what is innovative and political about a politics of human rights that declared itself to be unpolitical, assuredly in a context where engaging in overt political struggle risked being sent to the camps. But in theorizing the struggle for rights as a mode of democratic politics, Lefort does not embrace the liberal, humanistic or anarchist interpretation that lodges human rights in the individual subject as a set of moral principles elaborating “a religion of resistance” to all power. This, he notes, turns the difference between democracy and totalitarianism into a mere difference of degree of oppression. I call his analysis “post-Marxist” because it is meant to extricate ourselves from Marx’s framework without falling short of his thought … his critique of rights was not at all pointless but it is in key respects mistaken and ideological. Indeed, Lefort refused both the Marxist and ultra-leftist reductionist critiques of human rights (and formal democracy deemed bourgeois) as mere liberal and bourgeois ideology, while rejecting the ideological cold war liberal and neo-conservative position that framed the new human rights discourses and movements in Soviet type societies as efforts to catch up with the achievements of Western constitutional democratic capitalist societies, while supporting Latin American dictatorships in their own backyard. Both fall for the ideology of rights that reduce individuals in civil society to egoistic, disassociated monads, based on an atomized civil (aka bourgeois) society differentiated from the state and the political community.

Lefort’s brilliant argument is that Marx was not wrong in what he saw in the rights of man, the problem is what he was unable to find in them. (Lefort, 248) Lefort notes the ambiguities of human rights—as many formulations do give substance to the image of a sovereign individual whose power to act or possess, speak, or write is limited only by the power of other individuals to do likewise. And he notes that it isn’t arbitrary to regard the right to property in the French declarations as the only right deemed sacred and as the one on which many others (and private law) seem to be based, especially the right to security (the police). Indeed, Lefort thought Marx was right to denounce the relations of domination and exploitation concealed behind the bourgeois conception of human rights of freedom, equality, justice (as are the feminist, anti-racist, post-colonialists today, I would argue, regarding comparable critiques of ideological conceptions of who this man is that is the bearer of rights). But Lefort’s point in getting at “the underside of the underside” is to show that the concept of human rights operates on a different register than that of power and cannot be reduced to this ideological role or conception. Instead of focusing on legalistic or ideological interpretations, functions and the forms of domination they conceal, Lefort reasoned from the perspective of the movements and dynamics involved in asserting, claiming, and inventing rights, and on the symbolic meaning of the very idea of the right to have rights…of man AND of citizens. (Arendt) This involves a new relationship to the political and a new symbolic order with respect to the legitimating principle of society, helping to inaugurate democracy. As I have argued elsewhere there are three aspects to this analysis.

1. Human rights and public space

Lefort focuses on what the atomism critique leaves out: Marx does not discuss rights to freedom of speech, to communication, to publish, to associate, to assemble, to petition government of opinion… for these can hardly be construed as constructing the isolated individual. Instead, what they create is a new mode of access to and a new conceptualization of public space: the freeing of communication and public interaction of persons and citizens from the bounded spaces regulated by power. Such rights enable a new mode of sociality—free association—making possible networks of social relationships and horizontal ties in civil society that can target injustice oppression, arbitrariness. But rights to communicate in the public spaces also open access to participation in and responsibility for civic, public life. The rights to freedom of speech, movement, association, assembly are intimately connected to the conquest of democracy which also invents a new mode of relation to public space. This dimension is not graspable under the sign of egoism, moralism, bourgeois ideology. It is instead the creation of the space in which mobilization for more rights, more democracy can occur.

2. The politics of asserting and claiming rights

The social practice of declaring and mobilizing around rights is also political. Whether the demand is for legal protection of each individual against the arbitrary exercise of governmental power or for workers’ rights, voice, racial, or gender justice, the practice of mobilizing for new rights and new interpretations of old ones wrests the power to participate in the politically relevant activity of claim-making about the way power is or should be exercised and whose voices should be heard. The pragmatic and symbolic meaning of the practice of mobilizing for and asserting and demanding rights has an elective affinity to democracy as both involve inventions and practices outside what is legally institutionalized—outside and beyond the control of power. In this sense, rights assertions are the innovative practice of social movements alongside other modes of democratic contestation and mobilization insofar as it involves demands for new freedoms, more justice, better practices and laws etc. Like democratic politics, this opens a theater of contestation outside the control of power. Indeed since democracies (formal ones, liberal ones, or social democracies) can always become more democratic, since democracy is always an unfinished product, the struggles for further democratization by social movement actors (sometimes taken up by political parties), like the struggles for rights, is where innovation outside any formal documents, which fail to contain such movements, occurs.

3. The Symbolic Meaning of Rights and Democracy

At the deepest level the symbolic meaning of rights struggles and the practice of democracy (and democratic struggles) are connected and both are political. Both are predicated on and help foster the disentanglement of law (right) power and knowledge. Thinking of the French Revolution and its break with the Ancien Regime, Lefort notes three dis-incorporations: the disincorporation of rights severed from power (initially from the king’s dual body); the disincorporation of society no longer representable as a body (corps social) or as a substantive unity (it is now civil society involving a new mode of associating); the disincorporation of power such that we can no longer ascribe to an external being or ruler the agency whereby society forms and apprehends itself in its unity and divisions and relates to itself in time and space (the end of monarchical legitimacy replaced by democratic legitimacy and uncertainty). Power, law, and knowledge are differentiated: the locus of power becomes an empty place, as no one, no apparatus, no agent can purport to institute and embody society or the political: this means not only that the institutional apparatus of democracy ensures competition, elections, alternation, and uncertainty, and prevents any branch of government from appropriating the political, it also means democracies involve a form of society which welcomes indeterminacy: first in that no individual, group, governmental instance has the inherent right to embody the political or to rule. In democracies, we also experience a fundamental indeterminacy as to the basis of law, power, knowledge, thus there is an unending practice of questioning, contestation and an open ended politics.

This indeterminacy is the epistemology shared by human rights and democracy. Thus regarding rights, there is no way to anchor the supposedly correct set of rights required by liberalism or democracy or social justice, or socialism, in the nature of man in a substantive sense. As modes of activity communication asserting and claiming rights move out of the orbit of power, new rights that are not on the books get asserted, through innovative practices … unknowable in advance. Here too no one can occupy the place from which they have the authority to grant or derive rights—this place too is now empty.

So in response to Marx’s question “who is this man of civil society,” that answer is not ‘the bourgeois,” it is no one and everyone. No specific characteristic, quality, identity, feature determines who gets to have rights or what rights they get. Instead, I quote Lefort “man appears as the being whose essence it is to declare his rights.” But this means that rights are not simply the object of a declaration, it is their essence to be declared in a never ending practice of rights assertions. Actors create their freedom by declaring their rights whether or not some document has already acknowledged them. This initiates an open discursive/contestatory process of claims and counter claims, movements and counter movements, and thus rights are one of the generative principles of democracy. The same holds true for projects of the further democratization of democracy. So for Lefort: the differentiation of state and civil society, the new modes of sociality and participation in politics these enable are achievements that should be built on, not effaced through some dream of direct immersion of individuals in communal life or of direct democracy that can do without formal democratic and rights affirming institutions.

III. Contemporary problems

Many years ago, I wrote a book on Marx and endorsed the Lefortian analysis that rejected the reduction of civil to “bourgeois” society, embraced the emancipatory potentials unleashed in both civil society and the formally (if insufficiently) democratic state.

Two developments since then call for more thinking on these topics. The first regards the distortions that occur when discourses of human rights no longer feed into democratic politics or democratization but displace them. I am thinking of the problems that occur when it is not the residents of a polity but outsiders who assert the rights of others, invoking international human rights documents, and impose a standard of legitimacy for someone else’s polity, short-circuiting domestic struggles for and over democracy, social justice, and rights interpretations. The critique of international human rights discourses stems from this problematic and from the tendency to displace political struggles for social justice and democracy by moralistic discourse of outsiders and at times domestic actors (Samuel Moyn’s critique).

The second pertains to an older problem, namely the capacity of capitalism to subvert the appeals to public power for rights, justice, and more democracy by undermining the efficacy public power has to serve public purposes. In short, what happens when private power has become so enormous and so overwhelming (oligarchic?) and so global that public power is so corrupted or eroded that it no longer functions to curb the predations of private capital? In the past the power of the corporate rich, of the monopolist, the financier, the oligarch often perverted public power by wielding it directly or inordinately influencing it (think of the gilded age in the U.S.). Yet this triggered counter-movements that have been relatively successful: the New Deal, Social Democracy, and the labor movement, etc. But today gigantic, transnational, private “civil society” actors—the global corporate rich, monopolists, new forms of finance capital—seem capable not only of doing an end run around state attempts at regulation but also, of eviscerating public power altogether, be it through privatization or projects of reduction of the state to a mere minimum. (Project 2025) The overwhelming power of the corporation, making use of private law private rights seems poised to destroy the very notion of public power exercised for public purposes.

Are we now finally in a situation where this kind of private power in civil society does indeed render formal democracy and basic rights, the state and public power really facades for transnational oligarchy? Can we still invoke democracy and rights in our struggle in civil and political society on the national and global level or do we need additional language and tools to effectuate a reversal of the power of private capital to eviscerate public life, democracy, rights, and justice? Is this another phase of the cycle the Schlessingers and others (Forbath, Fishkin) talk about regarding oscillations between the predominance of public and private or are we at an irreversible tipping point? I am not ready to deliver civil society, rights, and democracy to the power of capital but I leave that to the discussion.

To watch the Marx 3/13 seminar (Nov. 14, 2024), proceed here.