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Eric Allen Engle, Human Rights According to Marxism, 65 Guild Prac. 249 (2008).

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Introduction
Fundamental rights and freedoms under capitalism, from the Marxist perspective, are determined in terms of their efficiency to exploit workers. 1 To Marx, freedoms in liberal democracies are illusory, in that the freedoms advocated by liberal regimes are market values and are not centered on protecting basic human dignity. 2

Determining whether socialist or capitalist systems meet human needs better depends on an axiological choice of distributive justice--individual procedural freedoms (processes) in capitalism versus collective egalitarian solidarity rights (claims) in socialism. The distributive principles in socialism are collectivization, socialization, solidarity and equality. The distributive principles in capitalism are individualism, independence, self sufficiency and liberty/freedom. There are good arguments for both values and any system likely draws on both the idea of liberty and the idea of equality. 3 In Marxist terms, the interplay between freedom and equality is dialectical 4--each of those opposites is linked to and influences the other, though one predominates. In capitalism, in contrast, the abstract principle of "freedom" predominates and few egalitarian arguments hold much force in contemporary legal thought outside the context of formal (as opposed to substantive) equality. In socialist systems the abstract principle "equality" tends to dominate; not merely procedural equality but also substantive equality. This analysis will consider the Marxist critique of the liberal concept of human rights. The principal Marxist critique of human rights is the fact that human rights are used to legitimate and justify the inegalitarian capitalist system.


A. The Marxist critique of liberal capitalist human rights

The Marxist critique of liberal human rights is radical. 5 Only fascism has posed a comparable challenge to the idea of fundamental rights of individuals. 6 Yet it would be inaccurate and unfair to equate Marxism to fascism, even though they are both deterministic ideologies. 7 For Marx, history is determined by dialectical materialism 8--the forces of economic production, which determine social structures - and class struggle; to fascists, history is determined by a struggle between races, rather than classes, and dialectical materialism is an illusion. Fascism is based on an assumption of racial inequality. In contrast, Marxism is egalitarian. So there are very real differences which explain why it is unfair to equate Marxism and fascism. The Marxist critique of liberal states is that capitalist regimes fail to respect the basic rights and dignity of the poor. Fascism is also critical of the liberal state, but because liberalism does not assert martial virtues.

*250 Marxism affirms human rights not as absolute formal procedural niceties (which is what liberal capitalism does) but as substantive claims in the material world (unlike liberal capitalism), relativized by real world facts (like liberal capitalism). Marxist human rights are relativized for example by class struggle and history, that is, by historical materialism.

The Marxist critic of human rights asserts that the rights and freedoms of bourgeois democracies are purely formal and at most procedural 9 and thus are illusions. 10 To Marxists the working class (who today live largely in the Third World due to outsourcing), lack the economic means and intellectual formation to enforce its rights. Thus, for Marxists, workers are a victim of "the shell game". 11 Formal equality and legality mask de facto substantive inequalities. For Marxism, social inequalities are reflections of the struggle between different social classes. Thus, according to Marx, eliminating class differences is the first step to ending inequality and attaining the full realization of all persons. Marx's criticism refers specifically to the French example:

Above all, we find that the so-called rights of man, human rights versus the rights of citizens, are nothing other than the rights of member of bourgeois society, that is to say selfish man, man separated from man and the community.
(...) Equality, taken here in its apolitical signification, is nothing other than the equal freedom described above, namely that every man is considered as equivalent like such a monad reposing on itself. The Constitution of 1795 defines the concept of equality, in accordance with its importance, as follows:
Art. 3. (Constitution of 1795). "Equality is that the law is the same for everyone, either because it protects or punishes."

Security

Art. 8. -- (Constitution of 1795). -- "Security is the protection afforded by society to each of its members for the conservation of his person, his rights and property."
Security is the supreme social concept of bourgeois society, the concept of the police, that any society exists only to ensure to each of its members the conservation of his person, his rights and his property. In this sense Hegel called bourgeois society a "state of necessity and understanding. 12
Thus, Marx presents a universal criticism of liberal regimes. 13 For him, the state is concerned about the protection of capitalist interests and ignores those of workers. 14 For Marxists, the idea of freedom is a social construct, created by society and for society. That social construct arises under certain historical conditions.

Hegel was the first to accurately represent the relationship of freedom and necessity. For him, freedom is the intellection of necessity. Need is blind only to the extent that it is not understood. "Freedom is not in a dream of independence from the laws of nature, but in the knowledge of these laws and the possibility thereby to implement them methodically for those purposes. This is true both of the exterior laws of nature as well as of those that internally govern the physical and mental existence of man himself--two classes of laws that we can more *251 or less separate in representation, but not in reality. Freedom of the will does not therefore mean something other than the ability to make more informed choices. So, the more the judgment of a man is free on a specific question, the greater the need that determines the tenor of that judgment.

Freedom is therefore in the empire of ourselves and over the external natural world, based of knowledge of natural necessities, so it is necessarily a product of historical development, but any progress of civilization is a step towards freedom. 15

Thus, the Marxist critique is relative, recognizing that, in terms of historical development, the limited protection of human rights in the capitalist system of production is still higher than the previous feudal stage. 16 However, according to Marx, to achieve the next step forward in civilization, all proprietary relations must be progressively suppressed and replaced with human relations.

The Marxist critique of human rights is in large part a criticism of property and its consequences. Liberalism argues that property is the means by which freedom is exercised. Marxism, in contrast, sees private property as the final mechanism of oppression and a source of separation (i.e. alienation) between people. 17 The resolution of social inequalities reflected in property would occur, for Marx, via a revolution aimed at the implementation of a temporary dictatorship of the proletariat 18 as a step towards the abolition of the state and its replacement by civil society. 19 The failure to determine methods to control the dictatorship of the proletariat was one of the causes of the excesses and dysfunctions of the Soviet regime.

The Marxist criticism of human rights in capitalism is that they are purely formal and empty of substantive meaning in practice, concealing inequality by way of a superficial and illusory procedural equality. 20 To understand the validity of the Marxist critique of liberal human rights as being merely formal procedural equality, one must understand some basic concepts of Marxism and then define the concept of fundamental rights in Marxist theory.


B. The Marxist concept of human rights in theory

A central idea of Marxism is that history follows progressive development through successive stages. This progress leads to an improvement in people's lives through the development of new technologies (improved forces of production). The driving force behind this dialectical process 21 between the past and the future is social struggle, particularly class struggle. Progress, rather than aiming at vague ideals (Hegel's erroneous view), is driven by material facts --the mode of production, whether feudal, agrarian, capitalist, or socialist.

Historical materialism 22 implies abandoning a "metaphysics" of an inevitable "human nature": 23 For Marxists, social reality is malleable. Thus, Marxist law is the command of the state during the capitalist and socialist eras (late modernity), but law would disappear as anarchic communism becomes established in the future and the state withers away to be replaced by civil society (the end of *252 history). With this foundation, we can analyze the legal regimes constructed by this antinomian 24 thought aimed to aid the transition from capitalist imperialism toward communism.


C. The Marxist concept of human rights in practice

The analysis now turns to the historical practice of human rights in Marxists countries. We will examine a surprising number of parallels between Marxist and capitalist systems on human rights. These parallels result in part from the fact that the economic progress is a common value to both systems.

Human rights in the proletarian dictatorships and liberal capitalist states are relativized 25 and subject to the principle of legality. 26 Similarly, in liberal democracies, rights imply reciprocal duties. 27 However, unlike liberal thought, Marxism is collectivist, so the practice of Marxist regimes respects collective rights more than individual rights 28--individual rights were more often relativized by and subordinated to collective needs in the proletarian dictatorships. 29

Thus, symmetrical legal mechanisms, but guided by a different teleology, were implemented in the proletarian dictatorships in order to guarantee standards of a general and abstract nature--the capitalist and Marxist legal regimes basically paralleled each other structurally. These standards, in turn served to legitimate the system by respecting different yet perfectly admissible basic values such as the right to work, the right to housing, the right to food, education, and medical care.

These parallels show that the issues of voluntarism and relativism go beyond the economic system. Totalitarianism can be erected on behalf of the people, a dictator, or a wealthy oligarch(y). For this reason, as well as due to the exhaustion of millennial visions after two global wars, there is a contemporary scepticism as regards universal narratives, universal projects of political and economic transformation. Utopian ideas seem to be exhausted. This scepticism toward universal narratives is most evident in post modernism.


D. Conclusion: The liberal critique of Marxist regimes

The liberal democracies can claim to have protected "freedom" more than the proletarian dictatorships. In contrast, the self described socialist democracies can claim to have better protected "equality" as a human right. In the end, the struggle between these two systems involves the basic difference between economic freedom from state intervention in individual affairs versus the egalitarian right of all to a claim in at least the necessities of a decent life. The conflict, ideologically speaking, is between procedural-individual-"freedoms-from" versus substantive-collective-"rights-to."

At the level of practice, a valid liberal criticism of Marxism is the fact that the Marxist states indefinitely prolonged the proletarian dictatorship which in fact had been intended only to be a temporary transitory phase, 30 ultimately degenerating back into capitalism through the rise of a capitalist class within the communist party itself. Of course, Marxists can rightly reply that capitalism *253 forced Marxist states to organize themselves as authoritarian states and that the proletarian dictatorships succeeded, despite fascist invasion, at implementing a formal rule of law state, (formeller Rechtstaat) known as socialist legality. 31 However, Marxists must take into account the corruption in the communist party which led to capitalist restoration. The historical problem for Marxism is not the excesses of Stalin, who ended illiteracy and famine and doubled the average life expectancy in Russia despite a genocidal war of aggression waged by fascism against Russia. Stalin's excesses were in fact necessitated by the fact of the imminent genocidal Nazi invasion and justified by the fact that of the countries invaded by Hitler only the USSR led by Stalin successfully resisted. The historical problem facing Marxists is not justifying Stalin. It is the fact that the temporary dictatorship of the party (not the proletariat) became permanent, and that the communist party became corrupted and ultimately restored capitalism.

Another two criticisms of Marxism 32 are its subordination of freedom to ideology and the Communist Party's monopoly on power. 33 The fetishization of the vanguard party--an elite conspiratorial party following the principle of democratic centralism 34--indeed set the stage for the corruption of the party elite (the nomenklatura). However, absolute freedom does not exist. The valid critique is not the lack of 'freedom' but rather the presence of an all powerful party and an elite dictatorship which, rather than serving the people, aggrandized power for itself and ultimately restored capitalism to serve its own interests.

The economic critique of Marxist is that a collectivist vision 35 ignores the profit motive and is not realistic about the role of self interest in human affairs and thus underperforms. The state as producer of economic goods could not wither away in the face of capitalist regimes, nor could it depend on the idealism of workers (Stakhanovism) or on their (forced) labor to compensate for the lack of incentive based labor. However, Marxists could meet those critiques by pointing out that their system was not based on the exploitation of Third World labor, unlike capitalism, and industrialized an illiterate famine plagued inegalitarian society more rapidly than would have occurred under imperialism.

The turning point for Marxism was the calcification of the communist party. When Marxism in practice became seen as the collective oppression of the individual, rather than as a force for liberation, the moral force of legitimation of that ideology was lost and thus its capacity for expansion was also lost. Indeed, a universalist ideology of liberation that does not in fact liberate, but instead stagnates and oppresses, as happened in the U.S.S.R. after Khruschev, loses all power of legitimation. Soviet history shows that one of the functions of human rights is political legitimation as well as protection of the weak. Legitimation and justice are mutually reinforcing. When the Soviet system degenerated into rule by the party, for the party, that system was doomed thereby.

This study of a seemingly outdated legal system is justified because Soviet history and Marxist theory can as inspiration for our actions in the world we *254 live in today. Understanding that Marxism went too far by enabling a perpetual dictatorship of the party which then mutated into a corrupt self-serving clique which ultimately restored capitalism is a first step to developing a Marxism, or post-Marxism, that can attain the valid dream of peace and prosperity for all people. Hopefully this work contributes to a dispassionate, objective understanding of the ideological and legal struggles to attain basic human rights for all persons.

Notes:
1. "Already in his 'On the Jewish Question' Marx had proven that the so called Human rights are class rights--political emancipation is a great step forward but only progress within the exploitative society." Philosophisches WOErterbuch 780 (Georg Klaus & Manfred Buhr eds.) (1974). "The goal of socialist civil rights is neither absolute individualism or the loss of the individual within the masse. Rather, fundamental rights contribute to the formation of all-round developed harmonious persons." Id. at 783.

2. "The withering of certain categories of bourgeois law (the categories as such, not this or that precept) in no way implies their replacement by new categories of proletarian law, just as the withering away of the categories of value, capital, profit and so forth in the transition to fully-developed socialism will not mean the emergence of new proletarian categories of value, capital and so on. The withering away of the categories of bourgeois law will, under these conditions, mean the withering away of law altogether, that is to say the disappearance of the juridical factor from social relations." Evgeny Pashukanis, Law and Marxism: A General Theory 61 (Barbara Einhorn, trans.) (1978).

3. "The goal of socialist civil rights is neither absolute individualism or the loss of the individual within the masse. Rather, fundamental rights contribute to the formation of all-round developed harmonious persons." Philosophisches WOErterbuch, supra note 1, at 783.

4. Dialectics is the idea that truth is obtained through the comparison of different viewpoints, via a dialogue. Aristotle, Hegel, and Marx were all dialecticians, it is very likely Heraclitus was as well and taoism too appears dialectical. Dialectical materialism argues that the dialectic is between material forces.

5. "Marx and Engels make what must be the most virulent criticism against the theory of natural rights of the person. The Marxist doctrine (see in particular the Communist Manifesto of 1847) absolutely and categorically rejects the notion of individual rights considered as limits on state power. Based on the class struggle which is the driving force of history, Marxist doctrine asserts that the concept of individual rights marks the abstract power of the dominant class on classes dominated ... collectivist regime only allows for Marxist authors, made available to citizens of means to achieve freedom." Claude Leclercq, LibertEs Publiques (1994).

6. Jean Rivero, The Public Freedoms 126 (1974).

7. "Determinism not only does not presuppose fatalism, on the contrary it gives a basis for intelligent activity." 1 Vladimir Lenin, Works 92 (1894).

8. Dialectical materialism asserts that change occurs through the conflict of opposites; that opposites are united in mutual struggle; that change occurs cyclically as an upward spiral; that a long series of quantitative changes leads to sudden, unexpected qualitative changes. The union and conflict of opposites is a basic principle of dialectics. See, Mao Zedong, Dialectical Materialism (1938) available at: http:// www.marxists.org/reference/archive/mao/selected-works/volume-6/mswv6_30.htm.

9. "For Marxists, these freedoms are essentially 'formal' in the sense that they would be empty of any real substance, and therefore, pure form." Jean Jacques Vincesini, Le Livre des Droits de l'Homme 186 (1985).

10. "Civil rights are merely the rights of the bourgeoisie." Philosophisches Woerterbuch, supra note 1, at 780.

11. Jean Roche & AndrE Apulia, Public Freedoms 11 (1997).

12. Karl Marx 1844, La Question Juive, 109 (Simon trans., 1971) (1844).

13. Claude Albert Colliard, Public Freedoms 39 (1989); Vincesini, supra note 9, at 188.

14. Roche & Apulia, supra note 11, at 26.

15. F. Engels, Anti -DUEhring, 146 (Bottigelli trans., 1963) (1877).

16. "In the dialectical perspective ... [capitalist] human rights represent an improvement over the previous period." Rivero, supra note 6, at 88.

17. Jean-Marie Pontier, LibertEs Publiques 136 (1997).

18. "The DoP [dictatorship of the proletariat] was to be a necessary, rigorous, and rapid conquest of political power by the revolutionary forces so as to prevent the restoration of the old order. In this sense, it was to be an exceptional, temporary phase, quasimilitary in nature, needed to secure the complete defeat of the previous regime but not in itself constitutive of the new socialist order. Second, the DoP was to involve Lenin's demand that the bourgeois state machinery be smashed." Piers Beirne & Alan Hunt, Law and the Constitution of Soviet Society: The Case of Comrade Lenin, 22 Law & Soc'y Rev. 575, 577 (1988).

19. The freedoms of 1789 are linked to the capitalist regime, the freedoms of the rich. Roche &Apulia, supra note 6, at 26.

20. "There is probably an element of truth in the criticism by Soviet authors of the abstract nature of public freedoms of traditional liberal regimes." Colliard, supra note 13, at 37.

21. "In addition, Marxism is historical materialism. It believes that man and society are at every moment, a reflection and product of history and of the dialectical movement behind it. In this perspective the existence of permanent rights, given once and for all, and removed the movement of history, is obviously unacceptable. Like all the laws, 'human rights' are only a reflection of the economic infrastructure. The expression of the power of the ruling class, and the means for it to impose its domination the exploited classes." Rivero, supra note 6, at 87-88.

22. Historical materialism argues that history can only be understood in terms of material facts and not by abstractions from facts. See, Preface, Karl Marx, A Contribution to the Critique of Political Economy, (1859) available at: http://www.marxists.org/archive/marx/works/1859/critique-pol-economy/preface.htm.

23. "Marxism is materialism. Therefore, the existence of a 'human nature', 'transcendent, abstract and metaphysical', necessarily is refused, insofar as it escapes any scientific findings." Rivero, supra note 6, at 87-88.

24. Antinomianism is the idea that law is per se illegitimate due to coercion; an antinomian view seeks to establish a world where law does not exist and is not necessary.

25. "Rights and freedoms are subject to a certain finality that defines their limits. ... The freedom of speech, the press, meetings ... is guaranteed to consolidate and develop the socialist regime." Rivero, supra note 6, at 92.

26. "The Soviet freedoms can be exercised only within and serving the order imposed by the power." Id. at 93.

27. "[R]ights and freedoms are" inseparable from the performance of duties of citizens." Id. at 92.

28. "The Marxist doctrine rejects the existence of individual rights considered as inviolable limits of state power over the individual. Domine a  son tour par une conception communautaire [plutot qu'individualiste], le regime collectiviste rejette la notion de droits de l'individu pour le plus grand interet de la masse toute entiere." Colliard, supra note 13, at 36.

29. "The constitution of 1977 (following that of 1936) outlined in its chapter 7 the fundamental rights and duties of citizens[:] In accordance with Marxist theory, economic and social rights came in first place (right to work, rest, social security, education ...). Then came the intellectual freedoms: freedom of expression, assembly demonstration, association and finally, freedoms of the individual." Roche &Apulia, supra note 11, at 29-30.

30. There are authoritarian democracies in which civil liberties are not guaranteed ... The history of political institutions, their study in comparative law show the existence of these various regimes. The first French Republic was an example of an authoritarian democracy that repudiated civil liberties .... It is a similar formula that can be found in contemporary times in the experience of Lenin. Leninist Democracy, as it first appears as the "dictatorship of the proletariat." It is an authoritarian democracy and anti-egalitarian. In Lenin's thought, this is a transitional time indeed non-specified, an intermediate stage for the birth of true communist society. And he wrote: "The dictatorship of the proletariat makes a series of restrictions on the freedom of oppressors and exploiters capitalists Those, we have to oppress to free mankind from wage slavery, we must break their resistance by force .... This authoritarian democracy is exclusive of freedom, less free immediately, but it claims to be the medium and the only way to achieve a future of true freedom, a prerequisite for achieving future of freedom" Colliard, supra note 13, at 39-40.

31. See Lewis Siegelbaum, 1924: Socialist Legality, at http://soviethistory.org/index.php?page=subject&SubjectID=1924legality&Year=1924&Theme=4c6177202620536f6369657479&navi= byTheme; also Christine Sypnowich, The Concept of Socialist Law (1990) available at: http://books.google.com/booksq=Christine+Sypnowich&btnG=Search+Books.

32. "To take the letter to the constitutions of the USSR in 1936 and 1937, Soviet citizens enjoy more guarantees than those who live in western democracies. The reality is quite different. It shows clearly that in popular democracies, the exercise of political rights such as social rights has neither legal force nor real effectiveness." Vincesini, supra note 9, at 201-202.

33. "The intellectual freedoms and the right of association were directed immediately set out 'in accordance with the interests of workers and to strengthen the socialist regime' ... The monopoly of the Communist Party was guaranteed." Roche & Apulia, supra note 6, at 29-30.

34. See Vladimir Lenin, What is to be Done? (1902), available at: http://www.marxists.org/archive/lenin/works/1901/witbd/