Retrieving Marx for the Human Rights Project

Leiden Journal of International Law

Volumn 17, Issue 1, 2004, Pages 31-66

  Roth, Brad R ^a  

^a WAYNE STATE UNIVERSITY   (United States)

Author keywords

human rights; liberalism; Marx; Marxism; socialism

Indexed keywords

EID: 34248045856     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156504001608     Document Type: Article

References (108)

1. See, e.g., T. B. Bottomore and M. Rubel, Karl Marx, SelectedWritings in Sociology and Social Philosophy (1964), 48 ('A great deal of Marx's work is a permanent acquisition of sociological thought, [but] the incorporation of Marx's ideas entails the disappearance of “Marxist” sociology.Modern sociology. is a science which has advanced some way towards freeing itself from the various philosophic systems in which it originated').
2. J. S. Mill, ‘On Liberty’, in ‘Utilitarianism’, ‘On Liberty’, and ‘Considerations on Representative Government’ (1972), 65 at 74. ('I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being.')
3. See G. A. Cohen, If You're an Egalitarian, How Come You're So Rich? (2000).
4. It is by now widely recognized that, while aspects of Marx's framework may yet yield important insights about the operation of the capitalist economy, the conclusions that would have established the inevitability of capitalism's collapse cannot be sustained. The analysis founders on the impossibility of substantiating the claim of a long-term relationship between the prices of goods and the labour-time embodied in their production, the so-called ‘transformation problem’. See I. Steedman,Marx after Sraffa (1981).
5. Cohen, It is by now widely recognized that, while aspects of Marx's framework may yet yield important insights about the operation of the capitalist economy, the conclusions that would have established the inevitability of capitalism's collapse cannot be sustained note 4, at 107.
6. It is by now widely recognized that, while aspects of Marx's framework may yet yield important insights about the operation of the capitalist economy, the conclusions that would have established the inevitability of capitalism's collapse cannot be sustained note 4., at 112-15; see also W. Kymlicka, Liberalism, Community, and Culture (1989), 112 (making the same observation).
7. Cohen, It is by now widely recognized that, while aspects of Marx's framework may yet yield important insights about the operation of the capitalist economy, the conclusions that would have established the inevitability of capitalism's collapse cannot be sustained note 4 note 4, at 76, quoting K.Marx, Capital, Vol. I, trans. B. Fowkes (1976), 92.
8. Cohen, It is by now widely recognized that, while aspects of Marx's framework may yet yield important insights about the operation of the capitalist economy, the conclusions that would have established the inevitability of capitalism's collapse cannot be sustained note 4 note 4 note 4, at 77.
9. R. Luxemburg, ‘The Russian Revolution’, in ‘The Russian Revolution’ and ‘Leninism or Marxism?’ (1970), 70, quoted in Cohen, It is by now widely recognized that, while aspects of Marx's framework may yet yield important insights about the operation of the capitalist economy, the conclusions that would have established the inevitability of capitalism's collapse cannot be sustained note 4 note 4 note 4 note 4, at 196, n. 47.
10. The Marx-Engels Reader, ed. R. C. Tucker (1978) (hereafter MER), 483.
11. The Marx-Engels Reader., at 635-6.
12. Luxemburg, The Marx-Engels Reader note 10, at 69-70.
13. Cohen, The Marx-Engels Reader note 10 note 4, 108-9.
14. M. Krygier, ‘Marxism and the Rule of Law: Reflections After the Collapse of Communism’, (1990) 15 Law and Social Inquiry 633.
15. ‘Marxism and the Rule of Law: Reflections After the Collapse of Communism’., at 651 (footnotes omitted).
16. V. I. Lenin, ‘The Proletarian Revolution and the Renegade Kautsky’ (1918), in The Lenin Anthology, ed. R. C. Tucker (1975), 461, at 466. The need for this polemic against the then-leading theoretician of European Marxism itself demonstrates the controversial nature of Lenin's interpretation. At any rate, Lenin acknowledged that ‘dictatorship does not necessarily mean the abolition of democracy for the class that exercises the dictatorship over other classes’. ‘Marxism and the Rule of Law: Reflections After the Collapse of Communism’., at 465. His answer to Kautsky emphasized both the workers’ democratic participation in the soviets (councils) and their concrete realization of freedoms that had in the past been nominally guaranteed to all, but effectively enjoyed only by the bourgeoisie. Thus the new Soviet state was ‘a million times more democratic than the most democratic bourgeois republic’. ‘Marxism and the Rule of Law: Reflections After the Collapse of Communism’., at 470-1.
17. Compare E. P. Thompson, Whigs and Hunters (1975), 258-69, with M. J. Horwitz, ‘The Rule of Law: An Unqualified Human Good?’, (1977) 86 Yale Law Journal 561, at 566; A.Merritt, ‘The Nature of Law:A Criticism of E. P. Thompson's Whigs and Hunters’, (1980) 7 British Journal of Law and Society 194. Horwitz's response to Thompson is a classic: [The rule of law]undoubtedly restrains power, but it also prevents power's benevolent exercise. It creates formal equality-a not inconsiderable virtue-but it promotes substantive inequality by creating a consciousness that radically separates law from politics, means from ends, processes from outcomes. By promoting procedural justice it enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage. And it ratifies and legitimates an adversarial, competitive, and atomistic conception of human relations. (Horwitz, at 566)
18. MER, ‘The Rule of Law: An Unqualified Human Good?’ note 11, at 42.
19. The term ‘civil society’ is a source of great confusion.Marx, following Hegel, used that term to demarcate a realm of social life within which individuals pursue their private interests, as distinct from ‘political community’ (for Hegel, ‘the state'), a realm in which they pursue a common good. (This is an oversimplification, but a useful one.) Since the 1980s, however, the term has come to denote, especially in regard to Eastern Europe, a realm of civic association developing independently of the tentacles of the totalitarian state. These two uses of ‘civil society’ have overlapping elements, and it is frequently (but quite wrongly) imagined that Marx championed the crushing of civil society, in both senses, by the all-powerful socialist state. Thus arises Krygier's assertion that Marx was hostile ‘not to particular aspects of civil society, but to civil society tout court’, that he ‘hated and considered rightly doomed what the whole of eastern Europe is now wondering how to build or rebuild’. M. Krygier, ‘Marxism, Communism, and Narcissism’, (1990) 15 Law and Social Inquiry 707, 717. This assertion is, to put itmildly, highlymisleading.
20. MER, The term ‘civil society’ is a source of great confusion note 11, at 42.
21. MER., at 43.
22. MER., at 31. The point was not to disparage ‘political emancipation’, but to expose its limitations: ‘Political emancipation certainly represents a great progress. It is not, indeed, the final form of human emancipation, but it is the final form of human emancipation within the framework of the prevailing social order. It goes without saying that we are speaking here of real, practical emancipation.’ MER., at 35.
23. K.Marx, ‘Economic and PhilosophicManuscripts of 1844’, inMER, The point was not to disparage ‘political emancipation’, but to expose its limitations: ‘Political emancipation certainly represents a great progress note 11, 66, at 84.
24. K.Marx, ‘Critique of the Gotha Programme’, in MER, Economic and PhilosophicManuscripts of 1844 note 11, 525, at 531.
25. Engels characterized the transitional state as ‘at best an evil inherited by the proletariat’ whose ‘worst sides’ are to be ‘lopped off’, but that will persist in some form ‘until such time as a generation reared in new, free social conditions is able to throw the entire lumber of the state on the scrap heap’. F. Engels, ‘Introduction to The CivilWar in France’, MER, ‘Critique of the Gotha Programme’ note 11, at 629.
26. As Shlomo Avineri points out, ‘despite its superficial appearance as a narrative of the Commune's achievements’, The CivilWar in France was more an account of what Marx took to be its potential achievements. S. Avineri, The Social and Political Thought ofKarlMarx (1968), 241.Marx didnot (Engels's subsequent exuberance notwithstanding) regard the uprising as the true dawn of socialist revolution (the term ‘Commune’, it should be noted, referred not to communism but to the historical name of the Parismunicipal government), but he did seize the opportunity to project the initial direction of such a revolution. See Engels characterized the transitional state as ‘at best an evil inherited by the proletariat’ whose ‘worst sides’ are to be ‘lopped off’, but that will persist in some form ‘until such time as a generation reared in new, free social conditions is able to throw the entire lumber of the state on the scrap heap’., at 198-201, 239-49.
27. K.Marx, The Civil War in France, in MER, As Shlomo Avineri points out, ‘despite its superficial appearance as a narrative of the Commune's achievements’ note 11, at 618, 635-36.
28. The Civil War in France., at 633.
29. Engels, The Civil War in France note 28, at 626-27.
30. Engels., at 627.
31. Marx pointed out that under the French constitution, freedom of the press is denied ‘when it endangers public liberty’. This, forMarx, is another example of how liberalism subordinates the rights of the citizen to the imperative of preserving ‘the rights ofman’, i.e., order in ‘civil society’, by whichMarx meant the realm of competitive self-seeking. K.Marx, ‘On the Jewish Question’, inMER, Engels note 11, 44.
32. K. Marx, ‘Notes about the New Prussian Censorship Regulations’ [1842], quoted in S. Avineri, The Social and Political Thought of Karl Marx (1968), 188; cf. Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws [1748], ed. A. Cohler, B. Miller and H. Stone (1989), 198 (bk. XII, ch. 12) (vagueness of speech crimes destructive of liberty).
33. Luxemburg, ‘Notes about the New Prussian Censorship Regulations’ note 10, at 69.
34. ‘Notes about the New Prussian Censorship Regulations’ note 10., at 71.
35. ‘Notes about the New Prussian Censorship Regulations’ note 10., at 71-2.
36. L. Trotsky, The Revolution Betrayed (1972), 268-70.
37. Krygier's critique has both the strength and the weakness that it focuses on the ‘Marxism’ that has had a distinctive historical impact in its own name, at the expense of other variants, such as those that blended with liberalism to produce mainstream continental European social democracy. That focus leads him to count Lenin, Trotsky, and even Stalin as authentic continuators of Marxism, largely on the ground that they and their supporters sincerely believed them to be so. Krygier, The Revolution Betrayed note 21, at 707, 708 (his response to critics of the article cited above). Reading Marx through this lens, however, tends to overdetermine Krygier's conclusions, since communist interpretations of Marx were fashioned to reflect their authors’ policy objectives, and thus could scarcely be expected to emphasize any politically inconvenient aspects of the underlying theory.
38. M. Harrington, The Twilight of Capitalism (1976), 84-7. As Harrington notes, Stalin suppressed discussion of Marx's work in this area, precisely because it might have provided the basis for an indictment of Stalinist practice. Krygier's critique has both the strength and the weakness that it focuses on the ‘Marxism’ that has had a distinctive historical impact in its own name, at the expense of other variants, such as those that blended with liberalism to produce mainstream continental European social democracy., at 87.
39. See Avineri, As Harrington notes, Stalin suppressed discussion of Marx's work in this area, precisely because it might have provided the basis for an indictment of Stalinist practice note 29, at 187-8 ('Marx explains the reign of terror as derived from the Jacobin attempt to realize a political order still lacking its socio-economic preconditions. Recourse to terror is, according to Marx, an ultimate proof that the aims the revolution wishes to achieve cannot be achieved at present').
40. Engels, 'Marx explains the reign of terror as derived from the Jacobin attempt to realize a political order still lacking its socio-economic preconditions. Recourse to terror is, according to Marx, an ultimate proof that the aims the revolution wishes to achieve cannot be achieved at present’ note 28, at 626-8.
41. SeeN.Machiavelli, The Discourses [1521] (1970), 195 (bk. I, disc. 34); C. Schmitt, Political Theology [1922] (1985), 5-10; G. Schwab, The Challenge of the Exception (1989), 30-7.
42. It thus became possible for Trotsky to assert in 1921 that ‘the dictatorship does not base itself at every given moment on the formal principle of a workers’ democracy, although the workers’ democracy is, of course, the only method by which the masses can be drawn more and more into the political life’. The Party, he concluded, had the right ‘to assert its dictatorship even if that dictatorship temporarily clashed with the passing moods of workers’ democracy’. R. Miliband, Marxism and Politics (1977), 143, citing I. Deutscher, The Prophet Armed (1954), 509. Even Lenin's foremost rival among Russian Marxist theoreticians, Georgy Plekhanov, affirmed that ‘The success of the revolution is the highest law. And if, for the sake of that success, it would be necessary temporarily to limit the application of one or another democratic principle, it would be a crime to shrink from such a restriction.’ G. Plekhanov, Minutes of the Second Congress of the Russian Social Democratic Labor Party (1957), 182, quoted in R. A.Medvedev, The October Revolution, trans. G. Sanders (1979), 113.
43. One is reminded of Bertolt Brecht's poem facetiously suggesting, amid the 1953 East German uprising, that since ‘the people had forfeited the confidence of the government’, the solution was for the latter to ‘dissolve the people and elect another’. B. Brecht, ‘The Solution’, available at http://www.revolutionarydemocracy. org/rdv4n2/brecht.htm.
44. S. Lukes,Moral Conflict and Politics (1991), 173-88.
45. Moral Conflict and Politics., at 188.
46. See, e.g., R. A. Dworkin, A Matter of Principle (1985), 181-204, emphasizing as a defining characteristic of liberalism a scrupulous ‘neutrality’ in regard to citizens’ diverse views of the proper objects of human striving. Dworkin contrasts liberalism with the view that ‘the treatment government owes citizens is at least partly determined by some conception of the good life’, a view he associates with both ‘American conservatism and various forms of socialism or Marxism’. The term ‘teleological’, as used in this context, refers only to a telos inherent in purposely devised norms and institutions, and not specifically to the imputation of a telos to historical developments more generally, as in the Hegelian dialectic., at 192. Although a ‘perfectionist liberal’ school has arisen to take issue with this neutralist approach to liberalism, see, e.g., W. A. Galston, Liberal Purposes (1991); G. Sher, Beyond Neutrality: Perfectionism and Politics (1997), current theorists of the left have been slower to acknowledge a distinctive conception of the good, repelled as they are by the thought of even so abstract a kinship to conservatism, and disposed as they are to the limitless appreciation of ‘difference’.
47. In A Theory of Justice (1971), John Rawls was careful to distinguish between the two uses of this term, but did not pursue the question of their relationship. Dworkin contrasts liberalism with the view that ‘the treatment government owes citizens is at least partly determined by some conception of the good life’, a view he associates with both ‘American conservatism and various forms of socialism or Marxism’., at 30. Immanuel Kant is the source of both concepts, and he clearly understood them to be closely related. See M. Sandel, Liberalism and the Limits of Justice (1982), 4. Human rights scholarship has not, to my knowledge, focused directly on the question, but seems generally to assume that the two concepts go together.
48. These categories are owing toG. J.H. VanHoof, ‘The LegalNature of Economic, Social, and Cultural Rights: A Rebuttal of Some TraditionalViews’, in P.Alston and K. Tomasevski (eds.), The Right to Food (1984), 97; see also H. Shue, Basic Rights: Subsistence, Affluence, andUS Foreign Policy (1980), 35-64 (human rights entail correlative duties of protection and assistance, as well as non-deprivation).
49. One can, of course, reject this proliferation, and insist that only ‘first-generation’ rights should be considered human rights. See M. Cranston, ‘Are There Any Human Rights?’, (1983) 112 Daedalus 1. That insistence, however, has not gained wide acceptance in the contemporary human rightsmovement.
50. Ronald Beiner explores the consequences of this reality for ‘rights talk’ in What's theMatter with Liberalism? (1992), at 80-97; see also J.Gray, Two Faces of Liberalism (2000), at 69-104 (pointing out that core liberal values are regularly in conflict with one another).
51. Rawls, Ronald Beiner explores the consequences of this reality for ‘rights talk’ in What's theMatter with Liberalism? note 52, at 60-5, 302-3, 542-3.
52. Lukes, Ronald Beiner explores the consequences of this reality for ‘rights talk’ in What's theMatter with Liberalism? note 52 note 47, at 192-3.He goes on to say: ‘Machiavelli captured this dual structure perfectly when he said that in such cases, “while the act accuses, the result excuses”.’ Ronald Beiner explores the consequences of this reality for ‘rights talk’ in What's theMatter with Liberalism? note 52., at 193. Taken literally, the quotation suggests ameaning thatMachiavelli, inmyreading, did not intend.As a term of art, ‘excuse’, while sheltering the actor from blame on ground of diminished agency, concedes that the act is unjustifiable and ought not to have been done. See J. Dressler, ‘Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits’, (1989) 62 Southern California Law Review 1331, 1349 n. 124. Such was not Machiavelli's position on ruthless acts.
53. R. Nozick, Anarchy, State and Utopia (1974), 32-3, quoted in Lukes, Such was not Machiavelli's position on ruthless acts note 47, at 178.
54. Lukes, Anarchy note 47, at 196-7.
55. Anarchy note 47., at 208-9.
56. Marx, Introduction to the Contribution to the Critique of Hegel's Philosophy of Right, in MER, Anarchy note 47 note 11, at 60.
57. L. Trotsky, ‘TheirMorals and Ours’ [1938], in L. Trotsky, J.Dewey and G.Novak, TheirMorals and Ours:Marxist vs. Liberal Views onMorality (1973), 13, 48.
58. ‘TheirMorals and Ours’., at 39.
59. One might take the point still further and say that the revolutionary actor is, in some sense, not the true author of the violence inflicted on his victims. I imagine, though, that even Lenin and Trotsky would have repudiated this suggestion as a cowardly inversion of the hypocritical moralizing that they castigated.
60. Lukes indicates an acknowledgment that under certain conditions the demands of deontological morality must give way. Lukes, One might take the point still further and say that the revolutionary actor is, in some sense, not the true author of the violence inflicted on his victims note 47, at 178, 193.
61. There is a substantial literature on the ‘dirty hands’ problem, thatmetaphor being intended to imply that the moral need to commit the ruthless act does not remove the moral stain of having committed it.Appreciation of this paradox is often taken as a mark of sophistication and sensitivity. Nonetheless, the posited paradox opens the door to a hypocritical evasion of moral responsibility, wherein beneficiaries of ruthless acts can at once wish for the acts to be undertaken and participate (or at least acquiesce) in the castigation of the perpetrators. I find it difficult to see how this stance strikes a blow for rectitude, political or personal.
62. It was no accident that Lenin named his pathbreaking 1902 organizational tract, What Is to Be Done?, after an 1862 Russian populist novel of revolutionary heroism. N. Chernyshevsky, What Is to Be Done? (1983). The significance of Chernyshevsky's novel centres on the character Rakhmetov, a specimen of those men, ‘few in number,. the moving spirits behind all others, the very salt of the salt of the earth’. I find it difficult to see how this stance strikes a blow for rectitude, political or personal., at 320-1. Such men eliminate from their lives ‘all luxury and caprice’; ‘the private joys along their path are few’. Their ascetic and studious lives are structured to cultivate empathy for the common man and dedication to his liberation. It is a path that most men would not and could not follow, but that the few must pursue in the interests of all. See I find it difficult to see how this stance strikes a blow for rectitude, political or personal., at 309-11, 320-1, 342-4. Lenin's own lifestyle and his concern to forge a core group of ‘professional revolutionaries’ reflect Chernyshevsky's influence.
63. ‘[T]he great revolutionary end spurns those base means and ways which set one part of the working class against other parts, or attempts to make the masses happy without their participation; or lower the faith of themasses in themselves and their organization, replacing it by worship for the “leaders”.’ Trotsky, It was no accident that Lenin named his pathbreaking 1902 organizational tract, What Is to Be Done?, after an 1862 Russian populist novel of revolutionary heroism note 62, at 49.
64. J. Dewey, ‘Means and Ends’ [1938], in Trotsky, Dewey and Novak, ‘[T]he great revolutionary end spurns those base means and ways which set one part of the working class against other parts, or attempts to make the masses happy without their participation; or lower the faith of themasses in themselves and their organization, replacing it by worship for the “leaders”.’ note 62, at 67, 71.
65. See, e.g., B. Leiter, ‘Marxism and the Continuing Irrelevance of Normative Theory’, (2002) 54 Stanford Law Review 1129, 1142 (Marx's elaborations of the dialectical tendencies inherent in historical processes appear in the bulk of his work as ‘simply a gloss on ordinary causal explanations'); Harrington, ‘Means and Ends’ note 41, at 54 (Marx rested his conclusions on empirical studies of capitalism's dynamics, not on his dialectical characterizations of those dynamics), 81-2 (Marx's insistence that connections suggested by theory be supported by empirical observation).
66. According toMarx, the Commune, to protect the lives of its own partisans taken hostage by the enemy, was obliged to resort to the Prussian practice of securing hostages. The lives of the hostages had been forfeited over and over again by the continued shooting of prisoners on the part of the Versaillese. Howcould they be spared any longer after the carnagewithwhichMacMahon's praetorians celebrated their entry into Paris? Was even the last check upon the unscrupulous ferocity of bourgeois governments-the taking of hostages-to be made a mere sham of? (Trotsky, ‘Marxism and the Continuing Irrelevance of Normative Theory’ note 62, at 39, quoting circular authored by Marx and issued by the General Council of the First International, available at http://csf.colorado.edu/psn/marx/Archive/1864-IWMA/1871-CWF/cwf03.htm)
67. See Avineri, According toMarx, the Commune, to protect the lives of its own partisans taken hostage by the enemy, was obliged to resort to the Prussian practice of securing hostages note 29, at 187-8.
68. See C. B.Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (1962).
69. Representative works include: Rawls, The Political Theory of Possessive Individualism: Hobbes to Locke note 52; R. Dworkin, Sovereign Virtue: The Theory and Practice of Equality (2000); M. C. Nussbaum, Women and Human Development: The Capabilities Approach (2000); W. Kymlicka, Liberalism, Community, and Culture (1989); J.Waldron, Liberal Rights (1993).
70. See Krygier, Representative works include: Rawls note 15, at 639.
71. I. Berlin, ‘Two Concepts of Liberty’ [1958], in I. Berlin, Four Essays on Liberty (1969), 118, 124.
72. One of the greatest exponents of the rule of law, Lon Fuller, attributed to law an ‘internal morality’ entailing a set of formal qualities (i.e., that enactments be general, public, non-retroactive, clear, not in contradiction of one another, susceptible of compliance, stable, and enforced according to their terms) that are supposed to be ‘neutral toward substantive aims’. L. L. Fuller, TheMorality of Law (1969), 46-91, 153. Fuller recognized, however, that these qualities are realized in practice only to a greater or lesser extent, and that the internal morality is a matter of overall fulfilment of essential purposes ascribable to law. ‘[T]herewould’, for example, ‘be a certain occult unpersuasiveness in any assertion that retroactivity violates the very nature of law itself.’ Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, (1958) 71 Harvard Law Review 630, 650.
73. Thompson, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ note 18, at 266.
74. Marx, whose study of capitalism included a discourse on ‘commodity fetishism’, K. Marx, Capital, Vol. 1, in MER, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ note 18 note 11, at 319-29 (the ‘ultimatemoney-form of the world of commodities. conceals, instead of disclosing, the social character of private labour, and the social relations between the individual producers'), would surely be amused by today's tendency to fetishize market relations. The free-market rhetoric goes beyond likeningmarket forces to forces of ‘nature’ inthe physical sense, since science and technology operate to free human beings from natural limitations (such as the inability to fly); instead, the ‘nature’ metaphor seems to be a teleological one, an appeal to amorally ordered universe analogous to the appeal that underlies the claim that homosexuality is ‘unnatural’.
75. Illustrative is F. A. Hayek, The Constitution of Liberty (1960), 148-61. On the other hand, the same concerns about impositions of will can be adapted to justify casting redistribution of essential resources to the poor as amatter of unconditional right. See C. Reich, ‘The New Property’, (1964) 73 Yale Law Journal 733.
76. CompareG.H. Fox and G.Nolte, ‘Intolerant Democracies’, (1995) 35Harvard International Law Journal 1, with M. Koskenniemi, B. R. Roth,G.H. Fox and G.Nolte, ‘Responses’, (1996) 36Harvard International Law Journal 37 (debating the democraticmerit of repressive measures against anti-democratic parties), reprinted as adapted in G. H. Fox and B. R. Roth (eds.), Democratic Governance and International Law (2000), 389-448.
77. Schmitt, ‘Intolerant Democracies’ note 44, at 9-10.
78. H. Zinn, ‘The Conspiracy of Law’, in R. P.Wolff (ed.), The Rule of Law (1971), 15, 32.
79. S. Lukes, Power: A Radical View (1974), 24.
80. The quoted words are from Arts. 50 and 51 of the 1977 Soviet Constitution.
81. The requisites typically cited trackRobert Dahl's seven criteria of ‘polyarchy’-essentially, constitutional rule based on fair elections, combined with freedom of expression and of association. See R. A. Dahl, Democracy and Its Critics (1989), 233.
82. The contemporary comparative politics literature justifies rejecting teleological definitions of democracy on the ground that these render democraticperformance inherentlyunmeasurable by social science techniques. This justification is understood by social scientists to entail lightening the term's normative baggage-that is, identifying democracy as, at most, one of many political virtues. See S. Huntington, The Third Wave: Democratization in the Late Twentieth Century (1991), 5-13. Advocates of a human right to ‘democratic governance’ have nonetheless imported, rather dubiously, this simplification from the empirical into the normative realm.
83. See T.M. Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86 AJIL 46; G. H. Fox, ‘The Right to Political Participation in International Law’, (1992) 17 Yale Journal of International Law 539. For an overview of the issues raised by the claim, see G. H. Fox and B. R. Roth, ‘Democracy and International Law’, (2001) 27 Review of International Studies 327. For critical accounts of the ‘democratic entitlement’ claim, see B. R. Roth, Governmental Illegitimacy in International Law (1999); S.Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2000). For a sampling of competing evaluations, see Fox and Roth, The contemporary comparative politics literature justifies rejecting teleological definitions of democracy on the ground that these render democraticperformance inherentlyunmeasurable by social science techniques note 82.
84. See B. R. Roth, ‘Evaluating Democratic Progress: A Normative Theoretical Perspective’, (1995) 9 Ethics and International Affairs 55, reprinted in Fox and Roth, ‘The Emerging Right to Democratic Governance’ note 82, at 493; Roth, ‘Democratic Intolerance: Observations on Fox and Nolte’, (1996) 37 Harvard International Law Journal 235, repr. in Fox and Roth, ‘The Emerging Right to Democratic Governance’ note 82, at 441. For a remarkably ends-oriented account of liberal democracy, disparaging the conventional emphasis on electoral participation, see R. A. Dworkin, ‘The Moral Reading and the Majoritarian Premise’, in H. Hongju Koh and R. C. Slye (eds.), Deliberative Democracy and Human Rights (1999), 81.
85. B. Constant, ‘The Liberty of the Ancients Compared with that of theModerns’, in Benjamin Constant: Political Writings, trans. B. Fontana (1988), 307-28.
86. J.-J. Rousseau, ‘The Social Contract’, in Rousseau, The Social Contract and Discourses, trans. G. D. H. Cole (1973), 163, 204 (bk. II, ch. 11).
87. In J.-J. Rousseau's conception, ‘every authentic act of the generalwill binds or favors all citizens equally; so that the Sovereign recognizes only the body of the nation, and draws no distinctions between those ofwhom it is made up. The Sovereign never has a right to laymore charges on one subject than on another, because, in that case, the question becomes particular, and ceases to be within its competency.’ Rousseau, ‘The Social Contract’ note 92, at 163, 188 (bk. II, ch. 4) (emphasis added). Since ‘all continually will the happiness of each one’, and every citizen considers ‘each’ tomean himself, every citizenwill vote for the good of thewhole in consideration of his own good. ‘The Social Contract’., at 186-87 (bk. II, ch. 4).
88. ‘every authentic act of the generalwill binds or favors all citizens equally; so that the Sovereign recognizes only the body of the nation, and draws no distinctions between those ofwhom it is made up. The Sovereign never has a right to laymore charges on one subject than on another, because, in that case, the question becomes particular, and ceases to be within its competency.’., at 240 (bk. III, ch. 15). The functioning of the general will does not require, however, that individuals no longer differ in their interests and values. ‘If there were no different interests, the common interest would be barely felt, as it would encounter no obstacle; all would go on of its own accord, and politics would cease to be an art’. ‘every authentic act of the generalwill binds or favors all citizens equally; so that the Sovereign recognizes only the body of the nation, and draws no distinctions between those ofwhom it is made up. The Sovereign never has a right to laymore charges on one subject than on another, because, in that case, the question becomes particular, and ceases to be within its competency.’., 185, n.1 (bk. I, ch. 9). Rousseau and Marx are harmonized byWill Kymlicka's astute observation thatMarx's vision of end-stage communism entails the overcoming only of class antagonisms, not of conflicting individual goals and projects. Kymlicka, ‘every authentic act of the generalwill binds or favors all citizens equally; so that the Sovereign recognizes only the body of the nation, and draws no distinctions between those ofwhom it is made up. The Sovereign never has a right to laymore charges on one subject than on another, because, in that case, the question becomes particular, and ceases to be within its competency.’ note 75, at 118-19.NotwithstandingMarx's reservation of the word ‘political’ for modes of governance that entail class domination, it appears that end-stage communism's residual co-ordination authority was intended to embody a realization of the Rousseauian scheme.
89. Marx, The functioning of the general will does not require, however, that individuals no longer differ in their interests and values note 34, at 31.
90. L. Colletti, From Rousseau to Lenin: Studies in Ideology and Society, trans. J.Merrington and J. White (1972), 185.
91. SusanMarks exposes the prevailing vision of democratization as both shallow and narrow: shallow in that it identifies the democratic norm with a ‘low-intensity democracy’ that emphasizes electoral competition among elites at the expense of mass participation and empowerment; narrow in that it aims at democracy within the boundaries of each state-‘pan-national democracy’-without concern for democratic control of those realms of decision-making that are increasingly transnational. Marks, From Rousseau to Lenin: Studies in Ideology and Society note 89, at 50-100. In her view, assertions of an international democratic norm give an imprimatur to procedural reforms that are intended less as an opening to the thoroughgoing transformation of decision-making processes that govern economic and social life than as a strategy for deflecting pressures for such transformation.
92. Marx, SusanMarks exposes the prevailing vision of democratization as both shallow and narrow: shallow in that it identifies the democratic norm with a ‘low-intensity democracy’ that emphasizes electoral competition among elites at the expense of mass participation and empowerment; narrow in that it aims at democracy within the boundaries of each state-‘pan-national democracy’-without concern for democratic control of those realms of decision-making that are increasingly transnational note 26, at 84.
93. Nussbaum, SusanMarks exposes the prevailing vision of democratization as both shallow and narrow: shallow in that it identifies the democratic norm with a ‘low-intensity democracy’ that emphasizes electoral competition among elites at the expense of mass participation and empowerment; narrow in that it aims at democracy within the boundaries of each state-‘pan-national democracy’-without concern for democratic control of those realms of decision-making that are increasingly transnational note 26 note 75, 101.
94. For an elaboration of the ‘difference principle’ as the basis for distributive justice, see Rawls, SusanMarks exposes the prevailing vision of democratization as both shallow and narrow: shallow in that it identifies the democratic norm with a ‘low-intensity democracy’ that emphasizes electoral competition among elites at the expense of mass participation and empowerment; narrow in that it aims at democracy within the boundaries of each state-‘pan-national democracy’-without concern for democratic control of those realms of decision-making that are increasingly transnational note 26 note note 75, SusanMarks exposes the prevailing vision of democratization as both shallow and narrow: shallow in that it identifies the democratic norm with a ‘low-intensity democracy’ that emphasizes electoral competition among elites at the expense of mass participation and empowerment; narrow in that it aims at democracy within the boundaries of each state-‘pan-national democracy’-without concern for democratic control of those realms of decision-making that are increasingly transnational note 26 note note 52, at 75-83.
95. Marx, ‘Capital, Vol. III’, inMER, For an elaboration of the ‘difference principle’ as the basis for distributive justice note 11, at 441.
96. Marx, ‘Capital, Vol. III’ note 26, at 66, 76.
97. ‘Capital, Vol. III’ note 26., at 85 (emphasis in original).
98. ‘Capital, Vol. III’ note 26., at 86.
99. ‘Capital, Vol. III’ note 26., at 73-4.
100. ‘Capital, Vol. III’ note 26., at 93.
101. Marx, ‘Capital, Vol. III’ note 26 note 34, at 26, 42.
102. K.Marx and F. Engels, ‘TheManifesto of the Communist Party’ [1848], in MER, ‘Capital, Vol. III’ note 26 note 34 note 11, at 469, 491.
103. MER, ‘TheManifesto of the Communist Party’ note 11, at 441.
104. K.Marx, Theories of Surplus Value (1962), III, 257, quoted in Lukes, MER note 47, at 207.
105. The significance of a ‘positional’ good lies in the social status one gains by possessing it while others do not, or, more importantly, in the social status or access one loses by not possessing it while others do. A typical characteristic of positional goods is thatmost people would be better off if all entered into a binding agreement not to pursue them. See R. H. Frank, Choosing the Right Pond: Human Behavior and theQuest for Status (1985).
106. Elizabeth Anderson asserts that ‘the capabilities citizens need to function as equals in civil society count as neutral goods for purposes of justice not because everyone finds these capabilities equally valuable, but because reasonable people can recognize that these form a legitimate basis for making moral claims on one another’. E. S. Anderson, ‘What is the Point of Equality?’, (1999) 109 Ethics 287, at 330. Note, however, that this statement assumes it to be possible tomake a ‘neutral’ assessment of ‘what capabilities citizens need to function as equals in civil society’.
107. Formy effort to apply a parallel analysis to the liberationofwomen,seeB. R.Roth, ‘TheCEDAWas aCollective Approach toWomen's Rights’, (2002) 24 Michigan Journal of International Law 187.
108. W. Kendall, ‘The “Open Society” and Its Fallacies’, (1960) 54 American Political Science Review 972, 974.