The General Theory of Law and Marxism

Evgeny Pashukanis

• Verlag: Routledge
• Jahr: 2017
• ISBN:
  9781351482349
• Auflage: 1
• Thema: Política y relaciones internacionales
• Thema: Política

E. B. Pashukanis was the most significant contemporary to develop a fresh, new Marxist perspective in post-revolutionary Russia. In 1924 he wrote what is probably his most influential work, The General Theory of Law and Marxism. In the second edition, 1926, he stated that this work was not to be seen as a final product but more for ""self-clarification"" in hopes of adding ""stimulus and material for further discussion."" A third edition was printed in 1927.Pashukanis's ""commodity-exchange"" theory of law spearheaded a perspective that traced the form of law, not to class interests, but to capital logic itself. Until his death, he continued to argue for the ideal of the withering away of the state, law, and the juridic subject. He eventually arrived at a position contrary to Stalin's who, at that time, was attempting to consolidate and strengthen the state apparatus under the name of the dictatorship of the proletariat. Inevitably, Pashukanis was branded an enemy of the revolution in January 1937. His works were subsequently removed from soviet libraries. In 1954, Pashukanis was ""rehabilitated"" by the Soviets and restored to an acceptable position in the historical development of marxist law.In Europe and North America, a number of legal theorists only rediscovered Pashukanis's work in the late 1970s. They subjected it to careful critical analysis, and realized that he offered an alternative to the traditional Marxist interpretations, which saw law simply and purely as tied to class interests of domination. By the mid-1980s the instrumental Marxist perspective in vogue in Marxist sociology, criminology, politics, and economics gave way, to a significant extent due to Pashukanis's insights, to a more structural Marxist accounting of the relationship of law to economics and other social spheres.In his new introduction, Dragan Milovanovic discusses the life of Pashukanis, Marx and the commodity-exchange theory of law, and the historical lessons of Pashukanis's work. This bo

1 The Methods of Constructing the Concrete in the Abstract Sciences

In the study of its subject, every science which makes generalisations is dealing with one and the same concrete and total reality. One and the same observation, such as the observation of a heavenly body moving through the meridian, can give rise to psychological as well as to astronomical inferences. One and the same fact, such as the leasing of land, can form the subject of juridical as well as economic investigations. Thus the various sciences differ mainly in their approach to reality and in their methods. Each science has its own particular design, in terms of which it attempts to reproduce reality. In so doing, each science constructs concrete reality in all its wealth of forms, internal relations and dependencies as the result of a combination of the most simple abstractions. Psychology tries to break down consciousness into its most simple elements. Chemistry applies the same approach to matter. Wherever we are unable in practice to break reality down into its most simple elements, abstraction comes to our aid. It has a particularly large role to play in the social sciences. The maturity of a social science is determined by the degree of perfection attained in the relevant abstraction. Marx illustrates this in an impressive manner with reference to political economy.

He maintains that it would seem quite natural to begin one’s analysis with the concrete totality, with the population living and producing in a particular geographical environment; but that population is an empty abstraction if one leaves out the classes of which it is composed. These classes in turn mean nothing without the conditions of their existence such as wages, profit, rent, and so forth. The analysis of the latter presupposes the elementary categories of ‘price’, ‘value’, and ‘commodity’. Taking these simplest determinants as his starting point, the economist reproduces the same concrete totality, not any longer, however, as a chaotic, blurred whole, but ‘as a rich totality of many determinations and relations’.¹ Marx adds, moreover, that the historical development of economic science has followed precisely the opposite course: the economists of the seventeenth century started from the concrete – nation, state, population – in order to deduce rent, profit, wages, price and value. Yet the fact that it was historically unavoidable to proceed in this manner does not make it methodologically correct.

These observations are directly pertinent to the general theory of law. The concrete totality – society, the population, the state – must in this case, too, be the conclusion and end result of our deliberations, but not their starting point. By moving from the most simple to the more complex, from the process in its purest form to its more concrete manifestations, one is following a course which is methodologically more precise and clearer, and thus more correct, than if one were to feel one’s way forward with nothing more in mind than a hazy and unarticulated picture of the concrete whole.

The second methodological observation which it is necessary to make at this point concerns something which is specific to the social sciences, or rather to the concepts used by them. Take, for example, some concept from the natural sciences, such as energy. We can of course establish the exact point in time when it first occurred. Nevertheless, such a date means something only to the history of science and culture. In scientific research itself, the application of this concept is not at all predicated on any time limits. The law of the transformation of energy was in effect before man appeared on earth, and it will continue to take effect after all life on earth is extinct. It exists outside of time; it is an eternal law. One can indeed ask when the law of the transformation of energy was discovered, but it would be futile to raise the question of when the relations which it expresses date from.

Turning now to the social sciences, to political economy for instance, and considering one of its fundamental concepts, such as value, it is immediately obvious that this concept not only has an intellectual history, but that, associated with the history of this concept, as part of the history of economic theory, is a real history of value as well, a development in social relations which has gradually turned the concept into historical reality.²

We know exactly which material conditions are necessary for this ‘hypothetical’, ‘imaginary’ quality of things to gain a ‘real’ – and indeed decisive – significance as compared with their natural properties, transforming the product of labour from a natural into a social phenomenon. Thus we are familiar with the real historical substratum of those cognitive abstractions we use, and we can. at the same time, satisfy ourselves that the limits within which the application of these abstractions is meaningful are synonymous with, and are determined by, the framework of actual historical development. Another example cited by Marx illustrates this particularly graphically. Labour as the simplest relation of man to nature is present at all stages of development without exception; yet as an economic abstraction it is relatively recent (compare the sequence of schools of thought: the Mercantilists, the Physiocrats, the Classical economists). This development of the concept was paralleled by the actual development of economic relations, a development which pushed aside the diversity of human labour, replacing it with ‘labour in general’. Thus the development of the concepts corresponds to the actual dialectic of the historical process.³

Let us consider another example, this time not from the' field of political economy. Take the state. Here we can observe how, on the one hand, the concept of the state gradually acquires precision and definitiveness and develops the full potential of its determinants, and yet. on the other hand, how the state in reality grows out of the gens-community⁴ and feudal society, ‘abstracts itself’ and transforms itself into a ‘selfsufficient’ force, ‘blocking up all the pores of society’.⁵

Hence law in its general definitions, law as a form, does not exist in the heads and the theories of learned jurists. It has a parallel, real history which unfolds not as a set of ideas, but as a specific set of relations which men enter into not by conscious choice, but because the relations of production compel them to do so. Man becomes a legal subject by virtue of the same necessity which transforms the product of nature into a commodity complete with the enigmatic property of value.

To the kind of thinking which does not transcend the framework of the bourgeois conditions of existence, this necessity must appear as none other than natural necessity. That is why all bourgeois theories of law are based, consciously or unconsciously, on the doctrine of natural law. The school of natural law was not only the most marked expression of bourgeois ideology at the time when the bourgeoisie acted as a revolutionary class, formulating its demands openly and consistently; it also provided the model for the deepest and clearest understanding of the legal form. It is not by chance that the period when the doctrine of natural law flourished coincides approximately with the appearance of the great classical bourgeois political economists. Both schools set themselves the task of formulating, in the most general, and consequently the most abstract manner, the fundamental conditions of existence of bourgeois society, which they regarded as the natural conditions of existence for absolutely any society.

Even someone so overzealous in the cause of legal positivism and so opposed to natural law as Bergbohm feels bound to acknowledge the achievements of the natural law school in laying the foundations of the modern bourgeois legal system.

It (natural law, E.P.) threatened serfdom and bondage and pressed for an end to people’s enslavement to the land and the soil; it unleashed the productive forces which had been fettered by the coercion of an ossified system of guilds and by absurd trade restrictions . . . it achieved freedom of religious persuasion as well as the freedom of scientific teaching . . . it gained the protection of private law for every religion and every nationality . . . it helped to abolish torture and to guide the criminal case into the ordered course of a procedure according to law.⁶

While not entertaining the intention of concerning ourselves in full detail with the sequence of the various schools in the theory of law. nevertheless, we cannot avoid drawing attention to a certain parallel in the development of juridical and economic thought. Thus the historical tendency can be considered in both cases as a manifestation of the feudal-aristocratic and, in part, of the petty bourgeois guild reaction. Further: when, in the second half of the nineteenth century, the revolutionary zeal of the bourgeoisie finally faded out, the purity and precision of the classical doctrines simultaneously lost all attraction for it. Bourgeois society yearns for stabilisation and a strong arm. That explains why it is no longer the analysis of the legal form, but the problem of justifying the binding force of legal regulations which becomes the focal point of interest for juridical theory. The result is a strange mixture of historicism and juridical positivism which is reduced to negating every law except the official law.

The so-called ‘renascence of natural law’ does not signify that bourgeois legal philosophy is reverting to the revolutionary views of the eighteenth century. In Voltaire’s and Beccaria’s time every enlightened judge counted it as an achievement if, in the guise of applying the law, he succeeded in substantiating the ideas of the philosophers, ideas which were no less than a revolutionary negation of the feudal social order. In the present day, the prophet of renascent ‘natural law’, Rudolf Stammler, advances the thesis that ‘true law’ (richtiges Recht) requires first and foremost subjection to positively promulgated law, even if it be ‘unjust’ (ungerecht).

A parallel can be drawn between the psychological school of jurisprudence and the psychological school of political economy. Both are at pains to transfer the object of analysis into the realm of subjective areas of consciousness (‘evaluation’, ‘imperative-attributive emotion’), and fail to see that the ordering of the corresponding abstract categories expresses the logical structure of social relations which are concealed behind individuals and which transcend the bounds of individual consciousness.

Finally, there is no doubt but that the extreme formalism of the normative school (Kelsen) expresses the general decadence of the most recent bourgeois thinking, which spends itself in sterile methodological and formal-logical humbug and parades its own complete dissociation from actual reality. In economic theory, the representatives of the mathematical school would fill the corresponding position.

The legal relation is, to use Marx’s expression, an abstract, one-sided relation, which is one-sided not as a result of the intellectual labour of a reflective subject, but as the product of social development.

In the succession of economic categories, as in any other historical, social science, it must not be forgotten that their subject – here, modern bourgeois society – is always what is given, in the head as well as in reality, and that these categories therefore express the forms of being, the characteristics of existence, and often only individual sides of this specific society, this subject.⁷

What Marx says here about economic categories is directly applicable to juridical categories as well. In their apparent universality, they in fact express a particular aspect of a specific historical subject, bourgeois commodity-producing society.

In conclusion, we find in the same ‘Introduction’ by Marx from which we have already quoted so freely yet another profound methodological observation. It concerns the possibility of clarifying the significance of earlier structures through the analysis of later and consequently more highly developed ones. If we understand ground-rent, he says, we can also understand tribute, tithes and feudal dues. The more highly developed form renders the prior stages, in which it appears only as an embryo, comprehensible to us. The later evolution simultaneously reveals the intimations implicit in the distant past.

Bourgeois society is the most developed and the most complex historic organisation of production. The categories which express its relations, the comprehension of its structure, thereby also allows insights into the structure and the relations of production of all the vanished social formations out of whose ruins and elements it built itself up, whose partly still unconquered remnants are carried along within it, whose mere nuances have developed explicit significance within it, etc.⁸

Applying these methodological considerations to the theory of law, we must start with an analysis of the legal form in its most abstract and pure shape and then work towards the historically concrete by making things more complex. In the process, we must not lose sight of the fact that the dialectical development of the concepts parallels the dialectic of the historical process itself. Historical development is accompanied not only by a transformation of the content of legal norms and legal institutions, but also by development in the legal form as such. Having emerged at a particular stage of culture, this legal form persists for a long time in an embryonic state, with minimal internal differentiation, and with no clear demarcation from neighbouring spheres (mores, religion). Only after a period of gradual development does it reach its full flowering, its maximum differentiation and definition. This highest stage of development corresponds to quite specific economic and social relations. It is characterised simultaneously by the emergence of a set of general concepts which comprise a theoretical reflection of the legal system as a perfected whole.

Corresponding to these two cycles of cultural development, there are two epochs when the general concepts of law reached their highest point of development: Rome, with its system of private law, and the seventeenth and eighteenth centuries in Europe, during which time philosophical thought discovered the universal significance of the legal form as a possibility which bourgeois society was destined to embody.

It follows that we can reach clear and exhaustive definitions only by basing our analysis on the fully developed legal form, which recognises itself in embryo in preceding legal forms.

Only then shall we comprehend law not as an appendage of human society in the abstract, but as an historical category corresponding to a particular social environment based on the conflict of private interests.

1 Karl Marx, Grundrisse: Introduction to the Critique of Political Economy, 1973 ed., p. 100 [Where Pashukanis cites ‘wages, profit, rent’, Marx in fact puts ‘wage labour, capital’, and where Pashukanis has ‘price, value and commodity*, Marx puts ‘exchange, division of labour, prices’; that is to say Pashukanis tends in this paragraph to change the categories from production relations to revenues. Ed.]

2 It is a mistake, however, to imagine that the value form and the theory of value evolved synchronously. On the contrary: these two processes did not coincide in time at all. More or less developed forms of exchange and the corresponding value forms are to be found in the most distant antiquity, whilst political economy is, as everyone knows, one of the youngest sciences. (Note to the 3rd Russian ed.)

3 Marx, Grundrisse, ed. cit, pp. 104-105.

4 Cf. Friedrich Engels, ‘Origins of the Family, Private Property and the State’, in Kar! Marx and Friedrich Engels, Selected Works, vol. III. 1970, p. 326. [Ed]

5 This is Marx, ‘The Eighteenth Brumaire of Louis Bonaparte’, in Marx and Engels, Selected Works, vol. I, 1969, p. 477. [Ed.]

6 Carl Bergbohm, Jurisprudent und Rechisphilosophie: Kritische Abhandlungen, Leipzig, 1892, vol I, p. 215.

7 Marx, Grundrisse, ed. tit., p. 106.

8 Ibid, p. 105.

2 Ideology and Law

The question of the ideological nature of law played an important part in a polemic between Stuchka and Reisner.¹ Professor Reisner tried to establish that Marx and Engels themselves considered law as one of the ‘ideological forms’, and that many other Marxist theoreticians held the same view, supporting his argument with an impressive number of quotes. One cannot quibble with these references and quotations, just as one cannot question the fact that people experience law at a psychological level, especially when it figures as general norms or regulations of principle. However, it is not a matter of affirm...