MARX’S PUZZLE

The bourgeois revolutions that since the eighteenth century brought down the regimes of traditional domination [Herrschaft] are first of all declarations of equal rights: they declare the rights of the human being and of the citizen.¹ Regimes of traditional domination were regimes of inequality. In such regimes, the power to exercise political judgment and rule was distributed in a radically unequal manner. In contrast, bourgeois revolutions establish equality, and to them equality signifies equal rights. Equality and equal rights amount to the same thing, in the revolutions’ view. However, they are not the same. Equality does not mean rights. Instead, equality of rights is a specific formal determination of equality. The decisive act of bourgeois revolutions is therefore not the decision in favor of equality. Rather, it is the decision to give equality the form of rights.

This decision is puzzling. In his analysis of “The Declaration of the Rights of Man and of the Citizen,” Marx writes:

It is puzzling enough that a people which is just beginning to liberate itself, to tear down all the barriers between its various sections, and to establish a political community, that such a people solemnly proclaims (Declaration of 1791) the rights of egoistic man separated from his fellow men and from the community…. This fact becomes still more puzzling when we see that the political emancipators go so far as to reduce citizenship, and the political community, to a mere means for maintaining these so-called rights of man, that, therefore, the citoyen is declared to be the servant of egotistic homme, that the sphere in which man acts as a communal being is degraded to a level below the sphere in which he acts as a partial being.²

According to Marx, the revolutionary declaration of equal rights is puzzling because of the contradiction in the subject, namely the antithesis between the political subject who declares rights and the social or private subject (the two are equivalent in civil society) who is authorized by rights, and thus between the basis and the content of rights. The declaration of rights is a political act; it is the political act. In declaring rights, the political community creates itself in opposition to regimes of traditional domination. Because politically declared rights authorize the apolitical (“egoistical”) human beings of civil society, however, the declaration of rights is at the same time the degradation of politics, its debasement to a mere means. It places the political community – which is “the true content and end”³ – into the service of “egoistic man separated from his fellow men and from the community.” The puzzle of the bourgeois declaration of equal rights is the puzzle of a self-reversal: it is the political act that authorizes apolitical human beings and thereby politics’ deauthorization of itself – the politics of depoliticization. The revolutionary declaration of rights is the first and last political act: the relinquishing of political power by means of politics – politics for the last time.

Marx believes that “The puzzle is easily solved.”⁴ This solution amounts to the claim that “Political revolution is a revolution of civil society.”⁵ And this means that “Political emancipation was at the same time the emancipation of civil society from politics.”⁶ The puzzle is that the bourgeois revolution degrades political community into a means for the rights of apolitical human beings. The solution to this puzzle is the fact that bourgeois [bürgerliche] politics emancipates civil [bürgerliche] society from politics through the declaration of rights. Bourgeois politics assumes civil society as its “natural basis” and henceforth operates “on the presupposition of its existence.”⁷ It is governance as the administration of society. In other words, bourgeois politics is the “police.”⁸

Marx seeks the – simple – solution to the puzzle of the bourgeois revolution in its effect, which he views as its secret goal. With the declaration of rights, the bourgeois revolution “degrades” politics into a means because it wants to make civil society the presupposition for politics and thereby to free it from politics. This simple solution, however, is too simple, because the puzzle of the bourgeois revolution does not merely consist in understanding why it degrades politics, but rather – and more fundamentally – in how it does this. In other words, the puzzle of the bourgeois revolution consists in understanding how it degrades politics through the declaration of rights. According to Marx, the equal rights declared by the bourgeois revolution are the decisive mechanism for politically producing civil society. It is therefore this mechanism, the mechanics of rights, that must be understood if the puzzle of the bourgeois revolution is to be solved. Neither its ill effects – civil society with its new forms of domination (exploitation and normalization) – nor its good intentions, which, conversely, liberalism opposes to these ill effects, namely dignity, autonomy, self-determination, and so forth, can provide a solution to the puzzle of the bourgeois revolution. This puzzle requires an examination of the form of rights: of rights as form.

My thesis is that we cannot grasp the content, aims, and effects of the bourgeois declaration of rights without having understood how it operates. The “how” of rights has precedence over its “what,” “why,” and “to what end.” The form of rights comes before their content, goal, and effect,⁹ because this form is not neutral.

Rights are a specific form of normativity: to have a right means to have a justified and therefore binding claim. And to declare a right means to grant a justified and therefore binding claim. The bourgeois declaration of rights understands this to mean that a justified claim can only be a claim as equal. That is not all, however. For at the same time, it understands this normative justification of a claim in such a way that the claim is thereby transformed into something “factual” that is prior to and separate from the political community. This holds for everything to which we have a right: for example, by giving us rights, the bourgeois state allows “private property, education, occupation, to act in their way, i.e., as private property, as education, as occupation, and to exert the influence of their special nature. Far from abolishing these real distinctions, the state only exists on the presupposition of their existence.”¹⁰ For Marx, this is the basic feature of the mechanism of bourgeois rights. Contrary to what Marx repeatedly says (and something for which he was repeatedly criticized),¹¹ this mechanism does not consist in the justification of egoism (in general, egoism is not a category of legal theory or social criticism but rather an ethical category, a category of morality). Instead, this mechanism is the naturalization of the social (its transformation into something factual, the act of presupposing it), which happens when it becomes the content of legal claims.

The equal rights declared by the bourgeois revolution are a particular, completely new kind of normative mechanism: they combine normativity and facticity. They are normatively regulative in securing equality, but they do this by – actively – presupposing factual conditions that they thereby remove from political governance. The normativity of bourgeois rights consists in their creation of a pre- and extra-normative facticity. The form of bourgeois rights expresses an upheaval in normativity’s mode of being. As a result, the declaration of rights is the mechanism that (as Marx maintains) gives rise to civil society and in so doing degrades politics into the police, into administration. In order to solve the puzzle of the bourgeois revolution – the puzzle of the political self-degradation of politics, the puzzle of the emancipation of civil society from politics through the emancipation of politics – we must understand the peculiar mechanism of bourgeois rights. We must understand the radical, ontological redefinition of normativity that lies at the basis of the bourgeois form of rights.

It is therefore the puzzle posed by Marx, and not his “simple” solution, that leads the way for our inquiry: it leads the way to an analysis of the bourgeois form of equal rights. As we proceed, we will have to subject liberalism to critical analysis,¹² since liberalism is based on the insight that the declaration of equal rights is absolutely constitutive for the bourgeois revolution’s redefinition of politics and society. Yet, at the same time, liberalism is unable to understand that – and how – the bourgeois form of rights precisely degrades politics into the police and produces the “actual inequalities” of society. Liberalism counters the actual social and political effect of rights with its good (“moral”) intentions. This is what liberalism calls criticism, namely confronting existing conditions with good, justified claims. With this superficial notion of criticism, it skips the analysis of form. It is through form, however, that intentions produce effects.

Marx calls this kind of criticism vulgar: “Vulgar criticism falls into … [a] dogmatic error.” It criticizes by “fighting with its subject matter.” “True criticism, by contrast, shows the inner genesis” of the things it criticizes. It “describes the act of its birth, … it explains them, it comprehends their genesis, their necessity.”¹³ The true analysis and true criticism of bourgeois rights are one and the same. True analysis is simultaneously true criticism because it discerns the – ontological, and not historical – genealogy of bourgeois rights. It confronts bourgeois rights not with their moral intention, but with their genesis, their basis. This means, however, that criticism is able to discover the other of bourgeois rights in their basis. According to this thesis, the basis of the bourgeois form of rights is the modern upheaval in the ontology of normativity. According to the program of true criticism, the ontological upheaval of modern law must therefore simultaneously call the form of bourgeois rights – which it establishes – into question; indeed it must undo and destroy this form. True genealogical criticism reveals a contradiction in the modern upheaval of law: it establishes and denies bourgeois law. True criticism, which proceeds genealogically, develops a radical objection to the existing conditions out of the existing conditions.

Criticism of the bourgeois form of rights consists in demonstrating the claim that it cannot grasp its own basis. In being traced back to its ground, the bourgeois form of rights gets buried as a result. A new right then becomes possible: a right of new, other rights; a right of rights that do not presuppose anything; rights that do not depoliticize what they entitle. It is true that the bourgeois revolution “resolves civil life into its component parts, without revolutionising these components themselves or subjecting them to criticism.”¹⁴ The rights of new right, in contrast, are revolutionary because they transform what they entitle. Critical understanding must lay the ground for this transformation.

* * *

The way to achieve this goal proceeds in four steps that can be summarized in four theses:

1. The modern form of rights breaks with the tradition of classical law. Classical rights are fair shares, while modern rights are legal claims to natural claims. The modern form of rights opens law up to the non-legal. Rights are situated at the limit of law.
2. The modern form of rights expresses a fundamental upheaval in the ontology of law. If all law is defined by the difference between form and matter, modern law is the materialist self-reflection of its form, establishing the difference between law and non-law within the law.
3. The bourgeois form of rights is law’s self-reflection in the mode of its denial. This constitutes the positivism of bourgeois rights, namely that they reify law’s non-legal substance into something positively given. Bourgeois rights authorize the subject’s private self-will and thereby engender bourgeois society’s new forms of domination.
4. A new revolution of rights that breaks with their bourgeois form must overcome their positivism: it must carry out the self-reflection of modern law [Rechts] dialectically. It thus establishes a new right [Recht]. The dialectic of activity and passivity in political judgment forms its basis: new right is the right of counter-rights.

This book will proceed by combining historical description and conceptual argumentation. On the one hand, it is a matter of grasping bourgeois law [Recht] today through readings of relevant texts. On the other hand, it is a matter of clarifying the basic concepts of the philosophy of law and developing them dialectically. The description of bourgeois law is prominent in parts I and III: part I explicates the historical difference between the classical and modern conception of rights; part III examines the ideological presuppositions and social consequences of their bourgeois form. In contrast, parts II and IV foreground conceptual reflection: part II analyzes the relation of form and matter that is constitutive of law, and elucidates the concept of its modern self-reflection; part IV outlines a theory of the judgment that establishes rights by reflecting on the structure of political subjectivity. The social-historical description of bourgeois law and the conceptual unfolding of the dialectic of law are distinct projects. However, they refer to each other. Their connection is the critique of rights.

Here we find ourselves in the “Copernican” moment of the history of the science of law, at the boundary between two worlds. A new social order is born, whose nucleus will become an individual right that is developed entirely from the concept of potestas, elevated to the dignity of a right.¹

Modern legal theory and philosophy of law were the first to speak of rights that belong to the individual and which the individual can exercise for his or her own ends. For this reason, rights here are also first characterized as a person’s property, endowment, or capacity. It is only at this point that talk of “subjective” or “individual” rights could flourish. At the same time, rights are an essential way of formally defining private or civil law. Rights are primarily defined as claims that enable one person to impose an obligation on another person. The form of rights is therefore as old as the institution of civil law: they have existed ever since there were contractually regulated exchange relations. Both of these observations must be borne in mind at the same time. Together, they define the historicity of rights: rights are a form that can only be understood in historical terms.

We are concerned with the modern form of rights. This modern form cannot be understood by merely considering the continual formulations expressed by civil law regarding the normativity of exchange relationships that, beyond mere family arrangements, pervade all societies: the modern form of rights alters social exchange relationships so fundamentally that no concept of their normative regulation – obligation, freedom, equality, authority [Herrschaft] – is able to retain its traditional meaning. Nor can the modern form of rights be understood by attempting to derive it directly from the basic concept of modernity’s normative order, from the concept of the self-determining, autonomous subject: the modern form of rights does not exist because there are autonomous subjects, but autonomous subjects exist because the modern form of rights does. The modern form of rights results from a radical transformation of law. This transformation is radical because it concerns the meaning of law. With the modern form of rights, the concept of law, indeed the concept of normativity, acquires a new, fundamentally different meaning. The transformation in the conception of rights, which were traditionally expressed in terms of private law, thus does not remain restricted to this domain: “law” as such thereby comes to mean something else, and hence rights in their modern form only exist beyond private law.

A radical transformation of law takes place in the modern form of rights. The de-moralization [Entsittlichung] of law expresses this in negative terms: traditionally, law is the moral or rational order of the fair share in which each receives his or her own – his or her right. The modern administration of rights, however, must be defined in positive terms. It consists in the reconfiguration of the basic relation between the legal and the pre- or extra-legal, between norm and nature. In the modern form of rights, law becomes the process of juridification: rights are the mechanisms of an incessant legalization of the natural.