Evgeny Pashukanis

The Marxist Theory of Law and the Construction of Socialism

(1927)

Marksistskaia teoriia prava i stroitel抯tvo sotsializma, Revoliutsiia prava (1927), no.3, pp.3-12.
From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. p.Beirne & R. Sharlet), London & New York 1980, pp.186-99.
Translated by Peter B. Maggs.
Copyright © Peter B. Maggs. Published here by kind permission of the translator.
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Introductory Note

By 1927 Pashukanis was rapidly moving into the dominant position within Marxist legal philosophy and the Soviet legal profession. Simultaneously, he was partly instrumental in launching the journal The Revolution of the Law which appeared under the auspices of the Communist Academy. But this same period, which contained both the approaching end of the New Economic Policy and the apex of the intra-Party debates on collectivization and industrialization, also witnessed the first serious criticism of his commodity exchange theory of law. The gist of this criticism ?which did not yet assault the theory as a whole, but only certain of its essential parts ?was that Pashukanis had overextended the concept of commodity exchange as the basis of the legal form. Leading the criticism was Stuchka himself, the principal Marxist theorist of civil law ?the very source of Pashukanis?theory. In a constructive manner Stuchka expressed part of his criticism in the second issue of The Revolution of the Law, in an essay entitled State and Law in the Period of Socialist Construction. Pashukanis?essay The Marxist Theory of Law and the Construction of Socialism appeared in the subsequent issue, and was directed as a reply both to Stuchka and to the swelling criticism of his own followers in the Communist Academy. In this particular essay Pashukanis seems successfully to have accommodated himself to the fact that the legal form was embryonically present in pre-capitalist modes of production. In a later article (The Situation on the Legal Theory Front, Sovetskoe gosudarstvo i revoliutsiia prava, 1930, no.11-12, pp.16-49) he more bluntly admitted that the basic defect of The General Theory of Law and Marxism was that ?.. the problem of the transition from one socio-economic formation to another ?and particularly the transition from feudalism to capitalism ... was not posed therein with historical concreteness? But in both cases Pashukanis combines a sensitivity to the pragmatic aspects of socialist construction with a resolute denial that the legal form can be socialist in either form or content.

A Marxist analysis of the problems of a general theory of law is by no means merely an academic matter. A revolutionary epoch is differentiated from periods of peaceful, evolutionary development by the fact that it becomes necessary to formulate all problems in the broadest possible form. Neither piecemeal concepts nor even a correct approach to one or another particular problem is sufficient for revolutionary action; instead, a general orientation is required, a correct general approach which makes possible the solution of a problem in all of its aspects.

When we were confronted with the necessity of smashing the old judicial machine immediately after the October Revolution, this basically practical matter necessitated an immediate solution of the general theoretical problems of the relationship between statutory law and law in general. For it was obvious that the revolution could neither leave the mass of old tsarist laws and the laws of the Provisional Government intact, nor immediately replace all the rules superseded and destroyed by the revolution with new rules. Consequently, the question arose as to how these courts would exercise justice and upon what this justice would be based. The doubts which arose as how to answer this question contributed to some indecision. As Comrade Stuchka reports, the implementation of Decree No.1 on the Court encountered certain difficulties. [1*]

In order to extricate ourselves from this dilemma and solve the problem posed above, some type of general conception of law was needed and one was proposed; unfortunately, it was the psychological theory of intuitive law borrowed from Petrazhitsky rather than a Marxist conception of law.

Thus, a paradox occurred; a revolutionary and politically correct step was based on a theory which could neither be called correct nor Marxist. This divergence between theory and practice could not of course be ignored. The idea of law as the sum of 搃mperative-attributive experiences?was not adopted as official Soviet doctrine. Reisner抯 attempt to elaborate and develop this conception of law in his later writings led to conclusions which were clearly unacceptable. It is not possible simultaneously to regard the [Party抯] policy on the movement towards socialism within the context of the New Economic Policy seriously, and to maintain that in the field of law, 揥e are in transition to a certain compromise and to the re-establishment of particular institutions of the class law of the enemy as a constituent part of the legal order? [1] It is impossible to accept the Leninist teaching on the dictatorship of the proletariat and simultaneously to declare that 搇ike the bourgeois state, our Soviet state also contains both a general legal order and also proletarian, peasant and bourgeois law? [2] However, such assertions logically follow from the view of law not as a real system of relationships subordinated to the political will of the ruling class, but as 揳n ideology which is based in our consciousness primarily on the concept of right, justice, and equality?[3], 揳n ideology striving for compromise with reality or appearance? an ideology which 揳s a result leads to the reconciliation and weakening of contradictions since it bears within itself a desire not only for general peace, but also for general law.?[4]

Clearly with such an approach the role of law in contemporary Soviet reality can be evaluated any way one wishes except from the perspective of the movement towards socialism because, according to Reisner, law is obviously an unsuitable instrument for this purpose.

The process of compiling the Civil Code of the RSFSR was another decisive turning point at which some type of general conception of law became urgently necessary. The impact of bourgeois restorationist tendencies ?as reflected by the legal practitioners ?led to the search for formulations which would protect Soviet civil law from infiltration by the bourgeois principles of individualism. The most explicit and basic expression of this restorationist tendency could be found in the question of subjective legal capacity. The most serious practical threat [however] was presented by attempts to remove from the Code every mention of the 揷ommanding heights?in the hands of the proletarian state, and also the attempt to foreclose the possibility of extensive [judicial] interpretation. In order to counteract these latter dangers, it was insufficient to insert the appropriate concrete provisions both in the Code itself and also in the enabling statute. But in regard to the question of subjective legal capacity it was necessary to introduce a new and general idea. This idea found its expression in Arts.1 and 4 of the Civil Code. [2*] However, unfortunately once again a line which was completely correct and indisputable from the political perspective was expressed in an inadequate theoretical form which moreover was borrowed from bourgeois jurists.

The negative intention included 慽n these articles is beyond dispute: we do not recognize any kind of absolute legal capacity or any inalienable and subjective private rights. For such inalienability is the inalienability of capitalist exploitation. But our October Revolution eliminated this exploitation (nationalization of land, banks, heavy industry, transportation, foreign trade etc.), and left in its wake the task of the final elimination of capitalism. The law of the state that sets itself this task cannot recognize absolute and inalienable private rights; there can be no doubts on this matter.

However, the positive interpretation of subjective legal capacity which is given by the above-mentioned articles of the Civil Code, and in particular by various commentators on these articles, is much more doubtful.

We have deprived and are depriving the capitalists of their existing private rights, but does it follow from this that we, i.e. the proletarian state, 揼rant?these private rights to the small producer, i.e. first of all to the peasant? Is declaring this the equivalent of asserting that the proletarian state has created small peasant farms with their atomization and their inability to relate to the external world other than through the market and market exchange?

Instead of constructing a Marxist critique of one of the basic legal concepts by grasping its economic roots, we have remained in the present instance under the influence of dogmatic legal positivism which resembles the dogmatism of natural law.

Civil legal rights, as Art.1 states, are protected by law with the exception of those instances when these rights are exercised in contradiction to their 搒ocio-economic purpose? But what is the 搒ocio-economic purpose?of a civil legal right? The answer to this question can be found in Art.4 where the granting of civil legal capacity is justified by the purpose of developing the forces of production. The idea lying at the basis of both formulations is clear and simple. The proletarian state allows private property and private exchange, but for the exclusive purpose of developing the forces of production. This is nothing other than an attempt to translate into the language of legal definitions the idea which lay at the basis of the New Economic Policy.

However, in so doing, two entirely unforeseen misconceptions arose. The first consists of the fact that the reservation with respect to socio-economic purpose as a condition of the protection of civil-law rights, is clearly aimed at private ownership of the means of production (this is the spirit of the conventional commentary on Art.1); then it becomes entirely permissible to consider 搒ocio-economic purpose?as the development of the forces of production. But, it may be asked, what relation to the development of the forces of production has the right to compensation for harm, say for injury, or the right to support payments for a member of the family who is unable to work? Can the development of the forces of production serve as the criterion for the determination of whether or not this right is subject to legal protection?

It is not difficult to adduce a series of legal requirements of this type whose satisfaction (and accordingly, the protection of the given right) cannot be considered from the point of view of the development of the forces of production, but which can be considered quite naturally and must be considered by the court from the point of view of justice or fair exchange. But we conclude from this, that in granting and protecting civil-law rights, the proletarian state by no means intended to develop the forces of production in all instances. At times there was simply no alternative to this method of protecting civil-law rights due to the insufficient development of the planned economy and the fact that the tasks of social security and social insurance were not yet fully completed.

This is one side of the problem. But on the other hand, the criterion of [what constitutes] development of the forces of production, having been established by the [bourgeois] jurists, immediately took on a certain absolute character. Zealous commentators on our Civil Code eagerly attributed to the concept of the development of the forces of production a neutral character with respect to class and policy. A kind of fusion of our Soviet law with the tendencies of the verbal conventions of capitalism as reflected in foreign legislation followed. This easy method of converting private property into a 搒ocial function?has nothing in common with our situation, which was defined at the time of introduction of NEP by two circumstances: a desire to meet the economic needs of the peasantry (a free disposition of the surpluses as well as the 揷o-operative plan?, and readiness to 損ay for science?(concessions, rent and other forms of state capitalism).

In the time which has passed since 1921, our 搈ovement toward socialism in the context of NEP? has made a significant step forward and it has already long since become time for Soviet jurists to make the supreme criterion of their dogmatic and politico-legal purpose not the development of the forces of production for themselves, but the perspective of the victory of the socialist elements of our economy over the capitalist ones.

We will deal only with these two points. However, one could adduce an endless number of instances related to other branches of law which just as sharply posed problems of a general character, that required not only a clear understanding of the social class goal and political problem, but a no less deep understanding of the particular features of the legal form. To separate one from the other becomes more and more dangerous. The practice of our Soviet administrative agencies, which consists in the fact that the executive personnel of these institutions have employed in the role of 搇egal commissars? special legal advisers ?in 99 cases out of 100 old specialists ?cannot but lead to the saddest results. An ordinary question with which they turn to the legal adviser, 揅an something or other be done from the legal point of view??proceeds from the na飗e presumption that everything consists of searching out the appropriate decree or the appropriate article in the Code. In fact of course, the conclusion required is by no means the consequence of a deus ex machina. In 75 cases out of 100 a conscientious legal adviser must pose the question in reply, 揃ut what do you think, can this or that be done from the political perspective??For every serious question of administration is connected with legal form not just by its external appearance but by its very essence. He who does not understand the class nature of the matter will either be helpless to give anything other than a miserable hackwork analysis of it from the legal point of view, or will simply pervert its nature. Extreme disregard for legal form ?it still exists among many [jurists] ?takes vengeance on us and takes vengeance in the most dialectical manner by the development of senseless formalism and bureaucratism. But until the time when legal formulation is considered as an integral part of the political and socio-economic nature of the activity of the state, a matter which cannot be left in 搒trange hands? until then an abundance of empty lifeless formalism is inescapable for us.

Accordingly, the task consists in connecting the study of legal form and its practical application with the economic and social-class factors which are the bases of this form itself, of its individual aspects and, finally, of individual legal institutions.

The categories most characteristic of bourgeois law ?the subject of a right, ownership, contract etc. ?primarily and most clearly reveal their material basis in the phenomenon of exchange. The category of the legal subject corresponds to the category of the value of labour. The impersonal and general quality of commodities is enhanced by the formal qualities of equality and freedom which owners of commodities confer upon one another. This is the starting point of Marx抯 criticism of abstract legal categories.

In my essay The General Theory of Law and Marxism, I tried consistently to apply this point of view to different branches of law and different legal categories. It seemed to me that, as a result, a more or less structured concept was achieved, which also incidentally agreed with those brief remarks that are found in Marx concerning the law of the transitional period to socialism. In this approach, the contrast between the principle of socialist planning and the principle of equivalent [exchange] or between the technical and social division of labour, achieves a decisive significance for the explanation of a whole series of incompletely formulated problems of a theory of law. The best proof of the utility of my point of view is the fact that many comrades have used it successfully for both critical and constructive purposes in the various branches of law.

At the same time, a further critical verification of the proposed hypothesis is, of course, necessary. Criticisms of substance are always useful. It is wrong, however, to resort to a simplistic outcry against legal ideology in general. The merit of the Section of Law of the Communist Academy consists, among other things, in the fact that it has avoided this seductive path.

In his article State and Law in the Period of Socialist Construction [5], Stuchka has formulated a series of points with respect to my conception, which for brevity, following Stuchka, we will term the 搇abour theory? This requires certain clarification and correction.

First, I readily agree that [my] above-mentioned essay in many respects needs further development and perhaps reworking. A whole series of problems could not be covered in the book and indeed, at that time simply did not come within the author抯 field of vision. Such for example, is the problem of the law of the transitional period, or Soviet law, fully posed by Stuchka, which is among his outstanding contributions to the theory of law.

Of course, I did not view the process of the withering away of law as a 揹irect transition from bourgeois law to non-law? If one could get such an impression, then this is because I directed my main attention to commenting on the well-known place in Marx抯 Critique of the Gotha Programme, which refers to the 搉arrow horizon of bourgeois law? Of course, this 揵ourgeois law without the bourgeoisie?(Marx refers to the stage when classes are already destroyed and only the principle of distribution in proportion to labour time is retained) is as far away as heaven is from earth from bourgeois law without quotes, which is a facilitating element of the process of exploitation. The class functionality of this law and not only of this, but also of our current Soviet law, corresponding to a lower level of development than that which Marx envisaged in the Critique of the Gotha Programme, is fundamentally different from genuine bourgeois law. Only 揵ourgeois law?in quotes ?which is not genuine bourgeois law ?can wither away. The law of the bourgeois state, protected by the force of the latter, can only be destroyed by the proletarian revolution.

I repeat that the great service of Comrade Stuchka is his continuous emphasis upon the particular nature of Soviet law which flows from its revolutionary origin, in contradistinction to every attempt to consider our Soviet law as a fuller realization of certain 搒ocial?tendencies observed in the bourgeois legal order.

Similarly [to Stuchka抯 credit is due the recognition of] the indisputable fact of the existence of feudal law, which had as its specific class-functional significance a whole series of particular features derived primarily from a specific form of exploitation. Can there be discussion of the question form of exploitation? Can there be discussion of the question if the specific features of feudal law, and its particular form are related to the absence of the development of a commodity and money economy and to the primacy of relations in kind? I think that Comrade Stuchka will not deny this relationship. On the contrary, in his writings he repeatedly emphasizes the notion that, for example, ownership of land loses its feudal character at the same time that land becomes a commodity like other commodities, and its owner a commodity owner. Thus, the transition from the feudal law of sovereignty over land (and over people) to the bourgeois law of private ownership of land (from which political authority was distinguished as a special force) [6] can be considered not only from the perspective of a revolution of the functional-class character of law, but also from the point of view of a reversal of its form. It is indeed because of this that the bourgeoisie not only substitute their new law for feudal law but give such an all encompassing significance to the legal element in social life and ideology.

It should also not be forgotten that the division of labour, and the exchange connected with it, are the essence of a phenomenon that appears earlier than the feudal system. Although feudalism, compared with the later stages of development, is characterized by the preponderance of relationships in kind, we however meet with purchase and sale, with products and labour assuming the form of commodities, and with a universal equivalent, i.e. money, throughout the entire feudal period.

Thus, the premises are already present for the construction of economic relations as relations of exchange. The appearance of private property, which likewise precedes feudalism, is the result of the division of labour. Private property first appears as movable property. [7]

At the time when the large landholdings of the ecclesiastical and secular aristocracy began to develop in place of family and tribal ownership of land, feudalism matured as a result and movable property and certain rudiments of the law of obligations were already in existence. In particular one must agree with this [position] if one accepts the point of view of one of the most contemporary historians of early feudalism, Alphonse Dopsh, who has denied the catastrophic nature of the destruction of Roman culture by the German tribes. However, for our purposes it suffices to accept the incontrovertible evidence concerning the presence of a developed form of value contained in the so-called barbarian laws in the era of early feudalism. Merely recall that wergeld [3*] was always calculated in monetary units.

It follows from this, incidently, that private property, which is based on the fact of the social division of labour and upon exchange, not only succeeded the feudal law of things as the sole and universal form of property, but co-existed with and even preceded it.

In considering the law of feudal society, we can, similarly, establish a relationship between the particular features of the content and class function of the law of a given period on the one hand, and its particularities of form on the other. For this we need neither deny the existence of feudal law nor convert it into bourgeois law. The tithe and the cropshare should not be confused with the surplus value of capitalist society. However, having completely understood this latter category, we can also, as Marx further indicated, additionally explain the significance of the feudal forms of exploitation. In the same manner, criticism of the most abstract and perfected definitions of bourgeois law can be useful in explaining the preceding forms, although in many respects they embody completely contradictory characteristics.

The relationship between two commodity owners, as a real basis for the whole wealth of legal constructions, is itself a rather empty abstraction. Much is hidden behind the will of the commodity owner: the will of the capitalist, the will of the small producer of commodities and the will of the worker selling his only commodity ?labour power. The formal character of the legal transaction says nothing of its economic and social class content.

On this point Comrade Stuchka quite correctly appeals to us 搕o confine ourselves to the abstract world of simple commodity producers for no longer than is necessary to reveal the secrets of the abstractions of bourgeois law. Once this is done, back to reality, to class society.

One can hardly object to this appeal. The interpretation of the meaning of formal categories of law does not deprive them of their formal character and consequently does not eliminate the danger of reverting to a legal ideology veiled in protective Marxist coloration. Comrade Stuchka is certainly right to raise his voice in warning against this tendency.

Especially beyond question is Stuchka抯 statement that the will of the commodity owner under simple commodity production, and the will of the capitalist commodity owner, are qualitatively different wills, although in transactions of purchase and sale they project an identical formal appearance. The direction of will in one case is expressed by the economic formula C-M-C, and in the other case by the formula M-C-M-+i. The central importance of this distinction is very clearly revealed for us in connection with the recent intra-Party discussion when we had to struggle against the uncritical usage of the term 損rivate enterprise?and demonstrate the necessity for a strict distinction between capitalist production on the one hand and simple commodity production, i.e. peasant farming, on the other.

In conclusion, a few remarks are in order with regard to the relationship between state and law. On this point Comrade Stuchka warns against economism and observes a certain lack of understanding in my positions in this connection. I cannot agree that my work contains any lack of understanding in the sense of a concession to economism or to a fatalistic distortion of the Marxist teaching on social development. I was making two points. In the first place, I warned against confusing the real possibilities of state power and the results actually achieved by it, with what is contained in the laws issued by the state. For revolutionary periods in particular, it is important to distinguish two different things mentioned by none other than Stuchka himself, laws which 搘ork?and those which 揹o not work? Further, I asserted that the social division of labour and, accordingly, the appearance of economic subjects as participants in this exchange, are facts that are not connected in their origin with state imperatives. This is also a proposition which would seem to be beyond question. However, these facts contain the basic and principal prerequisite for a legal relationship. It goes without saying that the concrete means of a given system of legal relationships are a matter of state power and the laws issued by it. It would be absurd to deny this, but it would be even more absurd if, in the course of analysing legal regulation as an historical phenomenon, we reduced everything to an objective norm, to a rule as such, if we 揳bolished?subjective rights without making an effort to give some thought to the real economic facts which are concealed by this category. Therefore, those jurists who are inextricably the prisoners of legal ideology (or of the concept of public power as the source of objective norms, itself a thoroughly legal concept) make a humorous impression when claiming they are making some sort of step forward and leading us away from 搃ndividualistic and metaphysical constructions? In fact they are continually going round and round in the circle of their discredited definitions, arriving only at a complete misunderstanding of what they themselves are discussing.

I tried in my work to show that for the Marxist it is not necessary to follow this example, i.e. to explain law through a juridicized state[i.e. a legal state]. From such a 損ositivist?theory of law, I called for a return to Marx who shows how 搕he creation of a political state and the division of civil society into independent individuals ... is accomplished by one and the same action?

By concentrating attention on the omnipotent state in the sphere of the creation and support of the legal form (generally obligatory laws, the force of judicial decision, the strict execution of sentences etc.), the positivist jurists consciously or unconsciously conceal the far more important extra-legal, extra-statutory [and] extrajudicial power of the state which is directed towards the defence of class sovereignty by every means, all of which are outside the legal form.

Comrade Stuchka is absolutely right in emphasizing the significance of state power in the process of accelerating the transition from one mode of production to another. But this was not the subject of discussion in my study.

The problem posed by Stuchka is much broader and we are not in disagreement with it. My task was much more modest; to show the internal connection between the social division of labour expressed in the form of a commodity, and the basic concepts of so-called private and public law.

I am convinced that only through this approach can Marxist criticism overcome all regression into absolutist juridical dogmatism which, as experience has shown, are inevitably transformed into a reversion to bourgeois legal ideology.

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Notes

1. M. Reisner, Law, Our Law, Foreign Law, General Law (1925), Leningrad-Moscow, p.209.

2. ibid., p.198.

3. ibid., p.24.

4. ibid., p.119.

5. See Revolution of the Law (1927), no.2, pp.3-26.

6. 揟hrough the emancipation of private property from the community, the State has become a separate entity, beside and outside civil society; but it is nothing more than the form of organization which the bourgeoisie necessarily adopt both for internal and external purposes, for the mutual guarantee of their property and interests? K. Marx and F. Engels, 揊euerbach: Opposition of the Materialistic and Idealistic Outlook?(1845-1846), MESW, vol. 1, p.77.

7. 揜eal private property began with the ancients, as with modern nations, with movable property.?ibid., p.77.

Footnotes

1*. See P.I. Stuchka, State and Law in the Period of Socialist Construction, Revoliutsiia prava (1927), no.2; and P.I. Stuchka, The Old and the New Court, Pravda, January 3-5, 1918 [eds.]

2*. See Z.L. Zile, Ideas and Forces in Soviet Legal History (1970), College Printing and Publishing Co., Madison Wis., p.84, 2nd edition [eds.].

3*. In ancient Teutonic and Old English law wergeld was the monetary equivalent calculated to release an offender from further liability for homicide and certain other crimes [eds.].