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Editor’ Introduction, to Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.273-301.
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Evgeny Bronislavovich Pashukanis (1891-1937) has been the only Soviet Marxist legal philosopher to have achieved significant scholarly recognition outside of the USSR. [1] The pre-eminent Soviet jurist of the 1920s and early 1930s, Pashukanis fell victim to the great purges of the late 1930s and was thereafter reviled as an “enemy of the people” until his posthumous legal rehabilitation in 1956. [2]
As a student at the University of St Petersburg before World War I, Pashukanis had been active in the Russian revolutionary movement and, as a result of his involvement, found it necessary to complete his education abroad at the University of Munich where he specialized in law and political economy. The available details on his early life are sketchy, but it is known that he joined the Bolsheviks in 1918, briefly, served as a local and circuit judge in the Moscow region, and then for several years into the early 1920s worked as a legal adviser in the People’s Commissariat of Foreign Affairs while, simultaneously, he cultivated a blossoming career in juristic scholarship. [3]
In 1924 Pashukanis emerged from relative obscurity with the publication of his major theoretical work The General Theory of Law and Marxism [4], which quickly placed him in the front ranks of the field of aspiring Soviet Marxist philosophers of law. He regarded this treatise primarily as an introduction to the problems of constructing a Marxist general theory of law and by no means as the definitive statement on the subject. In this spirit, he appropriately subtitled his monograph An Experiment in the Criticism of Basic juridical Concepts, emphasizing that he had written the book primarily for “self-clarification” with the hope that it might serve as a “stimulus and material for further discussion”. [5]
Pashukanis’ General Theory was warmly received by the reviewers and went into a second edition in 1926 followed by a third edition in 1927 which eventually encompassed three printings. [6] The originality of Pashukanis’ theory of law – which was largely outlined in the first Russian edition of The General Theory of Law and Marxism in 1924, and successively revised in a number of works after 1927 – lies in the contraposition of three notions with what Pashukanis took to be the modus operandi of Marx’s Capital. From Hegel Pashukanis borrows the familiar distinction between essence and appearance, and also the notion in The Philosophy of Right that the Roman lex persona was an insufficient basis for the universality of rights attached to individual agents under capitalist modes of production. [7] And from Pokrovsky, an Old Bolshevik and the leading Russian historian between 1910 and 1932, Pashukanis borrows the assertion that the development of Russian capitalism must be understood in the context of the historical primacy of mercantile capital. [8]
Pashukanis saw that it was not accidental that Marx had begun his analysis of the inner dialectic of the capital-labour relationship (the production of surplus value) with a critique of the categories of bourgeois political economy. It was not simply that the categories of rent, interest, industrial profit etc. mystified the essential qualities of this relationship. Rather, in order to apprehend the historically specific form of the relationship of capitalist exploitation, one had first to pierce the veil of appearances/semblances/forms which the real relationship inherently produced, and on which it routinely depended for its reproduction.
Pashukanis therefore infers that had Marx actually written a coherent theory of state and law, as indeed he had twice promised, [9] then it would necessarily have proceeded along the same lines as his iconoclastic analysis of the categories of political economy and the social reality which they mysteriously yet inaccurately express and codify.
Pashukanis consistently argues that there is an homology between the logic of the commodity form and the logic of the legal form. Both are universal equivalents which in appearance equalize the manifestly unequal: respectively, different commodities and the labour which produced them, and different political citizens and the subjects of rights and obligations. The salience of this insight has only very recently been recovered by Marxists [10], and there are now some healthy indications that the sterile dichotomy between instrumentalist and formalist approaches to law is likely to be transcended. If Pashukanis’ main argument is correct, then it obliges us to ask two crucial questions. First, the specific content of legal imperatives does not explain why the interests of dominant classes are embodied in the legal form. Why, for example, are these interests not embodied in the form on which they episodically depend, namely, naked coercion? Second, if under capitalism the struggle between competing commodity producers assumes legal form through the principle of equivalence, then it follows that the class struggle between proletariat and bourgeoisie must also typically appear in the medium of the legal form. [11] And how, then, are we able to transform legal reformism into a revolutionary political practice?
By the late 1920s, as a result of his scholarly reputation, Pashukanis had become the doyen of Soviet Marxist jurisprudence, eclipsing even his juridical mentor Piotr Stuchka. However, after 1928 Pashukanis’ theory as a Marxist critique of bourgeois jurisprudence became increasingly incompatible with the new political and economic priorities of the first Five Year Plan, especially the necessity for a strong dictatorship of the proletariat and its ancillary, Soviet law which, after 1937, would become socialist law.
In the ensuing ideological struggle on the “legal front” of the Soviet social formation, Pashukanis made the first of his eventual three self-criticisms in late 1930. [12] After that experience his theory underwent substantial revision during the period of the first and second Five Year Plans (1928-1937), as Pashukanis became the principal spokesman for the Stalinist conception of the Soviet state, while simultaneously striving to maintain his political commitment to the Marxist concept of the withering away of law. However, as soon as Stalin’s “revolution from above” subsided with the essential completion of collectivization and a new legal policy of stabilization was demanded, the intrinsic ambivalence of Pashukanis’ dual commitment to the respective marxisms of Stalin and Marx became apparent. This contributed to his downfall in early 1937. Following Pashukanis’ purge, his successor as legal doyen, Andrei Vyshinsky, began the almost immediate demolition of the considerable structure of his predecessor’s influence and, concomitantly, the systematic reconstruction of the Soviet legal system. Vyshinsky ushered in the era of the “Soviet socialist state and law” which has prevailed to this day in Soviet jurisprudence and legal practice.
Finally, in the process of destalinization after Stalin’s death in 1953, Pashukanis’ name was “cleared” of the politico-criminal charges which were the cause of his demise, and since then his status as a legal philosopher has been partially rehabilitated in the Soviet Union. Ironically, in the USSR today Pashukanis is posthumously honoured as one of the founders of the jurisprudence of Soviet socialist state and law, a formulation the full implications of which he had resisted almost to the eve of his arrest.
The General Theory of Law and Marxism is a theory of the historical specificity of the legal form, and Pashukanis ostensibly introduces his argument with a critique of three trends in bourgeois jurisprudence dominant in the USSR before 1921: Renner’s social functionalism, Petrazhitsky’s and Reisner’s psychologism, and Kelsen’s legal positivism. The reader quickly learns that the gist of this critique contains two observations directed against the consequences of economic reductionism. The first concerns the ontological nature of ideological categories in general, and in particular the nature of legal regulation as a specific form of ideological category. The second concerns those instrumental forms of economism which reduce law to the status of an epiphenomenon within the compass of the base/superstructure metaphor.
Pashukanis notes that within the sphere of political economy concepts such as commodity, value and exchange value are indeed ideological categories, but that this assignation by no means signifies that they indicate only ideas and other subjective processes. They are ideological concepts principally because they obscure objective social relationships. Yet the ideological character of a concept does not nullify the material reality of the relationships that the concept expresses. Nor does the fact that they are ideological concepts excuse us from searching for the objective conditions which they express yet somehow wrap in mystery. What needs to be proved is not that juridic concepts can and do become integrated into the structure of ideological processes, but that these concepts have more than an ideological existence. Pashukanis therefore asserts that law is also a real form of social being, and in so doing he seems astutely to have avoided the troublesome charge that both social scientists and theorists of ideology, in the final reckoning, base their assertions on a positivist epistemology.
Pashukanis is equally concerned to rebut the view that law is capable of voluntaristic manipulation by dominant social classes. Stuchka, for example, one of the early RSFSR Commissars of justice and the author of Decree no.I on the Soviet Court, had misconstrued the nature of law in his The Revolutionary Role of Law and State as a “system of relationships which answers to the interests of the dominant class and which safeguards that class with organized force”. Pashukanis retorts that such a definition [13] is useful both in disclosing the class content of legal forms and in asserting that law is a social relationship, but that it masks the real differences between the legal form and all other social relationships which involve regulative norms. Indeed, if law is seen simply as a form of social relationship, and if one asserts that law regulates social relationships, then one must engage the tautology that social relationships regulate themselves.
Pashukanis correctly avers that the social organization of collectivities as diverse as bees and primitive peoples require rules. But not all rules are legal rules: some rules are customary and traditional and may be based in moral, aesthetic or utilitarian considerations. Further, not all social relationships are legal relationships; under certain conditions the regulation of social relationships assumes a legal character. (1924: see this volume, p.58.) Marxist theory must investigate not merely the material content of legal regulation during definite historical periods, but must also provide a materialist explanation of legal regulation as a definite historical form. The crucial question therefore involves the elucidation of the social conditions in which the domination and regulation of social relationships assumes a legal character.
Pashukanis argues that the fundamental principle of legal regulation is the opposition of private interests. Human conduct can be regulated by the most complex rules, but the legal element in such regulation begins where the isolation and antithesis of interests begin. “A norm of law acquires its differentia specifica ...”, he says, “because it presupposes a person endowed with a right and actively asserting it.” (1924: see p.72.) Accordingly, and following some of Marx’s Hegelian-inspired comments in The Law on the Theft of Woods (1842) and On the Jewish Question (1843), Pashukanis distinguishes between those rules which serve the universal interest and those which serve a particular interest. The former are technical rules and are based on unity of purpose, the latter are legal rules and are characterized by controversy. Thus, the technical rules of railroad movement presuppose a single purpose, for example the attainment of maximum haulage capacity, whereas the legal rules governing the responsibilities of railroads presuppose private claims and isolated interests. Again, the treatment of invalids presupposes a series of rules – both for the patient and for the medical personnel; but inasmuch as these rules are established to achieve a single purpose – the restoration of the patient’s health – they are of a technical character. But when the patient and the physician are regarded as isolated, antagonistic subjects, each of whom is the bearer of his own private interests, they then become the subjects of rights and obligations, and the rules which unite them become legal rules.
Pashukanis asserts that Marx himself had pointed to the basic conditions of existence of the legal form. Thus, Marx had indicated that the basic and most deeply set stratum of the legal superstructure property relations was “so closely contiguous to the foundation that they are the very same relationships of production expressed in juridic language”. Law is some specific social relationship and can be understood in the same sense as that in which Marx termed capital a social relationship. The search for the unique social relationship, whose inevitable reflection is the form of law, is to be located in the relationships between commodity owners. The logic of legal concepts corresponds with the logic of the social relationships of commodity production, and it is specifically in these relationships – not in the demands of domination, submission or naked power – that the origin of law is to be sought. We might add that Lenin himself had said, in relation to the law of inheritance, “... [it] presumes the existence of private property, and the latter arises only with the existence of exchange. Its basis is in the already incipient specialization of social labour and the alienation of products in the market.” [14]
Pashukanis recalls that the ascendant bourgeoisie’s central antagonism with feudal property resided not in its origin in violent seizure, but instead in its immobility in exchange and circulation. In particular, it was unable to become an object of mutual guarantees as it passed from one possessor to another in acquisition. Feudal property, or the property associated with the feudal order, violated the abstract and cardinal principle of capitalist societies – “the equal possibility of obtaining inequality.” (1924: see p.83.)
At a certain stage of development (with the appearance of cities and city communes, markets and fairs) the relationships of human beings are manifested in a form which is doubly mysterious: they appear as the relationships of objects which are also commodities, and as the volitional relationships of entities which are independent and equal inter se: juridic subjects. Law thus appears side by side with the mystical attributes of value and exchange value. Moreover, it is in the concrete personality of the egoistic, autonomous subject-the property owner and the bearer of private interests – that a juridic subject such as persona finds complete and adequate embodiment. [15]
The historically specific object of a commodity, for Pashukanis, finds its pure form in capitalist economies. The authority which the capitalist enjoys, as the personification of capital in the process of direct production, is essentially different from the authority which accompanies production through slaves or serfs. Only capital stands in stark, unhierarchical contrast to the mass of direct producers. Capitalist societies are first and foremost societies of commodity owners. Commodities have a dual and a contradictory character. On the one hand a commodity is and represents a use-value. But commodities necessarily embody different use-values because the qualitatively distinct social needs which they fulfil, and the quality and quantity of labour expended in their production, are necessarily different and unequal. And, on the other hand, a commodity is and represents an exchange-value. One commodity may be exchanged for another commodity in a definite ratio. The values encountered in this exchange are expressed by and facilitated through the mediation of another commodity, money, as the form of universal economic equivalent.
The potential for commodity exchange assumes that qualitatively distinct commodities enter a formal relationship of equivalence, so that ultimately they appear as equal. The exchange of commodities thus obscures a double abstraction in which concrete labour and concrete commodities are equalized inter se and are reduced to abstract labour and abstract commodities. This abstraction in turn perpetuates the fetish that commodities themselves, including money, contain living powers: commodities thus dominate their very producers, human subjects.
Pashukanis illustrates how commodity fetishism complements legal fetishism. Exchange transactions based on the vi et armis principles of feudalism create a form of property which is too transient and too unstable for developed commodity exchange. De facto possession must be transformed into an absolute and constant right which adheres to a commodity during its circulatory process. Pashukanis notes that Marx had tersely stated, in Capital I, that “commodities cannot send themselves to a market and exchange themselves with one another. Accordingly we must turn to their custodian, to the commodity owner.” (1924: see p.75.)
The legal form itself is therefore cast as both an essential part and simultaneously as a consequence of the exchange of commodities under capitalism. At the very same time that the product of labour is assuming the quality of commodities and becoming the bearer of value, man acquires the quality of a juridic subject and becomes the bearer of a right. In the development of legal categories, the capacity to perfect exchange relationships is merely one of the concrete manifestations of the general attribute of legal capacity and the capacity to act. Historically, however, it was specifically the exchange arrangement which furnished the notion of a subject as the abstract bearer of all possible legal claims. Nor does the juridic form of property contradict the factual expropriation of the property of many citizens; the attribute of being a subject of rights is a purely formal attribute, qualifying all persons alike as “deserving” of property but in no sense making them property owners.
It is only under developed commodity exchange that the capacity to have a right in general is distinguished from specific legal claims. Indeed, a characteristic feature of capitalist societies is that general interests are segregated from and opposed to private interests. The constant transfer of rights in the market creates the notion of an immobile bearer of rights, and the possibility therefore occurs of abstracting from the specific differences between subjects and of bringing them within one generic concept. Concrete man is relegated to an abstract man who incorporates egoism, freedom and the supreme value of personality; the capacity to be a subject of rights is finally disassociated from the specific living. personality and becomes a purely social attribute. The legal subject is thus the abstract commodity owner elevated into. the heavens (1924: see p.81), and acquires his alter ego in the form of a representative while he himself becomes insignificant. The specific characteristics of each member of Homo sapiens are, therefore, dissolved in the abstract concept of man as a juridic subject.
In order for property to be exchanged and alienated there must be a contract or accord of independent wills. Contract is therefore one of the central concepts ‘in law, and once it has arisen the notion of contract seeks to acquire universal significance. In contradistinction to theorists of public and constitutional law, such as Leon Duguit, Pashukanis holds that all law is necessarily private law in that it emanates from commodity exchange. The distinction between private law and public law is therefore a (false) ideological distinction and it reflects a real contradiction in capitalist societies between the individual and the social interest. This contradiction is embodied in “the real relationships of human subjects who can regard their own private struggles as social struggles only in the incongruous and mystifying form of the value of commodities.” (1924: see p.109.)
Pashukanis argues that the political authority of the state appears to be disassociated from the economic domination and specific needs of the capitalist class in the market. He thus hypothesizes that the capitalist state is a dual state: a political state and a legal state. Thus he says that:
the state as an organization of class domination, and as an organization for the conduct of external wars, does not require legal interpretation and in essence does not allow it. This is where. the principle of naked expediency rules, (1924: see p.92)
Class dominance, i.e. the dominance of the bourgeoisie, is expressed in the state’s dependence upon banks and capitalist sectors, and in the dependence of each worker upon his employer. But it should not be forgotten that in the political class struggle most evidently, at its critical phases – the state is the authority for the organized violence of one class on another. The legal state, on the other hand, reflects the impersonal, abstract and equivalent form of commodity exchange. The legal state is the third party that embodies the mutual guarantees which commodity owners, qua owners, give to each other.
The leitmotif of early Soviet Marxist thought on law at the time of the October Revolution and immediately thereafter, was the imperative of implementing the Marxist concept of the withering away of law. This initial eliminationist approach to law was best exemplified by Stuchka, a Bolshevik revolutionary and a jurist, who in the days following the seizure of power was assigned the task of taking physical and political possession of the premises and institution of the highest court of imperial Russia. On arriving at the court building in what is now Leningrad, Stuchka found that the judges had fled the scene leaving behind only a number of frightened and bewildered clerks and messengers. To put this group at ease, Stuchka reassured them that although previously the judges had occupied the chambers while they themselves had waited in the antechambers, from that time on the clerks and messengers would sit in the judges’ chairs and their former occupants would be relegated to the antechambers. [16]
The first Soviet attempt to implement the process of the withering away of law began less than a month after the October Revolution. The Bolsheviks’ first legislation on the judiciary abolished the hierarchy of tsarist courts, which were soon after replaced by a much less complex dual system of local people’s courts and revolutionary tribunals. [17] This initiated a process of simplification and popularization that in the immediate post-revolutionary days and months swept away most of the inherited tsarist legal system, including the procuracy, the bar, and all but those laws vital to the transitional period between capitalism and communism (e.g. Decree Abolishing Classes and Civil Ranks, Nov. 1917). Even the remaining legal minimum was subject to interpretation by a new type of judge, usually untrained in law. These new judges were encouraged to guide themselves by their “revolutionary consciousness” in applying the law. The Bolsheviks’ objective was that even these remnants would ultimately become superfluous and wither away or disappear. Their vision was of a new social formation in which people would be able to settle their disputes “with simplicity, without elaborately organized tribunals, without legal representation, without complicated laws, and without a labyrinth of rules of procedure and evidence.” [18] However, harsh reality quickly impinged upon this vision as civil war engulfed the country. Confronted with the exigencies of governance under the most difficult conditions, the Bolsheviks deferred this transformative process and, as early as 1918, as John Hazard has conclusively demonstrated, began the process of re-legalization, which culminated in a fully articulated legal system based largely on foreign bourgeois models and perfected in the first federal constitution (1924) during the early years of the New Economic Policy.
Pashukanis concludes his argument in The General Theory of Law and Marxism by opposing those who would wish to construct a proletarian system of law after the 1917 revolution. Marx himself, especially in The Critique of the Gotha Programme, had grasped the profound inner connection between the commodity form and the legal form, and had conceived of the transition to the higher level of communism not as a transition to new legal forms, but as the dying out of the legal form in general. If law has its real origin in commodity exchange, and if socialism is seen as the abolition of commodity exchange and the construction of production for use, then proletarian or socialist law was a conceptual, and therefore a practical, absurdity. While the market bond between individual enterprises (either capitalist or petty commodity production) and groups of enterprises (either capitalist or socialist) remained in force, then the legal form must also remain in force.
The purportedly proletarian system of law operative under NEP was, Pashukanis asserts, mere bourgeois law. Even the new system of criminal administration contained in the RSFSR Criminal Code (1922) was bourgeois law. Pashukanis notes that although the Basic Principles of Criminal Legislation of the Soviet Union and Union Republics had substituted the concept of “measures of social defence” for the concept of guilt, crime and punishment (1924: see p.124), this was nevertheless a terminological change and not the abolition of the legal form. Law cannot assume the form of commodity exchange and be proletarian or “socialist” in content. Criminal law is a form of equivalence between egoistic and isolated subjects. Indeed, criminal law is the sphere where juridic intercourse attains its maximum intensity. As with the legal form in general, the actions of specific actors are dissolved into the actions of abstract parties – the state, as one party, imposes punishment according to the damage effected by the other party, the criminal.
Pashukanis points out that the Soviet Union of 1924 had two systems of economic regulation. On the one hand there were the administrative-technical rules which governed the general economic plan. On the other were the legal rules (civil and commercial codes, courts, arbitration tribunals etc.) which governed the commodity exchange that was the essential feature of NEP. The victory of the former type of regulation would signify the demise of the latter, and only then would Marx’s description of human emancipation be realized. Five years later, in “Economics and Legal Regulation”, Pashukanis still clung precariously yet tenaciously to his dictum that “the problem of the withering away of law is the yardstick by which we measure the degree of proximity of a jurist to Marxism” (1929: see p.268).
It must be stressed that The General Theory of Law and Marxism was written during NEP at a critical juncture in Soviet development. Pashukanis argued that in certain respects NEP had preserved market exchange and the form of value, and that this was a consequence of “proletarian state capitalism” (1924: see p.89). [19] Lenin himself had fully appreciated the contradictory character of the different modes of production encouraged by NEP. The Supreme Economic Council, set up in 1917 with the explicit aim of introducing socialist methods of production into both industry and agriculture, had achieved such limited success that in May 1921 Lenin observed: “there is still hardly any evidence of the operation of an integrated state economic plan.” [20] Arguing that there was much that could and must be learned from capitalist techniques (Taylorism), Lenin wrote in December 1921 that NEP marked “a retreat in order to make better preparations for a new offensive against capitalism.” [21] The painful experiences of War Communism had indicated that socialism would not be attained overnight, and that unless the political domination of the proletariat was ensured, it would not be attained at all. The temporary solution was to allow the peasantry limited ownership of the agricultural means of production. But this was to be a regulated retreat:
The proletarian state may, without changing its own character, permit freedom to trade and the development of capitalism only within certain bounds, and only on the condition that the state regulates (supervises, controls, determines the form and methods of etc.) private trade and capitalism. [22]
The general feeling among the Bolsheviks, then, was that NEP was a temporary, necessary and regulated retreat: one step backward, and two steps forward. Lenin warned that “It will take us at least ten years to organize large-scale industry to produce a reserve and secure control of agriculture ... There will be a dictatorship of the proletariat. Then will come the classless society.” [23] The seeds of this progression were already at hand, however, and in May 1921 he observed that: “the manufactured goods made by socialist factories and exchanged for the foodstuffs produced by the peasants are not commodities in the politico-economic sense of the word; at any rate, they are not only commodities, they are no longer commodities, they are ceasing to be commodities.” [24]
Under NEP Pashukanis’ theoretical achievements earned him more than just the praise of his contemporaries. During the years 1924-1930, he assumed a number of important positions in the Soviet academic hierarchy and was named to the editorial boards of the most influential law and social science journals. Through these strategic positions and key editorial posts, Pashukanis extended and strengthened the influence of the commodity exchange school of law on Marxist jurisprudence. [25]
When The General Theory of Law and Marxism appeared in 1924, Pashukanis was a member of Stuchka’s Section of Law and State, and of the Institute of Soviet Construction, both of the Communist Academy which he subsequently described as “the centre of Marxist thought. [26] Later, he was to become a member of the bureau or executive committee of the Institute and of the Section, as well as head of the latter’s Subsection on the General Theory of Law and State.
During 1925, the Section of Law and State formally launched the “revolution of the law” with the publication of a collection of essays entitled Revoliutsiia prava. Pashukanis served as co-editor and contributed a major article on Lenin’s understanding of law.
In 1926, the second edition of General Theory was published. During that year Pashukanis joined the law faculty of Moscow State University and the Institute of Red Professors, the graduate school of the Communist Academy. Bol’shaia sovetskaia entsiklopediia also began publication in 1926, and Pashukanis was named chief editor for law shortly afterwards.
The third edition of General Theory was issued in 1927, the year Revoliutsiia prava was established as the official journal of the Section of Law and State with Pashukanis as a co-editor. Beginning that year, the Section’s periodic reports reflected Pashukanis’ increasing predominance. His annual intellectual output in books, articles, essays, doklady, reviews and reports was prodigious. Along with Stuchka, Pashukanis dominated the scholarly activity of the Section. As an indication of his growing impact on Soviet legal development, he was assigned the task of preparing a textbook on the general theory of law and state, and was chosen to represent the Communist Academy on the commission for drafting the fundamental principles of civil legislation, created by the USSR Council of People’s Commissars.
During this period Pashukanis began to assume additional positions and editorships. He became Deputy Chairman of the Presidium of the Communist Academy, and a co-editor of Vestnik kommunisticheskoi akademii, the major Marxist social science journal. He had previously been named a founding editor of the journal Revoliutsiia i kul’tura, a new publication designed to promote the cultural revolution. His co-editors on these publications were the most eminent Marxist social scientists, including Lunacharsky, Pokrovsky and Deborin.
In 1927, in The Marxist Theory of Law and the Construction of Socialism [27], Pashukanis undertook two objectives. First, he once again warns of the political dangers involved in trying to erect proletarian or socialist legal forms, and he asserts that the dialectic of the withering away of law under socialism consists in “the contrast between the principle of socialist planning and the principle of equivalent exchange” (1927: see p.193). Thus, he took issue with those such as Reisner [28] who saw Decree no.I on the Court, or the RSFSR Civil Code, as evidence that NEP utilized private property and commodity exchange to develop the forces of production. But this was to imply that in this context private property and commodity exchange had a “neutral” character. What was important, Pashukanis pointed out, was that one should understand the use of these forms not from the perspective of developing the forces of production, but from “the perspective of the victory of the socialist elements of our economy over the capitalist ones” (1927: see p.192). Provided that remnants of the capitalist mode of production were in practice eliminated and that subsequent social rules in the USSR were of a technical-administrative nature, then Pashukanis could argue prescriptively and, possibly, descriptively, that law would disappear only with the disappearance of capitalism.
This 1927 article contains some interesting emendations to his General Theory of Law and Marxism. The most important of these, in response to Stuchka’s State and Law in the Period of Socialist Construction [29], is the admission of “the indisputable fact of the existence of feudal law” (Pashukanis, 1927: see p.195). Pashukanis now indicates that we find “purchase and sale, with products and labour assuming the form of commodities, and with a general equivalent, i.e. money, throughout the entire feudal period” (1927: see p.195). But although feudal and bourgeois law may have a common form, their content and class nature is essentially different. Feudal law is based on the will of the simple commodity owner, while bourgeois law is based on the will of the capitalist commodity owner. This is a most important concession because, although Pashukanis will not yet admit the primacy of production relations within historical materialism, it allows him to posit the existence of what he refers to as “Soviet law, corresponding to a lower level of development than that which Marx envisioned in The Critique of the Gotha Programme ... [and which] is fundamentally different from genuine bourgeois law” (1927: see p.194).
In 1929, in Economics and Legal Regulation, Pashukanis explicitly discusses the reflexive status of the legal form, a question that was only implicit in his analysis of ideological forms in The General Theory of Law and Marxism. He uses two arguments to refute the criticism of Preobrazhensky, Rubin and Böhm-Bawerk that economic regulation under conditions of socialism (in the USSR) is similar, in certain respects, to the regulation exercised by capitalist states under conditions of monopoly capitalism and imperialism (chiefly in Germany and England).
Pashukanis argues, first, that these sorts of criticisms tend to be based on the false polarity of base and superstructural forms. “The social”, he retorts, “... is the alter ego of the economic” (1929: see p.241). He continues, significantly, “in every antagonistic society, class relationships find continuation and concretization in the sphere of political struggle, the state structure and the legal order ... productive forces [are] decisive in the final analysis” (1929: see p.244). Superstructural forms, in other words, are incomprehensible apart from those social relationships to which they initially owe their existence. This marks the crucial transition in Pashukanis’ work. Even if he has as yet neither identified the proper place of the political within the complex of the social relationships of production, nor posited that the political has primacy in Marxist political economy, he has at the very least conceded that productive relationships are in some sense “determinant factors in the final analysis.” Quite clearly, the origin of law could not now be explained by commodity exchange – primitive or generalized – and Pashukanis seems to have recognized the inferiority of his radical position in the debates with Stuchka that were contained within the Communist Academy and not made public until 1927. [30]
Pashukanis’ second argument is a weak rebuttal of the assertion that, because NEP relationships in part conformed to the law of value, and also to the law of the proportional distribution of labour expenditures, therefore the primitive socialist economy contained capitalist contradictions. These notions, he replies, stem from a simplistic understanding of Engels’ concern with the leap from the kingdom of necessity to the kingdom of freedom. To hold that the form of value exists in the U.S.S.R. is to miss, as did Preobrazhensky, the crucial point that the U.S.S.R. is a dynamic formation founded on “the economics of co-operation and collectivization” (Pashukanis, 1929: see p.251), and “the union of the working class and the peasantry” (1929: see p.254). What matters, concretely, is not where the USSR is, but where it will be. The USSR is in a necessary phase preparatory to Engels’ quantum leap. Further, it is trivial to claim that the law of the proportional distribution of labour expenditures is effective in the USSR. This law is effective in all social formations. What matters here is how it is determined, and in the USSR it is determined by “the economic policy of the proletarian state” (1929: see p.257).
The regulation of the national economy by the proletarian state under NEP, Pashukanis continues, is qualitatively distinct from the domestic economic intervention of capitalist states during the 1914-1918 War. In contradistinction to the latter’s “57 varieties” of socialism represented by wartime state control, the proletarian state has three unique characteristics by which it will effectively realize the dialectical transformation of quantity into quality: the indissolubility of legislative and executive, extensive nationalization and the firm regulation of production in the universal rather than the particular interest. The more these characteristics are actualized, says Pashukanis,
the role of the purely legal superstructure, the role of law – declines, and from this can be derived the general rule that as [technical] regulation becomes more effective, the weaker and less significant the role of law and the legal superstructure in its pure form. (1929: see p.271)
Pashukanis’ responsibilities continued to multiply when he was appointed Prorector of the Institute of Red Professors, which was also known as the “theoretical staff of the Central Committee.” [31] In 1929, the Institute started a journal for correspondence students with Pashukanis as chief editor. By this time, the influence of his commodity exchange theory of law on the syllabi for the Institute’s law curriculum and correspondence courses was pronounced.
Finally, in 1929-1930, Pashukanis reached the apex of the Marxist school of jurisprudence and the Soviet legal profession. In a major reorganization, the Institute of Soviet Law was fully absorbed and its publication was abolished. All theoretical and practical work in the field of law was concentrated in the Communist Academy. In turn, the Section of Law and State and the Institute of Soviet Construction of the Communist Academy were merged, and the journal Revoliutsiia prava was reoriented and renamed. Pashukanis became director of the new Institute of the State, Law and Soviet Construction (soon renamed the Institute of Soviet Construction and Law); chief editor of its new journal, Sovetskoe gosudarstvo i revoliutsiia prava; and a co-editor of Sovetskoe stroitel’stvo, the journal of the USSR Central Executive Committee.
An indication of Pashukanis’ influence on the Soviet legal profession was the gradual emergence of the commodity exchange orientation within the Marxist school of law. just a few years after the appearance of The General Theory of Law and Marxism, the group of Marxist jurists working with Pashukanis in the Communist Academy became known as the commodity exchange school of law. This group, led by Pashukanis, dominated Marxist jurisprudence and was strongest in the general theory of law and in the branches of criminal law and civil-economic law. As the commodity exchange theory of law became identified with the Marxist theory of law, Pashukanis gradually assumed the unofficial leadership of the Marxist school of law. By 1930, the Communist Academy was bringing all Soviet legal scholarship and education under its control, and Pashukanis, as the pre-eminent Marxist theorist of law, was soon being acknowledged as the leader of the Soviet legal profession.
As Pashukanis’ prestige soared in the late 1920s, a critical accompaniment, at first low-keyed but later swelling in volume, began to be heard. From 1925 to 1930, Pashukanis was criticized for overextending the commodity exchange concept of law, confusing a methodological concept with a general theory of law, ignoring the law’s ideological character, and even for being an antinormativist. Other critics disagreed with Pashukanis’ positions on feudal law, public law and the readiness of the masses to participate in public administration. He was denounced by one critic as a “legal nihilist”.
Nearly all of Pashukanis’ critics were Marxists. Most were members of the Communist Academy. Within the Communist Academy, as the commodity exchange school of law became ascendant, it divided into two wings: the moderates and the radicals. All of Pashukanis’ critics within the Communist Academy were associated with the moderate wing of the commodity exchange school. This group was led by Stuchka, and the radical wing was led by Pashukanis. Outside of the Communist Academy, A.A. Piontkovsky, at that time a member of the rival Institute of Soviet Law, was Pashukanis’ major critic. [32]
Stuchka’s criticism, which began to appear publicly in 1927, was by far the greatest challenge to Pashukanis. Basically, Stuchka, as a leader of the moderate wing of the commodity exchange school, criticized Pashukanis’ overextension of the commodity exchange concept of law from civil law to other branches of law. Specifically, he criticized Pashukanis for overextending the notion of equivalence, insufficiently emphasizing the class content of law, reducing public law to private law, and denying the existence of either feudal law or Soviet law.
Stuchka apparently had been criticizing Pashukanis within the Communist Academy before the first publication of his criticism in 1927. In his article State and Law in the Period of Socialist Construction, Stuchka footnoted his criticism of Pashukanis to the effect that their mutual opponents, presumably those outside the Communist Academy’s legal circles, had been exaggerating the extent of their differences. Stuchka conceded that differences existed between him and Pashukanis and that under the circumstances, it was best to bring them out into the open. In this article, however, he tended to minimize these differences.
Stuchka’s contributions to building a Marxist theory of law were undisputed by his contemporaries. During the early 1920s, he had, first, argued for a materialist conception of law and for a class concept of law against prevailing idealist conceptions. Second, he was responsible for the conception of a revolutionary role for Soviet law during the transitional period from capitalism to communism. [33] Perhaps Stuchka’s greatest contribution to the development of the Soviet legal system was his insistence, which grew in intensity throughout the 1920s, on the necessity for “Soviet” law during the transition period, although he had no illusions about this body of law becoming a permanent feature of the Soviet system. In an article in early 1919, Stuchka clearly stated that “We can only speak of proletarian law as the law of the transition period ...” He underscored the temporary nature of proletarian law by characterizing it as “a simplification, a popularization of our new social system.” [34] At the end of the decade Stuchka summarized his recognition of the importance of law as an agent of socio-economic development by writing in the Foreword to his collected essays, “Revolution of the law is revolutionary legality in the service of furthering the socialist offensive and socialist construction.” [35]
In this context, Stuchka criticized Pashukanis’ theory of law for its
omissions, its one-sidedness insofar as it reduced all law to only the market, to only exchange as the instrumentalization of the relations of commodity producers – which means law in general is peculiar to bourgeois society. [36]
If Stuchka’s criticism was sharp and constructive, then the criticism put forward by Piontkovsky was definitely hostile. Piontkovsky was a specialist in criminal law, an advocate of the development of a specifically Soviet legal system, and a member of the Institute of Soviet Law until its absorption by the Communist Academy. Piontkovsky’s main and most effective criticism was that Pashukanis had mistaken an ideal-type concept, the commodity exchange concept, for a theory of law. He developed this in his book, Marxism and Criminal Law, which was published in two editions. Possibly because Piontkovsky was outside the legal circles of the Communist Academy, his criticism of Pashukanis’ work was more explicit and much more blunt. He effectively incorporated into his own criticism the criticism of Pashukanis’ colleagues, but without being subject to the restraints that they apparently imposed upon themselves in the interest of unity within the Communist Academy.
Piontkovsky valued Pashukanis’ General Theory of Law and Marxism, but with definite reservations. He devoted a large part of his book to what he termed the “dangers” of Pashukanis’ theory, while at the same time, in his second edition, he defended himself against counter-criticism from Pashukanis’ followers. One of these had written that Piontkovsky’s study had nothing in common with Marxism and by no means explained reality, to which Piontkovsky replied:
Of course, our point of view has nothing in common with that Marxism that is limited only to the explanation of reality, but has ... something in common with that Marxism ... which is a “guide” to action. [37]
By the end of the decade, the volume of criticism of Pashukanis’ radical version of the commodity exchange theory of law had grown considerably. The two directions from which the criticism emanated, from both inside and outside the Communist Academy, could no longer be easily distinguished. Stuchka’s and Piontkovsky’s criticism began to converge as the criticism took on an increasingly political tone in 1930. One critic observed that Pashukanis had repaired to the “enemy’s territory” and had lapsed into “bourgeois legal individualism”. Another critic, in a similar tone, characterized Pashukanis’ commodity exchange theory of law as a “collection of mechanistic and formalistic perversions”. [38]
The most salient aspects of these debates involved the fundamental questions concerning the role of state and law in the lower phase of communism. These questions indicated a certain dissatisfaction and uneasiness with the type of thought characteristic of Marxist legal circles during the 1920s. Most fundamental was Stuchka’s question of the relationship of dictatorship to law. As he wrote, “We know Lenin’s definition of dictatorship as ‘a power basing itself on coercion and not connected with any kind of laws’.” But then Stuchka goes on to ask, “What should be the relationship of the dictatorship of the proletariat to its law and to law in general as the means of administration?” [39]
The other important question, raised from outside the Communist Academy by Piontkovsky, involved the relationship of Pashukanis’ general theory of law to the vital tasks of political and economic development in a social formation dominated by feudal social relationships. Piontkovsky pointed out that Pashukanis’ theory of law was “not revolutionary” in the sense that it was not designated for a voluntarist approach to social change. [40]
Despite growing criticism of Pashukanis’ theory the impact of his commodity exchange school of law on the withering away process began to become apparent in the late 1920s. Pashukanis and his colleagues assiduously devoted themselves to bringing about the realization of his prediction that private law and the legal state would gradually begin to wither away upon the elimination of the institutions of private property and the market. From their point of view, the prevailing political and economic trends were favourable. The doctrine of “socialism in one country”, signalling the forthcoming end of the strategic retreat of the New Economic Policy, was first officially expressed in 1925 at the XIVth Party Conference, Later in the same year, the XIVth Party Congress adopted the policy of industrialization, which meant that a substantial growth of the socialist sector of the economy could be anticipated For the commodity exchange school of law, the imminent end of the New Economic Policy and the subsequent growth of the state sector meant a significant weakening of the juridical superstructure. By 1927 the Keith Party Congress was calling for the construction of socialism, an objective that for Pashukanis and his colleagues required the gradual elimination of law. The growth of the socialist base, argued Estrin, meant “the simplification and contraction” of the “legal form” – in other words, a withering away of law. [41]
The revolutionaries of the law directed their main attacks against the NEP codes as the core of the real legal culture, and against the legal education system as the nexus between the real and ideal legal cultural patterns and the means by which they were transmitted and maintained. They reasoned that if the thicket of bourgeois laws could be gradually thinned out, the ground could eventually be cleared, with the remaining legal structures becoming increasingly superfluous and falling into disuse towards that time when they would be razed. Tactically, this meant the necessity of initially replacing the NEP codes with shorter, simpler models which would compress (and hence eliminate) the finer distinctions of bourgeois justice. The longer-term thrust was towards radically reforming legal education for the purpose of preparing cadres who would be socialized into and trained to preside over the transition from the legal realities of NEP to a future without law.
Their primary target was the notion of equivalence, which they regarded as the unifying theme of bourgeois legal culture and the factor most responsible for its cohesion. Against the symmetry of economic-legal equivalence, they opposed the asymmetrical principle of political expediency in their radical efforts to recodify NEP law and reform legal education during the first and second Five Year Plans.
Expediency as a principle of codification meant that the draft codes of the transitional legal culture were characterized by flexibility and simplicity, in opposition to the stability and formality of the NEP codes based on equivalence. Although only a few of the draft codes of the Pashukanis school were actually adopted (in the emerging Central Asian republics), their re-codification efforts nevertheless had a subversive effect on the administration of civil and criminal justice during the first half of the 1930s. The draft codes were widely distributed in the legal profession, while their basic principles were constantly elaborated upon in the legal press and taught in the law schools. The revolution of the law appeared to be winning, creating what was subsequently called an atmosphere of legal nihilism.
In the legal transfer culture, criminal law became “criminal policy” (ugolovnaia politika), reflecting its extreme flexibility, while many of the procedural and substantive distinctions characteristic of bourgeois criminal jurisprudence were discarded in the interest of maximum simplicity. Similarly, the civil law of equivalent commodity exchange was supplanted by the new category of economic law, encompassing the economic relationships between production enterprises within the Five Year Plans, which were enforced as technical rules based on the criterion of planning expediency. All of this was taught in the law schools, where the legal cadres were being prepared to preside over the gradual withering away of the law. [42]
Although the second Soviet attempt to carry out the withering away of law progressed well into the 1930s, Pashukanis and the commodity exchange school, as advocates of his theory, collided with the process of Soviet rapid industrialization at the XVIth Party Congress in June 1930. The conflict between industrialization and withering away, which had been implicit since 1925, now clearly emerged. Until 1928, this implied conflict had been largely academic while NEP and the policy of economic recovery were still in effect. However, once large-scale industrialization and forced collectivization were underway, a collision was inevitable as it became apparent that the intervention and active support of strong and stable legal and political systems would be necessary in the USSR. Consequently, the commodity exchange school of law began its rapid decline in the late 1920s, culminating in 1930 as Marxist jurisprudence was brought into line with the “socialist offensive along the whole front”.
Stalin, as General Secretary, in his address before the Central Committee Plenum of April 1929, warned against promoting hostile and antagonistic attitudes towards law and state among the masses. He argued instead that the intensification of the class struggle by the kulaks required the strengthening, rather than the weakening, of the dictatorship of the proletariat. [43] This tendency culminated at the XVIth Party Congress in the rejection of the concept of the gradual withering away of law and state. On that occasion Stalin reconceptualized this process:
We are for the withering away of the state, while at the same time we stand for strengthening the dictatorship of the proletariat which represents the most potent and mighty authority of all the state authorities that have existed down to this time. The highest development of state authority to the end of making ready the conditions for the withering away of state authority: there you have the Marxist formula. Is this “contradictory”? Yes, it is “contradictory”. But it is a living, vital contradiction and it completely reflects Marxist dialectics. [44] The Communist Party’s rejection of the gradualist notion of withering away made it necessary, therefore, to redefine the transitional role of law and state and seriously undermined the theoretical foundations of the commodity exchange school of law.
In 1932, in his Doctrine of State and Law, Pashukanis recognized that he should not have equated law as an historical phenomenon with the equivalent exchange of commodities. In class societies every relationship of production has a specific form in which surplus labour is extracted from the direct producers, and he now argues that “the nature of the bond between the producer and the means of production is the key to understanding the specificity of socioeconomic formations” (1932). The factor that determines the typical features of a given legal system is therefore the form of exploitation. We might add that by now Pashukanis himself must seriously have wondered whether the primacy of the individual subject within his theory of law had its origins not in the legacies of Hegel, Marx and Pokrovsky, but rather in that subjectivist epistemology represented in bourgeois jurisprudence by Jhering, Laband, Jellinek and possibly Max Weber – all of whom he would undoubtedly have read during his studies at the University of Munich.
Sensitive to the political dangers which he detects in his own earlier work, in Stuchka, and in the Second International, Pashukanis raises the delicate question of whether social relationships which are not relationships of production or exchange can enter into the content of law. He asserts that law in bourgeois society does not serve only the facilitation of commodity exchange, and bourgeois property is not exhausted by the relationships between commodity owners. To argue that law is reducible simply to economic relationships is in the end to identify it with economic relationships, which in turn both excludes all but property and contract law, and denies the reflexive effect of the legal superstructure on economic relationships. And to hold to this latter argument would clearly be inappropriate in the context of the end of the first Five Year Plan and the beginning of the second. Pashukanis responds that law cannot be understood unless we consider it as the basic form of the policy of the ruling class. “A legal relationship is a form of production relationship”, he continues, “because the active influence of the class organization of the ruling class transforms the factual relationship into a legal one, gives it a new quality, and thus includes it in the construction of the legal superstructure” (Pashukanis, 1932: see p.297).
Pashukanis accordingly now reformulates his definition of law provided in The General Theory of Law and Marxism as “the form of regulation and consolidation of production relationships and also of other social relationships of class society” (1932: see p.287). He adds that this definition is incomplete without reference to a coercive apparatus (the state) which guarantees the functioning of the legal superstructure. But the dependence of law on the state does not signify that the state creates the legal superstructure. The state is itself “only a more or less complex reflection of the economic needs of the dominant class in production” (1932: see p.291). To emphasize the primacy of the state would be to miss the distinction, so crucial for the working class in its struggle with capitalism, between the various forms of rule (democracy, dictatorship etc.) [45] and the class essence of all states. “Bourgeois theorists of the state”, says Pashukanis, “conflate characteristics relating to the form of government and characteristics relating to the class nature of the state” (1932: see p.280). Following Lenin, Pashukanis stresses that the techniques of legal domination are less important than the goals to which they are directed. Soviet law, in each of its stages, was naturally different from the law of capitalist states. Further:
... law in the conditions of the proletarian dictatorship has always had the goal of protecting the interest of the working majority, the suppression of class elements hostile to the proletariat, and the defence of socialist construction ... As such it is radically different from bourgeois law despite the formal resemblance of individual statutes. (1932: see p.293)
In the course of the “revolution from above” of forced collectivization and rapid industrialization, a politically chastened but still theoretically active Pashukanis tried unsuccessfully, as it transpired, to re-define his concept of the state during the transitional period. In effect, Pashukanis superimposed the Stalinist concept of the state in Soviet socio-economic development onto the remnants of his original theory of law. Then by simultaneously presiding over the theoretical articulation of the Stalinist state as well as the practical process of the withering away of criminal law, Pashukanis inevitably contributed to the growth of a jurisprudence of terror. As bourgeois criminal law and procedure were superseded in application by a simplistically vague and highly flexible “Soviet criminal policy” – shaped by Pashukanis and his associate Nikolai Krylenko through several proposed draft codes – legal forms were co-opted for extralegal purposes, judicial process was subordinated to political ends, and law itself was used to legitimate and rationalize terror. The jurisprudence of terror institutionalized and routinized political terror within the context of formal legalism. In effect, terror was legalized and the criminal process overtly politicized. Through the legalization of terror, the concomitant criminalization of a wide range of political (and even social) behaviour, and the politicization of the co-opted administration of justice, the Jurisprudence of terror became a highly effective instrument of Party policy. Speaking in late 1930, Pashukanis expressed the basic premise of the jurisprudence of terror which he seemed to recognize as an inevitable stage on the road to communism and the ultimate withering away of the law. Rejecting the notion of a stable system of law, he argued for “political elasticity” and the imperative that Soviet “legislation possess maximum elasticity” since “for us revolutionary legality is a problem which is 99 per cent political”. [46]
The inherent contradiction between the ideas of a strong state and weak criminal law did not become fully evident until the waning of the revolution from above was embodied in the XVIIth Party Congress’s (1934) policy emphasis on the need for greater legal formality and stability in Soviet jurisprudence as a means of consolidating the gains of the previous turbulent years. Paradoxically, it was Vyshinsky, the Procurator-General of the USSR and soon to become prosecutor of the major purge victims, who became the spearhead of Stalinist criticism of the adverse effect of Pashukanis’ and Krylenko’s legal nihilism on the administration of ordinary (“non-political”) criminal justice. [47]
Similarly, Pashukanis and another associate Leonid Gintsburg exercised an equally strong influence on civil jurisprudence through their concept of economic law. Hazard, then an American student at Pashukanis’ Moscow Institute of Soviet Law, subsequently reported:
Law, concerning the rights of the individuals was relegated to a few hours at the end of the course in economic-administrative law and given apologetically as an unwelcome necessity for a few years due to the fact that capitalist relationships and bourgeois psychology had not yet been wholly eliminated. [48]
The final two translations in the present volume illuminate how emasculated the brilliant insights of The General Theory of Law and Marxism had become after the XVIth Party Congress and the introduction of the second Five Year Plan. It is at this point that we no longer need to speculate on whether the intellectual revisions to the main thrust of Pashukanis’ work were induced by strictly political and opportunist pressures. In the Course on Soviet Economic Law, written with Gintsburg and published in 1935, Pashukanis offers a lengthy, simplistic and functionalist account of the nature of Soviet economic law under the transitional conditions of socialism. Conceived within the manifest constraints to conform with the Stalinist interpretation of Marx’s and Engels’ brief and unsatisfactory analyses of the period transitional between capitalism and the higher phase of communism, the Course defines Soviet economic law as “a special (specific) form of the policy of the proletarian state in the area of the organization of socialist production and Soviet commerce” (Pashukanis and Gintsburg, 1935: see p.306). [49] Bourgeois law serves the interests of the capitalist class in capitalist production; Soviet law serves the interests of the proletariat organized as the ruling class under socialism. The special nature of the production policies (i.e. planning) of the proletarian state are revealed through the concept of socialist (revolutionary) legality. Bourgeois legality, according to Pashukanis and Gintsburg:
is the will of the ruling class ... directed at the support of the basic conditions of the capitalist mode of production. Socialist (revolutionary) legality expresses the will of the last of the exploited classes, which has taken power, of the proletariat.(1935:see p.314)
Just as criminal policy came to be regarded as counterproductive after the XVIIth Party Congress, so too economic law during the second Five Year Plan began to encounter muted criticism from the direction of a countervailing tendency toward the need to return to the concept of contract (albeit a planned contract) as a method of stabilizing and more effectively managing the planning process. Pashukanis, as the principal theoretical exponent of both criminal policy and economic law, became increasingly politically vulnerable in the mid-1930s.
In “State and Law under Socialism”, published on the eve of the new Constitution of 1936, Pashukanis weakly confronts the most serious criticism that the commodity exchange theory of law had always explicitly invited-that it was a left communist, or perhaps anarchist, theory which, if implemented, would greatly impede the construction and reproduction of socialist relations of production in the USSR. Pashukanis apologetically quotes Lenin’s State and Revolution to the effect that:
... we want a socialist revolution with people as they are now-with people who cannot do without subordination, without supervision, without “overseers and auditors” ... it is inconceivable that people will immediately learn to work without any legal norms after the overthrow of capitalism. (1936: see p.349)
The demand for greater contractual discipline within the planned economy, the revival and strengthening of Soviet family law so long submerged within economic law, and, above all, the publication of the draft of a new constitution in June 1936, all clearly foreshadowed an impending major change in Soviet legal policy. The new constitutional right of ownership of personal property and the provisions for the first all-union civil and criminal codes implied the reinforcement rather than the withering of the law. Stalin’s famous remark later that year that “stability of the laws is necessary for us now more than ever” signalled the new legal policy, and the promulgation of the Stalin Constitution a few weeks later, in December 1936, formally opened the Stalinist era in the development of Soviet legal culture. [50]
As the symbol of the defeated revolution of the law Pashukanis was arrested and disappeared in January 1937. The purging of Pashukanis and his associates cleared the way for the re-articulation of the dormant Romanist legal ideals of stability, formality and professionalism. The process of rebuilding Soviet legal culture began immediately under the aegis of Vyshinsky, Pashukanis’ successor as doyen of the legal profession. While Pashukanis had been the theorist of NEP legal culture, explaining its rise and predicting its demise, Vyshinsky, the practitioner, was its consolidator by reinforcing and converting it into the Soviet legal culture. [51]
Vyshinksy’s critique of Pashukanis involves an intellectual contortionism replete with invective-laden and often self-contradictory statements. [52] Vyshinsky argues that law is neither a system of social relationships nor a form of production relationships. “Law,” he stresses, “is the aggregate of rules of conduct – or norms; yet not of norms alone, but also of customs and rules of community living confirmed by state authority and coercively protected by that authority.” [53]
Soviet socialist law, the argument continues, is radically unique in both form and content because:
it is the will of our people elevated to the rank of a statute. In capitalist society, allusions to the will of the people served as a screen which veiled the exploiting nature of the bourgeois state. In the conditions of our country, the matter is different in principle: there has been formulated among us, a single and indestructible will of the Soviet people – manifested in the unparalleled unanimity with which the people vote at the elections to the Supreme Soviet of the USSR and the Supreme Soviets of the union and autonomous republics ... [54]
The specific mark of Soviet law ... is that it serves, in the true and actual sense of the word, the people – society – ... In the USSR for the first time in history the people – the toiling national masses themselves – are the masters of their fate, themselves ruling their state with no exploiters, no landlords, no capitalists. [55]
Law is now to be viewed as a set of normative prescriptions, enforced by the state (whose own character is unproblematic), in accord with Stalin’s conception of the character and duration of the transitional phase. The conditions for the existence of Soviet socialist law are the necessity “to finish off the remnants of the dying classes and to organize defence against capitalist encirclement”. [56] Soviet socialist law must incorporate and instill revolutionary legality and stability. “Why is stability of statutes essential? Because it reinforces the stability of the state order and of the state discipline, and multiples tenfold the powers of socialism ...” [57]
Ignoring the internal class contradictions of the new Soviet state, Vyshinsky applauds Stalin’s teaching that “the withering away of the state will come not through a weakening of the state authority but through its maximum intensification.” [58] The process of withering away is of necessity postponed until:
all will learn to get along without special rules defining the conduct of people under the threat of punishment and with the aid of constraint; when people are so accustomed to observe the fundamental rules of community life that they will fulfil them without constraint of any sort. [59]
The legal culture of NEP along with the statutory legislation of the intervening years, so long castigated as bourgeois, was redefined as a socialist legal culture. The need to systematize the legal culture, so long obstructed as inconsistent with its withering away, became the new agenda for the legal profession. jurists, driven from the law schools, the research institutes, and the legal press by the revolution of the law, reappeared as participants in the reconstruction of legal education and research. Disciplines banished from the law curriculum by the radical jurists were reintroduced beginning in the spring term of 1937. New course syllabi and textbooks for every branch of law, especially those eliminated or suppressed by the legal transfer culture, began to appear with great rapidity. New editions of earlier texts were purged of Pashukanis’ influence and quickly re-issued. Carrying out the mandate of Article 14 of the Stalin Constitution, numerous jurists were mobilized to prepare drafts for the all-union civil and criminal codes. Finally, a vulgar neo-positivist jurisprudence, based on “class relations” and largely derived from the Stalin Constitution and even the Short Course, replaced the tradition of revolutionary legal theory epitomized by Pashukanis. [60]
By way, not of conclusion, but as preparation for future work, we must briefly outline the importance of a question confronted but unanswered in Pashukanis’ project that is also unanswered, and unfortunately unaddressed, in our own time. How, precisely, are we to understand the historical configuration of state and law in social formations where capitalist property has been abolished but where communism has by no means yet been achieved? How are we to resolve the apparent paradox that the legal practices of most, if not all, social formations dominated by the political rule of the proletariat have included the form, and very often the content, of the legal rules typically associated with capitalist modes of production?
To explain this question, as did Stalinism, in terms of capitalist encirclement and the construction of socialism in one country, is to avoid the issue. This is so for at least two reasons. First, as Marx always and Lenin usually argued, under socialism the proletarian dictatorship has two features which radically demarcate it from all other state dictatures: the extent of its powers and the duration of its domination must be limited, and these must ultimately inhere in the consent of its citizens. These features are structural preconditions of socialism, and without wishing to lapse into utopianism or idealism, they seem necessary irrespective of the specific economic, political or ideological histories of a given social formation. This would therefore exclude that Common explanation of the intensity and longevity of the Soviet polity which pointed to the essential continuity of pre- and post-revolutionary political practices. Further, these qualities of the proletarian dictatorship – clearly discernible as the early Roman, and not the post-Reformation concept of dictatorship [61] – must dialectically contain the capacity for self-transformation. State and legal forms, even while they are actively utilized by the proletariat or by the party which truly represents it, must simultaneously be in the process of immanent transformation. As Lenin himself put it in 1919, “The communist organization of social labour, the first step towards which is socialism, rests, and win do so more and more as time goes on, on the free and conscious discipline of the working people themselves”. [62] As such, we are convinced that only intellectual sophistry could assert that, at least since the late 1920s, the proletarian dictatorship in the USSR is a dictatorship (in the classical sense) of the proletariat.
The second reason in part involves the absence of the conditions necessary to the truth of the first. If the historical development of the USSR cannot be characterized as the development of the dictatorship of the proletariat, then how can it best be understood? If it is the case that capitalist property relationships have been abolished, and that they have been replaced by state property and collective farm property as the 1936 Constitution proclaimed, then one must inquire how it is that the agencies of the proletarian dictatorship have been used not only to prevent the external threats posed by capitalist encirclement, but much more so to repress what are perceived as internal dangers? This, to us, can only be explained by the endemic existence of class contradictions within the USSR. At the very least, therefore, we must reject the mechanistic identification of transformations in legal forms of capitalist property with the abolition of exploiting classes. [63] What is needed is a transformation in social relationships themselves. We are left with an ironic twist to Lenin’s dictum, when applied to the USSR since his death, that the dictatorship of the proletariat is the continuation of the class struggle in new forms. This was the thrust of Pashukanis’ own concern.
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January 1979 |
Piers Beirne |
1. His major treatise was Obshchaia teoriia prava i marksizm, first published in Moscow in 1924 and subsequently translated into French, German, Japanese, Serbo-Croat and into English in its third edition of 1927 as The General Theory of Law and Marxism. In J. Hazard (ed.), Soviet Legal Philosophy (1951), Harvard University Press, Cambridge, translated by H. Babb, pp.111-225.
2. According to the official spravka, Pashukanis was legally rehabilitated by the Military Division of the RSFSR Supreme Court in March 1956. The editors wish to acknowledge the generosity of Professor Dietrich A. Loeber, of the University of Kiel, for sharing a copy of this document with them. The most recent evidence of Pashukanis’ limited intellectual rehabilitation is contained in the Soviet collection of some of his early writings from the 1920s. These will appear under the entry E. B. Pashukanis, Obshchaia teoriia prava i marksizm, Nauka, Moscow.
3. The sources for this biographical information are Robert Sharlet’s interview with the late L.Ia. Gintsburg in Moscow, 1974; and J. Hazard, Settling Disputes in Soviet Society: The Formative Years of Legal Institutions (1960), Columbia University Press, New York, pp.17-18. The English reader should see generally E. Kamenka and A. Tay, The Life and Afterlife of a Bolshevik Jurist, Problems of Communism (1970), vol.19, no.1.
4. See pp.37-131 of present volume for translation of the first Russian edition.
5. E.B. Pashukanis, Predislovie to Obshchaia teoriia prava i marksizm (1926), Moscow, 2nd corrected and supplemented edition, p.3.
6. See R. Sharlet, Pashukanis and the Rise of Soviet Marxist jurisprudence, 1924-1930, Soviet Union 1, 2 (1974), pp.103-121, esp. pp.103-112.
7. For Pashukanis’ own account of his Hegelian heritage, see E.B. Pashukanis, Hegel on State and Law, Sovetskoe gosudarstvo (1931), pp.1-32.
8. See M.N. Pokrovsky, History of Russia from the Earliest Times to the Rise of Commercial Capitalism (1910-1912), translated and edited by J.D. Clarkson and M.R.M. Griffiths, Martin Lawrence, London, n.d. See further G.M. Enteen, The Soviet Scholar-Bureaucrat: M.N. Pokrovskii and the Society of Marxist Historians (1978), Pennsylvania State University Press, Pennsylvania and London.
9. See K. Marx, Letter to Weydemeyer (February 1st, 1859), in Marx and Engels: Selected Correspondence (1942), International Publishers, New York, p.119; and K. Marx, The Grundrisse (1857-1858), translated by M. Nicolaus (1973), Random House, New York, p.108. 10 For example, see A. Fraser, Legal Theory and Legal Practice, Arena, no.44-45.
10. For example, see A. Fraser, Legal Theory and Legal Practice, Arena, no.44-45 (1976), pp.123-156; C. Arthur, Towards a Materialist Theory of Law” Critique, 7 (1976-1977), pp.31-46; I. Balbus, Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law, Law and Society (1977), vol.11, no.3, pp.571-588; J. Holloway and S. Picciotto, Capital, Crisis and the State, Capital and Class, summer 1977, no.2, pp.76-101; C. Arthur, introduction to Evgeny B. Pashukanis, Law and Marxism: A General Theory (1978), Ink Links, London, pp.9-31, a translation from the German edition of Allgemeine Rechtslehre und Marxismus: Versuch einer Kritik der juristischen Grundbegriffe; S. Redhead, The Discrete Charm of Bourgeois Law: A Note on Pashukanis, Critique, 9 (1978), pp.113-120.
11. Other than in some of his early writings, such as On the Jewish Question (1843), Marx himself had very little to say on the importance of the legal form. But see F. Engels and K. Kautsky, Juridical Socialism, Politics and Society (1977), vol.7, no.2, pp.199-200, translated and introduced by P. Beirne.
12. See E.B. Pashukanis, The Situation on the Legal Theory Front (1930), translated in J. Hazard (ed.), Soviet Legal Philosophy (1951), op. cit., pp.237-280. Pashukanis’ second self-criticism appeared in 1934, his third – State and Law under Socialism (1936) – is fully translated in the present volume, pp.346-61.
13. This definition was officially adopted by the Commissariat of Justice in 1919, and incorporated into RSFSR Laws (1919). See also P.I. Stuchka, Marksistskoe ponimanie prava, Kommunisticheskaia revoliutsiia (1922), no.13-14, pp.37-38; and Zametki o klassovoi teoriia prava, Sovetskoe pravo (1922), no.3.
14. V.I. Lenin, What the “Friends of the People” Are and How They Fight the Social Democrats (1894), LCW, vol.1, p.153 (for abbreviations, see this volume, p.125).
15. The concept of persona in Roman jurisprudence originally derived from the function of an actor’s stage mask. The mask enabled the actor to conceal his real identity and to conform to the role written for him. Transposed into the legal realm, as a permanent condition, man must assume a legal mask in order to engage in the activities regulated by legal rules. See further, O. Gierke, Associations and Law (1977), translated and edited by G. Heiman, University of Toronto Press, Toronto.
16. P.I. Stuchka, Na ministerstvom kresle, in P.I. Stuchka, 13 let bor’by za revoliutsionno-marksistskuiu teoriiu prava (1931), Moscow.
17. See Dekrety sovetskoi vlasti (1957), Moscow, vol.1, pp.124-126.
18. J. Hazard, Settling Disputes in Soviet Society (1960), op. cit., p.vi.
19. In 1927 Pashukanis asserted that the term “proletarian state capitalism” was an error. See J. Hazard (ed.), Soviet Legal Philosophy (1951), op. cit., pp.179.
20. V.I. Lenin, To Comrade Krzhizhanovsky: the Praesidium of the State Planning Commission (May 1921), LCW, vol.42, p.371.
21. V.I. Lenin, Draft Theses on the Role and Function of the Trade Unions Under the New Economic Policy (1922), LCW, vol.33, p.184,
22. ibid., p.185.
23. V.I. Lenin, Report on Party Unity and the Anarcho-Syndicalist Deviation (March 16, 1921), LCW, vol.32, p.251.
24. V.I. Lenin, Instructions of the Council of Labour and Defence to Local Soviet Bodies (May 1921), LCW, vol.32, p.384.
25. See R. Sharlet, Pashukanis and the Rise of Soviet Marxist jurisprudence, op. cit., pp.112-115.
26. Pashukanis’ phrase in Disput k voprosu ob izuchenii prestupnosti, Revoliutsiia prava (1929), no.3, p.67.
27. E.B. Pashukanis, Marksistskaia teoriia prava i stroitel’stvo sotsializma, Revoliutsiia prava (1927), no.3, pp.3-12, translated in present volume on pp.186-99.
28. M.A. Reisner, Pravo, nashe pravo, chuzhoe pravo, obshchee pravo (1925), Moscow, translated in J. Hazard (ed.), Soviet Legal Philosophy (1951), op. cit., pp.83-109.
29. P.I. Stuchka, Gosudarstvo i pravo, v period sotsiabsticheskogo stroitel’stva, Revoliutsiia prava (1927), no.2. See also the criticism in S.I. Raevick book review, Sovetskoe pravo (1928), no.2 (32), p.98.
30. Indeed, it is most likely that Economics and Legal Regulation was an indirect response to Stuchka’s Vvedenie v teoriim grazhdanskogo prava of 1927. Here Stuchka had reiterated that exchange must be subsumed within the concept of production because “... the distribution of the agents of production is itself only one of the aspects of production”. See P.I. Stuchka, Izbrannye proizvedeniia (1964), Riga, p.565, and R. Sharlet, Pashukanis and the Commodity Exchange Theory of Law 1924-1930, unpub. Ph.D. diss., Indiana University, 1968, p.210. The Communist Academy effected a compromise in 1929, in its first syllabus on the general theory of law. The concept of law was now rooted in the process of commodity production and exchange. See A.K. Stal’gevich, Programma po obshchei teoriia prava (1929), Moscow, p.11, and see R. Sharlet (1968), op. cit., p.210.
31. A. Avtorkhanov, Stalin and the Soviet Communist Party (1959), New York, p.21.
32. On the two wings of the commodity exchange school see R. Scheslinger, Soviet Legal Theory (1945), Kegan Paul, London, pp.153-156.
33. A. Vyshinsky, Stuchka, Malaia sovetskaia entsiklopediia (1930), vol.8, pp.514-515.
34. P.I. Stuchka, Proletarskoe pravo, in P.I. Stuchka, 13 let ... (1931), op. cit., pp.24, 34.
35. P.I. Stuchka, Foreword to 13 let ... (1931), op. cit., p.4.
36. P.I. Stuchka, Vvedenie v teoriiu grazhdanskogo prava (1927), in P.I. Stuchka, Izbrannye proizvedeniia (1964), op. cit., pp.563-564.
37. A. Piontkovsky, Marksizm i ugolovnoe pravo: sbornik statei (1929), 2nd ed., Moscow, pp.32-33, 39. Quoted in E.B. Pashukanis, The Situation on the Legal Theory Front (1930), op. cit., pp.253, 250.
38. Note missing - [MIA]
39. P.I. Stuchka, Dvenadtsat’ let revoliutsii gosudarstva i prava, in P.I. Stuchka, 13 let ... (1931), op. cit., p.189.
40. A. Piontkovsky, Marksizm i ugolovnoe pravo (1929), op. cit., pp 87.
41. A.Ia. Estrin, XVth Congress of the Party and Questions of Law, Revoliutsiia prava (1928), no.2, p.13. See also R. Shatter, Pashukanis and the Withering Away of Law in the USSR, in S. Fitzpatrick (ed.), Cultural Revolution in Russia, 1928-1931 (1978), Indiana University Press, Bloomington, pp.169-188.
42. See R. Sharlet, Stalinism and Soviet Legal Culture, in R.C. Tucker (ed.), Stalinism (1977), Norton, New York, pp.161-162.
43. J. Stalin, Problems of Leninism (1947), 11th ed., State Publishing House, Moscow, pp.344-345.
44. J. Stalin, Political Report of the Central (Party) Committee to the XVIth Congress, 1930, in J. Hazard (ed.), Soviet Legal Philosophy (1951), op. cit., p.234.
45. Marx himself had first appreciated the salience of this distinction in The Eighteenth Brumaire of Louis Bonaparte and The Civil War in France.
46. E.B. Pashukanis, The Situation on the Legal Theory Front” (1930), op. cit., pp.278-280.
47. See R. Sharlet, Stalinism and Soviet Legal Culture, op. cit., 149 and pp.172-173.
48. J. Hazard, Housecleaning in Soviet Law, American Quarterly on the Soviet Union (1938), vol.1, no.1, p.15.
49. To Pashukanis’ credit he still refused to recognize the concept of “proletarian law”, But even this incorporated somewhat of a major retreat, however, by his terminological nicety of the “class law of the proletariat” (1935: see. p.307).
50. See R. Sharlet, Stalinism and Soviet Legal Culture, op. cit., pp.168-169.
51. See R. Sharlet, ibid., p.169,
52. This critique is largely contained in four sources. See A.Ia. Vyshinsky, The Fundamental Tasks of the Science of Soviet Socialist Law (1938), in J. Hazard (ed.), Soviet Legal Philosophy (1951), op. cit., pp.303-341; The Marxist Theory of State and Law, Bolshevik (1938); The XVIIIth Congress of the CPSU and the Tasks of the Theory of Socialist Law, Sovetskoe gosudarstvo (1939), no.3; J. Hazard (ed.), The Law of the Soviet State (1948), Macmillan, New York, translated by H. Babb.
53. A. Vyshinsky, Fundamental Tasks of the Science of Soviet Socialist Law (1938), op. cit., p.337.
54. ibid., p.339.
55. A. Vyshinsky, The Law of the Soviet State (1948), op. cit., p.75.
56. ibid., p.62.
57. ibid., p.51.
58. ibid., p.62.
59. ibid., p.52.
60. Published in November 1938, The History of the Communist Party of the Soviet Union (Bolshevik): Short Course almost immediately became the Stalinist forerunner of what, for China later, Mao’s Little Red Book was the functional equivalent.
61. See particularly, V.I. Lenin, A Great Beginning (1919), LCW, vol.29, p.420.
62. ibid., p.420.
63. Any distinction between economic and legal property faces the logical difficulty that economic property is usually conceptualized in legal terms (ownership, use, possession etc.). This problem has recently been posed, unsatisfactorily, by several authors. See E. Balibar, On the Dictatorship of the Proletariat (1977), New Left Books, London, pp.66-77; C. Bettelheim, Class Struggles in the USSR 1917-1923 (1976), Monthly Review Press, New York, pp.20-32; A. Glucksman, The Althusserian Theatre, New Left Review (1972), p.68; N. Poulantzas, Political Power and Social Classes (1973), New Left Books, London, p.72. But, see the interesting and important reformulations contained in G.A. Cohen, Karl Marx’s Theory of History: A Defence (1978), Princeton University Press, Princeton; and P. Corrigan, H. Ramsay and D. Sayer, Socialist Construction and Marxist Theory (1978), Monthly Review Press, New York and London.
Last updated on 13.5.2004