1. The
General Theory of Law and Marxism*
Introductory Note
Pashukanis' place in the history
of legal philosophy and legal practice is secure primarily due to his treatise The General Theory of Law and Marxism. This
small book, first published in 1924, has now been translated into several
Western and Eastern languages, but the English translation of the first edition
appears for the first time below.
When General Theory first appeared it is doubtful that anyone, least of
an Pashukanis himself, could have foreseen its immediate success and the
meteoric rise of its author within Marxist legal philosophy and the Soviet
legal profession. Pashukanis was merely one of a dozen authors in the Soviet
Union to publish on the Marxist theory of law and state during the years 1923
to 1925. In fact, he was one of the less well‑known authors whose works
appeared during this early flowering of Soviet legal philosophy. It was a crowded
and distinguished field which included the Marxist philosopher Adoratsky; the
pupil of Petrazhitsky, M. A. Reisner; the jurist and civil war hero Nikolai
Krylenko; and of course Piotr Stuchka, an Old Bolshevik and the Soviet Russian
founder of Marxist legal philosophy. Nonetheless, Pashukanis' General Theory was feted by the
reviewers and quickly came out in successive editions which included several
printings. Few other authors in this period had their books reprinted, let
alone issued in a new edition.
No one was more forthcoming in
his praise of the young Pashukanis than
* Obshchaia teoriia prava i marksizm:
Opyt kritiki osnovnykh iuridicheskikh poniatii (1924), sotsiahsticheskoi akademii, Moscow, 1st
edition.
38 PASHUKANIS:
SELECTED WRITINGS
Stuchka. Stuchka had pioneered
the post‑Marxian critique of bourgeois jurisprudence, postulating that
law is a class concept with an empirical basis in social material
interrelationships. With the publication of Pashukanis' critique of
bourgeoisjuris prudence, Pashukanis recognized him as a comrade‑in‑arms
in the "revolution of the theory of law". Stuchka's praise thrust
Pashukanis from academic obscurity to the forefront of the "revolution of
the law". Stuchka readily conceded that Pashukanis' commodity exchange
theory of law supplemented and generally superseded his own "incomplete
and greatly inadequate general doctrine of law".
Nevertheless, in the first
edition of General Theory, Pashukanis
was critical of Stuchka's definition of law, arguing that the effect of
Stuchka's perspective was that legal relationships were indistinguishable from
social relationships in general. In the second edition of General Theory, published in 1926, Pashukanis reiterated this
criticism, insisting that "the elements which chiefly provide the material
for the development of the legal form can and should be segregated from the
system of relationships which are responsive to the dominant class . . .".
Pashukanis had resolved the
problem of Stuchka's definition by specifying that the fact of equivalence,
based on commodity exchange, was the distinctive characteristic of the legal
relationship and that it was this which distinguished law from all other social
relationships. The second edition of General
Theory was met by an equally positive reception. A reviewer in the
newspaper Izvestiia, in particular,
credited Pashukanis with the perfection of Stuchka's initial definition. Pravda's reviewer of the second edition
essentially subscribed to Pashukanis' theory as well. These favourable reviews,
among others, were particularly important, moreover, because they appeared in
the political press and therefore implicitly signified formal and authoritative
approval of Pashukanis' theory.
The second edition of General Theory appeared in a more
attractive format reflecting the new prestige that the author and his book had
acquired. This was a corrected and supplemented edition which entailed raising
some material from footnotes to text, and which generally clarified certain
parts of the text through brief emendations. For instance, on the state‑an
underdeveloped topic in the first edition‑Pashukanis added:
Even if legal intercourse can be
conceived in terms of pure theory as the reverse side of the exchange
relationship, its practical realization nevertheless requires the presence of
general patterns more or less firmly established, the elaborate formulation of
rules as applied to particular cases, and finally a special organization [the state] which would apply these patterns
to individual cases and guarantee that the carrying out of the decisions would
be compelled.
GENERAL
THEORY 39
Elsewhere in the second edition,
Pashukanis refined and sharpened his statements on the relationship between law
and feudalism declaring, for instance, "explanation of the contradiction
between feudal property and bourgeois property must be sought in their
different exchange relationships". The third edition of General Theory appeared in 1927. It
entailed only marginal changes of the revised second edition, and served as the
basis for the first translation into English of Pashukanis' General Theory. *
The third edition of General Theory subsequently encompassed
several printings, and eventually foreign translations, whereby its author and
his commodity exchange ~theory of law entered and acquired their place in the
history of legal philosophy.
* See J. Hazard (ed.), Soviet
Legal Philosophy (1951), Harvard University Press, Cambridge, translated by
H. Babb, pp. 111‑225.
The General
Theory of
Law and
Marxism
INTRODUCTION
The Tasks of the General Theory of Law
The general theory of law may be
defined as the development of the basic, i.e. the most abstract juridic
concepts. The latter include, for example, such definitions as "legal
norm", "legal relation", "subject of law" etc. Because
of their abstract nature, these concepts are equally applicable to any branch
of law; their logical and systematic meaning remains the same irrespective of
the specific content to which they are applied. No one would deny, for example,
that the concepts of a subject of civil law and a subject of international law
are subordinate to the more general concept of a subject of law as such and
that, therefore, this category may be defined and developed independently of
its specific concrete content. On the other hand, if we remain within the
limits of any one branch of law, then we may say that these basic legal
categories do not depend on the specific content of legal norms, in the sense
that they retain their significance whatever the changes in the specific
material content.1
We therefore conclude that
developed juridic thought, whatever the material to which it is applied, cannot
do without a certain number of highly abstract and general definitions.
Nor may our Soviet jurisprudence
do without them if it is to remain jurisprudence, i.e. if it is to answer to
its immediate practical tasks. The basic, i.e. formal, legal concepts continue
to be in our codes and in the commentaries corresponding to them. The method of
legal thought also remains in operation with its specific approaches.
But does this prove that the
scientific theory of law must be occupied with the analysis of these
abstractions? A rather widespread
GENERAL THEORY
41
view assigns a purely artificial
and technical significance to the basic and most general legal concepts.
Dogmatic jurisprudence, we are informed, uses these designations for the
purpose of convenience and only for convenience. They have no other theoretico-cognitive
significance. However, the fact that dogmatic jurisprudence is a practical, and
in a certain sense a technical discipline, still does not provide grounds for
the conclusion that its concepts may not enter into the structure of the
corresponding theoretical discipline.2 Political economy itself
began its development with practical questions primarily of monetary
circulation‑it originally intended to show "the methods by which
governments and nations acquire wealth". Nevertheless, in these technical
suggestions we already find the bases of those concepts which, in deeper and in
enriched form, entered the structure of
a theoretical discipline political economy.
Is jurisprudence able to develop
into a general theory of law without thereby transforming itself either into
psychology or into sociology? Is it possible to analyse the basic definitions
of the legal form in the way that political economy analyses the basic and most
general definitions of the form of a commodity or of value? These are questions
whose solution depends on the possibility of considering a general theory of
law as an independent theoretical discipline.
Sociological and psychological
theories (sic) of law are distinguished by the fact that they simply ignore
this problem. From the very beginning, they operate with concepts of an extra‑juridical
nature, and if they also examine legal definitions, then it is only for the
purpose of declaring them "fictions", "ideological
fantasies", "projections" and so on. Upon first sight this
naturalist or nihilist approach undoubtedly commands a certain sympathy, and
particularly so if one contrasts it with the ideological theories of law which
are saturated thoughout with teleology and moralizing. After lofty phrases on
"the eternal idea of law" or "the absolute significance of the individual",
the reader seeking a materialist explanation of law turns with great interest
to theories which treat law as the result of a struggle of interests, as a
phenomenon of state coercion, or even as a process played out in the real human
psyche. Many Marxist comrades have thought it sufficient to introduce the
element of class struggle into these theories,
42 PASHUKANIS:
SELECTED WRITINGS
to obtain a truly materialist
Marxist theory of law. As a result, however, we obtain a history of economic
forms with a more or less weak legal colouring, or a history of institutions,
but by no means a general theory of law.3 Moreover, on the one hand
bourgeois jurists, Gumplowicz for example, in trying to present more or less
materialist views, consider themselves obliged, so to speak, ex professio, to
ponder the arsenal of basic legal concepts even if only to declare them
artificial and conventional constructs. Marxist authors, on the other hand, as
individuals with no responsibilities to jurisprudence, simply and silently have
usually avoided formal definitions of the general theory of law, devoting all
their attention to the concrete content of legal norms and the historical
development of legal institutions.4
In refusing to analyse basic
legal concepts, however, we obtain only a theory which explains the development
of legal regulation by the material needs of society and, consequently, the
correspondence of legal norms to the material interests of given social
classes; but legal regulation itself, despite the wealth of historical content
which we embed in it as a concept, remains analysed as a form. Instead of
seeing the completeness of its internal parts and relationships, we will be
forced to use poor and approximately observed characterizations of law‑‑so
approximate that the borders between the legal and other spheres are entirely
erased.5
Such an approach can hardly be
considered correct. The history of the economy may be described entirely without
the finer points and details, say, of the theory of rent or wages. But what
could we say about a history of economic forms in which the basic categories of
economic theory‑value, capital, profit, rent etc.‑were diffused in
a vague and undifferentiated concept of economy? We are not even speaking of
how the attempt to present such history as a theory of political economy would
be received. However, in the area of the Marxist theory of law, this is in fact
the situation. It is of course possible to console oneself with the fact that
even the jurists themselves are still seeking, and cannot find, definitions for
their concept of law. However, if most of the textbooks on the general theory
of law usually begin with a certain formula, well‑defined and externally
exact, in fact even this formula gives us merely a confused, approximate and
undifferentiated concept of law in general. It may be affirmed as axiomatic
that we understand law least of all from these definitions and that, on the
contrary, the relevant scholar will
GENERAL THEORY
43
allow us a better understanding
of the form of law the less attention he devotes to its definition.
The cause of this is entirely
clear: such a complex concept as law cannot be exhausted by defining it
according to the rules of the school of logic per genus et differentia specifica.
Unfortunately, even those few
Marxists who have dealt with the theory of law have not avoided the temptations
of scholastic wisdom. Renner, for example, grounds his definition of law in the
concept of an imperative addressed by society (as a person) to the individual.6
This simple construct seems entirely sufficient for him to investigate the
past, present and future of legal institutions.
The basic flaw in formulae of
this type is their inability to embrace the concept of law 'in its actual
movement, revealing the. plenitude of its internal parts and relationships.
Instead of displaying the concept of law in its most final and exact form, and
thereby showing the significance of this concept for a specific historical
period, they present us with purely verbal general propositions about
"external authoritarian regulation"‑which apply equally well to
all periods and stages of development of human societies. A complete analogy to
this is provided by those attempts to give a definition of the concept of
economy (in political economy) which would include all historical periods. If
economic theory consisted in such fruitless scholastic generalizations, it
would hardly deserve the title of a science.
Marx, as is well known, begins
his research with the analysis of commodities and value, and not with opinions
about economy in general. This is because economy, as a particular sphere of
relations, is differentiated with the appearance of exchange. So long as the
relationships of exchange‑value are absent, economic activity may only
with difficulty be separated from the remaining totality of life functions with
which it constitutes a single synthetic whole. A purely natural economy may not
be the object of political economy as an independent science. Only commodity‑capitalist
relationships comprise, for the first time, the object of political economy as
a distinct theoretical discipline which uses its own specific concepts.7
Our observations here may be
transferred to the general theory of law. The basic juridic abstractions, which
are‑ produced by the development of juridic thought, and which are the
closest definitions of the legal form, in general reflect specific and very
complex social
44
PASHUKANIS: SELECTED WRITINGS
relationships. The attempt to
find a definition of law which would correspond not only with these complex
relationships, but also with "human nature" or "human
relationships" in general, must inevitably lead to scholastic and purely verbal
formulae.
When we have to move from these
inanimate formulae to the analysis of the legal form‑as we meet it in
reality‑we inevitably encounter a series of difficulties. These
difficulties are only overcome by strategies which are obviously contrived. For
example, having been given a general definition of law, we are usually taught
that in fact there are two types of law: subjective and objective, ius agendi
and norma agendi. Moreover, the possibility of such a dichotomy is not at all
anticipated in the definition itself; it therefore becomes necessary either to
deny one of the species, declaring it to be a fiction, a fantasy etc. or to
establish a purely external link between the general concept of law and its two
species. However, this duality in the nature of law‑its dissolution into
a norm and a power‑has a significance no less essential than the
dichotomy of a commodity into exchange‑value and use‑value.
Law as a form cannot be
understood outside of its immediate definitions. It exists only in antitheses:
objective law/subjective law, public law/private law etc. These basic
limitations must, however, be attached mechanically to the basic formula if the
latter is constructed with the intention of it embracing all periods and stages
of social development, including those which did not even know such contrasts.
Only bourgeois‑capitalist
society creates all the conditions necessary for the legal element in social
relationships to achieve its full realization. If one leaves aside the culture
of primitive peopleswhere law can only with difficulty be segregated from the
general mass of social phenomena of the normative order‑then even in
medieval Europe, legal forms were distinguished by their extreme
underdevelopment. The aforementioned contrasts were combined into a single
undifferentiated whole. There was no distinction between law as an objective
norm and law as a power. A norm of a general nature was not distinguished from
its specific applications; correspondingly, judicial and legislative activities
were merged. The contrast between public and private law was entirely hidden
both in the organization of the Mark and the organization of feudal power.
There was no contradiction, so characteristic of the bourgeois
GENERAL
THEORY
45
period, between man as a private
person and man as a member of a political union. A long process of development
was necessary in order for the boundaries of the legal form to crystallize with
full distinctiveness. The main arena of this was the city.
The dialectical development of
basic juridic concepts therefore gives us not only the form of law, in its most
overt and elemental nature, but also reflects the real historical process of
development. This is nothing other than the process of the development of
bourgeois society.
Objections may be raised that the
general theory of law, as we understand it, is a discipline which deals only
with formal and contrived definitions and artificial concepts. No one doubts
that political economy studies something which really exists, although Marx
warned that such objects as value, capital, profit, rent etc. "cannot be
discovered with the aid of a microscope and chemical analysis". The theory
of law operates with abstractions which are no less "artificial"; the
methods of research in the natural sciences cannot discover a "legal
relation" or a "subject of law"; but very real social forces are
hidden behind these abstractions.
From the perspective of a man
living in a natural economic environment, the economics of value relationships
would appear just as artificial a distortion of simple and natural objects as
juridic reasoning appears to the good judgement of the "average" man.
To think that the basic concepts
which express the meaning of the legal form are the product of arbitrary
thought processes. is to fall into the same mistake which Marx noted among the
teachers of the eighteenth century. As the latter, in Marx's words, were unable
to account for the origin and development of the puzzling forms assumed by
social relationships, so they sought to denude them of their strange appearance
by ascribing them to a conventional origin.
It is impossible to deny that a
significant proportion of juridic concepts in fact have a very transient and
artificial nature. Such, for example, are most of the concepts of public law.
We shall try to explain the causes of this phenomenon below. But now we shall
confine ourselves to the observation that the form of value, under conditions
of a developed commodity economy, becomes universal; it assumes, along with its
original expressions, a series of derivative and ephemeral expressions which
emerge as the selling price of objects which are not products of labour (land),
and which are
46
PASHUKANIS: SELECTED WRITINGS
completely unrelated to the
process of production (e.g. military secrets bought from a spy). This does not
prevent value, as an economic category, from being understood from the
perspective of the socially necessary labour expenditures required for the
production of one product or another. Likewise, the universality of the legal
form must not prevent us from searching for the relationships which constitute
its real foundation. We will show that those relations which are defined as
public law are not this foundation.
Another objection to our
conception of the tasks of the general theory of law consists in the argument
that the abstractions which he at the basis. of the analysis are recognized as
essential only to bourgeois law. Proletarian law, we are told, must find other
generalizing concepts for itself, and indeed this search should constitute the
task of the Marxist theory of law.
At first sight this appears as a
serious objection; yet it rests on a misunderstanding. To demand its own new
generalizing concepts for proletarian law appears to be a revolutionary direction
par excellence. But this is to
proclaim the immortality of the legal form since it tries to wrench this form
away from those definite historical conditions which enable its full fruition,
and to declare it capable of constant renewal. The withering away of the
categories (but not the injunctions) of bourgeois law does not signify their
replacement by new categories of proletarian law. Similarly, the withering away
of the categories of value, capital, profit etc. during the transition to
socialism, will not mean the appearance of new proletarian categories of value,
capital, rent etc.
The withering away of the
categories of bourgeois law will under these conditions signify the withering
away of law in general, i.e. the gradual disappearance of the juridic element
in human relationships.
As Marx pointed out in The Critique of the Gotha Programme, the
transitional period is characterized by the fact that human relationships will
for a time involuntarily be limited by the "narrow horizon of bourgeois
law". It is interesting to analyse what, in Marx's opinion, constitutes
this narrow horizon of bourgeois law. Marx assumes a social order in which the
means of production belong to an society, and in which the producers do not
exchange their products. He thus takes a stage which is higher than the New
Economic Policy in which we live. The market relationship has already been
completely replaced by an organizational relationship and, in accordance
GENERAL THEORY
47
with this, "the labour
expended in products is not reflected in the form of value essential to those
products, since here, in contrast to capitalist society, individual labour no
longer exists in an indirect way but directly as a component part of collective
labour".8 But even with the elimination of the market and
market exchange, the new communist society, in Marx's words, must for some time
bear "in every respect, economically, morally and intellectually, the
clear imprint of the old society from whose womb it appeared". This is
reflected in the principle of distribution, whereby "the individual producer
receives (after deductions have been made) from society exactly what he
contributes to it". Marx stresses that despite the radical changes in
content and form, "the same principle prevails as that which regulates the
exchange of commodities: a definite amount of labour in one form is exchanged
for the same amount of labour in another form". To the extent that the
social relationships of the individual producer continue to preserve the form
of equivalent exchange, so too they continue to preserve the form of law.
"By its very nature, law is merely the application of an equal
scale." But this ignores inherent differences in individual ability, and
therefore "by its content this law, like every law, is a law of
inequality". Marx says nothing about the necessity of state power which
would forcefully ensure the fulfilment of these norms of "unequal"
law preserving its "bourgeois limitations", but this is necessarily
understood.9 Once the form of the equivalent relationship exists,
this means that the form of law exists, that the form of public, i.e. state
authority exists, which therefore remains for a period even when classes no
longer exist. The complete withering away of state and law will be
accomplished, in Marx's opinion, only when "labour has ceased to be a means
of life and has become life's prime want", when the productive forces have
expanded with the all‑round development of the individual, when everyone
labours voluntarily in accordance with his own abilities, or, as Lenin says,
"when the individual does not calculate with the heartlessness of a
Shylock whether he has worked half an hour longer than anyone else", in a
word, when the form of equivalent
relations will be finally overcome.
Marx therefore envisioned the
transition to developed communism, not as a transition to new forms of law, but
as the withering away of the legal form in general, as the liberation from this
48
PASHUKANIS: SELECTED WRITINGS
inheritance of the bourgeois age
which the bourgeoisie was itself condemned to endure.
At the same time Marx indicates
that the basic condition for the existence of the legal form is found in the
economy, in the matrix of labour expenditures according to the principle of
equivalent exchange, i.e. he revealed the innermost connection between the form
of law and the form of commodities. Depending on the condition of its
productive forces, a society which is compelled to preserve equivalent exchange
between labour expenditure and compensation in a form even remotely resembling
the exchange of commodity values, will be
compelled also to preserve the form of law. Only proceeding on this basis
is it possible to understand why a whole series of other social relationships
assume a legal form. But therefore to conclude that courts or laws will always
remain, or that even under maximum economic prosperity certain crimes against
the person etc. will not disappear, is on the contrary to identify secondary
and derivative elements as the main and basic. Indeed, even advanced bourgeois
criminology has theoretically concluded that the struggle against crime may be
seen as a medical‑pedagogical task for whose solution the jurist‑with
his "categories of crime", codes, concepts of guilt, "full or
diminished responsibility", with his fine distinctions between
participation, abetting and inciting etc.‑is perfectly unnecessary. And
if this theoretical belief has not yet led to the elimination of criminal codes
and judges, then this is because transcending the form of law is related not
only to advancing beyond the horizons of bourgeois society, but also to the
radical liberation from all remnants of the past.
In criticizing bourgeois
jurisprudence, scientific socialism must model itself on the criticism of
bourgeois political economy furnished by Marx. For this it must first repair to
enemy territory. In other words it must not discard those generalizations and
abstractions which were developed by bourgeois jurists who proceeded from the
needs of their time and class, but must put them at the basis of its analysis
to reveal their true significance, that is, the historical formation of the
legal form.
Every ideology disappears with
the social relations which produced it. But this final disappearance is
preceded by a moment when an ideology, under the blows of criticism levelled at
it, loses its ability to mask and surround the social relations from which it
arose.
GENERAL THEORY
49
The expose of the roots of an
ideology is a true sign of its imminent end. As Lassalle says, "the dawn
of a new age always consists in the consciousness of what the previous reality
actually was."10
CHAPTER
I
Methods of Constructing the Concrete in the
Abstract
Sciences
Every generalizing science, in
studying its subject matter, turns to one and the same reality. One
observation, for example the observation of the movement of heavenly bodies
across the meridian, may provide conclusions for both astronomy and pyschology.
And one fact, ground rent for example, may be the object of political economy
or law. The difference between various sciences depends, therefore, essentially
on their respective methodological and ontological approaches. Every science
has its particular method, and by this method it seeks to reproduce reality.
Moreover, each science constructs a concrete reality with all its wealth of
forms, relations and dependencies, as the result of the combination of the most
simple elements and abstractions. Psychology seeks to reduce consciousness to
its simplest elements. Chemistry solves the same task with respect to
substances. When in fact we cannot reduce reality into simpler elements, abstractions
come to our aid. The role of abstractions is extremely important in the social
sciences. The greater or lesser the perfection of abstraction is determined by
the maturity of a given social science. Marx brilliantly explains this with the
example of economic science.
It would seem entirely natural,
says Marx, to begin research with the concrete totality, with the population
living and producing in specific geographical conditions; but this population
is but an empty abstraction without the classes which constitute it; in their
turn, the latter are nothing without the conditions of their existence,
conditions which are wages, profit and rent. The analysis of these assumes the
simplest categories of price, value and, finally, commodities. Proceeding from
these simplest definitions, the political economist reconstructs the concrete
totality not as a chaotic, diffused whole, but as a unity replete with internal
dependencies and relationships. Marx adds, moreover, that the historical
development of
50 PASHUKANIS: SELECTED WRITINGS
science regressed; the
seventeenth‑century economists began with the concrete‑with the
nation, state and population‑in order to arrive at rent, profit, wages,
price and value. However, that which was historically inevitable is by no means
methodologically correct.11
These observations are most
applicable to the general theory of law. In this case, too, the concrete
totality of society, population and the state, must be the result and the final
stage of our conclusions, but not their starting point. For in moving from the
simple to the more complex, from a process in pure form to its more concrete
forms, we can follow a methodologically well‑defined‑and therefore
more correct‑path, than when we hesitantly move with only the diffused
and undissected form of the concrete whole before us.
The second methodological
observation, which must be made here, concerns one peculiarity of the social
sciences. More correctly, it concerns their concepts. If we take some natural
science concepts, for example the concept of energy, then we may of course
establish precisely the chronological moment when it appeared. However, this
date is significant only for the history of science and culture. In natural
science research, as such, the application of this concept is not associated
with temporal limits. The law of the transformation of energy was in effect
before the appearance of Man and will continue after the cessation of all life
on earth. It is extra‑temporal; it is an eternal law. It is possible to
ask when was the law of the transformation of energy discovered, but it is
futile to concern oneself with the question of establishing the moment when
these relations were reflected in that law.
Let us now turn to the social
sciences, or only to political economy, and take one of its basic concepts,
such as value. The real history of value is at once glaringly obvious‑historically,
both in the concept as a component of our thought, and also of the history of
the concept as it constitutes part of the history of economic theory. The
development of social relationships, therefore, gradually transforms this
concept into historical reality. We know exactly what material relationships
were necessary in order for the "Ideal", "imaginary"
quality of the object to assume "real" and therefore decisive
significance. In comparison with the natural qualities which transform the
product of labour from a natural phenomenon into a social phenomenon, we thus
know the real historical substratum of
GENERAL THEORY
51
our cognitive abstractions. At
the same time we are convinced that the limits within which the application of
this abstraction makes sense, correspond with the limits of the real
development of history and are determined by it. Another example, adduced by
Marx, shows this most clearly. Labour, as the simplest relationship of man to
nature, is encountered at all stages of development, but as an economic
abstraction it appears relatively late (compare the succession of schools:
mercantilist, physiocrat, classical). But the development of the concept
corresponded to the real development of economic relationships, obfuscating the
distinction between different types of human labour and substituting labour in
general for it. So, conceptual development corresponds to the real dialectic of
the historical process.12 Let us take another example, external to
political economy‑the state. Here we can observe both how the concept of
the state gradually obtains definitional rigour and finality, developing the
full scope of its definitions, and also how in reality the state develops and
how it is "abstracted" from patrimony and feudalism, and how it is
converted into a self‑sufficient force which "penetrates all social
interstices".
Thus even law, most generally
defined, exists as a form not just in the minds and theories of learned
jurists. It parallels a real history which unfolds itself not as a system of
thought, but as a special system of social relationships. People enter these
relationships not because they have consciously chosen to do so, but because
the conditions of production necessitate it. Man is transformed into a legal
subject in the same way that a natural product is transformed into a commodity
with its mysterious quality of value.
This is a natural necessity which
is confined to the framework of bourgeois conditions of existence. Therefore,
natural law doctrine consciously or unconsciously lies at the basis of
bourgeois theories of law. The natural law school was not only the clearest
expression of bourgeois ideology in the period when the bourgeoisie, acting as
a revolutionary class, formulated its demands openly and consistently; it also
provided a model for the most profound and distinct understanding of the legal
form. It is no accident that the flourishing influence of the doctrine of
natural law closely coincided with the appearance of the great classical
writings of bourgeois political economy. Both schools set themselves the task
of formulating, in the most general and therefore in the most abstract form,
the basic
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PASHUKAINIS: SELECTED
WRITINGS
conditions of existence of
bourgeois society. Bourgeois society appeared to them as the natural condition
of existence of all societies.
Rather than dwelling in more
detail on the changing schools of legal philosophy, we may note some
evolutionary parallels between legal and economic thought. Thus, their
historical direction may in both cases be regarded as a phenomenon of the
feudal aristocracy, and partly also of the petit bourgeois reaction. When their
revolutionary ardour was finally dissipated in the second half of the
nineteenth century, the bourgeoisie ceased to be attracted by the purity and
clarity of classical doctrines. Bourgeois society now sought stability and strong
authority. The central focus of legal theory became not the analysis of the
legal form, but the problem of justifying the coercive power of legal rules. A
unique blend of historicism and legal positivism was created which led to the
denial of all law other than law emanating from the state.
The psychological school of law
may be categorized alongside the psychological school of political economy.
Both try to transfer the object of analysis to the realm of the subjective
conditions of consciousness ("evaluations", "imperative‑attributive
emotion"), failing to see that the corresponding abstract categories
express social relationships in the regularity of their logical structure ocial
relationships which are hidden from individuals and which extend beyond the
limits of their consciousness.
Finally, the extreme formalism of
the normative school (Kelsen) undoubtedly expresses the most recent general
decadence of bourgeois scientific thought. This is accomplished by its
exhaustion in the fruitless subtleties of method and formal logic, and the
tendency to divorce itself from reality. In economic theory a similar position
is occupied by representatives of the mathematical school.
The legal relationship is, in
Marx's phrase, an abstract and one‑sided relationship; but in this it
appears not as the result of the product of the mind of a conscious subject,
but as the product of social development.
"In any historical and
social science, and also in the development of economic categories, it is
always necessary to remember that in reality, and therefore in the mind, the
subject is already given‑here, bourgeois society. Categories therefore
express only the forms of being and the characteristics of existence‑‑often
only of individual aspects of this specific society, this subject."13
GENERAL THEORY
53
What Marx says here about
economic categories is fully applicable to legal categories. The latter, in
their false universality, in fact express particular aspects of a specific
historical subject‑‑of bourgeois commodity production.
In the same Introduction, which
we have repeatedly cited, we find still another profound methodological
observation by Marx. This concerns the possibility of clarifying the meaning of
preceding formations in terms of the analysis of subsequent and more developed
formations. Marx explains that only having understood rent can we understand
tribute, the tithe and the feudal corvée. The more developed form
explains the previous stages in which it existed only embryonically. Evolution,
as it were, reveals those intimations which were hidden in the distant past.
Bourgeois
society is the most developed and perfected historical organization of
production. The categories which reflect its relationships and its
organizations, simultaneously enable comprehension of the structure of the
production relationships of all obsolete social forms‑from whose
fragments and elements this society is erected, partly continuing to bear its
legacy, which it has not succeeded in overcoming, and partly articulating, that
which formally was there only by implication.14
Applying the above mentioned
methodological consideration to the theory of law, we must begin with the
analysis of the legal form in its most abstract and simple aspect, moving
gradually by way of complexity to the historically concrete. In so doing we
must not forget that the dialectical development of concepts corresponds to the
dialectical development of the historical process itself Historical evolution
produces not only successive changes in the content of norms and legal
institutions, but also the development of the legal form itself The legal form
appeared at a certain cultural level in a long embryonic stage, internally
unstructured and barely distinguishable from neighbouring spheres, e.g. mores,
religion. Then, gradually developing, it achieves maximum maturity,
differentiation and precision. This higher stage of development corresponds to
specific economic and social relationships. At the same time this stage is
characterized by the appearance of a system of general concepts theoretically
reflecting the legal system as a distinct whole.
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PASHUKANIS: SELECTED WRITINGS
Accordingly, we can achieve a
clear and exhaustive definition only if we base our analysis on the fully
developed legal form of law which interprets its antecedent forms as its
embryos.
Only then can we perceive law,
not as a characteristic of abstract human society, but as an historical
category which responds to specific social environs
and which is constructed on the contradictions of private interests.
CHAPTER
II
Ideology and Law
In the
recent polemic between Comrade Stuchka and Professor Reisner, an important role
was played by the question of the ideological nature of law.* Relying upon a
handsome collection of citations, Reisner tried to show that Marx and Engels
considered law as one of the "ideological forms", and that the same
view was held by many other Marxist theorists. Of course it is not necessary to
dispute these statements and citations. Likewise, it is impossible to deny the
fact that law is experienced by people pyschologically, in particular in the
form of general principles of rules or norms. However, the task is by no means
to recognize or deny the existence of legal ideology (or psychology), but
rather to show that legal categories have no other significance than the
ideological. Only in the latter case do we recognize Reisner's conclusion as
"necessary", namely, "that a Marxist may study law only as one
of the subtypes
of the
general type ideology". In this little word "only" lies the whole
essence of the matter. We will explain this with an example from political
economy. The categories of commodity, value and exchange‑value are
undoubtedly ideologically produced distortions, mystifying (in Marx's
expression) forms of ideas, in which exchange society imagines a labour bond
between individual producers. The ideological nature of these forms is proved
by the fact that if one goes to other economic structures, the categories (of
commodity, value etc.) lose all significance. Therefore, with complete
justification we may speak of a commodity ideology, or as Marx called it, a
*
This debate is found in M. A. Reisner's critical review of P. 1. Stuchka's The Revolutionary Role of Law and State
(1921); Stuchka's reply appeared in Vestnik
sotsialisticheskoi akademii, no. 3,
1923 [eds.]
GENERAL THEORY
55
"commodity fetishism"
and categorize it in the list of psychological phenomena. This by no means
signifies that the categories of political economy have exclusively psychological significance, that they relate only to experiences, impressions and
other subjective processes. We know very Well that, for instance, the category
of commodity, despite its clear ideological nature, reflects an objective
social relationship. We know that whatever degree this relationship has
developed, its greater or lesser universality, are material factors subject to
inquiry as such, and that it exists not merely in the form of ideological‑psychological
processes. Thus, the general concepts of political economy are not only an
element of ideology, but they are also a type of abstraction, from which we may
scientifically, i.e. theoretically, construct objective economic reality. In
Marx's words: "These are socially significant, and thus objective, forms
of thought within the limits of the productive relationships of a specific,
historically determined, social form of production‑‑commodity
production."15
We must, therefore, demonstrate
both that general juridic concepts may enter and actually do enter into the
structure of ideological processes and ideological systems‑this is not
subject to any dispute‑and that in them, in these concepts, it is
possible to discover social reality which has, in a certain way, become
mystified. In other words, we must determine whether or not legal categories
are such objective forms of thought (objective for an historically specific
society) which correspond to objective social relationships. Consequently, our
question is: is it possible to understand
law as a social relationship in the same sense in which Marx termed capital a
social relationship?
Such a statement of the question
pre‑empts reference to the ideological nature of law, and all our
consideration is transferred to an entirely different level.
Recognition of the ideological
nature of concepts by no means frees us from the work of searching for
objectively existing reality, i.e. in the reality of the external world, and
not simply in consciousness. In the opposite case we would be compelled to
erase any boundary between the world beyond the grave‑which also exists
in the conceptions of some people‑and, say, the state. Professor Reisner,
incidentally, does just this. Relying on the well‑known quotation from
Engels concerning the state as the "primary ideologi-
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PASHUKANIS: SELECTED WRITINGS
cal force", dominating
people, Reisner quickly equates the state with state ideology. "The
psychological nature of the phenomena of authority is so obvious, and state
authority itself‑‑existing only
in the psyche of people (our italics, E. P.)‑is so deprived of
material features, that it would seem no one considers state authority in any
way other than as an idea. It is real only to the extent that people make it a
principle of their action."16 This means that finances, the
military, and administration, are all entirely "deprived of material
features", that all this exists "only in the psyche of the
people". And what can be done, in the words of Professor Reisner himself
with that "huge" mass of the population which lives "outside
state consciousness"? It must obviously be excluded. These masses have no
significance for "the real" existing state.
And what about the state from the
perspective of economic unity? Or customs or the boundaries of custom, are
these also ideological and psychological processes? Many such questions can be
posed, but all with the same meaning. The state is an ideological form , but
simultaneously it is a form of social existence. The ideological nature of a
concept does not eliminate the reality and materiality which the concept reflects.
The
formal completeness of the concepts of state, territory, population and
authority, reflect not only a specific ideology but also the objective fact of
the formation of a real sphere of domination, bound to one centre, and,
accordingly, even more important, they reflect the creation of real
administrative, financial and military organizations with corresponding human
and material apparatuses. The state is nothing without methods of
communication, without the possibility of giving orders and decrees, of moving
armed forces etc. Does Professor Reisner think that the Roman military roads,
or modern methods of communications, relate to phenomena of the human psyche?
Or does he suppose that these material elements must be entirely ignored as a
factor in the formation of the state? Then of course nothing else will remain
for us but to equate the reality of the state with the reality of
"literature, philosophy, and other spiritual productions of man". It
is regrettable that the practice of political struggle, of the struggle for
authority, radically contradicts this psychological concept of the state, for
at each step we are confronted by objective and material factors.
GENERAL THEORY
57
However, one cannot but note that
an inevitable result of the psychological perspective (on which Professor
Reisner depends) is subjectivism and solipsism. "As the creation of as
many psychologies as there are individuals, and of as many different types as
there are groups and social classes, state authority will appear inherently
different in the consciousness and conduct of a cabinet minister and that of a
peasant who has not yet contemplated the idea of a state; in the psyche of a
political activist and in the principles of an anarchist‑in one word in
the consciousness of people with very different social positions, professional
activity, upbringing etc."17 From this it is clearly obvious
that if we remain on a psychological level we quite simply lose every basis to
speak of the state as some objective unity. Only by considering the state as a
real organization of class authority, i.e. taking into account all (including
not only psychological but material) elements, and the latter first of all, do
we obtain firm ground under our feet, i.e. we may study the state itself as it
is in reality, and not just the innumerable and varied subjective forms in
which it is reflected and experienced.
But if abstract definitions of
the legal form indicate not simply certain psychological or ideological
processes, but if they are concepts which express the very essence of an
objective social relation, then in what sense do we say that law‑
regulates social relationships? Do we not want to say by this that social
relationships therefore regulate themselves? Or when we say that a social
relationship assumes a legal form, then does this not imply a simple tautology:
law adopts the form of law?18
At first glance this objection is
most convincing, and would seem to leave no other alternative than to recognize
law as ideology and only ideology. However, let us try to disentangle these
difficulties. In order to lighten our task let us again resort to comparison.
Marxist political economy teaches, of course, that capital is a social
relationship. It may not as Marx says, be discovered under a microscope, but
nevertheless it by no means is exhausted by experiences, ideologies and other
subjective processes which occur in the human psyche. It is an objective social
relationship. Further, when we observe, for example, in the sphere of small‑scale
production, the gradual transition from working for a customer to labouring for
a monopolist, we postulate that the corresponding relations have assumed a
capitalist form. Does this mean that we have fallen into a tautology?
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PASHUKANIS: SELECTED WRITINGS
By no means; we have merely said
that the social relation which is called capital began to colour or gave its
form to another social relation. Thus we may consider all that occurred purely
objectively, as a material process, entirely eliminating the psychology or ideology
of its participants. Cannot this be done in exactly the same way with law?
Being itself a social relationship, it is capable to a greater or a lesser
extent, of colouring or giving its form to other social relationships. Of
course, we may never approach a problem from this perspective if we are guided
by a confused impression of law as a form in general‑similar to the way
in which vulgar political economy cannot glean the essence of capitalist
relationships by beginning with the concept of capital as "accumulated
labour in general".
Thus, we can escape from this
apparent contradiction, if by way of analysis of the basic definitions of law,
we succeed in showing that it is a mystified form of some specific social relationship. In this case it will not be
meaningless to say that this relationship in one or another instance gives its
form to another social relationship, or even to the totality of social
relationships.
The situation is no different
with the second apparent tautology: law regulates social relationships. For if
we exclude a certain anthropomorphism inherent in this formula, then it is
reduced to the following proposition: under certain conditions the regulation of social relationships assumes a legal character. Such a
formulation is undoubtedly more correct and, most importantly, more historical.
We may not deny that collective life exists even among animals, nor that life
there is regulated in one way of another. But it never occurs to us to affirm
that the relationships of bees or ants is regulated by law. If we turn to primitive tribes, then although we may observe
the origins of law, nevertheless a significant part of the relationships are
regulated by a means external to law, e.g. by the prescriptions of religion.
Finally, even in bourgeois society such things as the organization of postal
and railroad services, military affairs etc. may be assigned entirely to legal
regulation only upon a very superficial view which allows itself to be deceived
by the external form of laws, charters and decrees. A railroad schedule
regulates the movement of trains in a very different sense than, say, the law
on the liability of railroads regulates the relationship of the latter with
freight shippers. Regulation of the first type is primarily technical; the second
GENERAL THEORY
59
primarily legal. The same
relationship exists between the mobilization plan and the law on compulsory
military service, between the instructions on the investigation of criminals
and the Code of Criminal Procedure.
We will return to the difference
between legal and technical norms later. For the moment we merely note that the
regulation of social relationships assumes a legal nature correlative with the
development of the specific and basic legal relationship.
The regulation of norms, or the
creation of norms for social relationships are in principle homogeneous and
thoroughly legal only upon a very superficial or purely formal view of the
matter. Actually, there is an obvious difference in this regard between the
various fields of human relationships. Gumplowicz sharply distinguishes between
private law and state norms, and only agreed to ,recognize the former as the
domain of jurisprudence. In fact the most consolidated nucleus of legal
obscurity (if it is permissible to use such a phrase) lies precisely in this
area of the relations of private law. It is here that the legal subject,
"persona", finds a fully adequate embodiment in the concrete
individuality of the subject engaged in egoistic economic activity, as an owner
and bearer of private interests. It is in private law that legal thought moves
most freely and confidently; its constructs assume the most finished and
structured form. It is here that the classical shades of Aulus Agerius and
Numerius Negidius‑those personages of the Roman procedural
formulaconstantly soar above the jurists, and it is from them that the latter
draw their inspiration. In private law the a priori assumptions of legal thought are clothed in the flesh and
blood of two disputing parties, defending "their own rights", with vindicta in their hands. Here, the
jurist's role as a theorist is directly merged with his practical social
function. The dogma of private law is nothing more than an endless chain of
arguments pro and contra imaginary claims and potential
suits. Behind each paragraph of this systematic guide stands an unseen abstract
client ready to use the relevant propositions as advice. The scholarly legal
arguments on the significance of a mistake, or on the distribution of the
burden of proof, do not differ from the same disputes before a judge. The
difference here is no greater than that between knightly tournaments and feudal
wars. The first, as is well known, were conducted sometimes with even greater
fierceness, and demanded no less expenditure of energy
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PASHUKANIS SELECTED WRITINGS
and sacrifice, than real
skirmishes. Only the replacement of individual enterprise with planned social
production and distribution will end this unproductive expenditure of the
forces of the human mind.
The basic assumption of legal
regulation is thus the opposition of private interests. At the same time the
latter is the logical premise of the legal form and the real cause of the
development of the legal superstructure. The conduct of people may be regulated
by the most complex rules but the legal element in this regulation begins where
the individualization and opposition of interests begins.
"Controversy", says Gumplowicz, "is the basic element of
everything legal". Unity of purpose is, on the contrary, the premise of
technical regulation. Therefore the legal norms concerning the liability of
railroads presume private claims, private individualized interests; the
technical norms of railroad movement suppose a single purpose, e.g. the
achievement of maximum freight capacity. Let us take another example: the
curing of a sick person presupposes a series of rules both for the sick person
himself and for the medical personnel; but to the extent that these rules are
established from the perspective of a single purpose, the restoration of the
patient's health, they are of a technical nature. The application of these
rules may be accompanied by coercion with respect to the patient. But so long
as this coercion is considered from the perspective of the same single purpose
(both for the rulers and the ruled), it remains solely a technically expedient
act. Within these limits the content of the rules is established by medical
science and is altered with its progress. There is nothing here for the lawyer
to do. His role begins where we leave the basis of unity of purpose and move to
the consideration of the perspective of individualized and antagonistic
subjects, each of whom is the bearer of his own private interest. The physician
and the patient are now transformed into subjects of rights and duties, and the
rules which connect them are legal rules. At the same time, coercion is now
considered not just from the perspective of expediency, but from the
perspective of formal, i.e. legal, permissibility.
It is not difficult to see that
the possibility of taking a legal perspective derives from the fact that the
most diverse relationships in commodity‑producing societies are organized
on the model of relationships of commercial circulation, and inscribed in the
form of law. Likewise, it is natural for bourgeois jurists to deduce the
universality of the legal form from the external and absolute qualities
GENERAL THEORY 61
of human nature, or from the fact
that the orders of the authorities may extend to any subject. It is not
necessary to provide any particular proof of this. An article in Volume Ten
obliged a husband "to love his wife as his very own body". However,
even the most daring jurists would hardly try to construct a corresponding
legal relationship involving the possibility of libidinization etc.
On the contrary, however
artificial and unreal a specific juridic construct may seem, nevertheless, so
long as it remains within the bounds of private law, and primarily property
law, it has a firm basis. Otherwise, it would have been impossible to explain
the fact that the basic lines of thought of Roman jurists retained their
significance up to the present time as the ratio scripta of every type of commodity‑producing society.
We have to a certain extent now
anticipated the answer to the question posed at the outset: where shall we look
for that unique social relationship whose inevitable expression is the form of
law? We will try to show in more detail that this relationship is the
relationship of possessors of commodities.19 The usual analysis,
which we find in any philosophy of law, identifies the legal relationship as a
will relationship, as a voluntary relationship between people in general. The
reasoning here proceeds from the "existing results of the process of
development", from the "ongoing forms of thought", but it
ignores their historical origin; whereas in reality, in proportion to the
development of a commodity economy, the natural premises of exchange become the
natural premises of every form of human relationship and stamp their imprint
upon them; in the heads of philosophers, on the contrary, the circulation of
commodities is represented as merely a partial instance of a general form which
for them assumes an eternal nature.20
Comrade Stuchka, from our point
of view, correctly identified the problem of law as a problem of a social
relationship. But instead of beginning to search for the specific social
objectivity of the relationship, he returned to the usual and formal definition‑although
a definition now influenced by class characteristics. In the general formula
given by Stuchka, law figures not as a specific
social relationship but, as with all relationships
in general, as a system of relations
which corresponds to the interests of the ruling class and which protects it
with organized force. Accordingly, within these class boundaries, law as a
relationship is indistinguishable from social relations in
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PASHUKANIS: SELECTED WRITINGS
general, and Comrade Stuchka is
therefore not in a position to answer Professor Reisner's venomous question:
how do social relationships become legal institutions, or how is law converted
into itself?.
Stuchka's definition, perhaps
because it emerged from the depths of the People's Commissariat of justice, was
tuned to the needs of the practising lawyer. It shows the empirical limit which
history always places upon legal logic, but it does not reveal the deep roots
of this logic itself This definition reveals the class content included in
legal forms, but it does not explain to us why this content adopts such a form.
For the bourgeois philosophy of
law, which considers relationships as an eternal and natural form of all human
relationships, such a question does not arise in general. For Marxist theory,
which tries to penetrate the secrets of social forms and to reduce "all
social relationships to man himself", this task must occupy the first
place.
CHAPTER
III
Relationship and the Norm
As the wealth of capitalist
society assumes the form of an enormous accumulation of commodities, society
presents itself as an endless chain of legal relationships.
The exchange of commodities
assumes an atomized economy. A connection is maintained between private and
isolated economies from transaction to transaction. The legal relationship
between subjects is only the other side of the relation between the products of
labour which have become commodities. The legal relationship is the primary
cell of the legal tissue through which law accomplishes its only real movement.
In contrast, law as a totality of norms is no more than a lifeless abstraction.
Nonetheless, the standard view
posits objective law or a norm as the base of the legal relationship both
logically and in reality. According to this conception, a legal relationship is
generated by an objective norm:
The norm of the right to demand
repayment of a debt does not exist because creditors usually demand repayment,
but on the contrary creditors demand repayment because the norm
GENERAL
THEORY
63
exists; law is not established
inductively from observed instances, but by deduction from a rule established
by someone.21
The expression, "the norm generates the legal
relationship", can be understood both in the real and logical sense.
Let us turn to the first of
these. Above all it should be noted that the totality of norms, written and
unwritten, belongs per se more to the
sphere of literary creativity, a situation acknowledged frequently among the
jurists themselves.
This aggregate of norms obtains
real significance only because of those relationships which are conceived ‑of
as having arisen and, in fact, have arisen according to these rules. Even the
most consistent advocate of the pure normative method, Hans Kelsen, had to
recognize that somehow a slice of real life, i.e. of the actual conduct of
people, had to be harmonized with the ideal normative order. In this sense, to
consider the statutes of tsarist Russia as law currently in effect is possible
only in an insane asylum. The formal juridical method, which is concerned only
with norms which are "considered as law", can assert its independence
only within very narrow limits, only so long‑as the tension between fact
and norm does not exceed a definite limit. In material reality a relationship
has primacy over a norm. If not a single debtor repaid a debt, then the
corresponding rule would have to be regarded as actually non‑existent and
if we wanted nevertheless to affirm its existence we would have to fetishize
this norm in some way. Indeed a great many theories of law are concerned with
such fetishism, justifying the preoccupation on very slender methodological grounds.
Law as an objective social
phenomenon cannot be exhausted by a norm or a rule, whether written or
unwritten. A norm as such, i.e. in its logical content, either is directly
derived from existing relationships already or, if it is published as statutory
law, then it presents itself only as a symptom by which one may assess, with
some degree of probability, the likely emergence of the corresponding
relationships in the near future. It is not sufficient to know the normative
content of law in order to confirm its objective existence. It is necessary to
know if this normative content is realized in practice, that is in social
relationships. A common source of confusion is the dogmatic jurist's method of
thought according to which the concept of operative law and operative norm does
not conform to what the sociologist or historian understands as objectively
substantive law.
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PASKUKANIS SELECTED WRITINGS
When a dogmatic jurist decides
the question of whether a given norm of law is operative or not, he usually
does not have in mind the question of the presence or absence of a particular
objective social phenomenon. Instead, he is concerned only with the presence or
absence of a logical connection between the given normative provision and a
more general normative premise.22
Thus, the norm is the only thing
that exists for the dogmatic jurist who, confined to the narrow framework of
his purely technical task, may serenely equate law and norm. In the case of
customary law he must turn to reality regardless. But when statutory law is the
jurist's only normative assumption (expressed in his technical language, the
source of law), then the jurist's conclusions, and his dogma about "operative"
law, are by no means obligatory for the historian who wants to study the law
actually existing. Scientific, i.e. theoretical, study can deal only with
facts. If certain relationships are actually formed this means that the
corresponding law has been created. If a statute or decree was merely
published, but the corresponding relationships did not in fact arise, this
means there was an attempt to create law but the attempt failed.23
It is possible moreover to modify
this thesis and make its cornerstone the objective social regulatory forces or,
as jurists express it, the objective legal order, instead of norms.24
But even in this new formulation, the thesis can be subjected to further
criticism. If social regulatory forces are understood to be the same relationships
in their regularity and constancy, then we have a simple tautology. If instead
they are understood as a special, consciously organized order ensuring and
guaranteeing the given relationships, then the logical error will be entirely
clear. It is impossible to say that the relationship between creditor and
debtor is generated by a coercive order which exists in a given state for
recovering debts. This objectively existing order ensures, but certainly does
not generate the relationship. This is not mere scholasticism‑that is
best shown by the fact that we can conceive of, as well as find, a tremendous
variety of historical examples of the ideal functioning of this externally
coercive and regulatory social apparatus, and consequently the most diverse
degrees in which relationships are guaranteed. Moreover these relationships
themselves do not undergo any structural changes. We can imagine so extreme a
situation as when xcept for the two parties entering the relationship‑no
other third force exists capable
GENERAL THEORY
65
of establishing a norm and
guaranteeing its observance (for instance some contract between the Varangians
and the Greeks): the relationship remains even here. But one merely needs to
imagine the disappearance of a party, i.e. of the subject as the bearer of a
distinct autonomous interest, and the very possibility of a relationship also
disappears.
In this respect one may argue
that if one departs from the objective norm, then the very concepts of legal
relationship and legal subject are in abeyance, lacking definition. In general,
this objection reveals the very practical and empirical spirit of modern
jurisprudence. It knows but one truth; that any lawsuit is lost if the party
cannot rely on an appropriate paragraph of some statute. However, the belief
that a legal subject and a legal relationship do not exist and are not
definable external to an objective norm, are just as theoretically mistaken as
the belief that value does not exist and is not definable outside the framework
of supply and demand (because empirically it is reflected precisely in price
fluctuations).
The prevalent style of legal
thought which initially posits the norm as the authoritatively established rule
or conduct, is distinguished by that same incisive empiricism which‑also
seen in economic theories‑goes hand in hand with extreme and lifeless
formalism.
Supply and demand can exist for
any objects including those which are by no means the product of labour. The
conclusion can be drawn from this that value may be defined without any
reference to the socially necessary labour time required for the production of
a specific commodity. The empirical fact of an individualized value serves as
the basis for a formal‑logical theory of marginal utility.
Similarly, norms issued by the
state may deal with the most varied objects that have very different qualities.
From this the inference can be made that the essence of law is exhausted by the
form of command or order which proceeds from higher authority, and that the
very substance of social relationships contains no elements which could
generate the legal form. The empirical fact that relationships protected by the
state are better secured is placed at the foundation of the formal‑logical
theory of legal positivism.
Our question, expressed in the
Marxist terms of historical materialism, is reduced to the problem of the
relationship between the legal and political superstructures. If a norm is
recognized as the
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PASHUKANIS: SELECTED WRITINGS
dominant element in all
relationships then, before seeking the legal superstructure, we must assume the
presence of a norm‑establishing authority, i.e. in other words a
political organization. Thus we would have to conclude that the legal
superstructure derives from the political superstructure.
However, Marx himself emphasizes
the fact that the basic and most deeply set stratum of the legal superstructure‑
property relationships‑is so closely contiguous with the base that they
are "the same relationships of production expressed in legal language".
The state, i.e. the organization of political class domination, develops from
definite relationships of production and property. Production relationships,
logically expressed, comprise what Marx, following Hegel, called civil society.
The political superstructure, and in particular the state apparatus, is a
secondary, derivative element.
The way in which Marx envisioned
the relationship between civil society and the state is apparent from the
following quotation:
The egoistic
individual of bourgeois society may in his insular imagination, in his lifeless
abstraction, depict himself as an atom, i.e. a coherent and self‑sufficient
being, without needs or embellishments. The harsh reality is that our sensory
perceptions are not concerned with his fantasies. His feelings compel him to
believe in the reality of the external world and also of other individuals;
every day he is reminded that the external world is not empty, but that it is
the external world which fills his stomach. Each of his natural activities,
each of his qualities, and each incentive to five becomes a requirement, a need
which transforms his egoism into a hunger for the objects and people of the
external world. But since the need of one individual has no inherent meaning
for another egoistic individual (who has the means for satisfying this need),
and since accordingly the need is not directly linked with its satisfaction,
then each individual is compelled to make this bond in order to become in his
turn the intermediary between another's need and the object of that need. Thus,
natural necessity is the characteristic of the human condition, However alien
they may seem to one another, the members of civil society are united through
self‑interest. Civil, not political
life, this is the real bond. It is not the state that binds the atoms of
civil society, but the fact that they are atoms only in imagination and
transcendental fantasy. In reality they are very unlike atoms‑they are
not divine egoists, but egoistic human beings. Only political superstition forces us to believe that civil society is
the creation of the state; on the contrary, the state is the creation of civil
society.25
GENERAL THEORY 67
Marx returns to the same question
in another article, "Moralising Criticism and Critical Morality",
where, in a polemic with the representative of true socialism, Heinzen, he
writes:
If in general
the bourgeoisie politically, i.e. with the help of state power, "supports
unjust property relationships" [Marx puts Heinzen's words *in quotation
marks here], then it does not create
them. "Unjust property relationships" aided by the modern division
of labour, the modem forms of exchange, competition, concentration, etc., do
not flow from the political domination of
the bourgeois class, but, on the contrary, the political domination of the
bourgeois class derives from these modem relationships of production‑which
bourgeois economists proclaim as inevitable and eternal laws.
Thus, the path from production
relationships to legal or property relationships is shorter than imagined by so‑called
positivist jurisprudence, which cannot function without an intermediate link‑state
power and its norms. Man as a social producer is the assumption from which
economic theory proceeds. The general theory of law must proceed from this same
basic assumption. Thus, for instance, the economic relationship of exchange
must be present for the legal relationship of the contract of purchase and sale
to arise. In its real movement, the economic relationship becomes the source of
the legal relationship, which first emerges at the moment of a controversy. A
dispute, a conflict of interest, elicits the form of law, the legal
superstructure. In a dispute, i.e. in a lawsuit, the parties engaged in
economic activity already appear as parties, i.e. as participants in the legal
superstructure; the court in its most primitive form‑this is the legal
superstructure par excellence. Through
the judicial process the legal is abstracted from the economic, and appears as
an independent element. Law historically emerged from controversy, i.e. from a
claim, and only thereafter did it overlap with the earlier (purely economic or
factual) relationship. From the very beginning it thus assumed a dual nature
economic and legal. Dogmatic jurisprudence ignores this sequence and at once
begins with the end result‑with abstract norms through which the state,
so to speak, juridicizes its actions and infuses all social spaces. The basic
defining element (from the simplistic perspective of relationships of purchase
and sale, credit, loans etc.) is not the actual material economic content of
these relationships but the imperative directed to the
68
PASHUKANIS: SELECTED WRITINGS
individual in the name of the
state. This point of departure is useless to the legal practitioner both for
the study and explanation of the concrete legal structure, and particularly for
the analysis of the legal form in its most general definitions. State power
injects clarity and stability into the legal structure but it does not create
its preconditions which are rooted in the material relationships of production.
Gumplowicz, in his Rechtsstaat und Sozialismus, of course
comes to the directly opposite conclusion proclaiming the primacy of the state,
i.e. of political domination. Turning to the history of Roman law, he thinks
that he has succeeded in proving that ,call private law was once public
law". In his opinion this was because all the most important institutes of
Roman civil law, for example, emerged as privileges of the ruling class, as
public law advantages in the hands of the victorious group for the purpose of
consolidating its power.
It cannot be denied that this
theory is convincing, to the extent that it emphasizes the element of class
struggle and ends the idyllic view of the emergence of private property and
power. But Gumplowicz makes two major errors. First, he gives coercion such a
constructive role, and loses sight of the fact that every social order,
including those which were formed on the basis of conquest, is determined by
the specific conditions of the social forces of production. Second, in speaking
of the state he erases any difference between primitive relations of domination
and "public power" in the modern, i.e. bourgeois sense of the word.
He therefore infers that private law is generated by public law. But from the
fact that the most important institutes of the ancient Roman ills cavils (ownership, the family, the
procedure for inheritance) were created by the ruling class to support their
domination, it is also possible to draw the diametrically opposed conclusion‑that
"all public law was once private law". This will be just as true, or
rather just as false, because the antithesis between private and public law
corresponds to much more developed relationships and loses its meaning and
application in the primitive era. If the institutes of the ills cavils really
were a mixture of features of public law and private law (using modern
terminology), then they equally included religious and, in a broad sense,
ritualistic elements. Consequently, at this level of development the purely
GENERAL THEORY
69
legal element was inseparable
from its reflection in the general conceptual system.
The development of law as a
system was evoked not by the requirements of the state, but by the necessary
conditions for commercial relations between those tribes which were not under a
single sphere of authority. This is recognized, incidentally, by Gumplowicz
himself Commercial relations with foreign tribes, with nomads, and plebeians,
and in general with those not participant in the union of public law (in
Gumplowicz's terminology), ushered in the ius gentium, which was the prototype of the legal superstructure in its
pure form. In contrast to the ius civile, with its undeviating and ponderous
forms, the ius gentium discards all
that is not connected with the goal‑with the natural basis of the
economic relation. Public law embodies the nature of this relationship and
therefore appears as "natural" law; it strives to reduce this
relationship to the minimal number of assumptions, and therefore develops
easily into a logically structured system. Gumplowicz undoubtedly is right when
he equates legal logic with the logic of the civilian, but he is mistaken in
thinking that the system of private law could have developed, so to speak, in a
derivative fashion from public power. His train of thought is approximately as
follows: because private disputes did not directly or materially touch upon the
interests of authority, then the latter gave the corpus of jurists full freedom
to refine their mental abilities in this sphere. In the field of public law,
conversely, reality resisted the jurists' efforts, because authority tolerates
no interference in its own affairs and does not recognize the omnipotence of
juridic logic.
It
is most obvious that the logic of juridic concepts corresponds with the logic
of the social relationship of commodity production, and that the history of the
system of private law should be sought in these relationships and not in the
dispensation of the authorities. On the contrary, the logical relationships of
domination and subordination are only partially included in the system of juridic
concepts. Therefore, the juridic concept of the state may never become a theory
but will always appear as an ideological distortion of the facts.
Wherever the first layer of the
legal superstructure exists, we find that the legal relationship is generated
directly by the existing material production relationships of people.
70 PASHUKANIS:
SELECTED WRITINGS
From this it follows that for the
analysis of the legal relationship, in its simplest form, there is no need to
proceed from the concept of a norm as an external authoritative command. It is
sufficient to take as a basis a legal relationship "the content of which
originates in the economic relation itself" (Marx), and to study the
"legal" form of this juridic relationship as one of its partial
aspects.
The question of whether a norm
should be considered a prerequisite of a legal relationship in historical
reality, led us to the problem of the relationship between the legal and
political superstructures. On logical and systematic grounds, the problem seems
to be the relation between objective and subjective law.
In his text on constitutional
law, Duguit called attention to the fact that the word "droit"
signified "things which are undoubtedly deeply intermingled, but which are
extremely different from one another". Here, he means law in the objective
and subjective senses. In fact we come here to one of the darkest and most
disputed areas of the general theory of law. Before us is some sort of strange
dual concept; although both aspects are located at different levels, they
nevertheless undoubtedly condition each other. Law is simultaneously a form of external
authoritative regulation and a form of subjective private autonomy. The basic
and essential characteristic of the former is unconditional obligation and
external coercion, while freedom is ensured and recognized within definite
boundaries. Law appears both as the basis of social organization and as the
means for individuals "to be disassociated, yet integrated in
society". On the one hand, law completely merges with external authority,
and on the other it completely opposes every external authority not
recognizedby it. The duality of law as the synonym of official state power, and
as the slogan of revolutionary struggle, is the arena for unlimited controversy
and the most impossible confusion.
Consciousness of this deep and
hidden contradiction produced mighty efforts somehow to eliminate this
troublesome conceptual dichotomy. For this purpose no small number of attempts
were made to adopt one of the "meanings" at the sacrifice of the
other. Thus, for instance, the same Duguit, who in his treatise declares the
expressions‑objective and subjective law‑"successful, dear,
and exact", in another of his works refines the proof that subjective law
is "simply a misunderstanding, a metaphysical
conception untenable in an era of realism and positivism such as ours".
GENERAL THEORY
71
The opposite trend, whose German
representative is Bierling, and among us the psychologists headed by
Petrazhitsky, are inclined to declare objective law "a fantasy",
deprived of real significance "an emotional projection", a product of
the objectification of internal i.e. psychological, processes etc.
Discarding for now the
psychological school and trends related to it, let us consider the view whereby
law should be understood exclusively as an objective norm. Proceeding from this
concept we have, on the one hand, an authoritative prescription of the
necessary (or the norm), and on the other the subjective obligation
corresponding to, and generated by it.
Dualism is apparently uprooted,
but this is merely a temporary victory, because as soon as we move to the
practical application of this formula, immediate attempts are made by
circuitous and indirect routes to introduce those contours necessary for the
conceptual creation of subjective law. We now return to the same dichotomy,
with the only difference that one part of it, subjective law, is artificially
depicted as some species of ghost; no combination of imperatives and
obligations can provide us with subjective law, in the independent and real
sense in which any proprietor of bourgeois society embodies it. In fact, it
suffices to exemplify property alone to be convinced of this. If the attempt to
reduce the law of property to prohibitions
directed to third parties is no more than a logical confusion, an ugly and
inverted concept, then the depiction of the bourgeois law of property as a
social obligation is also a mystification.26
Every owner and everyone around.
him, understands clearly that the right
belonging to him as an owner has only this in common with an obligation:
they are polar opposites. Subjective law has primacy for it is ultimately based
on a material interest which exists independently of external, i.e. conscious,
regulation of social life.
The subject as the bearer and
addressee of all possible demands, and the chain of subjects bound by demands
addressed to one another, is the basic juridic fabric corresponding to the
economic fabric, i.e. to the social relations of production which depend on the
division of labour and exchange.
Social organization, including
the instruments of coercion, is the concrete totality to which we must turn,
having previously understood the legal relationship in its pure and simplest
form. Thus,
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PASHUKANIS: SELECTED WRITINGS
obligation as the result of an
imperative or order, is now the actualizing and complicating element in the
consideration of the legal form. In its most abstract and simple form, a legal
obligation must be considered as an expression and correlation of a subjective
legal claim. In the analysis of a legal relationship we clearly see that an
obligation does not exhaust the logical content of the legal form. It is not
even an independent element of it. An obligation always appears as an
expression or correlation of an appropriate legal right. The obligation of one
party is what is owed to and therefore what belongs to another. What appears as
a right for the creditor appears as an obligation for the debtor. The category
of legal right becomes logically complete only when it includes a bearer and an
owner of rights, whose rights are neither more nor less than the obligations of
others to him.
Thus, the legal relationship not
only gives us law in its real movement, but also reveals the most
characteristic peculiarities of law as a logical category. Conversely, the norm
itself, as a prescription of what is required, constitutes the elements of
morality, aesthetics and technology as much as of law.
The legal order is distinguished
from every other social order in that it comprises isolated, private subjects.
A norm of law' acquires its differentia
specifica, distinguishing it from the general mass of regulatory rules‑moral,
aesthetic, utilitarian etc.‑because it presupposes a person endowed with
a right and actively asserting it.
The attempt to make the notion of
external regulation the basic logical element in law leads to the equation of
law with the authoritatively established social order. This current of legal
thought truly reflects the spirit of that period when large‑scale
capitalist monopolies and imperialist policy replaced the Manchester School and
free competition.
It is not difficult to show that the idea of unconditional obedience to an external norm‑establishing authority has nothing in common with the legal form. It is sufficient to take examples which have been marked out with extreme rigour and which are therefore clearest examples of such a structure. One example could be the military unit, where the majority of persons are subordinated in their movements to general orders whose single, active and autonomous origin is the will of the commander. Another example is the Jesuit order. Here, all members blindly and uncomplainingly fulfil the will
GENERAL THEORY 73
of the leader. It is sufficient
to think of these examples to conclude that the more consistently the basis of
authoritarian regulation is applied, thereby excluding any suggestion of a
separate and autonomous will, the less will be the opportunity for the
application of the category of law. This is particularly sharply felt in the
field of so‑called public law. Here, legal philosophy faces the greatest
difficulties. At the same time as civil law, operating at the primary legal
level, broadly and confidently uses the concept of subjective rights, the
application of this concept in the theory of public law steadily creates
misunderstanding and contradictions. The system of civil law is therefore
characterized by simplicity, clarity and completeness, while the theories of
public law are replete with constructs that are rigid, artificial and
grotesquely one‑sided. The legal form, with its aspect of subjective
legal authority, is born in a society consisting of atomized bearers of
private, egoistic interest. When all economic life is constructed on the
principle of accord between independent wills, then every social function, in
one or another explicit way, assumes a legal nature, i.e. becomes not merely a
social function but also the legal right of the person who fulfils this
function. However, since private interests cannot inherently achieve such full
development and overwhelming significance in the political organization as
they can in the economy of bourgeois society, therefore even subjective public
rights act as something ephemeral, deprived of real roots, and are constantly
in doubt. At the same time the state is not a legal superstructure‑it can
merely be imagined as such.
Legal theory
cannot equate "the rights of parliament", "the rights of
executive authority" etc., for example, with the creditor's right to
repayment of a debt. This would be to place a distinct private interest where
bourgeois ideology presumes the authority of a general impersonal state
interest. But at the same time every jurist knows that he cannot invest these
rights with any other basic content without the legal form escaping him. Public
law can exist only as the reflection of the form of private law in the sphere
of political organization, or else it ceases to be law. Attempts to depict a
social function as it really is, i.e. simply a social function, and a norm
merely as an organizing rule, mean the extinction of the legal form. However,
the real premise for the transcendence of the legal form and legal ideology is
that
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PASHUKANIS: SELECTED WRITINGS
social condition in which the
very conflict between individual social interests has become superfluous.
A characteristic feature of
bourgeois society is the fact that general interests are alienated from private
ones, and are opposed to them. But in this opposition they unwillingly adopt
the form of private interests, i.e. the form of law. Thus, as should be
expected, the legal elements of state organization are primarily those which
harmonize with the system of antagonistic, isolated, private interests.
Thus, the very concept of public
law may be developed only in that process in which, figuratively, it constantly
diverges from private law, trying to define itself as the latter's antithesis,
and then turns to it as if it were its centre of attraction.
The attempt to proceed in the
reverse direction, i.e. to find the basic definitions of private law (which are
nothing other than the definitions of law in general) by using a norm as the
conceptual platform, can produce nothing except lifeless formal concepts,
fraught with internal contradiction. Law as a function ceases to be law, and
power without the private interests supporting it becomes elusive and abstract,
easily becoming its antithesis, i.e. an obligation (every public right is at
the same time an obligation). just as the legal "right" of the
creditor to receive repayment is elementary, clear and "natural", so
the legal "right" of parliament to approve the budget is tenuous and
problematic. If, in civil law, scholastic arguments are conducted on the level
of what Jhering called legal symptomatics, then the very basis of jurisprudence
is placed in jeopardy. This is the source of methodological distortion and
hesitation. It is this which threatens to turn jurisprudence into a hybrid of
sociology and psychology.
CHAPTER
IV
Commodity and the Subject
Every legal relation is a
relationship between subjects. A subject is the atom of legal theory, the
simplest and irreducible element. And with it we begin our analysis.
At the same time as idealist
theories of law start with some general idea and develop the concept of the
subject, i.e. in a purely speculative way, dogmatic jurisprudence uses this
concept in a
GENERAL THEORY
75
formal manner. For it, the
subject is nothing more than "a means for the legal qualification of
phenomena from the perspective of their suitability or unsuitability for
participation in legal relations". It therefore does not ask itself why
man turned from an animal environment into a legal subject, since it proceeds
from the legal relation as an antecedent form.
Marx's theory, on the contrary,
considers every social form as historical, and therefore sets its task as the
explanation of those historical, material conditions which make one category or
another real. The material premises of legal relationships, or the
relationships of legal subjects, are explained by Marx himself in the first
volume of Capital. It is true that he did this obliquely, and in the form of
the most general allusions. However, these allusions provide much more for the
understanding of the legal element in the relationships between people than the
multi‑volume treatises on the general theory of law. For Marx the
analysis of the form of the subject flows directly from the analysis of the
form of commodities.
Capitalist society is above all a
society of commodity owners. This means that in the process of production the
social relationships of people assume an objectified form in the products of
labour and are related to each other as values. Commodities are objects whose
concrete multiplicity of useful qualities becomes merely a simple physical
covering of the abstract quality of value, and which appears as the ability to
be exchanged for other commodities in a definite ratio. This quality appears as
something inherent in the objects themselves, by force of a type of natural law
which acts behind people's backs entirely independent of their will.
But if a commodity acquires value
independently of the will of the subject producing it, then the realization of
value in the process of exchange assumes a conscious volitional act on the part
of the owner of the commodity. Or, as Marx says, "commodities cannot send
themselves to a market and exchange themselves with one another. Accordingly,
we must turn to their custodian, to the commodity owner. Commodities are
objects and therefore defenceless before man. If they do not go of their own
will, he will use force, i.e., appropriate them".27
Thus, in the process of
production, the social relationships of people realized in the products of
labour and assuming the form of an elemental law, require for their realization
a particular relationship
76 PASHUKANIS: SELECTED WRITINGS
of people as managers of
products, and subjects "whose will rules objects".
Therefore, simultaneously with
the product of labour assuming the quality of a commodity and becoming the
bearer of value, man assumes the quality of a legal subject and becomes the
bearer of a legal right. "A person whose will is declared decisive is the
subject of a legal right."28
Simultaneously, social life is
reduced on the one hand to the totality of elemental objectified relationships
in which people appear to us as objects (such are all economic relations: the
level of prices, surplus value, profit etc.) and, on the other hand, those
relationships which define man only by reference to an object, i.e. as a
subject, or in legal relationships. These two basic forms are different in
principle, but at the same time are very closely connected and mutually
dependent. The social, productive relationship appears simultaneously in two
incongruous forms: as the value of a commodity and as the ability of man to be
the subject of rights.
In the same way that the natural
multiplicity of the useful qualities of a product is in a commodity a simple
mask of its value, while the concrete species of human labour are dissolved
into abstract human labour as the creator of value so the concrete multiplicity
of man's relationship to an object appears as the abstract will of the owner,
while all the concrete peculiarities, which distinguish one representative of
the species Homo sapiens from another, are dissolved into the abstraction of
man in general as a legal subject.
If economically an object
dominates man, since as a commodity it embodies in itself a social relationship
not under the authority of man, then man legally dominates the object because
as its possessor and owner he himself becomes merely the embodiment of the
abstract, the impersonal subject of rights, the pure product of social
relationships. Expressing this in the words of Marx, we say:
In order that these objects may relate to one another
as commodities, their guardians must relate to one another, as persons whose
will resides in those objects; and must behave in such a way that each does not
appropriate the commodity of the other, and part with his own, except by means
of an act
GENERAL
THEORY
77
done
by mutual consent. They must, therefore, mutually recog nize in each other the rights of private proprietors.29
Having
fallen into servile dependence upon economic relations surreptitiously created in the form of the laws of value, the
economic subject‑as if in
compensation‑receives a rare gift in his capacity as a legal subject: a legally presumed will,
making him absolutely free and equal
among other owners of commodities. "All must be free and no one may violate the freedom of
another . . . each person possesses his own body as a free instrument of his
own will."30 This is the axiom from which the theory of natural
law proceeds. And this idea of
separation, the inherent proximity of human individuality, this "natural condition", from
which "the infinite contradiction of freedom"
flows, entirely corresponds to the method of commodity production in which the
producers are formally independent of one another
and are bound by nothing other then the
artificially created legal order, by this
very legal condition or, speaking in the words of the same author, "the
joint existence of many free beings, where all must
be free and the freedom of one must not prevent the freedom of another". This is nothing other than an
ideologized philosophical abstraction transferred to heavenly heights, freed from
its crude empiricism; independent producers meet in this market because, as another philosopher teaches us, "in the
market transaction both parties do that which they want and do not claim
greater freedom than they themselves grant the others".
The
increasing division of labour, the expanding social relation‑ships and the development of exchange deriving
therefrom, make exchange‑value an
economic category, i.e. the embodiment of social production relationships which
stand above the individual. For this it is
necessary that separate and random acts of exchange turn into a broad systematic circulation of commodities. At
this stage of development, value is torn from arbitrary assessment, loses its
character as a phenomenon of the
individual psyche and assumes an objective economic significance. Similarly,
real conditions are necessary for man
to be transformed from a zoological being into an abstract and impersonal subject of law, into a juridic
person. These real conditions consist in the condensation of social relations
and the growing power of social, i.e.
class organization, which achieves its maximum
intensity in the "well organized" bourgeois state. Here, the ability
to be a subject of rights is finally torn from the living
78 PASHUKANIS: SELECTED WRITINGS
concrete personality, ceases to
be a function of its active conscious will, and becomes a purely social
quality. Legal capacity is abstracted from the ability to have rights. The
legal subject receives his alter ego in
the form of a representative while he himself assumes the significance of a
mathematical point, a centre in which a certain sum of rights is. concentrated.
Accordingly, bourgeois capitalist
property ceases to be a weak, unstable and purely factual possession, which at
any moment may be disputed and must be defended vi et armis. It turns into an absolute, immovable right which follows
the object everywhere that chance carried it and which from the time that
bourgeois civilization affirmed its authority over the whole globe, is
protected in its every corner by laws, police, courts.31
At this stage of development the
so‑called will theory of subjective rights begins to seem incongruent
with reality. It is now preferable to define a right in the subjective sense as
"the sum of benefits which the general will recognizes as belonging to a
specific person". Moreover, this latter does not require a person to have
the ability to will and to act. Of course, Dernburg's definition is better
suited to that view of the modern jurist. which must deal with the legal
capacity and rights of idiots, infants, juridic persons etc. In its extreme
conclusions the will theory was equated with the exclusion of these categories
from the subjects of rights. Dernburg is certainly nearer the truth in
understanding the subject of rights as a purely social phenomenon. But on the
other hand it is very clear to us why the element of will played such an
essential role in the construction of the concept of the subject. Dernburg
himself sees this in part when he affirms that:
rights in the
subjective sense existed long before a conscious state order was created; they
were based upon the personality of the individual man and upon the respect
which he could win and compel with respect to himself and his property. Only
gradually, by abstraction from the concept of existing subjective rights, was
the concept of the legal order formed. The view that rights, in the subjective
sense, are merely the result of objective law is ahistorical and untrue.32
"To win and to compel"
is obviously possible only for someone who enjoys both the will and also a
significant amount of power. On the other hand, Dernburg forgets that the
concept of the subject
GENERAL THEORY
79
arose and developed from its
contrast with an object or thing. A commodity is an object; a man is a subject
who disposes of the commodity in acts of acquisition and alienation. It is 'in
the exchange transaction that the subject first appears in the full totality of
its definitions. A formally and perfected concept of the subject, which would
simply be left with legal capacity, further diverts us from the living real
historical sense of this legal category. This is why it is difficult for
jurists completely to surrender the active, volitional element in the concepts
of the subject and subjective legal right.
The sphere of domination, which
has assumed the form of a subjective right, is a social phenomenon which is
attributed to the individual on the same basis as which value, also a social
phenomenon, is attributed to an object, to a product of labour. Commodity
fetishism is complemented by legal fetishism.
Thus, at a certain stage of
development, the relationships between people in the process of production
assume a doubly perplexing form. On the one hand, they appear as a relation of
objectscommodities, and on the other as will relationships of individuals
independent and equal to one another‑legal subjects. Along with the
mystical quality of value something appears no less perplexing‑a legal
right. Simultaneously a single whole relationship assumes two basic abstract
aspects‑economic and legal.
In the development of legal
categories, the ability to execute exchange transactions is only one of the
concrete phenomena of the general quality of the capacity to have legal rights
and to conduct transactions. However, it is historically mainly the exchange
transaction which furnished the idea of a subject as the abstract bearer of all
possible legal claims. Only in the conditions of a commodity economy is the
abstract form of a right created, i.e. the capacity to have a right in general
is separated from specific legal claims. Only the constant transfer of rights
taking place in the market creates the idea of their immobile bearer. The
person receiving an obligation in the market undertakes an obligation himself
at the same time. The position of a creditor is transferred to that of a
debtor. Thus, the possibility is created of abstracting from the concrete
differences between these subjects of legal rights, and of putting them under
one generic concept.33
Similar to the way in which the
exchange transactions of developed commodity production were preceded by random
exchange
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PASHUKANIS: SELECTED WRITINGS
acts and such forms of exchange
as mutual gifts, the legal subject with the sphere of legal domination
expanding around him was morphologically preceded by the armed individual or,
more often, group of people, clan, horde, tribe, capable in a dispute or a
battle of defending that which was the condition of their existence. This close
morphological tie dearly unites the court with the duel, and the parties and
the proceedings with the parties in armed struggle. With the growth of social
regulatory forces, the subject proportionally loses his material tangibility.
His personal energy is replaced by social power, i.e. class power,
organization, which finds its highest expression in the state. This impersonal
and abstract subject corresponds, as his expression, to the impersonal abstract
state authority which acts in ideal equilibrium and continuity in space and
time.
But before enjoying the services
of the state mechanism, the subject relies upon the organic continuity of
relationships. Similar to the way in which the regular repetition of acts of
exchange constitutes value, as a general category raised above subjective
evaluations and random exchange ratios, likewise a regular repetition of one
and the same relationship‑custom‑gives a new meaning to the
subjective sphere of domination, justifying its existence by an external norm.
Custom or tradition, as a higher
basis than the individual for legal claims, corresponds to the feudal system
with its limitations and stagnation. Tradition or custom is in essence
something included in notoriously rather narrow geographic boundaries.
Therefore, every right is thought of merely as an attribute of a specific
concrete subject or of a group of subjects. In the feudal world, "each
right was a privilege" (Marx). Each city, each estate, each guild lived according
to its law which followed a man wherever he was. The idea of a formal legal
status, common to all citizens, general for all people, was absent in this
period. Corresponding to this in the economic field were self‑sufficient
closed economies, prohibitions of import and export etc.
"The content of
individuality was not one and the same. The estate, property position,
profession, belief, age, sex and physical strength led to deep inequality in
legal capacity."34 Equality between subjects was assumed only
for closed relationships in a definite narrow sphere; thus, members of one and
the same estate were equal to one another in the sphere of estate rights,
members of one and the
GENERAL
THEORY
81
same guild were equal in the
sphere of guild rights etc. At this stage the legal subject, as the general
abstract bearer of all conceivable claims to rights, appears only in the role
of the possessor of specific privileges.
At this stage "legal
consciousness sees that the same or equal rights were attributed to individual
persons or collectives, but it does not conclude that these persons and
collectives were one and the same in their attribute of having rights."35
To the extent that in the Middle
Ages the abstract concept of a legal subject was absent, so also the idea of an
objective norm, directed to an imprecise and broad circle of persons, was mixed
and merged in the establishment of concrete privileges and
"liberties". As late as the thirteenth century we find traces of some
clear impressions of the difference between objective law and subjective legal
rights or powers. In certificates of privileges and dues, which were given to
cities by emperors and princes, the mixture of these two concepts is
encountered at each step. The usual form of establishing some general rules or
norms was the recognition of a definite territorial unit, or of the population
in a collective sense as having specific legal qualities. Such a character was
borne by even the famous formula Stadtluft
macht frei The abolition of judicial battles was conducted in the same
form; along with these decrees, and as something entirely of the same type were
included the rights of city dwellers, for instance in the use of the prince's
or emperor's forest.
The same mixture of objective and
subjective elements was at first: observed in municipal law itself Municipal
statutes were in part provisions with a general character and in part a list of
individual rights or privileges which were enjoyed by some group of citizens.
Only with the full development of
bourgeois relationships did law obtain an abstract character. Each man became a
man in general, all labour was equated with socially useful labour in general,
every subject became an abstract legal subject. Simultaneously, the norm also
assumed the logically perfected form of the abstract general law.
Thus, the legal subject is the
abstract commodity owner elevated to the heavens. His will‑will
understood in a legal sense‑has its real basis in the wish to alienate in
acquisition and to acquire in alienation. For this desire to be realized it is
necessary that the desires of commodity owners be directed to one another.
Legally, this
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relationship is expressed as a
contract or an agreement of independent wills. Therefore, contract is one of
the central concepts of law. In haughty language, it becomes a component part
in the idea of law. In the logical system of legal concepts the contract is
only one of the forms of transaction in general, i.e. one of the methods of concrete
expression of the will with whose aid the subject acts upon the legal sphere
around him. Historically and in reality, on the contrary, the concept of
transaction grew from contract. Outside contract, the very concepts of subject
and will exist only as lifeless abstractions in the legal sense. In contract
these concepts obtain their full movement, and simultaneously the legal form,
in its simplest purest aspect, receives its material basis in the act of
exchange. The act of exchange thus concentrates, in its focus, all the
essential elements of political economy and law. In exchange, in Marx's words,
"a volitional or legal relation is produced by economic relationships
themselves". Once it has arisen, the idea of contract strives to assume universal
significance. Before possessors of commodities "recognized" each
other as owners, they were of course already such but in a different, organic
and extra‑juridical sense. "Mutual recognition" signifies
nothing other than an attempt to interpret, with the help of the abstract
formula of contract, those organic forms of appropriation which depend on
labour, conquest etc., which a society of commodity producers finds ready at
its inception. By itself the relationship of man to an object is deprived of
all legal significance. This is felt by jurists when they try to make sense of
the institution of private property as a relation between subjects, i.e.
between people. But they construe this purely formally and negatively, as a
universal prohibition which excludes everyone except the owner from the use and
disposition of the object; this conception, while suitable for the practical
purposes of dogmatic jurisprudence, is most unsuitable for theoretical
analysis. In its abstract prohibitions the concept of property loses all actual
meaning, and renounces its own pre‑legal history.
But if the organic,
"natural" relation of a man to an object, i.e. its appropriation,
genetically constitutes the starting point of development, then the
transformation of this relationship into a legal one took place under the
influence of those requirements which were invoked by the circulation of boons,
i.e. primarily purchases and sales. Hauriou calls attention to the fact that
even maritime exchange
GENERAL
THEORY
83
and caravan exchange did not
initially create a requirement for the guarantee of property. The distance
which separated those engaging in exchange gave a better guarantee against any
claims whatsoever. The formation of a stable market invoked the necessity of
regulating the question of the right to dispose of commodities, and
accordingly, of the right of ownership.36 The title of ownership in
ancient Roman law, mancipatio per aes et
libram, shows that it was born simultaneously with the phenomenon of
internal exchange. Likewise, transfer by inheritance began to be fixed as a
title of ownership only from the times when civil transactions showed an
interest in this transmission.37
In exchange, speaking in Marx's
words, "one commodity possessor only by the will of another ... may
acquire for himself another's commodities, alienating them as his own", It
is precisely this thought which representatives of the natural law school also
strive to express, trying to base property on some initial contract. They were
right, of course, not in the sense that such a 1contract ever occurred
historically, but in that natural or organic forms of appropriation obtain a
legal character and begin to display their legal "intelligence" in
mutual acts of appropriation and alienation. Here it is necessary to look for
explanations of the contradiction between feudal and bourgeois property. The
greatest shortcoming of feudal property in the eyes of the bourgeois world,
lies not in its origin (conquest, force) but in its immobility, in the fact
that it is incapable of becoming an object of mutual guarantees, moving from one
hand to another in acts of alienation and appropriation. Feudal or estate property
violates the basic principle of bourgeois society‑ "the equal
possibility of obtaining inequality". Hauriou, one of the keenest
bourgeois jurists, correctly emphasizes mutuality as the most effective
guarantee of property, and thus achievable with the least amount of external
compulsion. Thus mutuality, insured by the laws of the market, assumes its own
nature as an "eternal" institution. In contrast to this, a purely
political guarantee, given by the apparatus of state compulsion, is simply for
the defence of the specific proprietary group, i.e. it is an element which has
no principled significance. Class struggle frequently led in history to a new
distribution of property, to the expropriation of money lenders and owners of
latifundia. But these upheavals, however unpleasant they were for the classes
and groups that suffered, did not disturb the
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basic foundations of private
property‑the economic fact of economic transactions by exchange. Those
people who rose up against property, on the next day had to affirm it, meeting
in the market place as independent producers. This is the path of all nonproletarian
revolutions. Such is the logical conclusion from the ideal of anarchists who,
discarding the external signs of bourgeois law‑state compulsion and
statutes‑maintain its internal essence: free contract between independent
producers.38
Thus, only the development of the
market initially makes possible and necessary the transformation of man, who
appropriates objects by means of labour (or theft), into a legal owner.
Karner offers another conception
of property. According to his definition:
de jure property is nothing other than that the power of person A
over object N, the simple relation of the individual to an object of nature,
which involves no other individual (our
italics, E. P.) and no other object; an object is a private object, the individual
a private person; the right a private right. This is the way the matter is in
fact in the period of simple commodity production.39
This whole citation is one broad
misunderstanding. Karner reproduces here his favourite Robinson Crusoe world.
But how meaningfully can the two Robinson Crusoes, neither of whom knows of the
existence of the other, imagine legally their relationship to objects when that
relationship is fully exhausted by the factual relation? This right of an
isolated man deserves to be placed next to the famous value "of a glass of
water in the desert". Both exchange‑value and the law of property
are generated by one and the same phenomenon: the circulation of products which
have become commodities. Property in the legal sense appeared not because
people decided to assign this legal quality, but because they could exchange
commodities only having donned the personality of an owner. "Unlimited
authority over a thing" is merely a reflection of the unlimited
circulation of commodities.
Karner states "an owner
decides to cultivate a legal relationship of property by way of
alienation".40 Does Karner not think that "the legal"
begins from this "cultivation", and until its acquisition does not go
beyond the bounds of the natural or organic?
GENERAL
THEORY
85
Karner agrees that
"purchase, sale, loan and rental existed earlier but with a minimal
objective and subjective sphere of action". Yet these legal forms of the
circulation of economic boons existed so much earlier that we find a clear
formulation of the relationships of rental, loan and deposit before the very formula of property was developed.
This alone already provides the key to the proper understanding of the legal
nature of property.
On the contrary, it seems to
Karner that people were independent owners before they pledged, bought and sold
objects. These relationships seem to him merely "auxiliary and secondary
institutions filling the gaps of petit bourgeois property". In other
words, he proceeds from the idea of entirely isolated individuals who (it is
unclear for what purpose) decided to create a "general will", and in
the name of this general will to order each one to refrain from infringements
upon an object belonging to another. Then considering that the owner could not
be treated as a universalist, either in terms of his labour power or as a consumer,
these isolated Robinson Crusoes decide to supplement ownership with the
institutions of purchase and sale, loans, rental etc. This artificial scheme
puts the true development of objects and concepts on its head.
The bond between a man and an object
which he produced or won himself, or which figuratively (as arms, or
decoration) constitutes part of his personality, undoubtedly emerges
historically as one of the elements in the development of the institution of
private property. It represents its initial crude and limited form. Private
property obtains its perfected and universal character only with the
transformation to a commodity or, rather, to a commodity‑capitalist
economy. It becomes indifferent to the object and severs all connection with
any organic union of people (kinship‑group, family, commune). It appears
in the most general meaning as "an external sphere of freedom"
(Hegel), i.e. as the practical realization of the abstract ability to be the
subject of rights.
In this purely legal form,
property has logically little in common with the organic or everyday principle
of private appropriation, either as a result of personal efforts or as a
condition of personal consumption and use. To the extent that the bond between
man and the product of his labour, or, for instance, between man
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and a parcel of land which he has
cultivated with his personal labour, is in itself something elementary,
accessible to the most primitive thinking;41 to that extent the
relationship of the owner to property is abstract, formal, artificial and
rational from the time when all economic reality began to be reduced to the
sphere of the market. If, morphologically, these two institutions‑private
appropriation, as the condition of unimpeded personal use, and private
appropriation as the condition of subsequent alienation and acts of exchange‑have
a direct connection with one another, nevertheless logically these are two
separate categories, and the word property which covers them both introduces
more confusion than clarity. Capitalist ownership of land does not assume any
organic connection between the land and its owner; on the contrary, it is
possible only on the condition of full freedom of transfer of land from hand to
hand, and freedom of transactions with land.
Capitalist property is
essentially the freedom to transform capital from one form to another, and to
move it from one sphere to another to receive the maximum unearned income. This
freedom to dispose capitalist property is impossible with the presence of
individuals deprived of property, i.e. of proletarians. The legal form of
property does not contradict the fact of expropriation of property from a
significant number of citizens. For the quality of being a subject of rights is
a purely formal quality. It qualifies all persons as equally worthy of
property, but by no means makes them property owners. The dialectic of
capitalist property is marvellously depicted in Marx's Capital, both where it
penetrates the "immobile" forms of law, and where it disrupts them by
direct coercion (the period of primitive accumulation). In this sense Karner's
study provides very little new in comparison with the first volume of Capital. When
Karner tries to be independent he introduces confusion. We already noted this
with respect to his attempts to abstract property from the element which
legally constitutes it, i.e. from exchange. This purely formal concept entails
another mistake. Having considered the transfer from petit bourgeois property
to capitalist property, Karner states: "The institution of property
achieved broad development, experienced full transformation, without having
changed its legal nature", and in the same place he concludes "the social
function of legal institutions changes but their legal nature does not
change".42 It may be asked: what institution does Karner have
in mind? If he is
GENERAL THEORY
87
discussing the abstract formula
of Roman law then of course nothing in it can change. But this formula
regulated small‑scale ownership only in the period of the development of
bourgeois‑capitalist relationships. If we turn to guild crafts or to
peasant economy in the age of the attachment of peasants to land, then we find
a whole series of norms limiting the right to property. Of course it may be
objected that all these limitations have a public law character and do not
affect the institution of property as such. But even in this instance the whole
situation is that a certain abstract formula is equivalent to itself On the
other hand the feudal guilds, i.e. organic forms of property, had already
revealed their functions the extraction of another's unpaid labour.43
We can therefore come to a conclusion opposite to Karner, that "norms
change and their social function remains unchanged".
In proportion to the development
of the capitalist mode of production the owner is gradually freed from
technical production functions, but at the same time he loses the totality of
legal domination over capital. In a stock corporation the individual capitalist
is merely the bearer of title to a certain share of the unearned income. His
economic and legal activity, as owner, is limited exclusively to the sphere of
non‑productive consumption. The basic mass of capital becomes a fully
impersonal class force. To the extent that they participate in market
circulation, which supposes the autonomy of its separate parts, these parts
appear as the property of legal persons. In fact the comparatively small circle
of the largest capitalists can dispose of it acting through their hired
representatives or agents. The legally distinct form of private property does
not now reflect the actual position of objects, for with the assistance of
methods of participation and control actual domination goes far beyond purely
legal bounds. Here we come to the moment when capitalist society is already
sufficiently mature to transform into its antithesis. The necessary political
prerequisite for this is the class revolution of the proletariat.
However, as experience has shown,
planned and organized production and distribution may not replace market
circulation, and the market bond between individual economies on the day after
the revolution. If this were possible, then the legal form of property would at
that moment be historically finally exhausted. It would have completed the
cycle of its development having returned to the
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starting point, to objects of
direct individual use, i.e. have become again an elementary living
relationship. And with it the form of law in general would be condemned to
death.44 Until the task of the construction of a single planned
economy is realized, so long as the market bond between individual enterprises
and groups of enterprises remains, the form of law will also remain in force
this long. We are not now speaking of the fact that the form of private
property remains almost unchanged in the transitional period in the context of
the means and instruments of production of the small‑scale peasantry and
crafts economy. But in the relationships of large nationalized industry, the
application of the principle of economic accountability signifies the formation
of autonomous units whose connection with other economies is established
through the market.
To the extent that state
enterprises are subordinated to the conditions of circulation, so the bond
between them is shaped not in the form of technical subordination, but in the
form of exchange. Thus, a purely legal, i.e. judicial procedure, for regulating
relationships becomes possible and necessary; however, along with this there
has been preserved, and with the passage of time undoubtedly will be
strengthened, direct, i.e. administrative‑technical management by the
procedure of subordination to the general economic plan. Thus, on the one hand
we have economic life flowing into natural categories, and the social bonds
between production units represented in its rational, unmasked (non‑commodity)
form‑to this corresponds the method of direct, i.e. technical‑content
instructions in the form of programmes, production and distribution plans etc.,
specific instructions constantly changing depending upon the change in
conditions. On the other hand, we have the bond between economic units
expressed in the form of the value of circulating commodities, and therefore in
the legal form of exchange. To this, in its turn, corresponds the creation of
more or less firm and constant formal boundaries and the rules of the legal
relationships between autonomous subjects (civil and possibly also commercial
codes), and of agencies implementing this commerce in practice by means of
decisions of disputes (courts, arbitration commissions etc.). It is obvious
that the first tendency does not include any possibility for the legal art to
flourish. Its gradual victory will mean the gradual withering away of the legal
form in general. It is possible, of course, to object that the production
programme, for example, is also a
GENERAL
THEORY
89
public legal norm since it
proceeds from state authority, enjoys coercive force, creates rights and duties
etc. Of course, until the time when the new society will be built from the
elements of the old, i.e. by people who understand social relationships only as
"a means for their private purposes", even the simple technically
rational instructions will adopt the form of a power alienated from man and
standing above him. Political man will still be, expressed in Marx's words,
"an abstract artificial man". But the more radically the former
relationships, and the earlier psychology in this sphere of production, are
outgrown, the faster the hour of that final emancipation will strike, which
Marx discusses in his article "On the Jewish Question".
Only when the
real individual man will perceive in himself the abstract citizen, and as
individual man shall become a universal being in his empirical life, in his
individual work, in his individual relations, then when man recognizes and
organizes his forces propres
(personal efforts) as social forces, and therefore, when he no longer separates
social forces in the form of political force from himself, only then will human emancipation be completed.45
Such are the perspectives of the
unbounded future. With respect to our transitional period, the following should
be noted. If, in the age of domination of impersonal finance capital, the real
opposition of the interests of individual capitalist groups (disposing of their
own and other's capital) continue to be preserved, nevertheless proletarian
state capitalism eliminates the real opposition of interests with nationalized
industry and preserves the separation of autonomy of individual economic
organizations (similar to private business) only as a method. Thus, those quasi‑private economic relationships
which are formed between state and industry and the small labour economy, and
also between individual enterprises and combinations of enterprises within
state industry itself, are placed in strict bounds, which at any specific
moment are defined by the successes achieved in the sphere of planned construction.
Therefore during our transitional period the form of law as such does not
conceal those unlimited possibilities which were opened up for it by bourgeois
capitalist society at the dawn of its birth. On the contrary, it temporarily
binds us to its narrow horizons. It exists only so as finally to exhaust itself
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The task of Marxist theory
consists in verifying this general conclusion, and researching it in concrete
historical material. Development may not proceed equally in various areas of
social life. Therefore, painstaking work of observation, comparison and
analysis is necessary. But only then, when we study the tempo and forms of
outmoded value relationships in economics and, together with it, the withering
away of private law elements and the legal superstructure, and finally the
gradual expulsion of the legal superstructure itself, only then can we say to
ourselves that we have explained at least one aspect of the process of creating
the classless culture of the future.
CHAPTER
V
Law and the State
Legal
relations by their "nature" do not assume a condition of peace just
as exchange initially did not exclude armed robbery, but went hand in hand with
it. Law and violence‑apparently opposed concepts‑in fact are
connected with one another in the closest manner. This is true not only for the
ancient ages of Roman law, but also for the later eras. Modem international law
includes a very solid dose of self‑help, repression, reprisals, war
etc.). Even within the limits of the "developed" bourgeois state the
realization of a right is conducted in the opinion of such a capable jurist as
Hauriou, by each citizen "at his responsibility and risk". Marx
expressed himself even more sharply: "club law is nevertheless law".
In this there is nothing paradoxical because law, like exchange, is a method of
relating atomized social elements. The degree of this separation may historically
be more or less, but it is never equal to zero. Thus, for instance, the
enterprises belonging to the Soviet state in fact fulfil one general task; but
working by the methods of the market they each have their own distinct
interest, oppose one another as buyers and sellers, act at their responsibility
and risk, and therefore necessarily must be in a legal relationship. The final victory of the planned economy will
place them exclusively in a technical‑expediency relationship with one another
which will destroy their "legal personality". Accordingly, if the
legal relationship is depicted to us as an organized and ordered relationship‑thus
equating law with the legal order‑then in so
GENERAL THEORY 91
doing it is forgotten that in
fact the legal order is merely a tendency and a final result (and moreover far
from perfected), but never the starting point and assumption of a legal
relationship. The very condition of peace which appears universal and
homogeneous to abstract legal thinking was far from this at the initial stages
of legal development. Ancient German law knew various degrees of peace: peace
under the roof of a house, peace within the boundaries of a fence, and the
limits of a settlement etc. A greater or lesser degree of pacification found
its expression in a greater or lesser harshness of punishment provided for the
violation of peace.
A condition of peace becomes
necessary where exchange assumes the nature of a regular phenomenon. In those
cases when there were too few prerequisites for the preservation of peace, the
parties engaging in exchange preferred not to meet with one another but to view
the commodities in each other's absence. But, in general, exchange requires
that not only commodities but also people meet. In the age of clan life, every
outsider was considered as an enemy and was as defenceless as a wild beast.
Only the custom of hospitality made possible relationships with other tribes.
In feudal Europe the Church tried to limit the uninterrupted private wars, by
proclaiming a so‑called peace of god (for specific times). At the same
time fairs and local markets began to enjoy special privileges in this respect.
Tradesmen going to the market received special safe passage, their property was
guaranteed from arbitrary appropriation; at the same time the performance of
contracts was safeguarded by special judges. Thus, a special ius mercatorum or ius fori was created which then lay at the basis of city law.
Initially, the markets and fairs
constituted a part of feudal holdings and were simply profitable, productive
items. The gift of the peace of a fair somewhere had the purpose of filling the
treasury of some feudal owner and accordingly was intended to effect the
private interest of the latter. However, because feudal authority acted as the
guarantor of the peace necessary for exchange transactions, it took on a new
trait previously uncharacteristic of it, that of a public nature. The authority of a feudal or patriarch type knows borders
between the private and the public. The public laws of the feudal lord, with
respect to the villain were at the same time his rights as a private owner. On
the contrary, his private rights could be interpreted upon desire as political,
i.e. public rights. Thus, the ius civile of
ancient
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Rome was interpreted by many, for
instance Gumplowicz, as public law since its basic source belonged to a clan
organization. In fact, in this case we encounter a legal form being born which
still had not developed the internally opposed and correlated definitions of
private and public. Authority therefore, bearing the traces of patriarchal or
feudal relationships, is characterized at the same time by the predomination of
the technical element over the legal. The legal, i.e. rational interpretation
of the phenomenon of authority, becomes possible only with the development of
exchange and the money economy. These economic forms bring with them an
antagonism which with time takes on the nature of something eternal and natural
and becomes the basis of every legal teaching about authority.
The "modern" state (in
the bourgeois sense) is born at that moment when the group or class
organization of authority includes in its bounds a sufficiently broad market
relationship. Thus in Rome exchange with foreigners, travellers and others
required the recognition of civil legal capacity for persons not belonging to
the kin‑group union. This already supposed the differentiation between
public and private law.
Factual exercise of authority
obtains a clear legal nature of public authority when along with it, and
independent of it, appear relationships connected with exchange acts, i.e.
private relationships par excellence. Acting
as a guarantor of these relationships, authority becomes social, public
authority, authority pursuing the impersonal interest or order.
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 so‑called raison d'etat (the
principle of naked expediency) rules. On the contrary, authority as the
guarantor of market exchange not only may be expressed in terms of law, but
itself appears as law and only law, and is merged entirely with the abstract
objective norm. Therefore, every juridic theory of the state which wishes to
embrace all the functions of the latter, necessarily appears inadequate. It may
be a true reflection of all facts of state life, but gives only an ideological,
i.e. distorted reflection of reality.
Class domination, both in its
organized and unorganized form, is much broader than the area which can be
designated as the official authority of state power. The domination of the
bourgeoisie is
GENERAL THEORY
93
expressed in the dependence of
the government upon the banks and capitalist groupings, in the dependence of
each individual worker upon his employer, and in the fact that the staff of the
state apparatus is personally connected with the ruling class. All these facts,
and the number of them may be multiplied without limit, do not have any
official legal expression. But in a mysterious manner they correspond in their
significance with the facts which find their official legal expression, and
represent themselves as the subordination of the same workers to the laws of
the bourgeois state, to the orders and decrees of its agencies, to the verdicts
of its courts etc. Along with the direct and indirect class denomination, there
grows an indirect reflected denomination in the form of official state
authority as a special force separated from society. With this the problem of
the state arises, which presents no fewer difficulties for analysis than the
problem of commodities.
Engels considers the state as an
expression of the fact that society is hopelessly enmeshed in class
contradictions; "so that these opposed classes with antagonistic economic
interests", he says, "did not devour one another and society in
hopeless struggle, for this a power became necessary, a power seemingly
standing above society, a power which moderated the conflict, and held it
within the limits of 'order'. And this power arising from society but placing
itself above it, and more and more alienating itself from it, is the
state."46 In this explanation there is one passage which is not
entirely clear, and it is revealed later when Engels speaks of the fact that
state power naturally evolves in the hands of the strongest class, "which,
with the help of the state, becomes the politically dominant class". This
phrase provides a reason for thinking that state power is generated not as
class power, but as something standing above classes and saving society from
dissolution, and that only after its emergence does state power become the
object of usurpation. Of course, such an understanding would contradict the
historical facts; we know that political apparatuses were created everywhere by
the forces of the ruling class, and were the work of that class. We think that
Engels himself also proposed such an interpretation, but however that may be
his formula has remained unclear. The state arises because otherwise the
classes would have mutually exterminated themselves in an intensified struggle,
and thus society itself would have perished. Accordingly, the state arises when
none of the struggling classes
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can seize decisive victory. This
means one of two things: either the state strengthens this relationship‑then
it is the force above classes, and this we cannot recognize‑or it is a
result of the victory of one class, but in this case the necessity for a state
disappears from society since, with the decisive victory of a class,
equilibrium is established and 'society is saved. Behind all these
controversies one basic question is hidden: why does the dominance of a class
not become that which it is, i.e. the actual subordination of one part of the
population to another, but instead assumes the form of official state
authority? Or, what is the same, why is the apparatus of state coercion created
not as a private apparatus of the ruling class, but distinct from the latter in
the form of an impersonal apparatus of public power distinct from society?47
We cannot limit ourselves to a reference to the fact that for the ruling class
it is expedient to employ an
ideological mask and hide its class domination behind the screen of the state.
Although this reference is entirely indisputable, nevertheless it does not
explain why this ideology may be created, and, accordingly why a ruling class
may use it. The conscious use of ideological forms is not the same as their
origin, which usually does not depend upon the will of people. But if we wish
to explain the roots of some ideology we must search out those actual
relationships which it expresses. Here, incidently, we strike upon the
fundamental difference between the theological and legal interpretation of
state authority. To the extent that in the first instance‑the deification
of authority‑we are dealing with unbridled fetishism and, accordingly,
with corresponding impressions and concepts, we do not succeed in revealing
anything other than the ideological duplication of reality, i.e. of those
actual relationships of authority and subordination. To such an extent the
legal conception is merely a biased conception, and its abstractions express
one of the aspects of actually existing society, i.e. of commodity‑producing
society.
Opinion holds that the basis of
the competition dominant in the bourgeois‑capitalist world does not
provide the possibility of connecting political power with the individual
enterprise in the way that under feudalism this power was connected with large
landholdings. "The freedom of competition, the freedom of private
property, 'equality' in the market and the guarantee of existence for one
class, create a new form of state power‑democracy, which places in power
the class as a collective."48 Although it is most true that
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I "equality" in the
market creates a specific form of authority, however, this connection between
these phenomena is not entirely how Comrade Podvolotsky sees it. First,
authority may be unconnected with an individual enterprise but nevertheless remain
the private affair of capitalist organizations. Associations of industrialists,
with their war coffers, blacklists, boycotts and strike‑breaking patrols,
are undoubtedly agencies of authority existing along with the public, i.e.
state authority. Second, authority within the enterprise remains the private
affair of each individual capitalist. The establishment ofthe rules of internal
order is an act of private legislation, i.e. a true piece of feudalism, however
bourgeois jurists may have tried to clothe it in modern dress. Introducing the
fiction of the so‑called contract of adhesion (contrat d'adhesion for the
extraordinary authorization which the capitalist owner receives, reportedly,
from the agencies of public authority for the "successful fulfilment of
the functions of the enterprise necessary and expedient from this social point
of view".
However, the analogy with feudal
relationships is not unconditionally exact here, for as Marx indicates:
the authority
which the capitalist enjoys as the personification of capital in the direct
process of production, and the social function with which he is invested as
manager and master of production, are essentially different from the authority
which emerges on the basis of slave, serf, etc. production. On the basis of
capitalist production the mass of direct producers is confronted by the social
nature of their production in the form of the strictest regulating authority,
as the social mechanism of their labour process developed in a complete
hierarchy; however, the bearers of this authority use it only as
personification of the conditions of labour, in contrast to labour itself, and
not as political or theocratic masters as happened in earlier forms of
production.49
Thus, under the capitalist means
of production, relationships of subordination and authority may exist
unalienated from the concrete form in which they appear as the domination of
the conditions of production over the producers. But the very fact that they do
not act in masked form, as under slavery and serfdom, makes them elusive for
the jurists.
The state apparatus actually
realizes itself as an impersonal "general will", as "the
authority of law" etc., to the extent that society appears as a market. In
the market each seller and buyer is, as we saw,
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a legal subject par excellence. For the categories of value
and exchange-value to appear on the stage, the prerequisite is the autonomous
will of those engaging in exchange. Exchange‑value would cease to be
exchange‑value, and a commodity would cease to be a commodity, if the
exchange ratio is determined by an authority situated above the inherent laws
of the market. Coercion, as the command of one person directed to another and
supported by force, contradicts the basic assumption of exchange between
commodity owners. Therefore, in a society of commodity owners the' function of
coercion may not appear as a social function, because it is neither abstract
nor impersonal. Subordination to the person as such, to man as a concrete
individual, signifies for commodity‑producing society subordination to
arbitrary power, because it corresponds to the subordination of one commodity
owner by another. Even coercion, therefore, cannot appear here in its unmasked
form as an act of expediency. It must appear as coercion proceeding from some
abstract, general person, as coercion exercised not in the interest of the
individual from whom it proceeds‑for each person in commodity society is
an egoist‑but in the interest of all the participants in legal
transactions. The authority of one person over another is exercised as the
authority of law itself, i.e. as the authority of an objective impartial norm.
Bourgeois thought, for which the
framework of commodity production is the eternal and natural framework of all
societies, therefore declares abstract state authority to be an attribute of
every society.
This was more naively expressed
by the theorists of natural law, who, basing their teaching on authority in the
idea of intercourse between independent and equal personalities, proposed that
it proceeds from the principles of social intercourse as such. In fact, they
merely developed the different ways in which the idea of authority bound
independent commodity owners to each other. This explains the basic features of
the doctrine which appears clearly in Grotius. In the market the primary
factors are commodity owners participating in exchange. The system of
domination is something derivative, secondary, something imposed externally on
the existing commodity owners. Therefore, the theorists of natural law consider
authority not as a phenomenon which has arisen historically and which is
connected with the forces active
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in a given society, but as
abstract and rational. In the exchange between commodity owners the necessity
for authoritative coercion arises when the peace has been broken, or when a
contract has not been performed voluntarily. Natural law doctrine therefore
reduces the functions of authority to the maintenance of the peace, and
declares the exclusive purpose of a state to be an instrument of the law.
Finally, in the market place a man is a commodity owner by the will of other
men, and all are commodity owners by their common will. The theory of natural
law thus derives the state from the contract between individual and isolated
personalities. This is the skeleton of the doctrine which admits many concrete
variations, depending on the historical situation, political sympathies and
dialectical abilities of one author or another. This theory admits republican
and monarchical tendencies and diverse degrees of democratism and
revolutionism.
In general and in its entirety,
however, this theory was the revolutionary banner under which the bourgeoisie
conducted its revolutionary battle with feudal society. And this determined the
fate of the theory. From the time when the bourgeoisie became the ruling class
the revolutionary past of natural law began to be troublesome for it, and as
quickly as possible the ruling theories hastened to relegate the past to the
archives of history. It goes without saying that the theory of natural law
cannot stand the least historical or sociological criticism, for it gives an
entirely inadequate picture of reality. But the main curiosity consists in the
fact that the juridic theory of the state, which took its place in the name of
positivism, distorts reality to no less a degree. It is forced to do this for
every juridic theory of the state
must necessarily proceed from the state as an independent force distinct from
society. This is in what its juridic nature
consists.
Therefore, although in fact the
activity of the state organization occurs in the form of orders and decrees
proceeding from individual persons, the juridic theory presumes in the first place
that the state, not persons, gives orders and, second, that its orders are
subordinates to general norms of law which also express the will of the state.
On this point natural law
doctrine does not differ by one iota in its fiction than any of the most
positivist of the juridic theories of the state. For the doctrine of natural
law the basic argument was that along with all the types of real dependency of
one man upon another
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(this doctrine was exempt from
such dependence), there was still one further type of dependence upon the
impersonal general will, namely, the will of the state.
But it is just this construction
which constitutes the basis of the juridic theory of the state as a person. The
natural law elements in the juridic theories of the state lie much deeper than
it seemed to the critics of natural law doctrine. They are rooted in the very
concept of public authority, i.e. of authority placed above all and addressed to all. Adjusting itself to this concept,
the juridic theory inevitably loses its connection with reality. The difference
between the doctrine of natural law and the most recent legal positivism is
merely that the former much more clearly felt the logical bond between abstract
state authority and the abstract subject. It took these mystified relationships
of a commodity‑producing society, in their necessary context, and
therefore produced a model of the classical clarity of constructs. On the contrary,
so‑called legal positivism does not even take account of its own logical
premises.
The Rechtsstaat is a mirage, but a very useful mirage for the
bourgeoisie because it replaces the disappearing religious ideology. It hides
from the masses the fact of the rule of the bourgeoisie. The ideology of the Rechtsstaat is also more useful than
religious ideology because, not reflecting the totality of objective reality,
it nevertheless depends on it. Authority as "the general will", as
"the authority of law", is realized in bourgeois society to the
extent that the latter is a market. From this point of view even a police
statute may appear to us as embodying Kant's ideas on a freedom which is
limited by the freedom of another.
Free and equal commodity owners
meeting in the market are free and equal only in the abstract relationship
between buyer and seller. In actual life they are tied to each other by many
relationships of dependence. These are the shopkeepers and the large
wholesaler, the peasant and the estate owner, the ruined debtor and his
creditor, the proletarian and the capitalist. These countless relations of real
dependence constitute the true basis of state organization. However, for the
juridic theory of the state it is as if they do not exist. Further, the life of
the state is based upon the struggle between various political forces, i.e. of
classes, parties and all possible groupings; here are hidden the real
mainsprings of the state machinery; for juridic theory they are equally‑
inaccessible. Of course, a jurist may show a
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greater or lesser flexibility in
his adaptation to the facts, for example by taking into account written law in
addition to those unwritten rules which have been formed in state practice, but
this does not change his fundamental position in relation to reality. There is
an inevitable divergence between legal proof and that proof which constitutes
the goal of historical and social research. It is not merely that the dynamics
of social life overturn the rigid legal form, and that therefore the jurist is
condemned to be somewhat late in his analysis; even limiting himself to the
very day of a fact, the jurist communicates his analysis differently than the
sociologist. For the jurist, remaining a jurist, proceeds from the concept of
the state as an independent force distinct from all other individual and social
forces. From the historical and political points of view the decisions of an
influential class, or party organization, have the same and sometimes even
greater significance than the decisions of parliament or some other state
institution. From the legal point of view, facts of the first type are
seemingly non‑existent. Conversely, in any decree of parliament, once the
legal point of view is abandoned, it is possible to see not an act of the
state, but a decision adopted by a particular group, a clique of persons moved
by the same individual egoistic or class motives as any other collective. The
extreme normativist Kelsen concludes from this that the state in general exists
only as an imaginary object‑a closed system of norms or obligations. But
of course, such barrenness in the subject of the theory of state law must deter
practising lawyers. For if not by intelligence, then by instinct, they feel the
undoubted practical significance of their concepts in this sinful world and not
merely in the kingdom of pure logic. The 49 state" of jurists, despite all
this "ideologizing", relates to some objective reality much as the
most fantastic dream nevertheless depends on reality.
This reality is pre‑eminently
the state apparatus itself, with its material and personal elements. Before
creating completed theories, the bourgeoisie began to construct the state in
practice. In Western Europe this process began in city communes. At a time when
the feudal world knew no difference between the assets of the feudal lord and
the assets of the political union, the public city treasury first appeared in
cities, originally as a sporadic and then as a permanent institution; "the
spirit of statism" received, so to speak, its material foundation.
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The appearance of state forms
makes possible the appearance of people who live off these forms, officials and
bureaucrats. In the feudal age the functions of administration and the court
were fulfilled by the servants of the feudal lord. In the city communes they
appeared for the first time in public offices; in the full sense of the word,
the public nature of authority found its material embodiment. The absolute
monarchy had merely to adopt the public form which had taken shape in the
cities and to realize it within a broader territory. All further improvements
to the bourgeois state‑which proceeded both by revolutionary explosions
and by peaceful adaptation to monarchic‑feudal elements‑‑can
be summed up in one principle: neither of two persons exchanging 'in the market
may appear as an authoritative regulator of the exchange relationship; for
this, some third person is required who embodies the mutual guarantee which the
commodity owners as owners give to one another, and who is accordingly the
personified rule of exchange between commodity owners.
The bourgeoisie put this juridic
concept of the state at the basis of its theory, and attempted to realize it in
practice. It certainly did the latter, guided by this elementary principle.50
For the sake of theoretical
purity the bourgeoisie never forgot the other side of the matter, namely that
class society is not only a market where independent commodity owners meet, but
also an arena of intensified class war in which the state apparatus is one of
the most powerful weapons. And in this arena the relationships formed are far
from being in the spirit of the Kantian definition of law as the limitation of
the freedom of the individual and the minimum limit necessary for common life.
Here Gumplowicz is profoundly right when he asserts that "law of this type
never existed, for the amount of freedom is determined only by the amount of
authority of another, the norm of common existence is dictated not by the
possibility of common existence but by the possibility of authority". The
state as an element of force in internal and external policy‑this is the
correction which the bourgeoisie had to make in its theory and practice of the Rechtsstaat. The more unstable the
authority of the bourgeoisie became, the more compromising its corrections
became, the more the Rechtsstaat turned
into an incorporeal shadow, until finally the extreme intensification of the
class struggle forced the bourgeoisie completely to discard the mask of the
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101
Rechtsstaat and to reveal the essence of authority as the organized
force of one class against another.
CHAPTER
VI
Law and Morality
People must relate to each other
as independent and equal personalities in order for the products of human
labour to be related to each other as values.
If one person is under the
domination of another, i.e. is a slave, his labour ceases to be the creator and
substance of value. The labour power of a slave, like the labour power of a
domestic animal, merely transforms a definite part of the cost of its
production, and reproduction, into a product.
On this basis Tugan‑Baranovsky
concludes that political economy can be understood by starting from the guiding
ethical idea of absolute value and, therefore, of equivalence between human
personalities. Marx, of course, arrives at the opposite conclusion, in that he
connects the ethical idea of the equal value of human personalities with the
form of a commodity, i.e. he derives it from the practical equivalence of all
forms of human labour.
In fact, man as a moral subject,
i.e. as an equal personality, is nothing more than a prerequisite of exchange
according to the law of value. Man as the subject of rights is such a
prerequisite, i.e. as a property owner. Finally, both these definitions are
closely connected with a third‑man as an egoistic economic subject.
All three definitions are not
reducible to each other, and are even contradictory as it were. They reflect
the totality of conditions necessary for the realization of the value
relationship, i.e. a relationship in which the bonds between people in the
labour process appear as the material nature of the products being exchanged.
If one abstracts these
definitions from the real social relationships which they reflect, and attempts
to develop them as independent categories, i.e. by pure reason, then as a
result one obtains a tangle of contradictions and propositions which are
mutually exclusive. But in the real relationship of exchange these
contradictions are dialectically united in a totality.
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The party to the exchange must be
an egoist, i.e. be guided by naked economic calculation, otherwise the value
relationship cannot appear as a socially necessary relationship. The exchanging
party must be the bearer of a right, i.e. have the possibility of making an
autonomous decision, for his will must "be embedded in objects".
Finally, the exchanging party must embody the basic principle of the equality
of all human personalities, because in exchange all types of labour are
equalized and are reduced to abstract human labour.
Thus, these three elements (or,
as it was earlier preferable to term them, three bases): egoism, freedom and
the supreme value of the personality, are inextricably bound up with each
other, appearing as a totality to be the rational expression of one and the
same social relationship. The egoistic subject, the subject of a right and the
moral personality are the three basic masks under which man appears in
commodity production. The key to the understanding of legal and moral
structures is provided by the economics of value relationships, not only in the
sense of their real content but also in the sense of their form itself The idea
of the principle of value and the equality of the human personality has a long
history: through Stoic philosophy it entered into the use of Roman jurists and
into the teaching of the Christian Church, and then into the doctrine of
natural law. But whatever clothed this idea one could discover nothing in it
other than an expression of the fact that the different concrete types of
socially useful labour were reduced to labour in general, insofar as the
products of labour began to be exchanged as commodities. In all other
relationships, social inequality (sexual, class etc.) is so conspicuous in
history that one must wonder not at the abundance of arguments against the
doctrine of the natural law of social equality, but that until Marx no one
posed the question of the historical origins of this prejudice against natural
law. If in the course of centuries human thought returned with such emphasis to
the thesis of social equality, and developed it in a thousand ways, then it is
clear that some objective relationship must be hidden behind this thesis. There
is no doubt that the concept of the moral or equal personality is an
ideological formation, and as such does not adequately describe reality. The
egoistic, economic subject is no less an ideological distortion of reality.
Nevertheless, both these definitions are adequate for only one specific social
relationship, and reflect it only abstractly and therefore one‑sidedly.
We have already had occasion
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THEORY
103
to declare that the concept or
word "ideology" must not restrain us from further analysis. To be
satisfied with the fact that one man is equal to another is the offspring of an
ideology intended to oversimplify the problem. "Down" and
"up" are nothing more than concepts expressing our
"earthly" ideology. However, the earth's gravity is their factual
basis. When man understood the real reason which made him distinguish
"down from up"‑i.e. the force of gravity directed toward the
centre of the earth‑then he reached the limits of these definitions, and
their inadequacy as applied to all cosmic reality. Thus, the discovery that
these concepts were ideological was another aspect of the process of
discovering that they were true.
If moral personality is nothing
other than the subject of commodity production, then moral law must reveal
itself as the rule of exchange between commodity owners. This inevitably
produces a duality. On the one hand, this law must have a social character and,
as such, stand above the individual personality. On the other hand, the
commodity owner is inherently the bearer of freedom (freedom to appropriate and
alienate), therefore the rule governing exchange between commodity owners must
be stated in the spirit of each of them, and each must internalize this law.
The Kantian categorical imperative synthesizes these contradictory
requirements. It is above the individual because it has nothing in common with
any natural desires‑fear, sympathy, pity, feeling of solidarity etc. In
Kant's terms, it does not frighten, does not convince, does not flatter. It is
generally external to all empirical, i.e. purely human motives. At the same
time it seems to be independent of all external pressures in the direct and
crude sense of the word. It acts exclusively by virtue of realizing its
universality. Kantian ethics are the typical ethics of a commodity‑producing
society, but at the same time they are a pure and perfected form of ethics in
general. Kant gave a logically complete tenor to the form which atomized
bourgeois society tried to embody in practice, liberating personality from the
organic ties of the patriarchal and feudal periods.
The basic concepts of morality
are meaningless if we abstract them from commodity production and try to apply
them to some other social structure. The categorical imperative is not a social
instinct. The basic purpose of the imperative is to act where no natural or
organic supra‑individual motivation is possible. When individuals
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have close emotional ties which
erase the boundary of the I, then the phenomenon of moral obligation may not
occur. To understand this latter category it is necessary to proceed not from
the organic connection which exists, for instance, between the cow and the
calf, or between the tribe and each of its members, but from the condition of
alienation. Moral existence is a necessary supplement to juridic life‑both
are methods of exchange between commodity producers. All the pathos of the
Kantian categorical imperatives is reduced to the fact that man
"freely", i.e. by voluntary persuasion, acts under the coercion of
law. The very examples which Kant adduces for the illustration of his thoughts
are typical. They are reduced entirely to the manifestation of bourgeois
respectability. Heroism and exploits have no place within the Kantian
categorical imperative. Personal sacrifice is not required because one demands
no sacrifice from others. "Mindless" acts of penance and oblivion, in
the name of fulfilling one's historical calling, or one's social functions,
actions in which the most intense social instinct appear, lie outside ethics in
the strict sense of the word.
Schopenhauer, and Vladimir
Solov'ev after him, define law as an ethical minimum. It would be more accurate
to define ethics as a certain social minimum. Intensified social enthusiasm is
external to ethics and is inherited by modern man from the earlier periods of
organic, and particularly tribal, existence.
Nevertheless, for a commodity‑producing
society, ethical reason is the highest possible achievement, and a higher
cultural good of which one must speak only in the most exalted tone. It is
necessary to remember Kant's well‑known words:
two things fill the spirit with ever new and increasing
amazement and satisfaction the more often and deeply we think of them: the
starry sky above my head and the moral law within me.51
And moreover, when discussion
turns to examples of the "voluntary" fulfilment of moral duty, upon
the stage appears just the same immutable alms or a refusal to lie when it
would have been possible to lie with impunity. Uniquely, ethical reason
universally triumphs over powerful and irrational social instincts. It breaks
with all the organic and inherently narrow limits (kin‑group, tribe,
nation) and strives for universality. In this sense it reflects definite social
material
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105
achievements, and transforms
exchange into world exchange. "There is no Hellas, no Judaea"‑this
reflected the historical reality of the peoples united under the power of Rome.
On the other hand, Kautsky apparently correctly notes that the rule
"consider another as an end in himself", makes sense only when in
practice one man may be subjected to another. Moral pathos is indissolubly
bound to, and nurtured by, the immorality of social practice. Ethical doctrines
pretended to change and correct the world when in fact they were but a
distorted reflection of one aspect of it: namely, that in which human
relationships were subordinated to the law of value. It must not be forgotten
that moral personality is but one of the hypostatic forms of a triad. Man as an
end in himself is only another aspect of the egoistic economic subject. An act
which is the unique and real embodiment of the ethical principle in itself
includes the latter's negation. The large‑scale capitalist bona fide ruins the small capitalist,
without for a moment encroaching upon the absolute value of his personality.
The personality of a proletarian is "in principle equal" to the
personality of a capitalist; this finds its expression in the fact of the
"free" contract of employment. But for the proletarian this very
"material freedom" means the possibility of quietly dying of
starvation.
This ambiguity of the ethical
form is not accidental, nor is it some external defect caused by the specific
inadequacies of capitalism. On the contrary, this is an essential
characteristic of the ethical form itself To eliminate the ambiguity of the
ethical form would mean to effect the transition to a planned social economy,
and this would mean to realize a system in which people can think and construct
their relationships using simple and clear concepts such as harm and benefit.
To eliminate the ambiguity of the ethical form in the most essential area (in
the area of material social existence) means to destroy this form altogether.
Pure
utilitarianism, striving to disperse the metaphysical haze which surrounds
ethical doctrines, leads to conceptualizing good and evil from the perspective
of harm and benefit. Thereby, of course, it simply destroys ethics, or rather
tries to destroy and transcend them. The transcendence of ethical fetishism in
fact may be achieved only simultaneously with the transcendence of commodity
and legal fetishism. People who are guided in their actions by clear and simple
concepts of harm and benefit will require that their social relation-
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ships be expressed either in
terms of value or of law. Until this level of historical development is
attained by mankind, i.e. until the legacy of the capitalist period is
transcended, theoretical effort can merely proclaim this pending liberation but
not implement it in practice. We must remember Marx's words on commodity
fetishism:
The most recent scientific
discovery that the products of labour, to the extent that they contain value,
are merely a material reflection of the labour expended in their production,
and that this constitutes a period in the historical development of mankind, by
no means eliminates the material objectivity of the social nature of labour.
But it is objected that the class
morality of the proletariat is already liberated from all fetishes. The morally
necessary is that which is beneficial to the class. In such a form, morality
includes nothing absolute because what is useful today may not be so tomorrow.
It also includes nothing mystical or supernatural because the utilitarian
principle is simple and rational.
There is no doubt that
proletarian morality (or more accurately, that of its advanced strata) loses
its particularly fetishist character, being liberated from religious elements.
But morality, even entirely devoid of the mixture of religious elements,
nevertheless remains moral, i.e. it is a form of social relationship in which
not everything is yet reduced to man himself If the conscious link to a class
is in fact so powerful that the borders of the "I" are, so to speak,
erased, and the advantage of the class actually merges with personal advantage,
then there is no sense in speaking of the fulfilment of moral duty. In general,
the phenomenon of morality is then absent. When such a merger has not occurred,
then inevitably the abstract relationship of moral duty arises with all its
attendant consequences. The rule: "act for the greatest advantage of one's
class" sounds identical to Kant's formula: "act so that your conduct
may serve the principle of universal legislation". The difference is that
'in the first case we introduce a concrete limitation, and erect class
boundaries on ethical logic.52 But within these boundaries it
remains in full force. The class content of ethics by itself does not eliminate
its forms. We have in mind not only the logical form, but also the form of the
real phenomenon. Embedded in the proletariat (in the class collectivity) we
observe formally the same methods of realizing the moral duty, which are
comprised of two opposing elements. On the one hand,
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107
the collective does not fail to
use all possible means of putting pressure upon its fellow members to motivate
them in their moral duty. On the other hand, the same collective qualifies
conduct as moral only in the absence of externally motivating pressure.
Therefore to study morality means, to a certain degree, to study falsehood.
Morality, like law and state, is a form of bourgeois society. If the
proletariat is compelled to use them, this by no means signifies the
possibility of the further development of those forms in the direction of
filling them with a socialist content. They are incapable of retaining this
content, and must wither away in the course of their realization. Nevertheless,
until the end of the present transitional period, the proletariat necessarily
must use these forms inherited from bourgeois society in its class interest,
and then exhaust them. For this, it must above all have a very dear
understanding, free from ideology, of the historical origin of these forms. The
proletariat must critically and soberly relate not only to the bourgeois state
and to bourgeois morality, but even to its own state and to its own proletarian
morality, i.e. it must recognize the historical necessity of their existence as
well as of their disappearance.
In his criticism of Proudhon,
Marx among other things notes that the abstract concept of justice is by no
means an absolute and eternal criterion by which we might construct an ideal,
i.e. a just exchange relationship. This would signify the attempt to measure an
object by its own reflection. But the very concept of justice is drawn from the
exchange relationship, and expresses nothing outside of it. Essentially
speaking, the very concept of justice does not include anything new in
comparison with the concept of social equality which we analysed above.
Therefore, it is ridiculous to see any independent and absolute criteria in the
idea of justice. It is true that in its artful usage it provides greater
possibilities for interpreting inequality as equality, and therefore is
particularly useful for obscuring the equivocal ethical form. On the other
hand, justice is the step by which ethics descend to law. Moral conduct must be
"free"; justice must be compelled. Compulsory moral conduct tends to
deny its own existence; justice is openly "applied" to man; it allows
external realization and an active egoistic interest in demanding justice. Here
are found the main points of contiguity and divergence between the ethical and
the legal forms.
Exchange, i.e. the circulation of
commodities, assumes that the exchanging parties recognize one another as
property owners. This
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recognition, assuming the form of
inner conviction or the categorical imperative, represents the conceivable
maximum which a society of commodity producers may achieve. But besides this
maximum there exists a certain minimum through which the circulation of
commodities can nevertheless flow without hindrance. For the realization of
this minimum, it is sufficient that the commodity owners conduct themselves as if they recognized each other as
property owners. Moral conduct is opposed to legal conduct which is
characterized as such irrespective of the motives which produce it. Whether a
debt is repaid because "in any event I will be forced to pay it", or
because the debtor considers it his moral obligation to do so, makes no
difference from the juridic perspective. It is obvious that the idea of external
coercion, both in its idea and organization, constitutes an essential aspect of
the legal form. When no coercive mechanism has been organized, and it is not
found within the jurisdiction of a special apparatus which stands above the
parties, it appears in the form of so‑called "inter‑dependence".
The principle of inter‑dependence, under the conditions of balance of
power, represents the single, and it can be said, the most unstable basis of
international law.
On the other hand, a legal
claim as distinct from a moral claim appears not in the form of an "inner
voice", but as an external demand proceeding from a concrete subject who,
as a rule, is at‑the same time the bearer of a corresponding material
interest. Therefore‑, the fulfilment of a legal obligation takes on an
external and almost material form of satisfaction
of demand and is finally divorced from all subjective elements on the part
of the obligee. The very concept of legal obligation therefore becomes most
problematic. If we are fully consistent, it is necessary to say, as Binder
does, that an obligation which corresponds to a right has nothing in common
with "duty" (Pflicht), but
exists juridically only as responsibility (Haftung);
"obliged" means no more than "answers with his property (or
in criminal law also with his person) by means of the judicial process and the
compulsory execution of the verdict". Binder's conclusions are paradoxical
for the majority of jurists, and are expressed in the short formula: Das Recht verpflichtet rechtlich zu nichts (law
legally does not impose any duty). In fact this represents only the consequence
of following the conceptual dichotomy already established by Kant. But it is
precisely this clarity in the demarcation of the moral and legal spheres, which
provides the source of the most
GENERAL THEORY
109
insoluble contradictions for the
bourgeois philosophy of law. If legal obligation has nothing in common with an
"inner" moral duty, then subordination to law cannot be distinguished
from subordination to force per se. If, on the other hand, one accepts that an
essential characteristic of law is the element of obligation, of even the
weakest subjective kind, then the meaning of law as a socially necessary
minimum slowly loses its meaning. Bourgeois philosophy of law exhausts itself
in this basic contradiction, in this endless struggle with its own assumptions.
Moreover, it is interesting that
one and the same contradiction essentially appears in two different forms,
depending on whether one speaks of the relationship between law and morality or
the relationship between the state and law. In the former case, when the
independence of law was affirmed with respect to morality, law is merged with
the state because of the increased emphasis upon the element of external
authoritative coercion. In the latter case, when law is contrasted with the
state, the element of obligation (in the sense of the German gotten, not
miissen)‑actual domination‑inevitably appears on the scene, and we
have before us, so to speak, a united front of morality and law.
Here, as always, the
contradiction of the system reflects the contradiction of real life, i.e. that
social environment which created within itself the forms of morality and law.
The contradiction between the individual and the social, between the part and
the whole can never be reconciled by the bourgeois philosophy of law. This
contradiction constitutes the conscious basis of bourgeois society as a society
of commodity producers. This 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.
CHAPTER
VII
Law and Violation of Law
Russkaya
Pravda‑that most ancient historical monument of the Kievan period of our
history‑consists of 43 articles (the so‑called academic register).
Only two articles do not relate to violations of criminal or civil law. The
remaining articles either determine a
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sanction, or else contain the
procedural rules applicable when a law has been violated. Accordingly,
deviation from a norm always constitutes their premise. The same picture is
presented by the so‑called barbarian laws of German tribes. For example,
in the Salic Law only 65 of 408 articles do not have a punitive nature. The
oldest monument of Roman law‑the laws of the Twelve Tables‑begins
with rules defining the procedure for initiating litigation: "Si in ius vocat, ni it, antestamino.
Igitur im capito". (If a man is called to court and he does not go,
this should be attested, and he should be taken there.)
According to the observation of
the well‑known legal historian Maine, "it is necessary to recognize
as a rule that the more ancient the code, the fuller and more detailed will be
its statement of the criminal section".53
Non‑observance of a norm,
or violation of it, the disruption of normal intercourse and ensuing conflict:
this is the starting point of the most important content of ancient
legislation. Conversely, what is no rmal is not fixed in the beginning as such‑it
merely exists. The requirement that the scope and content of mutual rights and
obligations be fixed and exactly established, appears when calm and peaceful
existence is violated. From this perspective Bentham is right when he asserts
that a statute creates rights as it creates crimes. Historically, the legal
relationship assumes its specific character pre‑eminently in the facts of
violations of law. The concept of theft was defined earlier than the concept of
private property. The relationships attending a loan were fixed when the
borrower did not want to repay it: "if one tries to recover a debt and the
debtor refuses etc." (Russkaya
Pravda, Academic Register, Art. 14). The original significance of the word pactum was not that of contract, but pax, peace, i.e. an amicable conclusion
to hostility, "peaceful" (Vertrag)
supposes the end of "unpeaceful" (Unvertraglichkeit).
Thus, if private law directly
reflects the most general conditions of existence of the legal form as such,
then criminal law is the sphere where the legal relationship achieves its
maximum intensity. Here, above all and most clearly the legal element is
isolated from everyday life and obtains full independence. The transformation
of the actions of the concrete person into the action of a party, i.e. into a
legal subject, takes place particularly clearly in the judicial process. In
order to emphasize the difference between everyday activities and
GENERAL THEORY
111
expressions of will on the one
hand, and juridic expressions of will on the other, ancient law used special
ceremonial formulae and rituals. The drama of the judicial process noticeably
created a separate juridic life contiguous with the real world.
Of all types of law it is
criminal law that has the ability, by its own direct and crude manner, to
assume a separate personality. This law has always, therefore, attracted the
most ardent and practical interest, and punishments for its violation are
usually closely associated with each other‑thus, criminal law, so to
speak, assumes the role of the representative of law in general. It is the part
which replaces the whole.
The origin of criminal law is
historically linked with the custom of the blood feud. It is certain that these
phenomena are genetically close to one another but a feud becomes fully a feud only when fines and punishment
follow it, i.e. even these later stages of development, as is often observed in
the history of mankind, explain the intimations included in the preceding
forms. If one approaches the same phenomena from the opposite direction, we see
nothing but a struggle for existence, i.e. a truly biological fact. For the
theorists of criminal law viewing the later period, blood feud corresponds with
ius talionis, i.e. with the basis of equal retribution, under which the
avenging of an insult by the insulted (or by his tribe) eliminated the
possibility of further feuding. In fact, as Kovalevsky correctly points out,
the most ancient blood feuds did not have this nature. Internecine wars are
transmitted from generation to generation. An insult, although committed in
retribution, itself becomes the basis for a new feud. The insulted and his
relatives become‑ insultors‑and so on from one generation to
another, sometimes until the entire struggling kin‑groups are liquidated.54
Feud begins to be regulated by
custom and is turned into retribution by the Talic rule "an eye for an eye
and a tooth for a tooth". Only then does a system of composition or a
monetary fine begin to be established alongside it. The notion of equivalence,
this first purely juridic idea, always has its source in the form of a
commodity. A crime may be considered as a particular aspect of exchange, in
which the exchange (contractual relationship) is established post factum, that
is, after the intentional act of one of the parties. The ratio between the
crime and the punishment is reduced to an exchange ratio. Therefore Aristotle,
in discussing equivalent.
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exchange as a type of justice,
divides it into two aspects: equivalence in voluntary and in involuntary
actions. Economic relationships such as purchase and sale, loan etc. are
classified as voluntary actions; these include various types of crime invoking
punishment as an equivalent. The definition of crime as a contract concluded
against one's will, also belongs to Aristotle. Punishment emerges as an
equivalent mediating the harm done to the victim.
This notion was adopted, as is
well known, by Hugo Grotius. However naive these constructs may seem at first
glance, they latently contain much more sensitivity to the form of law than do
the eclectic theories of modern jurists.
In the example of blood feud and
punishment we can observe, with extraordinary clarity, the imperceptible stages
through which the organic or biological is connected with the legal. This
merger is intensified by the fact that man is not capable of renouncing that to
which he is accustomed, i.e. the legal (or ethical) interpretation of this
phenomenon of animal life. He involuntarily finds in the actions of animals
that which is placed in them, factually speaking, by later development, i.e. by
the historical development of man.
In fact the act of self‑defence
is one of the most natural phenomena of animal life. It makes no difference whether
we encounter it as the individual reaction of a particular animal or as a
collective exercise in self‑defence. According to the testimony of
scholars who observe the life of bees, if a bee tries to penetrate a strange
hive to steal honey, then the bees protecting the entrance at once attack it
and begin to sacrifice it; if it actually penetrates the hive then they kill it
immediately. There are similar cases in the animal world when the reaction is
separated by a certain interval of time from the circumstance which instigated
it. The animal does not respond to the attack immediately, but puts it off to a
more suitable time. Self‑defence here becomes a feud in the true sense of
the word. Since for modern man feud is inseparably tied to the idea of equal retribution,
it is not surprising that Ferri, for example, is ready to recognize the
presence of the "juridic instinct" among animals.55
In fact the juridic idea, i.e.
the idea of an equivalent, becomes fully clarified and objectified only at that
stage of economic development when it becomes the standard form of equivalent
exchange, i.e. not in the world of animals but in human society. For this it is
by no means necessary that feud was entirely forced out by blood money.
GENERAL THEORY
113
And even when blood money is
refused as something shameful‑and such a view was dominant for a long
time among primitive peoples‑the realization of a personal feud was
recognized as a sacred obligation. The very act of feud assumed a new form
which it did not have when there was not yet an alternative. Specifically, it
now included an image of the only adequate method: retribution. The refusal of
blood‑money in monetary form emphasized that bloodmoney was the only
equivalent for blood spilled earlier. The feud is transformed from a purely
biological phenomenon into a legal institution to the extent that it is linked
with the form of equivalent exchange, with exchange‑value.
The criminal law of antiquity
emphasizes this bond with particular clarity and immediacy, because damage to
property and personal injury are directly equated with a naivety that later
eras abandoned in shame. From the perspective of ancient Roman law there was
nothing surprising in the fact that an insolvent debtor paid with parts of his
body (in partes secare), and one
guilty of mutilation answered with his property. The idea of equivalent exchange
appears here in all its starkness‑uncomplicated and not obscured by any
related circumstances. Accordingly, criminal procedure also assumes the
character of a commercial transaction. "We must", says Jhering,
"imagine a market in which too much money is asked by one side and too
little is offered by the other, until a bargain is reached. An expression of
this was pacere, and for the price
agreement itself‑pactum." "The duty of an intermediary selected
by both parties", adds Jhering, "finds its beginning here. In ancient
Scandinavian law an intermediary determined the amount to be paid for
reconciliation (arbiter in the
original Roman sense)."56
With regard to so‑called
public punishments, there is no doubt that they were originally introduced
mainly for fiscal reasons, and that they served as a means of filling the
treasury of the representatives of authority. "The state", says Henry
Maine, "has not taken a fine from the defendant for the harm which he is
supposed to have done to the state, but has commanded for itself only a certain
share of the compensation made to the plaintiff in the form of just retribution
for the loss of his time and peace."57 From Russian history we
know that "Just retribution for loss of time" was so eagerly
collected by princes that, according to chronicled testimony, "the Russian
land was impoverished by fines and sales". Moreover, this phenomenon
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of judicial theft was observed
not only in ancient Russia, but also in the empire of Charlemagne. In the eyes
of the ancient Russian princes, judicial revenues were no different from other
patronage bestowed on their servants etc. It was possible to buy one's way out
of a prince's court by paying a certain sum (the barbarian wer or fine of Russkaya
Pravda).
However, in addition to public
punishment as a source of income, punishment appeared rather early as a method
of ensuring discipline and as a major safeguard of the authority of priestly
and military power. It is well known that in ancient Rome the majority of
serious crimes were at the same time crimes against the gods. For instance, one
of the most important violations, for the landowner, was the wilful moving of
boundary markers. From ancient times this was considered a religious crime, and
the head of the guilty party was condemned to the gods. The priestly caste,
acting as the guardians of order, pursued not some ideal but a most essential
material interest, because the property of the guilty party was confiscated for
its use. On the other hand, the punishment which the priestly organization
inflicted on those who tried to appropriate its incomes‑in the form of
deviations from established ceremonies and gifts, attempts to introduce new
religious teachings etc.‑bore the same public character.
The influence of the priestly
organization (i.e. the Church) on criminal law was felt in the fact that
although punishment preserved its nature of equivalence or retribution, this retribution was neither directly linked with harm
to the injured party nor based upon the latter's claim. Indeed, punishment
attained a higher abstract meaning as godly punishment. The Church thus tried
to combine the material element of compensation or harm with the ideological
motive of expiation and cleansing (expiatio).
It thus tried to construct a more appropriate mechanism for maintaining
social discipline (i.e. class domination) than that provided by a criminal law
based on private vengeance. Indicative of this were the solicitations of the
Byzantine clergy with respect to the introduction of capital punishment in
Kievan Russia.
The same goal of maintaining
discipline determines the nature of the punitive activity of a military
commander. The latter renders justice and reprisal, both over subjugated
peoples and over his own troops who had planned a mutiny, treason, or who were
simply
GENERAL THEORY 115
disobedient. The notorious story
about Ludwig‑who with his own hands decapitated a disobedient soldier‑‑shows
the primitive nature of this reprisal in the formative period of the German
barbarian states. In earlier times the task of maintaining military discipline
had been conduced by a popular assembly; with the consolidation and expansion
of monarchical authority this function naturally adhered to the monarchs and was
naturally identified with the protection of their own privileges. As far as
general criminal offences were concerned, the kings of the German tribes (and
also the princes of Kievan Russia) for a long time showed only a fiscal
interest toward them.
This state of affairs changed
with the development and consolidation of class and estate boundaries. A
spiritual and temporal hierarchy valued the protection of its privileges, in
the struggle with the lower and oppressed classes of the population, as its
first priority. The decomposition of the natural economy and the concomitant
increase in the exploitation of the peasantry, the development of commerce and
the organization of a class state,
ave different tasks to criminal
justice. In this period criminal justice became less a method of raising income
for the authorities and more a method of merciless and harsh reprisal against
"evil people", i.e. primarily against peasants who had fled from
unbearable exploitation by landlords and the landlords' state, and against the
pauperized population, vagrants, mendicants etc. The police and the
investigative apparatus had to play the main role. Punishment became a method
of physical elimination or of instilling terror. This was the era of ordeals,
corporal punishment and cruel methods of capital punishment.
Gradually, therefore, that
complex amalgam was prepared which now constitutes modem criminal law. We can
easily discern the composition of its historical strata. In essence (that is,
from a purely sociological point of view) bourgeois society supports its class
state by its system of criminal law and thereby holds the exploited class in
obedience. In this respect, its judges and its private "voluntary"
organizations of strike‑breakers pursue one and the same goal.
The criminal jurisdiction of the
bourgeois state is organized class terror. This differs only in degree from the
so‑called extraordinary measures applied at times of civil war. Spencer
indicated
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the full analogy and even the identity between the defensive reaction
directed against external attacks (war), and the reaction directed against
violators of the internal order (legal or judicial defence).58
Measures of the first type (i.e. criminal punishment) are applied primarily
against declasse social elements, and measures of the second type primarily
against active proponents of a new class rebelling against authority. This fact
does not change the essence of the matter, nor does the greater or lesser
correctness and complexity of the procedure applied. An understanding of the
true meaning of the punitive activity of the class state is possible only by
perceiving its antagonistic nature. So‑called theories of criminal law
which derive the principle of punitive policy from the interest of society as a
whole are occupied with the conscious or unconscious distortion of reality.
"Society as a whole" exists only in the imagination of these jurists.
In fact, we are faced with classes with contradictory, conflicting interests.
Every historical system of punitive policy bears tile imprint of the class
interest of that class which realized it. The feudal lord executed disobedient
peasants and city dwellers who rose against his power. The unified cities
hanged the robber‑knights and destroyed their castles. In the Middle
Ages, a man was considered a lawbreaker if he wanted to engage in a trade
without joining a guild; the capitalist bourgeoisie, which had barely succeeded
in emerging, declared that the desire of workers to join unions was criminal.
Thus, class interest places the
imprint of historical concreteness on each given system of punitive policy.
Only the full disappearance of
classes enables the construction of a system of punitive policy in which every
element of antagonism will be excluded. But the question remains of whether a
punitive system is still necessary in these conditions.
If by its content and nature
authoritative punitive activity is a weapon for the maintenance of class
domination, then in its form it acts as an element of the legal superstructure,
and is included in the legal system as one of its branches. We showed above
that the naked struggle for existence adopts a legal form through the
introduction of the principle of equivalence. The act of self‑defence
ceases to be merely an act of self‑defence, and becomes a form of
exchange, a type of intercourse which takes its place alongside
"normal" commercial exchange. Crime and punishment become such (i.e.
assume their legal nature) on the basis of the redemption transaction. As long
GENERAL THEORY 117
as this form exists, so too will
the class struggle be conducted through law. Conversely, the very term criminal
will lose all meaning to the extent that the element of the relation of
equivalence disappears from it.59
Considering the nature of
bourgeois society as a society of commodity owners, we would have to suppose a
priori that its criminal law was the most juridic in the sense we established
above. However, we at once encounter certain difficulties here. The first
difficulty is the fact that modern criminal law does not proceed primarily from
the harm done to the victim but from the violation of the norm established by
the state. Once the victim and his claim recedes to the background then, it is
asked, where is the form of equivalence? But in the first place, no matter how
far the victim recedes to the background he nevertheless does not disappear,
but continues to constitute the setting in which the criminal law action is
played out. The abstraction of a violated public interest rests on the fully
real figure of the victim, who participates in the process‑personally or
through representatives‑and who gives this process a living significance.
Moreover, even when the concrete victim in fact does not exist, when
"merely a statute" is assailed, this abstraction implies its real
embodiment in the person of the public prosecutor. This division, in which a
state authority appears both in the role of a party (the prosecutor) and in the
role of a judge, shows that .as a legal form the criminal process is
indivisible from the figure of the victim demanding "retribution". It
is therefore indistinguishable from the more general form of agreement. The
prosecutor, as is expected of a "party", asks a "high
price", i.e. a strict punishment; the criminal seeks leniency, a
"discount", the judge decrees "according to justice".
Discard this form of agreement, and you will deprive the criminal process of
its "Juridic spirit". Imagine for a minute that the court is actually
occupied only with the consideration of how to change the conditions of life of
a given person‑‑in order to influence him in the sense of
correction, or in order to protect society from him‑and the very meaning
of the term punishment evaporates. This does not mean that every criminal court
and punitive procedure is entirely deprived of the simple and comprehensible
elements mentioned above. But we wish to show that there is a peculiarity in
this
118 PASHUKANIS: SELECTED WRITINGS
procedure which is not covered by
the clear and simple considerations of social purpose. This is an element that
is irrational, mystifying and incoherent, and it is the specifically legal
element.
Further difficulty lies in the
following fact. Ancient criminal law knew only the concept of harm. Crime and
guilt, occupying such an eminent place in modern criminal law, were absent at
this stage of development. Conscious, careless and accidental actions were
evaluated exclusively by their consequences. The customs of the Salic Franks
and the modern Ossetians stand at the same stage of development in this
respect. The latter made no distinction between death resulting from a blow
with a knife, and death proceeding from the fact that a rock was knocked off a
hill kicked by the hoof of another's bull.
From this, as we see, it does not
follow that the concept of responsibility was in itself alien to ancient law.
It was merely determined by another method. In modern criminal law‑in
accordance with the radical individualism of bourgeois society‑we have
the concept of strict personal responsibility. But ancient law was penetrated
by the principle of collective responsibility: children were punished for the
sins of their parents, and the kin‑group answered for each of its
members. Bourgeois society dissolves all earlier primitive and organic ties
between individuals. It proclaims as its basis: every man for himself, and it
implements this most consistently in all areas, including criminal law. In the
second place, modern criminal law introduced the psychological element into the
concept of responsibility and thus gave it a greater flexibility. It divided it
into degrees: responsibility for a result which was foreseen (intent), and
responsibility for a result which was unforeseen but which could have been
foreseeable (negligence). Finally it constructed the concept of non‑imputability,
i.e. the complete absence of responsibility. However, this new element, the
degree of guilt, by no means excludes the principle of equivalent exchange, but
derives from it and creates a new basis for its application. What does this
division signify other than a clarification of the conditions of the bourgeois
judicial transaction! The gradation of liability is the basis for the gradation
of punishment‑a new, if you wish, ideal or psychological element, which
is combined with the material element (the injury) and the objective element
(the act)‑in order to provide a joint basis for determining the ratio of
punishment. Responsibility is
GENERAL
THEORY
119
heaviest for an action committed
with intent and accordingly, ceteris
paribus, entails a heavier punishment; if an action is committed
negligently the responsibility is less heavy: ceteris paribus, the punishment is reduced; finally, if
responsibility is absent (criminal intent is non‑imputable), there is no
punishment. If we replace punishment with Behandlung
("method of influence"), i.e. a legally neutral, medical‑pedagogical
concept, we reach very different results, This is so because primarily we will
be interested not in the proportionality,
but in the correspondence of the
measures taken to the goals which are placed before it, i.e. to the goals of
protecting society from the criminal etc. From this point of view the
relationship may appear as the opposite; that is, in the case of the least
responsibility the most intensive and long‑lasting measures of influence
may seem necessary.
The idea of responsibility is
necessary if punishment is to appear as a method of payment. The criminal
answers for the crime with his freedom, and he answers with an amount of his
freedom which is proportional to the
gravity of what he has done. This idea of responsibility is unnecessary when
punishment is liberated from the character of equivalence; and when no remnant
of this remains, punishment ceases to be punishment in the legal sense of the
word.
The juridic idea of
responsibility is not scientific because it leads directly to the
contradictions of indeterminism. From the viewpoint of the causal chain which
leads to an event, there is not the slightest basis for preferring one link to
the others. The actions of a man who is psycologically abnormal (irresponsible)
are just as conditioned by a series of causes, i.e. inheritance, conditions of
life, environment etc., as are the actions of a normal (responsible) man. It is
interesting to note that punishment applied as a pedagogical measure (i.e.
outside the legal idea of equivalence) is entirely unconnected with
considerations of imputability, freedom of choice etc., and does not require
these ideas. The expediency of punishment in pedagogy‑we speak here of
course of expediency in the most general sense, independent of the selection of
forms, leniency, strictness of punishment etc.‑is determined exclusively
by the presence of the sufficiently developed ability to understand the
connection between one's action and its unpleasant consequences, and the
retention of this connection in one's mind. Even persons whom the criminal law
does not hold responsible for their actions‑children of a very young age,
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PASHUKANIS: SELECTED WRITINGS
and the psychologically abnormal‑are
considered responsible in this sense, i.e. they are subject to influence in a
definite direction.
Punishment proportionate to guilt
chiefly represents the same form as revenge related to damage. Above all, it is
characterized by the numerical, mathematical expression for
"severity" of the sentence: the number of days, months etc., of
deprivation of freedom, the amount of monetary fine, deprivation of various
rights.
Deprivation of freedom‑for
a definite term previously indicated in the judgement of a court‑is the
specific form in which modem, that is, bourgeois capitalist criminal law,
realizes the basis of equivalent retribution. This method is deeply, but
unconsciously connected with the concept of the abstract man and of abstract
human labour time. It is not accidental that this form of punishment grew
strong and eventually seemed natural and expected, in the nineteenth century,
i.e. when bourgeois society was fully developed and had consolidated all its
particular features. Prisons and dungeons, of course, existed even in ancient
times and in the Middle Ages, alongside other means of physical coercion. But
at that time prisoners were usually confined until their death or until the
payment of a ransom.
A necessary condition for the
appearance of the notion that payment for a crime should be by a previously
determined amount of abstract freedom, was that all concrete forms of social
wealth had to be reduced to the simplest and most abstract form‑to human
labour time. Here we undoubtedly observe yet another case affirming the mutual
protection of the various aspects of culture. Industrial capitalism, the Declaration
of the Rights of Man and the Citizen, Ricardo's political economy, and the
system of terms of incarceration in prison‑these are phenomena of the
same historical period.
Equivalence of punishment‑in
its crude and overtly material form as the causing of physical harm or the
exacting of monetary compensation‑‑specifically because of this
crudeness preserves a simple meaning accessible to everyone. But it loses this
meaning in its abstract form of the deprivation of freedom for a definite term,
although we continue to speak of a measure of punishment proportional to the
gravity of the act.
Therefore, it is natural for many
criminal law theorists (primarily those who consider themselves the most
advanced) to attempt to
GENERAL
THEORY
121
remove this element of
equivalence because it has clearly become inconvenient, and to concentrate
attention on the rational goals of punishment. The mistake of these progressive
criminologists is that in criticizing so‑called absolute theories of
punishment, they suppose that they are confronted only by false views and
confused thoughts which can be dissolved simply by theoretical criticism. In
fact, the inconvenient form of equivalence does not derive from the confusion
of individual criminologists, but from the material relationships of commodity
production, and it is nurtured by them. The contradiction between the rational
goal of the protection of society‑‑‑or the re‑education
of the criminal‑and the principle of the equivalence of punishment,
exists not in books and theories but in life itself in judicial practice, in
the social structure itself Similarly, the contradiction between the fact of
the bond of social labour as such, and the inconvenient form of expression of
this fact in the value of commodities, exists not in theory, and not in books,
but in social practice itself
Sufficient proof of this is found
in various elements. If, in social life, punishment was considered as an objective, then the keenest interest
would be aroused in the implementation of punishment and, above all, by its
result. However, who would deny that the centre of gravity of criminal
procedure for the overwhelming majority‑is the court room and the moment
of pronouncing the verdict and sentence?
The interest which is shown
towards enduring methods of influencing the criminal is utterly negligible in
comparison with the interest which is aroused in the effective moment of
pronouncing the verdict and sentence, and in the determination of the
"measure of punishment". Questions of prison reform are a live issue
only for a small group of specialists; broadly, the correspondence of the
sentence to the gravity of the act occupies the centre of attention. If,
according to common sentiment, the equivalence is properly determined by the
court, then the matter will be concluded here, and the subsequent fate of the criminal
is of no interest. "A study of the execution of punishment,"
complains Krohne, one of the leading specialists in this area, "is the
sore point of the science of criminal law." In other words it is
relatively neglected. "And moreover", he continues, "if you have
better laws, better judges, and better sentences, and the civil servants
carrying out these sentences, are
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worthless, then you may freely
throw laws into the rubbish bin and burn your sentences."60 But
the authority of the principle of retributive equivalence is not only
discovered in the distribution of social interest. It appears no less clearly
in judicial practice itself In fact, what other bases are there for those
sentences which Aschaffenburg cites in his book Crimes and the Struggle against Them? Here are just two examples of
a long series: a recidivist, convicted 22 times for forgery, theft, extortion
etc., was sentenced for the Byrd time to 24 days in prison for slandering an
official. Another, who had in all spent 13 years in prison and the penitentiary
(Zuchthaus), having been convicted 16
times for extortion, theft etc., was sentenced (the 17th time) for extortion to
4 months in prison.61 In these instances one obviously does not
discuss the protective or corrective function of punishment. Here the formal
principle of equivalence triumphs: for equal guilt‑an equal measure of
punishment. And in fact what else could the judge do? He could not hope to
correct a confirmed recidivist by 3 weeks' detention, but he also could not
isolate the prisoner for life because of the mere slander of a civil servant.
Nothing is left to him but to have the criminal pay in small change (a certain
number of weeks of deprivation of freedom) for a minor crime. For the rest,
bourgeois jurisprudence ensures that the transaction with the criminal is in
accordance with all rules of the art, i. e. that each may be convinced, and may
verify that the payment is justly set (public judicial proceedings), that the
criminal may bargain freely (adversary process), and that in so doing he may
use the services of an experienced judicial expert (admission of the defence)
etc. Briefly, the state conducts its relationship to the criminal within the
framework of a bona fide commercial
transaction in which there are, ostensibly, guarantees of criminal procedure.
The criminal must know beforehand
why he owes something and what is
expected of him: nullum crimen, nulla
poene sine lege. What does this mean? Does it require that each potential
criminal be exactly informed of the methods of correction which will be applied
to him? No, the matter is much cruder and simpler‑he must know how much
freedom he will forgo as a result of the judicial transaction. He must know
beforehand those conditions under which payment will be demanded of him Here
lies the meaning of criminal codes and criminal procedure codes.
One must not imagine that in the
beginning false theories of retribution held sway in criminal law, and then
later the correct point
GENERAL THEORY
123
of view of social defence
triumphed. It is wrong to consider development as having taken place only on
the level of ideas. In fact, both before and after the appearance of the
sociological and anthropological trends in criminology, punitive policy
included a social or, rather, a class element of defence. However, along with
this it included, and still includes, elements which do not derive from this technical goal and therefore do not
permit the punitive procedure itself to be expressed wholly and with nothing remaining as a rational, non‑mystifying
form of socio‑technical rules. These elementswhose origins must be sought
not in punitive policy itself but much deeper‑give real meaning to the
legal abstractions of crime. and punishment, and ensure their full practical
significance regardless of all the forces of theoretical criticism.
We remember Van Hamel's
exclamation at the Hamburg congress of criminologists in 1905: the main
obstacle for modern criminology are the three concepts "guilt, crime and
punishment"; "when we free ourselves from them", he added,
"all will be better." We may now reply that the forms of bourgeois
consciousness will not be eliminated merely by ideological criticism, because
they constitute a unity with those material relationships which they reflect.
The transcendence of these relationships in practice‑i.e. the
revolutionary struggle of the proletariat and the realization of socialism‑this
is the only way to dispel those mirages which have become reality.
To proclaim that fault and guilt
are prejudiced concepts in practice suffices for the transition to a punitive
policy which would render them unnecessary. Until the time when the commodity
form, and the derivative legal form, cease to place their imprint upon society,
the essentially incoherent (from the non‑judicial perspective) notion
that the severity of each crime can be weighed on a scale and expressed in
months or years of imprisonment, will continue to preserve its force and its
real significance in judicial practice.
It is possible, of course, to
refrain from expressing this notion in such a shockingly crude formulation. But
this by no means signifies that therefore we are finally free from its
influence in practice. What is the general part of every criminal code
(including even ours) with its concepts of abetting, participation, contempt,
preparation etc., if it is not a means to define guilt more exactly? What is
the distinction between intent and negligence if not a distinction of a degree
of guilt? What meaning has the concept of irresponsibility if the concept of
124
PASHUKANIS: SELECTED WRITINGS
guilt does not exist? Finally,
why is the special part of the code needed if the matter is merely about
measures of social (class) defence?
In fact the consistent execution
of the principle of social defence would not require the fixing of individual sets of elements of crime (with which measures of punishment are largely
linked and defined by statute or by the courts). It would require however, a
clear description of symptoms characterizing
a socially dangerous condition and the development of those methods which must necessarily be
applied in each given case for social defence.
The matter is obviously not only
that, as some persons think, a measure of social defence is connected in its
application with subjective moments (form and degree of social danger), while
punishment rests on an objective moment, i.e. the concrete set of elements of a
crime established by the special part of the code. The importance lies in the
character of this association. It is difficult to separate punishment from an
objective basis, because it cannot discard the form of equivalence without
losing its basic character. However, only the concrete structure of a crime
provides something like a measurable amount, and accordingly something like an
equivalent. One can make a man pay for an action, but it is senseless to make
him pay for the fact that society has recognized him (i.e. the given subject)
to be dangerous. Therefore, punishment presupposes an exactly fixed set of
elements in a crime. A measure of social defence has no need for this. Payment
by coercion is legal coercion directed towards a subject placed in the formal
framework of a trial, a sentence and its execution. Coercion, as a measure of
defence, is an act of pure expediency and as such may be regulated by technical
rules. These rules may be more or less complex depending upon whether the
purpose is the mechanical elimination of a dangerous member of society, or his
correction; but in any event these rules reflect clearly and simply the
objective which society has set itself Conversely, this social objective
appears in masked form in the legal forms determining punishment for certain
crimes. A person subjected to coercion is placed in the position of a debtor
paying a debt. This is reflected in the term "serving a sentence". A
criminal who has served his sentence returns to his starting point, to an
isolated social existence, to the "freedom" to undertake obligations
and commit crimes.
GENERAL THEORY
125
Criminal law, like law in
general, is a form of the relationships between egoistic and isolated subjects,
bearing autonomous private interests as commodity owners. The concepts of crime
and punishment‑as is clear from the aforesaid‑are the necessary
definitions of the legal form. Liberation from them will only occur when the
general withering away of the legal superstructure begins. And to the extent
that in fact, and not merely in declarations, we begin to transcend these
concepts and to do without them‑this will be the best symptom of the fact
that for us, finally, the narrow horizons of bourgeois law are disappearing.
Notes
Abbreviations
LCW V.
I. Lenin: Collected Works (1960‑70), Foreign
Languages Publishing
House, Moscow, 45 volumes.
MESW K.
Marx and F. Engels: Selected Works (1970),
Progress
Publishers, Moscow, 3 volumes.
Sochinenii Vladimir Il'ich Lenin, Sobranie
Sochinenii (1920‑1926),
Moscow, 20 volumes in 26 books.
The complete footnotes to the General Theory have been translated in
J. Hazard (ed.), Soviet Legal Philosophy
(1951), Harvard University Press, Cambridge, translated by H. Babb, pp. 111‑225 [ed.].
1. Of
course these most general and simplest juridic concepts are the result of the
logical treatment ofthe norms of positive law. They represent the latest and
highest product of conscious creativity in comparison with the randomly formed
legal relationships and the norms which express them.
2 One may agree with Karner [the
pseudonym used by Karl Renner‑eds. I that
the science of law begins where jurisprudence ends. But it does not follow from this that the science of law must
simply discard those basic abstractions which reflect the basic essence of the
legal form.
3. Even
Comrade Stuchka's The Revolutionary Role
of Law and State (1921, Moscow), which deals with a series of problems of
the general theory of law, does not treat these concepts systematically. His
discussion accentuates the class content of the historical development of legal
regulation in comparison with the logical and dialectical development of the
form itself
4. It
should be noted that in discussing juridic concepts Marxist authors commonly
and primarily refer to the concrete content of legal regula-
126 PASHUKANIS:
SELECTED WRITINGS: Notes to pp. 42‑61
tion
inherent in a specific period, i. e. that which people at a specific stage of
development consider to be law. However, it is undoubtedly true that Marxist
theory must study not only the material content of legal regulation in various
historical periods, but that it must also provide a materialist interpretation
of legal regulation per se as a
definite historical form.
5. An
example of how richness of historical exposition can co‑exist with the
most incomplete outline of the legal form is found in M. Pokrovsky, Essays on the History of Russian Culture (1923),
Moscow, 2nd edition, vol. 1, p. 16.
6. Law is
also defined as coercive norms issued by state authority in Bukharin's Historical Materialism . . . . All these
definitions stress the connection between the concrete content of legal
regulation and economics. At the same time, however, they attempt to exhaust
the legal form by defining it as state‑organized coercion. In essence,
this goes no deeper than the crude empirical applications of the most pragmatic
or dogmatic jurisprudence‑whose defeat must constitute the task of
Marxism.
7. "Political
economy begins with commodities, begins
from the moment when products are exchanged for one another‑whether by
individuals or by primitive communities." F. Engels, "Review of
Marx's Contribution to the Critique of
Political Economy" (1859), MES
W, vol. 1, p. 514.
8. K. Marx, Critique of the Gotha Programme (1875), MES W, vol. 3, p. 19.
9. Lenin
concludes in State and Revolution: "With
respect to the distribution of products for consumption,
bourgeois law of course inevitably presupposes a bourgeois state, because bourgeois law is nothing without a coercive apparatus capable of enforcing adherence to the norms of law.
It follows that for a certain time bourgeois law is effective under communism,
but that so also is the bourgeois state without the bourgeoisie!" V. I.
Lenin, State and Revolution (1917), LCW, vol. 25, p. 471.
10. F.
Lassalle, The System of Acquired Rights (1861),
Leipzig.
11. See K.
Marx, Introduction to the Critique of
Political Economy (1857), in The
Grundrisse (1973), translation and foreword by M. Nicolaus, Random House,
New York, p. 100.
12. ibid. pp. 104‑105.
13. ibid. p. 106.
14. ibid. p. 105.
15. K. Marx, Capital (1867), International
Publishers, New York, 1967, vol. 1, p. 76.
16. M.
Reisner, The State (1911), Moscow,
2nd edition, vol. 1, p. xxxv.
17. ibid.
18. See the
review of Stuchka's The Revolutionary
Role of Law and State (1921), by Professor Reisner, Herald of the Socialist Academy, no. 1, p. 176.
19. cf. V. V.
Adoratsky, On the State (1923),
Moscow, p. 41: "The tremendous
influence of legal ideology on the entire system of thinking of law‑abiding
members of bourgeois society is explained by the
GENERAL
THEORY: Notes to pp. 61‑75
127
significant
role of ideology in the life of this society .... A person living in bourgeois
society is constantly regarded as a subject of rights and obligations. Every
day he effects an endless number of legal actions involving the most diverse
legal consequences. No society has such a need, therefore, of the idea of law
(in its practical, everyday use), nor develops this idea in such detail, nor
transforms it into such an essential instrument of daily exchange, as does
bourgeois society."
20. K. Marx, Capital (1867), op. cit. vol. 1, p. 81.
21. G. Shershenevich, The General Theory of Law (1910), Moscow, p. 274.
22. The Russian language, incidentally,
derives the designations "law in effect" and "law in force"
from the same root. In German, the logical distinction is facilitated by the
use of two very different verbs: wirken (in
the sense of in effect, or being realized) and
gelten (in the sense of being significant, i.e. logically related to a more
general normative proposition).
23. The point of view expressed here by no
means signifies a denial of class will as a factor of development, an
abjugation of planned interference in the course of social development,
"economism", fatalism and other terrible things. A revolutionary
political action may accomplish a great deal; it can realize for tomorrow that
which does not exist today, but it can not cause that which did not in fact
exist in the past. On the other hand, if we affirm that the intention to
construct a building‑and even the plan of the building‑‑is
still not the actual building, then it does not follow from this that neither
the intention nor the plan are essential for the construction of the building.
But when the matter has gone no further than the plan we cannot affirm that the
building has been constructed.
24. However, it is necessary to declare that
social‑regulatory activity can operate without previously fixed norms.
The fact of so‑called judicial lawmaking convinces us of this. Its
significance is particularly clear in those periods when the centralized
enactment of laws was generally unknown. For the ancient German judges,
therefore, the concept of a norm given externally was entirely alien.
Collections of rules of every type were, for the Schoffengericht, not binding laws, but were a heuristic device by
which they formed their own opinion. SeeJ. Stintzing, Geschichte der Deutschen Rechtswissenschaft (1880), vol. I, p. 39.
25. K. Marx and F. Engels, The Holy Family, or a Critique of Critical Criticism (1844), in
Marx and Engels Collected Works (1975), Progress
Publishers, Moscow, vol. 4, pp. 120‑121.
26. In his commentary on the Civil Code of
the RSFSR, Goikhbarg stresses that advanced bougeois jurists still refuse to
consider private property as arbitrary subjective law, but that they see it
both as rights accruing to the individual and as positive obligations with
respect to the whole. In particular, Goikhbarg relies upon Duguit. Duguit
affirms that an owner of capital must be defended by the law only because and
to the extent that he fulfils a socially useful function in providing a correct
application for his capital.
128 PASHUKANIS: SELECTED WRITINGS: Notes to pp. 75‑78
Duguit's
statement‑that an owner will be protected only when he fulfils a social
obligation‑is meaningless in such a general form. For the bourgeois state
it is hypocritical; for the proletarian state it is a concealment of the facts.
For if the proletarian state could directly assign to each owner his social
function, it would have done so, taking from the owner the right to dispose of
his property. And once it cannot do this economically,
this means it is compelled to protect private interests as such, ‑and
that it can only set certain quantitative limits to them. It would be illusory
to affirm that every X who has accumulated a certain quantity of money is
protected by our laws and courts simply because he provided, or will provide, a
socially useful application for money accumulated. But Comrade Goikhbarg
forgets about capitalist property in this, its most abstract (i.e. monetary)
form, and he argues as if capital only exists in the concrete material form of
productive capital. The anti‑social aspects of private property may be
paralysed only de facto, i.e. by the
development of a socialist planned economy at the expense of the market. But no
formula, even though derived from the most advanced Western jurists, can
transform all transactions concluded on the basis of our Civil Code into
socially useful ones, and every owner into a person fulfilling social
functions. Such a verbal transcendence of the private economy and private law
will only obscure the conditions for their real transcendence.
27. K. Marx, Capital (1867), op. cit. vol. 1, p. 84.
28. Man is a commodity (i.e. a slave) only
when he adopts the role of a distributor of commodities‑‑of objects‑and
when in becoming a fellow participant in exchange he attains the effective
status of a subject. On the rights of slaves to conduct transactions under
Roman law, see 1. A. Pokrovsky, History
of Roman Law (1915), Petrograd, vol. 2,
p. 294. Conversely, when a free man (i.e. a proletarian) seeks a market for
the sale of his labour power in modern society, he is treated as an object and
falls under the law on emigration with the same prohibitions, quotas etc., as
other commodities transported across the state border.
29. K. Marx, Capital (1867), op. cit. vol. 1, p. 84.
30. J.
Fichte, Rechtslehre (1812), Leipzig,
p. 10.
31. The
development of the law of war is nothing other than the gradual consolidation
of the principle of the inviolability of bourgeois property. Until the era of
the French Revolution the population was robbed without hindrance or
restriction, both by its own soldiers and by the enemy. Benjamin Franklin first
proclaimed (1785) as a political
principle that in future wars "peasants, craftsmen and merchants must
peacefully continue their occupations under the protection of both warring
parties". Rousseau, in his Social
Contract, asserts the rule that war is conducted between states but not
between people. The legislation of Covenant strictly punished thefts by,
soldiers both in their own and in an enemy's country. Only at the Hague, in 1899, were the principles of the French
Revolution elevated to the rank of international
GENERAL THEORY: Notes to pp. 78-88
129
law.
Moreover, justice requires that it be noted that Napoleon, in declaring a
continental blockade, felt a certain embarrassment and considered it necessary,
in his address to the Senate, to justify this measure "affecting the
interests of private people because of a dispute between states" and
"recalling the barbarity of olden times"; in the last world war the
bourgeois states, without any embarrassment, violated the property rights of
the citizens of the warring countries.
32. H. Dernburg, Pandekten (1906), Moscow, vol. 1, p. 39.
33. In Germany this occurred only when Roman
law was received, which is proved, inter
alia, by the absence of a German word for the expression of the concepts of
"person" (persona) and
"subject of rights". See 0. Gierke, Geschichte des deutschen Korperschaftsbegriffs (1873), Berlin, p. 30.
34. ibid. p. 35.
35. ibid. p. 34.
36. A. Hauriou, Principes du droit public (1910), Paris,
p. 286.
37. ibid. p. 287.
38. For example, Proudhon declares: "I
want a contract and no laws. For me to be free we must reconstruct the whole
social order on the basis of mutual contract." However, he adds later:
"The norms by which the contract must be fulfilled will not depend
exclusively on justice, but also on the common will of people who participate
in life together, a will which must compel the fulfilment of the contract even
with coercion." See P. J. Proudhon, Wes generales de
la (1851), Paris, X, pp. 138, 293.
39. K. Renner, The Institutions of Private Law and their Social Functions (1949), Routledge
and Kegan Paul, London, pp. 266‑267.
40. ibid. p. 268.
41. The defenders of private property
therefore eagerly appeal to this elementary relationship because they know that
its ideological power exceeds many times its economic significance for modern
society.
42. K. Renner (1949), op. cit. p. 252.
43. Property under simple commodity
production, which Karner contrasts with the capitalist form of property, is
just as pure an abstraction as simple commodity production itself The
transformation of even part of the products into commodities, and the
appearance of money, constitute a sufficient condition for the appearance of
usurer's capital‑in Marx's expression, that "antediluvian form of
capital"which, together with its twin (mercantile capital), "long
precedes the capitalist mode of production and can be observed in various socio‑economic
formations". See K. Marx, Capital
(1967), op. cit. vol. 3, op. cit.
44. The intensification of the transcendence
of the legal form would be reduced to the gradual transition from the
equivalent method of distribution‑definite quantities of products for
definite quantities of labour‑to the realization of the formula of
developed communism: "from each according to his abilities, to each
according to his needs".
130 PASHUKANIS: SELECTED WRITINGS: Notes to pp. 88‑112
45. K. Marx,
"On the Jewish Question" (1843), in Karl Marx: Early Writings (1975), introduced by L. Colletti,
Penguin and New Left Review, p. 234.
46. F. Engels,
The Origin of the Family, Private
Property and the State (1884), MESW, vol. 3, p. 327.
47. In our
time of intensified revolutionary struggle we can observe how the official
apparatus of the bourgeois state recedes into the background in comparison with
the "voluntary guards" of the fascists and their ilk. This once more
shows that when social equilibrium is disrupted it then "seeks
salvation", not by creation of "an authority standing above
classes", but by the maximum pressure of the forces of the struggling
classes.
48. I.
Podvolotsky, The Marxist Theory of Law (1923),
Moscow, p. 33.
49. K. Marx, Capital
(1867), op. cit. vol. 3, p. 881.
50. The
English bourgeoisie, which earlier than others won for itself the domination of
world markets, and which felt invulnerable because of its insular position,
could go further than others in the practice of the Rechtsstaat. The most consistent actions based on law in the mutual
relationships between authority and the isolated subject, and the most
effective guarantee that the bearers of authority did not transgress their role
as the personification of an objective norrn, was the subordination of state
agencies to the jurisdiction of an independent (not of the bourgeoisie, of
course) court. The Anglo‑Saxon system is, in its own way, the apotheosis
of bourgeois democracy. But, so to speak, if worse comes to worse in other
historical conditions, the bourgeoisie will make peace with a system which
could be baptised as a system of "separation of property from the
state", or a system of Caesarism. In this case the ruling clique, by its
unlimited despotic arbitrariness (having two directions: internal, against the
proletariat, and external, expressed in an imperialist policy), creates the
background for the "free self‑determination of the individual"
in civil exchange.
51. I. Kant, Kritik der practischen Vernunft (1914),
German edition, p. 96.
52. It goes
without saying that in a society torn by class struggle, classless ethics may
exist only in the imagination, but by no means in practice. A worker, having
decided to take part in a strike‑despite those deprivations with which
this participation is associated for him‑may formulate this decision as a
moral duty to subordinate his personal interests to the general interests. But
it is dear that this concept of general interests may not also include the
interests of the capitalist against whom
the struggle is waged.
53. H. Maine, Ancient Law (1873), Russian edition
translated by N. Belozersky, p. 288.
54. cf. M.
Kovalevsky, Modern Custom and Ancient Law
(1886), Petersburg and Moscow, pp. 37‑38.
55. E. Ferri, Criminal Sociology (1900), Russian
edition translated and with a preface by Dril', vol. 2, p. 37.
GENERAL
THEORY: Notes to pp. 112‑25
131
56. R.
Jhering, The Spirit ot Roman Law (1875), Russian
edition, vol. 1, p. 118.
57. H. Maine,
Ancient Law (1873), op. cit. p. 269.
58. H.
Spencer, Principles of Sociology
(1883), Russian edition, p. 659.
59. Thus, criminal law is a constituent part
of the legal superstructure to the extent that it embodies one of the varieties
of that basic form to which modem society is subordinated: the form of
equivalent exchange with all the consequences which derive from it. The
realization of this relationship in criminal law is one of the aspects of the Rechtsstaat as an ideal form of
relationship between independent and equal commodity producers who meet in the
market. But since social relationships are not limited to the abstract
relationships between abstract commodity owners, the criminal court is
therefore not only the embodiment of the abstract legal form, but it is also a
weapon of direct class struggle. The sharper and more intense this struggle,
the more difficult it is for a class to realize its domination through the
legal form. In this case, the "impartial" court‑with its
guarantees‑is replaced by an organization of direct class violence, and
its actions are guided only by considerations of political expediency.
60. Quoted from G. Aschaffenburg, Das Verbrechen und seine Bekdmpfung (1905), Heidelberg,
p. 200.
61. ibid. pp. 205‑206.