Karl Marx stands as the preeminent radical critic of the liberal discourse of rights and individual freedom. Yet in the shadow of twentieth-century experiments with socialism, few aspects of Marx’s thought have been met with more skepticism. If rights such as freedom of speech, due process, and so on are mere smokescreens for class domination, then it is only logical that a revolutionary state committed to the emancipation of the working class would dispense with such formalities in the pursuit of a communist society. Yet in his own writings, Marx often expressed an appreciation for even the “formal” aspects of the rule of law and liberalism. Igor Shoikhedbrod’s very good Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights provides a systematic reconstruction of Marx’s attitude toward the rule of law, showing that Marx’s materialist and dialectical method can account for the positive value of liberal rights. Shoikhedbrod argues that Marx steers a course between two extremes—legal formalism and legal instrumentalism—and as a result his thought remains vital for critiquing how financialized capitalism undermines the promise of legality and rights.

As Shoikhedbrod notes, his argument fits into a general revival of interest in Marx’s thought in the wake of the 2008 financial crisis and increasing global inequality. A notable feature of this work has been the effort to recover Marx’s sophisticated contributions to constitutional and democratic theory (William Clare Roberts, Marx’s Inferno: The Political Theory of Capital, 2018; Bruno Leipold, “Marx’s Social Republic: Radical Republicanism and the Political Institutions of Socialism,” in Radical Republicanism: Recovering the Tradition’s Popular Heritage, ed. Karma Nabulsi, Stuart White, and Bruno Leipold, 2020, pp. 172–93). One of the strongest aspects of Shoikhedbrod’s argument is the breadth of material from Marx he draws together, ranging from Marx’s early defense at his trial for insulting police officers and the Cologne prosecutor as the editor of the Neue Rheinische Zeitung to his mature thought in Capital and the Grundrisse. Throughout all these works, Shoikhedbrod shows, Marx’s critique of rights and the rule of law is never dismissive—rather, as his thinking develops, he comes to see that the structure of rights is only ever adequate to the underlying structure of society, such that a transformation in that structure will lead to a transformation, not elimination, of rights.

Marx is clearly not a legal formalist. All his reflection on law is oriented toward showing that rights gain substance based on their material context. Yet the relationship between his thought and legal instrumentalism is more complex. The pitfalls of legal instrumentalism are illustrated by the Soviet legal theorist Evgeny Pashukanis. Pashukanis presents one of the most systematic Marxist theories of law, arguing that law as such is only possible in a capitalist society, insofar as the legal form is predicated on commodity exchange. As communism abolishes commodity exchange, so too will it abolish law in favor of technical regulation. In 1937, unable to avail himself of the liberal principles of due process, Pashukanis was denounced and killed.

Shoikhedbrod argues that Pashukanis fundamentally misunderstood Marx. According to Shoikhedbrod’s Hegelian reading, Marx criticizes capitalism from the perspective of a partial development of human freedom. Legality and rights under capitalism embody this ideal of human freedom while constraining it to accord with the atomistic and hierarchical nature of capitalist production. This is evident in Marx’s frequent criticisms of bourgeois liberalism for failing to live up to its own professed commitments to individual rights and the constitutional state. The socialization and democratization of production under communism, then, will lead to a “sublation” of liberal rights, preserving their connection to human freedom but overcoming their one-sided and abstract character under capitalism. Even in a communist society, Shoikhedbrod avers, there will be potential conflicts driven, not by fundamental class antagonisms, but by human failures and suffering. There will still be the need for rights and some sort of dispute resolution mechanisms, although he implies these will be much softer and focused on restorative justice. The “withering away of the state” only means the disappearance of the “external,” repressive form of the state, oriented toward protecting class rule, and not the state’s functions of resolving disputes over rights. While the details are vague due to Marx’s refusal of utopian speculation, Shoikhedbrod implies that they will be executed by judicial agencies integrated into society.

Shoikhedbrod then uses this critical reconstruction of Marx to challenge the contemporary retreat from political economy in liberalism and Habermasian critical theory. Here, I worried Shoikhedbrod takes on a little too much, as he quickly moves over Rawls, Habermas, Honneth, and Fraser, some of whom are more explicitly open to socialism than others, and all of whom have different reasons for modifying or rejecting Marx’s theory. As a result, the specific theoretical contribution of Shoikhedbrod’s Marxian approach sometimes gets lost in the melee. In particular, though Shoikhedbrod is persuasive that Marx is not an enemy of rights and that he seeks to preserve important aspects of liberalism in a communist society, his argument does not fully respond to two major concerns about Marx that have animated the revisions of his theory that we find in thinkers like Rawls and Habermas.

The first has to do with how Marx envisions conflict, rights, and the state. To what extent, in Shoikhedbrod’s reading, does Marx posit a unified “class interest” that explains both the source of conflict under capitalism and its radical attenuation within communism? Is Marx’s image of communism predicated on an underlying unity of interests that renders coercion superfluous? Here, Shoikhedbrod is somewhat ambiguous. His definition of rights notably leaves out coercion, instead presenting them as “claims that impose correlative duties upon the state and other individuals” (p. 23). Yet, at least according to many accounts, part of the distinctiveness of rights is that they are enforceable, and so a subset of the broader moral claims that we may expect others to respect. By turning rights into moral duties in general, Shoikhedbrod can more easily argue that rights will be respected by general dispositions of mutual solidarity under communism, especially given common class interests. Yet Shoikhedbrod also hesitantly notes that, in Marx’s prescriptive writings, “there is no evidence that coercion will be reduced entirely” (p. 123). But if communism is animated by general feelings of mutual solidarity, then where does the need for coercion arise? If we accept that there are deep-seated sources of conflict other than class domination, then we will be inclined to accept that the coercive enforceability nature of rights is more than a historically transient phenomenon.

And closely tied to Marx’s ambivalent theory of conflict is his philosophy of history—the second concern. Given that Shoikhedbrod’s argument is focused on Marx’s theory of rights and not on redeeming every aspect of his thought, the reflections on progress are understandably brief. Shoikhedbrod argues that for Marx “the content of freedom is informed by history but not predetermined by it” and that “it is doubtful that any value-laden perspective can dispense with the idea of moral progress” (p. 212). But as Shoikhedbrod is aware, Marx’s philosophy of history entails more than just a belief in progress. Marx’s argument presupposes that society is a totality structured by a specific form of economic production, and that the fundamental contradictions within an existing social order generate the preconditions for a “higher” social totality—a stance that thinkers like Habermas view as untenable today. It remains unclear, then, to what extent we can sever Marx’s theory of rights from these other commitments. No doubt, though, we still have a great deal to learn from Marx’s critique of liberal rights, and Shoikhedbrod’s achievement is to help us see that Marx remains a powerful resource for thinking through the possibility of rights in an era of resurgent capitalism.