Limits to the Politics of Subjective Rights: Reading Marx After Lefort

Abstract

In response to critiques of rights as moralistic and depoliticising, a literature on the political nature and contestability of rights has emerged. In this view, rights are not merely formal, liberal and moralistic imperatives, but can also be invoked by the excluded in a struggle against domination. This article examines the limits to this practice of rights-claiming and its implication in forms of domination. It does this by returning to Marx's blueprint for the critique of subjective rights. This engagement with Marx will, however, take a particular form. I will read Marx first through the eyes of Claude Lefort and thereafter against Lefort. The latter's critique of Marx still constitutes the strongest case against the dismissal of subjective rights. Introducing a reading of Lefort into the argument allows us to discover what is dead and what is well alive in the Marxist theory of rights. What is dead, I will argue, is Marx's early conception of subjective rights as ideology and illusion. However, the more mature Marx developed a theory and critique of the legal form that is able to explain why the politics of rights-despite its undeniable advances-has not been able to overcome certain forms of domination.

The Anthropology of Legal Form: Ethnographic Contributions to the Study of Transnational Law

“…The potential of mobilizing law to produce what Rancière (2015, 69) calls "dissensus"-"a dispute over what is given and about the frame within which we see something as given"-would seem to strike against much critical legal and socio-legal thought. Indeed, many scholars have argued that claims for rights reproduce liberal legal ideology (Brown and Halley 2002;Boonen 2019) and depoliticize conflicts over distributive arrangements (Englund 2006;Moyn 2018). However, in the context of neoliberalism-a rationality and political program that aims to dispel dissensus by "plugging intervals and patching up any possible gaps between appearance and reality, law and fact" (Rancière 2015, 72)-actors may draw on the aesthetics of legal form to reanimate these gaps.…”