Abstract
Recently, some scholars have sought to cast Marx and other socialists as participants in the republican tradition, expanding ideas such as non-domination and self-rule beyond what they had been typically conceived of as by many of the instigators of the revival of republican thought in recent decades. The ramifications of such an expansion, however, have not yet been fully grappled with in the area of rights. This article aims to remedy this by building a theory of social republican rights by drawing on both prongs of this framework. I argue that (1) rights ought to function primarily as instruments to overcome domination and that Marxist and socialist analysis identifies novel forms of domination missed by other republicans, (2) certain liberal rights are themselves vectors of domination, (3) rights are realised through active will formation in politics and the public sphere rather than being pre-political claims against these things, (4) rights should be based on a social ontology that is relational rather than individualist and (5) rights are powers that are struggled for and operate as zones of contestation rather than trans-historical principles.
Introduction
In 1871, Karl Marx wrote that the Paris Commune was established with cries of a ‘social republic’ which was ‘not only to supersede the monarchical form of class rule, but class rule itself’. What I refer to as ‘social republicanism’, a term derived from this declaration, is an associated set of views that has also been referred to as, amongst other names, labour republicanism (Gourevitch, 2015) and socialist republicanism (O'Shea, 2020), which crystallises around the idea of extending the republican dictum that ‘it is only possible to be free in a free state’ (Skinner, 1998: 60) to say ‘it is only possible to be free in a free society’ (Gourevitch, 2015: 133; Leipold, 2017: 8). Put in other terms, it argues that the concern for the propagation of freedom and avoidance of domination that for republicans animates the analysis of political and juridical institutions within a state should also animate analysis of broader economic and social relations, such as within the workplace. The consideration of what political institutions are most appropriate to secure republican values inevitably presents questions of rights, both in terms of the content of what people are entitled to from their state and each other if they are to be free from domination and practice self-rule responsibly, and also in terms of the nature and source of these entitlements. In this vein, much has been written in recent years about the relationship between republicanism and rights (see, e.g. Aitchison, 2017, 2020; Bellamy, 2012, 2013; Ivison, 2010; James, 2015; Sager, 2014). The very same questions, however, present themselves when the scope of analysis is broadened to social and economic institutions, and though there have been some more socially inclined republican interventions into debates about property rights (Simon, 1992), environmental rights (Dodsworth, 2021), and specifically named economic rights such as the right to strike (Gourevitch, 2016, 2018; Raekstad and Rossi, 2022), this remains something that has been under-examined in the social republican literature thus far. The aim of this article, therefore, is to systematically articulate and examine the component parts of such an account of social republican rights.
This article aims to make use of ideas that have emerged through the recent theorising and uncovering of a tendency to bring together the Marxist socialist and republican traditions with roots in the nineteenth century (see, e.g. Gourevitch, 2015; Leipold, 2017, 2020; Roberts, 2017) and deploy them in contemporary debates about rights, republican liberty and socialism. I attempt to bring together two lenses, those of Marxism and republicanism, and combine them in an analysis of a concept, specifically rights. The general perspective created by applying both these lenses at once and combining them, what I call social republicanism, 1 has received a lot of significant recent treatment in the literature, and the analysis of rights through either of these individual lenses is also something that has often been addressed in the literature with many long-running debates still going, often concerning whether rights as an idea should have a place at all within either of the two traditions. Where there has appeared to be a gap in the literature up until this point is in applying the combined social republican perspective to the concept of rights specifically. My aim here is to provide such an analysis and in doing so point to some possible answers to and new perspectives on debates about rights within both the socialist and republican traditions.
There are three main contributions I make in this process. Firstly, I push back against the scepticism of the very idea of rights that exists within the Marxist socialist tradition, instead arguing that rights can be zones of struggle; crucial instruments in securing freedom as non-domination. From a Marxist perspective, this involves staking out ground between what Raekstad (2022: 222) calls the moralist (Cohen, 2008, 2009; Geras, 1985, 1992) and amoralist (Wood, 1972, 1979, 2004) readings of Marx. I avoid a moralist reading based on thick principles of justice, but similarly, I do not attempt to avoid any references to normativity. It would be impossible to discuss concepts such as liberty at all if I relied on a fully amoralist reading given many of the scholars whose work I make use of here do think that Marx at the very least believed ideas such as self-rule and non-domination were salient. Second, I demonstrate that there are under-acknowledged affinities between Marxist and republican understandings of rights, both in terms of their critiques of liberal forms and in their general social ontologies which present the possibility of a different account. Analysing these affinities is crucial in uncovering the specific role rights can play from a social republican perspective. Thirdly, I show that socialists and/or republicans who care about rights should adopt this social republican perspective and that both lenses are necessary for a full perspective; republicanism sketches out a form and role for rights that Marxists can be comfortable with, and Marxist and socialist analysis provides an expansion of the content of republican rights that is crucial in bringing to light the myriad forms that domination can take. Within this, I demonstrate how and why this account differs from a standard republican view.
My argument proceeds in four parts. Firstly, I give some background to and a broad overview of social republicanism as a general tendency, detailing some of its main concerns surrounding freedom as non-domination, self-rule and civic virtue. Following this, and before making my positive case, I engage with what I see as one of the main objections to a social republican theory of rights; that its Marxist component parts necessarily preclude a fruitful engagement with rights theory. Having established that they do not, the next section lays out the skeleton of a systematic approach to the area of rights, articulating and examining five core characteristics of a social republican theory of rights. Across these, I argue that if republican rights should be viewed as instruments to promote freedom as non-domination, then what is distinctive about the content of social republican rights are the novel forms of domination identified by socialists, and identify affinities between republican and Marxist orientations towards the nature and function of rights. Finally, I close by addressing possible neo-republican responses to my position, specifically focusing on disagreement over where domination can and cannot occur.
Adding the ‘social’ to the republic
In very broad (and non-exhaustive) terms, there are three overlapping concepts that republicans tend to be distinctively concerned with. First is the theory of republican liberty which sees freedom as non-domination or independence. In this view, somebody is free only if they are not subjugated to the will of another arbitrarily (Pettit, 1997: 22). To refer to the classic illustrative example, a slave is still a slave even if their master is benevolent and does not ask anything of them. The very fact that the master can demand anything of their slave on a whim creates a state of unfreedom and servitude (Lovett, 2022). Second is the idea of self-rule. Republicans, connected to their understanding of freedom, tend to believe that free people should rule themselves and advocate for political institutions suitable for this. Historically this has often, though not always, meant opposition to the arbitrary power of monarchs and advocacy for some form of democratic representation. Third is the idea of civic virtue; that is to say, republicans typically believe that citizens should be equipped with the characteristics and traits necessary for the responsible exercise of collective self-rule. This entails most fundamentally a willingness to put the public good over private interest in matters of politics (Lovett, 2022; Pettit, 1997). Crucially, independence is often viewed as absolutely vital for inculcating a sense of civic virtue, and the characteristics of those in a state of servitude, including wage labour, are often viewed as completely unsuitable for the inculcation of this virtue (Gourevitch, 2015: 175).
The essence of social republican thought involves translating these key republican concepts to apply to the economy and society more broadly. Firstly, let us consider freedom as non-domination. As Gourevitch (2015: 112–113) explains, many nineteenth-century labour republicans argued that constitutive characteristics of the labour market under capitalism necessitated a form of impersonal domination. By this argument, it does not matter if no arbitrary interference or domination was involved in its inception, a particular distribution of wealth and property rights would still be illegitimate if that distribution enforced relationships of dependence. Private ownership of the means of production coupled with the specific character of labour as a commodity under capitalism creates such a situation. Workers cannot meaningfully withhold their labour as any other commodity could usually be withheld because selling their labour is the only way to secure food and shelter, and therefore survive. Importantly, this holds true even if the labour market is regulated to avoid the worst abuses of such a situation. So long as the means of production are privately owned by members of one class but not another the latter class has no option but to labour for the profit of the former class. If slavery is defined as ‘being compelled to labour, while the proceeds of that labour is taken’ (Gourevitch, 2015: 82), then it is not really relevant that under capitalism the free choice of a master is notionally available to workers; what matters is that one is compelled to have a master in the first place. Identifying structural domination in the market in this way has become something of a lodestone in contemporary social republican scholarship (see, e.g. Cicerchia, 2022; Muldoon, 2021, 2022). Indeed, Cicerchia (2021) has argued that it is this specific form of structural domination that makes class a normatively salient identity category.
It is structural domination in the market writ large that is the primary cause of personal domination in the relationships between employer and employee (Cicerchia, 2022; Muldoon, 2021, 2022; Roberts, 2017; Thompson, 2019). Specifically, workers are in the first instance dominated by the background conditions of the labour market, and it is this structural domination that enables personal domination by individual capitalists and their representatives in factories. Leipold (2022: 197) argues that Marx identifies three moments of domination in this process. First is the structural domination through the labour market discussed above. Second is the fact that in the moment of contract, structural and interpersonal domination allows the capitalist to extract as much surplus labour as possible in the form of profit. Finally, the worker is subject to personal domination inside the factory. For Marx, this means the worker is a slave both to the capitalist class and the individual capitalist, and it leads to, as he describes in Capital Volume I, a situation where the worker is ‘…timid and holding back, like one who is bringing his own hide to market and has nothing to expect but – a hiding’ (Marx, 1976: 280). It is worth flagging that Phillip Pettit pushes back strongly against this view, but I will return to his response in the final section.
The upshot of all of this, however, is that the primary enabler of this situation of personal domination is the structural domination of the labour market, and regulations that do not change the nature of this structure cannot abolish this domination. There is a textured insecurity inherent to most worker–boss relations in a capitalist labour market because the worker is still subject to the whims of their manager outside the exact parameters of those protections with the only alternative being unemployment. Even the process of actually reporting violations of these protections is coloured by this insecurity given that most workers fear angering their managers and bosses because of the control they exercise over them.
William Clare Roberts identifies further forms of personal domination in the capitalist market, using Marx's critique of political economy to argue that the structural domination produced through market relations is itself personal and derived from the wills of agents even as it appears to be entirely abstract. This is hidden because the fetish character of commodities veils the social relations between people inherent in production and circulation and presents them as relations between objects instead – simply put, if I buy a commodity like a can of coke all I see is the ‘thing’ and not the network of people responsible for producing and bringing the thing to market (Roberts, 2017; see also Heinrich, 2012: 70–79; Marx, 1976: 163–178). For Roberts and Marx, what is hidden is that all participants in the market, producers and consumers, labourers, and even capitalists, are subject to the whims and desires of individual people. The parameters of any market situation are established by an unknown network of buyers and sellers and their arbitrary wants. To attain the things needed for survival, people must participate in markets and this creates dependency upon arbitrary and incontestable actions at every level. This is a relationship of domination, therefore, even though the domination is unintended. For Roberts, Marx's critique of political economy in this way identifies domination in a fundamentally uncontrollable market that ‘…leaves us unfree because it renders us systematically irresponsible for our economic life’. The freedom of the market is, therefore, ‘the domination of the mass of producers’ (Roberts, 2017: 101).
Similar logics apply to social republican understanding of the principle of self-rule as to liberty; namely that it should be deepened and applied to the economy. In the first instance, this entails a more radical understanding of democracy and a more accountable form of democratic representation. Illustrative of this was Marx's analysis of the Paris Commune and his call for a ‘social republic’ based on this experience. As Leipold (2020: 182; Marx, 2019) explains, Marx felt that it had demonstrated the need to unmake the machinery of the bourgeois state and instead create institutions that would transform representative government into a model of popular delegacy, constantly subject to recalls in order to keep delegates accountable. The institutions of the capitalist state are not facilitative of true self-rule and therefore need to be removed and replaced by institutions that do facilitate it. Further, if domination is something that is mediated through the market and economy, then self-rule must be applied in these spheres as well. Free people must rule themselves in order not to be subjected to tyranny, but similarly, free workers must rule their own workplace in order not to be subjected to the tyranny of their bosses. And if the arbitrary whims and desires of individual wills within the market create interdependent networks of domination to which all participants in the market are subject, then the only way to begin to curb that is through a democratically controlled and publicly owned economy, not one controlled by an unaccountable bureaucracy, but one subject to the processes of popular democratic governance.
Most republicans will recognise that the practice of self-rule is intertwined with the inculcation of civic virtue. It is participation in self-rule through which citizens develop traits that prevent them from falling into relationships of dependence on powerful political and social actors (Lovett, 2022; Pettit, 1997; Skinner, 1998). A key point the inculcation of civic virtue is necessary to transform political and economic institutions, not just to preserve them. As Alex Gourevitch documents, labour republicans therefore cultivated a practice of extending solidarity to one another in order to inculcate this virtue. This was because the state institutions they sought to change were hardly going to inculcate the kinds of characteristics that would bring about their own downfall. Working classes needed to create their own institutions, of education and of mutual aid amongst many others, in order to produce radical republican virtue (Gourevitch, 2016: 144–178; Gourevitch, 2020).
Marxism and rights
Thus far I have emphasized the degree to which social republicanism can utilise a specifically Marxist perspective to identify novel forms of domination (as well as the sources of those forms of domination), in a way that differs from a standard neo-republican account. Insofar as this article is concerned with social republican rights, it is therefore necessary to address the commonly held position that a Marxist perspective is incompatible with rights. It is beyond my scope here to engage in a fully systematic refutation of this view (see, e.g. Campbell, 1983; O’Connell, 2021; Shoikhedbrod, 2019), but it is still a useful exercise to trace out the outline of what I think are the strongest responses to this position and to point to reasons why I think some Marxist concerns with liberal rights ought not apply to social republican rights. In doing so I hope to at the very least convince the reader that the claim that a conception of rights can be derived partially from a Marxist perspective is plausible, something which is a precondition for accepting a social republican account.
Broadly considered, there are three families of arguments that those hostile to rights tend to advance. The first kind of argument concerns the undeniably true claim that Marx himself frequently spoke against rights. As will be discussed below, a tirade against the ‘Rights of Man’ forms the central fulcrum of his critique of Bruno Bauer in On the Jewish Question, and to take a much later example, he dismisses rights as ‘pretty little gewgaws’ in Critique of the Gotha Programme (2019a: 1040). What can be said in response to this is that those inclined can also find evidence of him supporting specific rights claims. His early work, for example, often contained defences of freedom of speech and assembly (see, e.g. Marx, 1975, 1987), and in his later work, he spoke approvingly of struggles for worker rights and suffrage rights by the British working class. Marx did recognise the limits of what those rights could mean, but that is not the same thing as saying they are meaningless or indefensible (Smith, 2017: 59). Additionally, it is at the very least ambiguous as to whether Marx's target when he did criticise rights was the category of rights in general or a specific way of thinking about them (see, e.g. Bartholomew, 1990; Lacroix and Pranchére, 2013; Leopold, 2007: 157; Smith, 2017: 60). In any case, what Marx ‘actually thought’ should not be taken as a catechism here. ‘Marxism’ is a developing and changing body of work beyond just the man himself, and of more import is the fact that there are many who have operated within or adjacent to the Marxist tradition who show the perception that rejecting rights is inherent to an approach inspired by Marx is mistaken, and I will touch on numerous examples of this below.
The second family of anti-rights arguments within Marxism comes primarily from the work of the Soviet jurist Evgeny Pashukanis in his General Theory of Law and Marxism. His central claim was that capitalist legality was unique because it presupposed a specific kind of juridical personhood built upon each individual's equal right to exchange commodities on the market. Since socialism or communism ought not to be based on commodity exchange in the same way, there would be no need for law as such or any of the rights that flow from it. All that would be required are mere technical regulations (Pashukanis, 1978: 111; see Miéville, 2006 for a more contemporary iteration of his central argument as applied to international law). Against this view, Igor Shoikhedbrod points out that Pashukanis’ conception of rights is horribly limited because it only focuses on private law and the regulation of commodity exchange between private individuals. Even if socialism were to abolish markets there would still need to be a way to conceptualise the relationships between citizens and the state, and between individual producers and public power (Shoikhedbrod, 2019: 103–104). Some normative underpinning beyond mere ‘technical administration’ is required if democratic governance of the economy is to avoid the bureaucratic stagnation Luxemburg describes above, which means we cannot simply wave away the question of rights.
The third and final family of arguments advanced against rights within the Marxist tradition is the idea that they are ideological constructs that protect the interests of the ruling class. This is linked to the previous argument, since the kinds of interests they are commonly conceived of as protecting under capitalism are those underpinned by commodity exchange. If, as Marx says, the ruling ideas of an epoch are ever the ideas of its ruling class (1998: 67), then rights, as a subset of those ruling ideas, will only ever function to mystify the material interest of the capitalist class and will use the language of normativity to grant them a false legitimacy. Declaring a right to housing, to pick one example, does not actually achieve anything on its own because the question of rights, and law more broadly, is ultimately just a manifestation of underlying material economic relations. This structuralist–functionalist account is most associated with structuralist Marxists such as Louis Althusser and Nicos Poulantzas and it sees law and rights as essentially ideological mechanisms that ensure the reproduction of the state and the prevailing economic order. This led Althusser to argue that ‘all law is by essence … inegalitarian and bourgeois’ (2014: 59). Poulantzas, for his part, left more room for the relative autonomy of the state and the law, but still saw law and rights as ‘an important factor in organising the dominated classes’ (1980: 83) because that autonomy is in the first instance limited by the underlying economic base (O’Connell, 2021: 465).
As we will see, the social republican conception of rights as zones of contestation shaped by the material power of social movements and oppressed classes, as well as that of ruling classes and the state, speaks very directly to this kind of argument. Recent arguments made within Marxist legal scholarship also chime with this conception. O’Connell (2021; see also Brabazon, 2021 and Shoikhedbrod, 2021), for example, has pointed out that this orientation engenders a ‘political quietism’ which ignores the potential of rights as a zone of struggle. For him, Althusser, Poulantzas and Pashukanis are far too quick to dismiss rights and the legal dimension more broadly as merely epiphenomenal of the basic economic structure. The reality is that the ‘superstructure’ cannot be so easily separated from the ‘base’, and that sometimes rights and law can be part of the means through which the underlying economic structure is changed. Though in this view rights are purely instrumental, the role the demanding of rights can play in the self-expression of oppressed classes can be ‘integral to building and supporting movements for more fundamental social change’ (O’Connell, 2021: 472). O’Byrne (2019: 642) agrees, arguing that ‘rights are constantly being “invented” in struggles against previously unrecognised tyrannies, and that the politics of rights is in their naming rather than their upholding.’ He thinks that we can see the basis of this in Marx's work, which contains gestures towards ‘…the potential realisation of ‘human rights’ in the reunion of the individual and society’. As we will see in the next section, the addition of a republican perspective can greatly aid us in attempting to theorise and extricate this potential.
In summary, the classical liberal conception of rights that Marx criticises is one that is also rejected by my social republican view, and Marxism more generally does not reject the idea of rights as understood by a social republican account.
The characteristics of a social republican theory of rights
Having provided a survey of social republican concerns, and having demonstrated that a Marxist perspective does not entail rejecting rights wholesale, this section explains how these concerns can be translated into an account of rights. Here, I examine the substantive content of rights entailed by a social republican orientation as well as putting forward a theory of the broader function and purpose of rights that flows from social republican ideals. In doing this, I articulate five core characteristics of a social republican theory of rights, concerning both their substantive content and their broader function.
(i) Rights should primarily be instruments aimed at securing the proliferation of non-domination
The first thing to note here is that rights perform a fundamentally different function in a republican, and hence social republican, worldview than in a liberal one. As Aitchison (2020: 103) points out, they do not play a morally foundational role for republicans in the same way they do for liberals. For most republicans, rights do not and should not reflect morally inviolable properties held by all human beings. And because republicans are often very dismissive of such notions, core components of the entire tradition are sometimes held to be at odds with the very idea of rights in the first place (Aitchison, 2020: 103; Ivison, 2010: 32). Even if they are not morally foundational, however, rights can play a crucial role as instruments in securing other important goods. As already outlined, chief amongst these goods for many republicans is the ideal of freedom as non-domination. This means that from this perspective there is a consequentialist justification for rights as a by-product of the general need to propagate freedom as non-domination, as well as rights as results of decisions made through legitimate juridical and democratic processes (see, e.g. Sunstein, 1988). As Duncan Ivison argues, the question in this context becomes ‘…what conception of… rights best promotes freedom as nondomination? Are our practices of… rights effective instruments for minimizing domination?’ (Ivison, 2010: 31). What is distinctive about my social republican view on this issue is that it will have a different answer to these questions than the standard neo-republican account. This is because this perspective grants us the tools to identify novel forms of domination and hence requires an understanding of rights that is expanded and calibrated to propagate and defend freedom in the face of the problem of domination as mediated through the market and the economy.
There is still a justification for what would usually be understood by liberals as basic civil and political rights, though different to the liberal understanding. Rosa Luxemburg (1961: 67), for example, argues that ‘Freedom only for the supporters of the government, only for members of one party…. …is no freedom at all’ because ‘…without unrestricted freedom of press and assembly, without a free struggle of opinion, life dies out in every public institution, becomes a mere semblance of life in which only the bureaucracy remains an active element’. Her argument for the right to free speech is not that it is an inherent, individualised inviolable part of each individual person, but rather that it is an instrument to secure the individual and collective development required for democratic self-government and to resist domination in that sphere. This, for now, remains congruent with a standard neo-republican understanding. My approach moves beyond this by providing the justification for a much-expanded conception of those civil and political rights, as well as a suite of positive economic and social rights. What is especially distinctive here is that many rights liberals and other republicans would understand as positive economic and social rights themselves become basic civic and political rights based on the expanded social republican understanding of domination. If domination proliferates through market relations, then rights that secure freedom in resistance to this have the same lexical priority as rights such as freedom of speech which secure freedom against political tyranny. Indeed, the conception of what political tyranny encompasses expands to include, for example, domination in the workplace and the structural domination of the market. My argument here, for example, entails advocacy for an extensive and strong set of workers’ rights, most importantly including the right to democratic governance of the firms they work in, as a matter of civic and political liberty.
(ii) Liberal rights can be sources of domination
Advocating for such an expanded conception of worker rights brings social republicanism into conflict with certain basic economic rights held to be foundational by liberals in that worker-owned firms as a requirement to secure freedom would seem to be incompatible with the basic ownership rights of private individuals. Specifically, it motivates the transformation of currently private enterprises into firms at least in part run and owned by workers regardless of the will of current shareholders. This is true even in an iteration that sees some role for limited private ownership alongside worker-owned firms. An important characteristic of my approach to rights here is not merely to solve this dilemma by demonstrating the priority of the former set of rights over the latter, it is also to argue that the latter should have no priority whatsoever because they are themselves vectors of domination.
To illustrate this, it is useful to examine Alex Gourevitch's (2016, 2018, 2020a) recent analysis of the right to strike. This right can be justified as a negative right that exists as a basic economic liberty; it would be an unjustifiable interference with individual workers if they were not allowed to strike. Indeed, this is the approach many liberals have historically taken (Gourevitch, 2016: 307). A problem emerges, however, when we consider that a right to strike with any kind of teeth behind it is necessarily illiberal. Whether this be in the form of specific actions taken by striking workers such as picket lines, or laws that exist around the right to strike that prevent employers from firing workers, a substantial right to strike appears to violate the basic economic rights of others. This is because for Gourevitch, a right to strike is not just a right to quit a job, but rather a right to abandon working obligations while maintaining a claim over the job, something that appears to give workers an unjustifiable privilege from many liberal perspectives. Gourevitch's response to this is to argue that the right to strike is not really a negative economic right at all, but rather ‘…a political right that individuals claim against an unjust system of law and property in the name of… emancipation’ (Gourevitch, 2016: 308). A substantial right to strike is a necessary tool that enables workers to resist the structural domination of the labour market and the personal domination within the workplace that this enables. Gourevitch calls this a ‘radical’ approach to the right to strike, distinguishing it from both classical liberal and social democratic approaches. In this view, the guiding orientation of a right has little to do with distributive justice or fair contract, but rather ‘…as an interest in claiming freedom against its illegitimate limitation’ (Gourevitch, 2018: 914).
Raekstad and Rossi (2022) take this argument even further in resolving the conflict between rights to resist domination and liberal economic rights. For them, it is not so much a matter of competing priorities that need to be carefully weighed, but instead one of observing that under capitalism certain basic liberal rights, especially those relating to private ownership of the means of production, should not be granted any priority and indeed should be rejected wholesale because they act to secure and perpetuate domination and oppression (Raekstad and Rossi, 2022: 358). The oppression that workers experience in the labour market, both structural and personal, occurs in large part because the means of production are privately owned. Similarly, the veiled and unintended personal domination through the market that William Clare Roberts identifies in Marx's critique of political economy occurs because the system of private ownership is specifically calibrated that way. As he points out, such negative rights are presented as guarantors of freedom in a capitalist society, but in actual fact are manifestations of ‘a system in which “the most complete subjugation of individuality under social conditions assuming the form of objective powers” nonetheless appears as a system of “individual freedom”’ (Marx, 1976: 652; Roberts, 2017: 53). The upshot of all this is that ‘basic’ negative rights of private ownership of property must no longer be viewed as basic if the aim of rights is securing freedom as non-domination.
(iii) Rights are not claims against politics, they are secured through politics
For many liberals, one of the main functions of rights is for them to operate as pre-political claims against the state. The reason many rights exist in the first place is that there exists a private zone of freedom for each individual within which it is illegitimate for the state to interfere. Rights in this view enshrine this zone and act as its final defence against politics. Indeed this separation of public and private spheres is integral to what liberalism is. Individuals may want to cooperate, but they should also always be allowed to retreat into a zone free from unwanted interference. In effect, political society only exists so as to better protect and enforce these private individual rights. This tendency is most conspicuous in the Lockean tradition of natural rights liberalism which treats rights as the naturally given moral property of individuals, especially in Robert Nozick's (1974) conception of rights as side constraints), but the extent to which this description applies to the liberal egalitarianism of, for example, John Rawls is a bit less clear cut. Rawls does identify fundamental ‘basic liberties’, many of which act as rights claims against the state rather than things which are formed through politics, but he is also happy to allow for the fact that freedom can only be secured through careful institutional design (Rawls, 1999, 2005). Meanwhile, another prominent liberal egalitarian, Martha Nussbaum, has described her 10 ‘basic capabilities’, which she explicitly frames using the overlapping consensus of Rawls’ political liberalism, as ‘pre-political’ (Nussbaum, 2011: 25). If Lockean liberalism takes the view that all rights are natural and pre-political and if, as I argue below, republicanism takes the view that all rights are institutional, then I think it is reasonable to say that liberal egalitarianism sits somewhere between those two points. My purpose here is not necessarily to criticise the liberal egalitarian position, however. Rather I am attempting to illustrate the ways in which a republican orientation leads to different emphases.
Republicans tend to be highly sceptical of the idea of rights as pre-political claims as well as the idea of a hallowed private sphere unsullied by politics. For them, political society absolutely should not exist to enforce transcendent individualised rights claims. Rights should not be the determinant of political activity, but rather the product of political deliberations and agreements among citizens about how political power should be used and distributed (Aitchison, 2020: 342; Sunstein, 1988). Bellamy (2012, 2013) has argued that though individuals may possess different rights claims, democracy is the only way through which these claims can be mediated and concretised, whilst Duncan Ivison (2010: 32) points out that the very conditions for individual rights depend on collective processes of will formation through politics and in the state.
Where I go beyond a standard neo-republican understanding here is by bringing the implications of rejecting the liberal notion of an enshrined private sphere protected by politics to full fruition. Negative economic rights, such as private property, should be seen not as pre-political claims against the state but rather as subject to the same processes of democratic deliberation so hallowed by other republicans when it comes to political rights. In fitting with the expanded social republican conception of political rights to the economy and society, the scope of this deliberation should also expand. A properly social republican set of rights, then, would not only be subject to will formation in the state, but also be subject to will formation in the process of the democratic organisation and control of the economy (see Simon, 1992 for an examination of how social republican property might work in securing this goal).
Additionally, there is a clear affinity between this general critique of the liberal divide between the public and private sphere and Marx's critique of ‘The Rights of Man’. In On the Jewish Question, Marx argues that the problem with the ‘The Rights of Man’ was precisely that they enshrine the divide between the private and public spheres. Rights as pre-political individualised claims mean that the state and politics become entirely subjugated to the logic of protecting and furthering private interests. For him, this ‘makes every man see in other men not the realization of his own freedom, but the barrier to it’ (Marx, 1978: 42). Other individuals are seen not as the possibility of realising rights, but rather as their biggest threat. Conceiving of rights in such an individualistic manner opposes our individual interests to our social interests and instead, the only bonds that tie us together are those of absolute necessity and private interest. The political community itself. The realm where we can act communally is degraded by being subsumed almost entirely to the furthering of private interest. Though this argument is often taken to mean that Marx was dead set against rights in general, he is targeting the content of a very specific set of named rights (Leopold, 2007: 157) Importantly, these kinds of rights stood in contrast to what Marx called the ‘Rights of the Citizen’ which were, ‘political rights, rights that can only be exercised in a community with others’ (Marx, 1978: 41)
(iv) Rights are based on a relational social ontology
The various failures of these ‘Rights of Man’ are clearly inimical to the cultivation of civic virtue and practice of responsible collective self-rule, but for Marx, this state of affairs is also harmful because it is atomising. Marx thinks this is especially pernicious because humans are fundamentally social creatures. Across different times and modes of production, we have always worked and lived together and in this way, our individual interests are inherently intertwined with a collective. That is to say that the way Marx analyses rights points to an underlying ontology that is not individualist. There is a clear affinity between this and the way rights are considered in much republican thought. As Guy Aitchison argues (2017, 2020), republicans also reject an atomistic conception of the individual rights-barer and their ‘self-regarding concern with private affairs over their capacity to care for and uphold the common good’ which tends to go hand in hand with this (Aitchison, 2017: 342). This view is not only descriptively wrong, but normatively perverse; as Quentin Skinner argues, solely using the state to defend rights seen as personal moral property against interference is a corrupt form of citizenship consisting of not only a dereliction of duty to the common good but also a failure to understand the conditions that make freedom possible in the first place (Aitchison, 2017: 343; Skinner, 1986: 243).
Typically in debates over social ontologies within social theory, there is a binary set-up between methodological-individualist/atomist ontologies, where the individual is considered to be the primary unit of analysis, and holist ontologies, where society as a whole is viewed as prior (see Taylor, 2003 for a summary of this debate). Republicans and Marxists, however, share a perspective which flatly rejects this binary. Though as outlined they both argue against the individualist ontology favoured by most liberalisms, this does not necessarily entail holism and the subjugation of the individual to the whole. From the republican perspective, Aitchison continues, rights must be dualistic and relational in that they should promote the common good alongside rather than at the expense of the good of individuals, and as a precondition to those individuals’ freedom (Aitchison, 2017: 343). The way that this is to be done is to recognise the relations between people and the web of interdependency this promotes as the primary unit of analysis above the isolated individual or undivided social whole. Marxism also occupies a space which rejects the atomised individual as the fundamental unit of analysis in social theory, and also still advocates for individual freedom of a kind. As Etienne Balibar explains, Marx identifies a spectrum within which they are both intertwined, noting that Marxism requires ‘…a practice which never opposes the individual's self-realisation to the interests of the community and indeed does not even separate these, but always seeks to accomplish the one by accomplishing the other’ (Balibar, 2017: 32). The point being made here is an ontological one; Marx's mode of analysis ‘rejects both the individualist point of view: primacy of the individual and, especially, the fiction of an individuality which could be defined in itself, in isolation…’ and the ‘holistic point of view: the primacy of the whole, and particularly of society considered as an indivisible unity’ (Balibar, 2017: 31). Instead we have a relational ontology based ‘…not what is ideally “in” each individual, or what would serve, from outside, to classify that individual, but what exists between individuals by dint of their multiple interactions’ (Balibar, 2017: 32). A relational ontology with regard to rights sees as its fundamental unit of analysis, not the isolated individual, nor the whole of society, but rather the relations between individuals. It understands that the whole is made up of individual units, but that those individuals are themselves wholly constituted by their relations to one another (see Gould, 1980 for an in-depth examination of Marx's social ontology).
To draw out the affinity, Michael Thompson stresses the republican structure of Marx's invocation of a ‘greater whole’, not as a moral whole prior to individuals, ‘…but rather an interdependent nexus of social relations where each members’ dependence on the other is reciprocal and mutual and the cooperative activities of all members with others enriches and expands the development and freedom of the individual’ (Thompson, 2019: 398). Based on this, then, we should see the fulfilment and recognition of our interdependence with others as the real alternative to relationships of dependence and domination (Thompson, 2019: 396). My position, therefore, is that we should be sceptical of rights that push forward an illusory notion of total independence and observe the atomising tendencies inherent to such conceptions. Instead, rights should cultivate and protect the kinds of interdependent relationships most suited to collectively resisting domination and propagating freedom in both political institutions and the economy. The claim that individuals within a society are all to some degree interdependent on one other probably seems trivially true, but the point here is to centre the kinds of relations that exist within those relationships in our analysis of rights, which is something that is not often done in more liberal approaches and not taken to the extent of its logical conclusion by other republican approaches.
There are two clear ramifications from this, both of which dovetail neatly with the other characteristics I have identified in this section. The first is that the existence of formal individual rights does not actually have much effect if the structure of the web of interdependency that the individual in question is embedded within is not itself changed to reflect the material content of that right. Workers’ rights, for example, do not have material effects where power has not been deployed to reshape the social relations between workers themselves and between workers and their bosses. Without the reshaping of relations, workers can be dominated by bosses regardless of formal legal rights (though as we will see below the declaration of rights can itself be part of the process of building and deploying this power). The second important ramification to note here is that there are different kinds of interdependent relationships which exist regardless of whether or not we centre them in our analysis or not. To make a very Marxist point, the idea of rights as individual properties that individuals possess rather than being bound up in relations is a process of reification (see Lukacs, 1971); rights are viewed as concrete things and this veils the social relations that are actually at play. As explored earlier, many of these individual rights are themselves vectors through which people are dominated. Relationships of domination are still interdependent relationships, however, and social relations within them can be restructured in such a way so as to be more conducive to freedom, such as an arrangement where workers possess democratic rights over their workplace, or a community possesses rights over the extraction of its resources. The social republican approach I advocate for therefore can utilise rights in two ways; as popular claims that form part of the process by which the power necessary to reshape social relations is built and deployed, and as a concretised institutional manifestation of those reshaped social relations.
(v) Rights are claims contested through struggle and backed by power
If rights are shaped based on relations between individuals, then they are not the transcendent and static moral properties commonly supposed by liberalism. They are instead dynamic, shaped by the changing balance of relations between many embodied individuals, and manifest as powers to act of those individuals and the collectives they constitute (James, 2015). For many republicans, this is simply further confirmation of the logic that rights are the result of political processes rather than prior to them. If rights are based on the balance of relations between relevant actors, then a right is only of consequence if there is power to enforce it. Hence Phillip Pettit argues that rights only matter insofar as they are ‘institutionally implemented and defended’ (Pettit, 1997: 99).
Yet attempting to constrain rights within procedural exercises of government and institutions is also static in its own way, and my social republican view can provide a much expanded and more dynamic account of how power and struggle shape rights. This is something that Guy Aitchison also gets at with his ideas of populist rights and rights of popular resistance (see Aitchison, 2017, 2020). Other republicans may view rights only as powers enshrined by the result of political processes in the state, but this overlooks the way in which historically they have been used to justify and motivate republican revolutions and can still be used to advance the cause of freedom as non-domination before they are in any sense institutionally enshrined. To understand this, rights must not be viewed solely in terms of their endpoint as a concrete institutional manifestation, but rather as a process; a mobilisation tactic that movements engage in that begins with a claim or claims. As Aitchison puts it, this entails bypassing constitutional structures and laying claim to ‘…new rights through direct appeal to the sovereign authority of the people themselves’ (Aitchison, 2017: 339). Rights as a process are still shaped by power, but the naming of rights claims is itself a mobilisation tactic of movements that can help to stack the balance in their favour by bringing together popular demands. Rights claims are empowering and mobilising, because as Brian Feinberg explains in an influential study, they allow people to stand up straight, look others in the eye ‘..and to feel in some fundamental way the equal of anyone’ (Feinberg, 1970: 252), but also because they name the enemy who is withholding this right against the people, whether it be the state, the stingy boss, the patriarchal husband or broad economic categories such as ‘the 99%’ (Aitchison, 2017: 349). Such an understanding of how rights work also has the advantage of being able to account for the fact that many canonical rights have been brought into existence through popular uprisings, whether these be all-out revolutions as in America or France, or just the threat of revolution, which played an important role in securing basic workers’ rights.
This way of looking at rights, as we have seen, also dovetails very neatly with much recent Marxist scholarship on rights and legality more generally. O’Connell (2018, 2021) and Shoikhedbrod (2021), among others, have been prominent in questioning the orthodox Marxist framing of rights as only manifestations of juridical market relationships (Pashukanis, 1978). Rights in this view may be the manifestation of a material base and reflect the power of the capitalist class, but to view them as solely this is static and reductive. Instead, they need to be viewed as a language that mass movements use in the real world, and an arena of contestation where their meaning can be shaped and reshaped through struggle.
Social republicanism contra Phillip Pettit: (un)freedom in markets
In his recent book on the state, Phillip Pettit gives what I take to be a fairly representative summary of the standard republican attitude towards rights. He argues that: …there are no natural rights, only institutional rights; that the functional state must recognize significant, institutional rights on the part of its citizens; and that it may recognize a greater or lesser range of such rights. (Pettit, 2023: 236)
As already argued, social republicans typically conceptualise the market, especially the labour market, as a site of domination under capitalism. Phillip Pettit, who I continue to take to be representative of a standard neo-republican view, has by contrast generally been sceptical of the idea of domination occurring through the market, as long as it is regulated, and has generally argued that a free state can and should tolerate inequalities caused by the market. There are two related claims that Pettit makes to support his position on this. The first is that inegalitarian property distributions are not on their own issues of freedom (2006: 139). Wealth inequality may well be a problem, but it is not a vector of domination unless it has been created by personal, arbitrary political interference. This is because for him the source of domination always must be the will of an agent rather than a system or natural accident. Different distributions may condition our ability to enjoy our freedom as non-domination, but my possession of greater property holdings than you does not mean that I stand in domination over you (or vice versa) any more than my being taller or physically stronger than you would (2006: 140). The second claim is that where inegalitarian property relations do allow or even cause situations where domination occurs, then this can be tackled through making institutional adjustments such as regulation or taxation (2006: 139). Inequality of resources may not entail domination on its own terms, but Pettit does recognise that entrenched poverty, for example, makes people significantly more vulnerable to being coerced into relationships of domination. Private property rights cannot be absolute, so he therefore argues that republicans, at a minimum, should support redistributive taxation and regulations which would prevent firms and wealthy individuals from exploiting poor people and would prevent these situations from emerging in the first place (2006: 141). Following this, he asks us to assume that these kinds of problems are accounted for, that we have a market that does not discriminate, where background conditions do not make people vulnerable, and where entering into a contract that entails domination is not allowed. In this situation, he argues that, contra the socialist republican picture of the workplace, the way that a boss or manager relates to a worker is in terms of offering a market reward rather than coercion or threat of punishment. Unless it can be demonstrated that there is something constitutive rather than contingent of domination in capitalist markets, we can therefore be ‘complacent’ about the prospect of domination occurring as a result of robust private property rights (2006: 142–143).
The first point to make in response to Pettit here is that some of the assumptions he asks us to make are, I think, untenable and ignore the origins of the current property rights regime. Undergirding his entire argument, he says that he is ‘…supposing here that the property regime sprang from a history of individual adjustments in which no domination occurred, whether a history originating in pre-governmental conventions or a history that began with state initiatives’ (2006: 140). This is not a classical liberal view, which sees the market and property rights as natural. Pettit thinks that the state plays (and should play) a huge role in creating and maintaining markets and institutionalising the property rights associated with markets (2023: 267). But as the quote above indicates, he does see the establishment and spread of capitalist markets and private property rights as being an essentially voluntaristic process where the state has acted as a neutral arbiter and facilitator.
Marxists, socialists, and even some liberals will point out in response to this that the establishment of the current property rights regime, both domestically and globally, is in fact dripping in violence, bloodshed and domination. This is not the space to go over this history in detail, but to give a brief summary, colonial plunder and slavery systematically and violently extracted wealth from the global south and transferred it to the global north (see, e.g. Rodney, 2018). We cannot ignore the fact that, for example, the US government violently established control over pre-existing occupants of the country's landmass and violently established rights of private ownership within those areas. Pettit's more voluntarist picture may be true in parts of certain Western European countries, but even here it ignores the reality of the violence in spreading and institutionalising the property regime. Huge amounts of violence were involved in the enclosure movement, which saw the forced privatisation of previously communal land. This act of coercion was foundational to the formation of the nascent proletarian class in many European countries (see, e.g. Federici, 2004; Thompson, 1966). Crucially, in these examples, domination and violence were not only the source of unequal distribution, but also in establishing the system of private property and markets where these did not previously exist. This means that domination must be viewed as constitutive and not merely contingent on the current property regime, something which undermines Pettit's account of markets.
The second thing that can be said in response to Pettit's position is that though in certain circumstances regulations can and have protected against domination in the market, the underlying structure of the system militates against this happening as often as it needs to. Employers have an interest in maintaining social relations where employees have fewer options and fewer protections against demands placed against them. This means that they intentionally try to reproduce this structure, and because of the influence they can exert over the state they are often better placed than workers to achieve their aims (Cicerchia, 2021: 17). Workers do have the option of responding to this and organising themselves through unions, but the same incentives push employers to oppose these efforts as much as they can. At the very least this means that republicans need to think about the workplace as a zone of struggle, rather than be ‘complacent’ about it as Pettit suggests. History suggests that in moments when the labour movement is powerful, strong protections and regulations can be instituted. However, these on their own do not alter the structure of the underlying system and over time they and the power of unions have been eroded.
These two points have clear implications for how we ought to consider rights related to markets and the economy. Firstly, if violence and domination are constitutive of our contemporary property regime, then an unequal distribution is not the same one person being taller than the other. It does not merely condition our ability to enjoy our freedom as non-domination, instead, its very source is domination. As such, the private claim over greater resources that individuals may possess is much reduced against democratic rights to collective control and enjoyment over property. Secondly, the underlying structure of employer–employee relations needs to change if workers’ interests are to be sustainably protected. Specifically, and as I have argued, it requires recognising that the sanctified private claim of ownership of the employer is one of the main drivers against worker protections and regulation, and therefore that this must be diluted significantly by the expansion of worker ownership rights over firms.
Conclusion
This article has described in general terms the social republican perspective and has identified five key characteristics of an account of rights from this perspective. In doing so, I have on the one hand pushed back against tendencies within both the Marxist traditions that would reject the idea of rights out of hand, while still distinguishing my view from a liberal understanding of rights as inherent, individualised, pre-political claims on the other. Instead, I have argued for an instrumental understanding of rights as tools for securing freedom as non-domination in both political institutions and within broader social and economic relations. This position is supported by identifying affinities between republican and Marxist critiques of liberal rights and bringing together a republican understanding of the form and nature of rights with a Marxist analysis of political economy to expand the potential content of rights in this view.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the University College Dublin (grant number School of Politics and International Relations Ise).
