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.
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."
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.
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.
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.
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.