2 "Lenin
and Problems of Law"*
Introductory Note
The following essay was
Pashukanis' earliest attempt to seek anticipatory support for the serious
implications of The General Theory of Law
and Marxism, in Lenin's voluminous yet fragmented writings on law. It was
written in the context of two unresolved questions in the indecisive period
after Lenin's death in 1924. What form ought to be attached to the content of
Party rules and directives? What ought to be the attitude of the Party and the
Soviet proletariat towards the demand for the right of nations to self‑determination?
And, of course, within the framework of the debates between Bukharin, Trotsky
and Stalin concerning centralization and the doctrine of socialism in one country,
these questions were not entirely unrelated. Pashukanis argues that a
revolutionary Party must follow a course which avoids the dangers both of the
complete rejection of legal struggle and of the fetishism attached to legal
rules. Legality is not an "empty sack" that can be filled with a new
class content immediately after the revolution, and under the New Economic
Policy the legal form must be used as a weapon in a programme of cultural re‑education.
Pashukanis' response to these questions appeared in a special collection
entitled Revolution of the Law, which
was edited by Stuchka and included such distinguished theorists as Bukharin,
Adoratsky and Razurnovsky. This collection was intended as the first systematic
expression of the Marxist jurists.
* "Lenin
i voprosy prava", Revoliutsiia
prava: Sbornik 1 (1925), Kommunisticheskaia akedemiia Moscow.
"Lenin
and Problems of Law"
I
Lenin, although a jurist by
education, never devoted special attention to problems of law. From this, one
could draw the rather hasty conclusion that such a category should receive no
attention at all in the systematic study of his immense ideological legacy.
However, this would be incorrect. To begin with, a series of isolated
observations and thoughts relating to law are scattered throughout his work.
They merely need to be extracted, sorted and systematized. Lenin's contribution
to this subject, insufficiently developed by Marxists, can only be evaluated
after this task is accomplished. In addition, not all of what Vladimir Ilich
wrote in the Soviet period, not directly intended for publication, has yet been
published, i.e. his writings relating to the practical problems of constructing
the Soviet state which have been preserved in the form of numerous directive notes
and letters to individual comrades, as well as every possible type of order,
instruction etc. Only when all of this material is systematized and published
will we be able to conceive a truly comprehensive idea of what Leninism means
for the problems of law.
In the present article,
naturally, we do not expect to achieve the exceptional results of work which
would require substantial and, probably, collective efforts. But one point
should be made at this juncture. One can obtain a much more correct Marxist and
dialectical approach to the problems of law from Lenin, who did not write
especially on law, than from other Marxists who especially dedicated themselves
to these questions. To prove my point, I will give one example. The problem
concerns one of the basic legal institutions: the institution of private
property. Certain Marxists, following Renner's example, present the dialectic
of this institution in an entirely simplistic manner:
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PASHUKANIS: SELECTED
WRITINGS
In the age of
isolated and closed natural economy, the right of ownership of things could
actually be considered as the factor distinguishing different groups of people
from each other. outsiders had no relationships with these owners.
Exchange
relationships between groups or their representatives, exchange of surpluses of
the natural economy, contractual relationships connected with this exchange; in
fact, these can be the only elements linking individuals with one another.1
It would seem that nothing could
be simpler: the less that exchange is developed and the less the role of the
market, the more private property atomizes people, the more it is a
relationship "between a man and a thing", and the more it is the law
of things. On the other hand, the same author concludes, "capitalist
private property ... does not 'atomize' people, but strongly 'unites' them, and
enchains the workers if not to an individual capitalist, then at least to
capitalists as a group". From this he concludes that "the difference
between the law of things and the law of obligations, in particular in the form
which bourgeois jurisprudence gives it, corresponds not to the capitalist
system, but to the structure of the simple natural economy". This is an
example of an extremely simplistic analysis‑reputedly attributed to Marx,
but in fact made by Renner.
Goikhbarg entirely fails to
realize the dialectical possibility that in atomizing people, private property
makes its appearance by uniting them through exchange, through the market,
according to the extent of the disappearance of the natural economy and its
replacement with a commodity‑money economy. However, in one of Lenin's
earliest works, we find not only a clear understanding of the dialectic of
private property, but also a correspondingly sharp formulation of it. Objecting
to Mikhailovsky on the question of the nature of the right of inheritance,
Lenin writes:
In fact, the
institution of inheritance already presupposes private property and the latter
arises only with the appearance of
exchange [our italics, E. P. I The source of this was the specific nature
of social labour and the alienation of commodities on the market which were
already appearing. So long, however, as all the members of the primitive
American Indian tribe jointly produced all their necessary products, private
property was impossible. When the division of labour penetrated the tribe, and
its members individually began to engage in the production of an article and to
sell it on the market, then the institution of private
"LENIN AND PROBLEMS OF LAW"
135
property
appeared as the expression of this
material individualization of commodity producers" [our italics, E.
P.].2
The matter is therefore by no
means so simple. The materialist nature of private property "isolating
people" appears on the scene only when instead of the simple relation
"between a man and a thing" (natural economy), a contractual relation
among people emerges, a relation of exchange (commodity‑money economy).
The contradiction between the law of things and the law of obligations turns
out to be, according to the dialectic, contained in the single shell in which
they jointly developed, which to a certain extent appears as nothing other than
the contradiction between "the social nature of means of production and
the private nature of appropriation" translated into legal language.
If the strictly materialist
character of property "isolating" people was an attribute of the
closed natural economy, it would follow from this that, for example, feudal
ownership of land must have been more exclusive (excluding others, strangers)
than bourgeois ownership. But, alas, this flatly contradicts historical facts.
Listen to what one eminent historian of the civil legislation of the French
Revolution says in this respect. This is how Sagnac characterizes the land
relationships of pre‑revolutionary France:
A right of
ownership does not belong to only one person, as in the Roman Empire; the
different rights of which it consists, instead of being collected in one
bundle, are separated. On the one hand, the right of direct possession remains
in the grantor; on the other hand, after the right of use has passed to the
person to whom this land is granted, then, because of centuries of evolution,
it is considered not as a simple
right of use but as a right of
ownerships
Thus, relationships that were semi‑natural
corresponded, so to speak, to the absence of a clearly distinct right to an
object "gathered in one bundle". But this is still not all. In the
same Sagnac we read further:
If land belonged
both to the lessee and lessor, in fact or in theory, then it also belonged in
the general sense to all people ... as soon as the harvest was collected the
land became common to all. Poor people could go there, collect the fallen ears
which they used for cows' litter, for the roofing of homes or for heating the hearth
... afterwards each could pasture his cow and sheep on
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PASHUKANIS: SELECTED WRITINGS
the unfenced lands; this was a free
pasture. Certain customs allow owners to enclose only a small part of their
estate so as to give the poor the possibility of pasturing their cows or goats.4
These facts were not of course
first discovered by Sagnac. They were long known and characterized, among
others, even by Marxists, as survivals of tribal property which were preserved
in fact by the natural form of the economy. On the contrary, enclosure‑the
symbol of an exclusive material right‑was intensified by the development
of a commodity‑money economy, and by the transition from feudal to
capitalist exploitation. just consider the chapter in Das Kapital on primitive accumulation. The French Revolution
effected a decree punishing the mere proposal of an agrarian (reform) law (i.e.
division of the land) with death. At the same time strict decrees were adopted
on the protection of land boundaries. Thus, the development of the market‑the
development of commodity‑capitalist relations‑leads precisely to
the situation whereby private property more and more clearly reflects its
exclusive nature as a relationship "between man and an object". This
is despite, or more accurately because of, the fact that the natural diversity
of objects gives way to their impersonal expression in the form of a universal
monetary equivalent. Property obtains a more perfect materialist character,
then, with the freedom of appropriation and alienation. Land ownership obtains
a fully materialist character when the land becomes "immobile", i.e.
an object of exchange which is distinct from other objects‑an object only
by the fact that it cannot be transferred from place to place. In other words,
the material character of property corresponds not to natural‑economic
relationships but in fact to the relationships of commodity‑capitalist
society. And accordingly, contrasting the law of things with the law of
obligations, it in no way loses its meaning in the transition from the natural
economy to the commodity‑money economy. But, on the contrary, for the
first time it obtains its full meaning.
The same must also be said about
the relationship between the exploited and the exploiter. Here also, the
process of development is not as simple and one‑sided as Goikhbarg
depicts it. Precisely because the feudal economy was basically a natural one,
feudal ownership of land could not adopt the perfected form of an exclusive
right to an object. The existence of peasant
"LENIN
AND PROBLEMS OF LAW"
137
allotments‑which destroyed
this exclusivity‑was also in fact an instrument of exploitation:
in order to obtain an income (i.e.
surplus product) the serf-owning landlord must have on his land a peasant who
possesses an allotment, implements and livestock. A landless, horseless, non‑farming
peasant is useless as an object of feudal exploitation.5
But it was indeed from this that
the enserfment of the peasant derived:
the peasant who was allotted land
must be personally dependent upon the landlord, because, having land, he will
not perform labour for his lord except by coercion. The economic system here
engenders non‑economic coercion, serfdom, legal dependence, lack of full
rights etc.6
Thus, we see that property in a
semi‑natural economy not only "isolates", as Goikhbarg thinks,
but also very strongly binds-"attaches"‑people, in the given
case peasants, not only to the class of estate owners, but also to each
individual estate owner. "On the contrary, 'ideal' capitalism is the full
freedom to contract in the free market‑for the owner and
proletarian."7 The power of money appears most clearly in the
contradiction between the legal freedom of the parties in the market and the
actual power of capital, and it forms the structure of the bourgeois state in
contrast to the feudal state.
Of course, one may object that
all this is nothing new, just the ABCs of Marxism. In particular, the
difference between the forms of feudal and capitalist exploitation, and the
difference between the derivative forms of state, are sufficiently elucidated
by Marx himself in the second part of Volume III of Das Kapital. Lenin's
formulation on this particular point merely repeats Marx. But it is all the
more unforgivable to disregard these truths when they are elementary and have
been well‑known for a long time. This is especially so if, in the light
of these truths, a picture of the development of law emerges which is much more
complex than the one presented to us as the latest conclusions of Marxism.
From this small example we can
see that it is in fact much easier to "criticize this [i.e. legal, E. P. I
mythology than to explain it from the economic relationships which engender
it".8
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PASHUKANIS: SELECTED WRITINGS
II
Lenin's incomparable dialectic
nowhere appears with such force, perhaps, as in problems of law. It is
particularly striking, since one is compelled to compare it with the wretched
formalism and fruitless scholasticism which usually flourishes here. We have in
mind not only the theoretical analysis of the legal superstructure, in which
Lenin appears as a true follower of Marx, but also Vladimir Ilich's practical
position in this area. Here we also encounter striking examples of the purely Leninist
dialectic. It is sufficient to observe 'in several specific cases the role that
Lenin attributed to the legal form. He always did this by taking full account
of the concrete historical situation, the relationship between the forces of
the struggling classes etc. to realize that both the fetishism of the legal
form and its complete opposite the failure to grasp the real significance that
one or another legal form may have at a given stage were equally foreign to
Vladimir Ilich.
The struggle to overthrow and
unmask the legalistic fetish of the system, against which the revolutionary
struggle is conducted, is a quality of every revolutionary. This is obvious.
Without this quality, the revolutionary is not a revolutionary. But, for the
petit bourgeois revolutionary the very denial of legality is turned into a kind
of fetish, obedience to which supplants both the sober calculation of the
forces and conditions of struggle and the ability to use and strengthen even
the most inconsequential victories in preparing for the next assault. The
revolutionary nature of Leninist tactics never degenerated into the fetishist
denial of legality; this was never a revolutionary phrase. On the contrary, at
given historical stages, he firmly appealed to use those "legal opportunities"
which the enemy, who was merely broken but not fully defeated, was forced to
provide. Lenin knew not only how mercilessly to expose tsarist, bourgeois etc.
legality, but also how to use it, where it was necessary and when it was
necessary. He taught how to prepare the overthrow of the autocracy by using the
very electoral law promulgated by the autocracy itself, and how to defend the
first positions won by the world revolution of the proletariat, i.e. our
victory in October 1917, by concluding a treaty with one of the imperialist
states (the Peace of Brest). His incomparable political instinct unerringly
guided him to an understanding of the limits within which it was fully possible
to
"LENIN AND PROBLEMS OF LAW"
139
use the legal form imposed by the
course of the struggle. Lenin brilliantly took into consideration the fact that
the legality which our enemy imposes upon us is re‑imposed on him by the
logic of events. The Stolypin regime, however much it wanted, could not confine
the class struggle in Russia inside those limits within which it was conducted
before the 1905 revolution; the German imperialists, whatever their subjective
dislike of the Soviet revolution, were compelled by the force of the general
international situation to conclude a treaty with the Soviet government.
Lenin frequently characterized
this use of legality as dirty, thankless work (his comparison of the tsarist
Duma with "dirty bread" is famous), but it was necessary to know how
to do this work in a certain type of situation, and to put aside the kind of
revolutionary fastidiousness which acknowledged only the "dramatic"
methods of struggle.
During the years of reaction
(1907‑1910), the Bolsheviks, compared with other defeated opposition and
revolutionary parties, "conducted the most orderly retreat with the least
damage to their army", "with the nucleus of their party best
preserved, with the fewest and least harmful divisions, and with the least
demoralization" etc. Lenin explained this primarily by the fact that the
Bolsheviks "ruthlessly exposed and drove out the revolutionary
phrasemongers who refused to understand that it was necessary to retreat, that
it was necessary to learn how to work legally in the most reactionary
parliaments, in the most reactionary professional, cooperative and similar
organizations".9
Such major examples of Leninist
strategy as the use of "legal opportunities", or the Brest Peace, are
sufficiently well known and have been more or less studied from the perspective
of the political lessons which they contain. But until now little attention has
been paid to the fact that both cases demonstrate recognition of the real
significance of a type of legal form which is used in a specific situation, and
as a well‑known and very necessary method of struggle.
And Lenin attacked those
revolutionaries who, consoling themselves with a revolutionary phrase, showed a
lack of willingness or lack of ability to learn how to apply this method of
struggle 'in practice.
It is remarkable that this
tendency is observed in Lenin, not just on a large scale and in the major
political struggles which he conducted,
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PASHUKANIS: SELECTED WRITINGS
but also in minor conflicts of an
everyday character with which he happened to be involved. Always remaining
deeply committed to principle, Lenin nevertheless did not refuse to apply those
concrete methods of struggle which at a given point happened to be the only
possible way to achieve a desired result‑even though the method was, for
example, an appeal to a tsarist court.
Here one must recall an episode
from Lenin's life told by Elizarov soon after the death of Vladimir Ilich. The
situation was that Vladimir Ilich, who at the time was still living in Samara,
wanted to teach a lesson to a high‑handed profiteer, a purveyor of
transportation, who arbitrarily detained passengers who used the services of
boatmen to cross the river rather than his ferry. He submitted a complaint,
despite all the efforts of the head of the former district council (on behalf
of the profiteer, naturally) to exhaust the indefatigable complainant by
dragging out the hearing of the case; finally, a guilty verdict was obtained.
In this episode it is not only
important for us that Lenin displayed in a minor matter the same stubbornness,
iron will and firmness for which he was known in major matters. It was
important that he knew, when he wanted to and when he found it necessary, how
to set into motion even this method of struggle‑he appealed to the
tsarist court to teach the petty tyrant a lesson in that particular matter and
to protect the interests of the poor boatmen. This would not have been
surprising if Lenin had belonged to that type of "social activist",
an outstanding representative of which was, for instance, V. G. Korolenko. For
them, such a struggle with the semi‑serf Asiatic arbitrariness of the
estate‑owner state "in the name of legality" and strictly by
legal means‑was a sort of banner. No one mocked these people more
caustically than Lenin. But this indeed proves that Lenin was a master of this
type of struggle if he could not get the result he sought by, so to speak,
taking a partisan position at the head of the struggle which he was conducting
against autocratic arbitrariness and capitalist exploitation. Why, probably 99%
of our good revolutionaries would have simply wrung their hands in this
particular case and said, "It is not worth being involved". And, of
course, in so doing this would have reflected not their commitment to principle
as revolutionaries, but simply a lack of knowledge of what had to be done and that
it was necessary to act as a lawyer; and also, a lack of willingness because
they were fastidious. What could be more
"LENIN AND PROBLEMS OF LAW" 141
favourable for a revolutionary
than to go to court and, moreover, to appear before the head of local
government. But Lenin was not an idle dreamer; he knew how to do dirty work
where it was necessary. It is true in this case that it was also possible to
construct an argument for the expediency of the route undertaken by Vladimir
Ilich. Was it worthwhile, in fact, to have spent time and energy going to court
with some individual profiteer? But this is another example where what is
debatable is not the question of expediency, but the question of principle:
should a revolutionary seek the support of the Crown's court? A certain
individual who managed the Knowledge Publishing House committed a violation and
was, therefore, subject to the threat of a law‑suit. In Lenin's
correspondence with Gorky the question is considered, what practical steps
should be taken? Should one appeal to the tsarist court; was this permissible?
Obviously‑‑the orthodox intellectual outlook, the fear of dirtying
the clean clothing of the revolutionary by turning to the tsarist court, the
fastidious‑anarchist relationship to courts in general, and, most of all,
the usual legal impotence, the lack of knowledge of "how this is
done"‑all these are arrayed against such a means of action. Lenin
energetically criticized this combination of visible and hidden motives:
"With respect to P., I am for the court. There is no reason to stand upon
ceremony. Sentimentality would be unforgivable. Socialists are by no means
against the Crown's court. We are for the use of legality. Marx and Bebel
turned to the Crown's court even against their socialist opponents. It is
necessary to know how to do this, and it is necessary to do it."
And not being satisfied with this
avalanche, Vladimir Ilich again 46 presses" energetically: "P. must be sued and with no holds barred. If
you are criticized for this‑‑spit in the faces of the critics. To
criticize would be hypocritical."10
It is not known what happened to
this P., and it seems that this case did not go to court. But it appears that
were the matter up to Vladimir Ilich, P. would have been sued "without
reservation".
Indeed it is this aspect of
Vladimir Ilich which must be compared with this firm appeal‑already
another matter, in the situation of the Soviet state‑to struggle against
the violation of discipline, omissions, corruption and outrages; to struggle
firmly, bringing it inevitably to an end, to court, to punishment. "How
are officials penalized who have favored local conditions to the detriment of
the centre
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PASHUKANIS: SELECTED WRITINGS
and in violation of orders from
the centre? What are the names of those penalized? Is the frequency of these
violations diminishing? Have the penalties been increased, and if so to
what?"11 And further: "We must reorganize the Workers' and
Peasants' Inspectorate by calling non‑Party members to account both
through this Inspectorate and also outside it through judicial prosecution [our italics, E. P.]."12 And
also from the same order: "On measures of struggle with thieves: are they
being held criminally accountable? The administration? The factory and plant
committees (for insufficient struggle with theft)?"13
At the same time Lenin teaches
anyone who points out a shortcoming of the Soviet mechanism that they must
contribute to the struggle with all the methods provided by Soviet legality.
Once a case is begun, bring it to an end, using all Soviet and Party channels.
Do not be dissuaded by the fact that you have suffered failure at first, do not
be dissuaded by the fact that you do not know where to turn. Everyone is
obliged to know where and how to complain about an improper decision, and
everyone is obliged to become a legally literate Soviet citizen.
The knowledge of how to conduct a
struggle on "legal ground", which in the pre‑revolutionary
situation did not and could not have broad significance, in principle has a
very different meaning after the October period. Under autocracy and under
capitalism it was impossible to struggle with the legal impotence and juridic
illiteracy of the masses, without conducting a revolutionary struggle against
autocracy and against capital: this impotence is but a partial phenomenon of
the general subjugation for whose maintenance tsarist and bourgeois legality
existed. But after the conquest of power by the proletariat, this struggle has
the highest priority as one of the tasks of cultural re‑education, as a
precondition for the construction of socialism. Therefore, Lenin's works from
the Soviet period are simultaneously "anti‑legal propaganda",
i.e. a campaign against bourgeois legal ideology, and an appeal to struggle and
to eliminate legal illiteracy and impotence:
To the extent
that the basic task of power becomes not military subjugation but rule the
typical feature of subjugation and coercion will become not instant execution,
but the court. And in this respect, after October 25, 1917, the revolutionary
masses set forth on the correct path, and they have shown the viability
"LENIN AND PROBLEMS OF LAW"
143
of the
revolution by beginning to set up the workers' and peasants' courts even before
any decrees were issued on the dissolution of the bourgeois‑democratic
judicial apparatus, But our people's and revolutionary courts are exceptionally
and unbelievably weak. ‑)ne senses that the popular feeling that these
courts are governmental and alien‑an attitude inherited from the yoke of
the estate owners and bourgeoisie has still not yet been finally destroyed.
There is not a sufficient awareness of the fact that the court is an agency of the power of the proletariat
and of the poorest peasant, and that the court is an educational weapon for discipline.14
III
The petit bourgeois
revolutionary, rejecting the use of the legal method of struggle, may consider
himself an arch‑leftist, as for example the extreme left Social
Revolutionaries considered themselves when they disregarded the example of the
Bolsheviks and called for a boycott of the Third State Duma. In fact they were
simply paying their respects to a revolutionary phrase. But these gentlemen did
not simply reject the outdated legality of the old regime: they adopted
revolutionary struggle exclusively as a struggle for a new legality. Thus,
formal legality still remains a fetish for them. They proceed not from the
interest of the victorious class but from abstract principles; they cannot
imagine that the policy of the proletariat (which has taken power and held on
to it through a cruel civil war) is only the form of the establishment of a new
type of legality which rests upon a correspondingly codified law. It is wen
known that the left Social Revolutionary jurists, on the day after they entered
into the structure of the Soviet government, were busy drafting "a
criminal code of the Revolution".
No one knew how to castigate the
musty and reactionary formal juridic approach to questions of the revolutionary
class struggle as well as Lenin. The words of Bebel were not in vain: "the
jurists are the most reactionary people on earth"‑this was the
favourite expression used by Vladimir Ilich. It is sufficient to remember how
he attacked Kautsky when the latter (with respect to the Soviet Constitution
depriving the exploiters of the right to vote) posed the deep question:
"Who is a capitalist in the legal sense?" It is sufficient to
remember his rebuke to Kautsky over the question concerning the
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PASHUKANIS: SELECTED WRITINGS
"illegal" expulsion of
Social Revolutionaries and Mensheviks from the All‑Union Central
Executive Committee, a rebuke revealing all the idiocy of legal formalism in
the face of the harsh facts of class struggle:
We, the Russian
Bolsheviks, had first to promise the inviolability of Savinkovs and Co., the
Lieberdans and Potresovs ("the activists"); then draw up a criminal
code declaring "punishable" any participation in the Czechoslovakian
counter‑revolutionary war, or any alliance with the German imperialists
against the, workers of one's own country in the Ukraine or in Georgia; and only then, on the basis of the criminal
code, would we have had the right according to "pure democracy" to
exclude "certain persons" from the soviets.15
What after all, in the final
analysis, is the Leninist theory of dictatorship if it is not a doctrine of
revolutionary power which rejects formal legality? "The scientific concept
of dictatorship means nothing less than power unlimited by anything, by any
laws, unconstricted by absolute rules, and depending directly upon force."16
And in another place: "The revolutionary dictatorship of the proletariat
is power won and maintained by the coercion of the bourgeoisie by the
proletariat."17 But does not this power, confined by neither
rules nor laws, signify the absence of all organizational power? For the
ingrained bourgeois jurist there is no doubt that this is the case, because he
does not see, and does not want to see, that bourgeois legality is the
consistent practice of class domination formed over decades and centuries. This
standard "legal" form of domination can be destroyed or shaken by
extraordinary events, but this still by no means signifies the necessary
elimination of the organizational domination of the bourgeoisie itself In
accordance with an extraordinary situation it may adopt the form of an
extraordinary and extra‑legal dictatorship. And if, as we know, bourgeois
legality developed gradually‑because of the work of a whole legion of
parliamentarians, scholars, jurists, judges and civil servants‑then it
would be absurd to demand the same legal perfection and legality from
proletarian power born yesterday and having to defend its very existence with
weapons. Legality is not an empty sack that can be filled with a new class
content. But it is indeed in this way that Kautsky imagines the matter.
"This 'serious scholar' allows the English bourgeoisie centuries to
construct and
"LENIN AND PROBLEMS OF LAW" 145
develop a new (for the Middle
Ages) bourgeois constitution, but this representative of lackey science does
not give us, the workers and peasants of Russia, enough time. From us he
demands a constitution worked out to the letter in a few months."18
The revolutionary and Marxist approach to problems of law requires, above all,
an evaluation of the basic class tendencies of the upheaval taking place. But
Kautsky is not at all interested in this. He is disturbed by the fact that, in
depriving capitalists of the right to vote, our constitution therefore allows
"arbitrariness". Here is Lenin's truly crushing answer to these
pearls of formal‑legal blockheadedness:
when in the
course of centuries or decades all the bourgeois and the majority of the
reactionary jurists of the capitalist countries developed detailed rules‑wrote
dozens and hundreds of volumes of laws and explanations of laws; oppressed the
workers; enchained the poor; and placed thousands of cavils and obstructions in
the path of any simple worker‑then Mr. Kautsky and the bourgeois liberals
do not detect "arbitrariness" here! Here, there is "order"
and "legality" . . . but when for the first time in history the
working and exploited classes ... created their own soviets, called to the task
of political construction those classes that the bourgeoisie had subjugated,
beaten and deadened; and began themselves to build a new proletarian state,
standing amidst the dust of wild battle and in the fire of civil war, to
outline the basic principles of a state without exploiters‑then all the
scoundrels of the bourgeoisie, the whole band of vampires, with their echo,
Kautsky, began to shout about "arbitrariness".19
The bourgeois revolutionaries‑the
Jacobins‑in clearing the way for capitalism also knew how to use the
weapon of dictatorship mercilessly, but they could interpret their historical
actions only in the false ideological form of struggling for the eternal bases
of freedom and equality. They acted as daring revolutionary politicians, but
they were thinking like jurists and moralists. They decided, for the sake of saving
the bourgeois‑democratic Jacobin revolution, to trample upon formal
legality, but they did this in the name of freedom, in the name of the absolute
rights of man and the, citizen.
For Lenin, as a follower of Marx,
no social ideals existed that could not be explained in terms of the material
conditions of existence, and which in class society did not have a class
character. The idea of freedom and equality, the idea of the eternal and
inalienable rights of
146 PASHUKANIS:
SELECTED WRITINGS
man is the natural law ideal.
This is the lone source of support for the bourgeois jurist who is compelled,
in a revolutionary period and in the name of his class interest, to abandon the
ground of formal legality. This ideal arises in connection with a specific
material social content which is rooted in the conditions of production.
In one of his first works, Lenin
reminds our populists of this: "Marx repeatedly points out", he
writes, "how at the foundation of civil equality, freedom of contract, and
similar principles of the Rechtsstaat, there
lie the relationships between commodity
producers."20 Lenin begins his theses on the national and
colonial question with the same materialist criticism of the ideology of
equality.
Bourgeois
democracy is by its very nature characterized by an abstract or formal
statement of the question of equality in general, including that of national
equality. Under the appearance of the universal equality of the human personality,
bourgeois democracy proclaims the formal or legal equality of the owner and the
proletarian, of the exploiter and the exploited, thereby leading the subjugated
classes into the greatest deception. The idea of equality itself, being a reflection of the relationships of
commodity production [our italics, E. P. I is transformed by the
bourgeoisie into a weapon of struggle to oppose the liquidation of classes,
under the pretext of the supposedly absolute equality of human personalities.
The real meaning of the demand for equality consists only in the demand for the
elimination of classes.21
There is no harm here in
recalling that these elementary propositions of Marxist criticism were by no
means so generally accepted among the individuals who thought they were Marx's
successors, as might seem at first glance. For certain representatives of the
Menshevik camp "the absolute value of the legal principles of
democracy" was not subject to any doubt even at the time when they
seriously considered themselves representatives of revolutionary Marxism. Why,
even at the Second Congress, the delegate Egorov "hissed" Plekhanov,
when the latter asserted that the situation is hypothetically imaginable when
we, Social Democrats, might express ourselves against the universal right to
vote. And it is interesting that Martov, although not aligned with the
champions of "absolute principles", nevertheless later (at the
Congress of the League of Social Democrats Abroad) considered it necessary to
offer a reservation on just this point; that Plekhanov "could avoid the
dissatisfac-
"LENIN AND PROBLEMS OF LAW"
147
tion of some of the delegates, if
he were to add that of course one must not imagine such a tragic state of
affairs as that in which the proletariat, in order to secure its victory, would
be forced to trample upon such political rights as the freedom of the
press". The whole essence of Menshevism lies in this reservation. On the
one hand, being Marxist, it is inconvenient to come forward as a champion of
eternal and classless principles of formal democracy; on the other hand, the
real petit bourgeois nature of Menshevismin fact moves along these
"classless" lines: the result is a truly tragic dissension in which
they attempt to save themselves from this contradiction in the fond hope that
"of course, one cannot imagine such a tragic state of affairs". But
what can be done if this "tragic state of affairs", despite the
Menshevik hopes, nevertheless becomes an historical reality? We already have
the answer to this question; it is provided by the consistent political
practice of Menshevism, which was nothing other than subservience to the fetish
of bourgeois democracy and an intensified struggle against the dictatorship of
the proletariat.
IV
Marxist theory relegates legal
forms to a secondary and even tertiary place in social development. Economic
relations develop on the basis of the specific condition of the social
productive forces and are decisive in the final analysis; the direct lever
pushing forward the march of history is the class, i.e. political struggle,
which itself is nothing other than "the concentrated expression of
economics"; as far as the legal formulation of economic relations and
political facts is concerned, this plays a secondary and subservient role.
Marxist theory, generally speaking, has therefore given the problems of law
comparatively little attention. On the contrary, bourgeois scholarship has
developed this external formal side of social relationships with particular
enthusiasm, for, in addition to other reasons, this gives its theorists the
possibility of completely avoiding consideration of the problems of economic
inequality (these are troubling because of their "materialism").
jurisprudence is therefore a safe haven. This aspect of the matter is pointed
out, incidentally, by Vladimir Ilich in his article with respect to the last
(pre‑war) scholarly work of Peter Struve. "The modem
bourgeoisie", he
148 PASHUKANIS: SELECTED WRITINGS
wrote, "are so frightened by
this step [which political economy has made in the person of Marx‑E. P.
], are so disturbed by the 'laws' of contemporary economic evolution, which are
so obvious and imposing, that they and their ideologists are ready to discard
all the classics and every kind of law if only to place . . . all of them ...
in the archive of jurisprudence ... along with . . . social inequality."22
In another place, characterizing this tendency of bourgeois scholarship,
Vladimir Rich formulates the secret wishes of the bourgeois theorists:
"Let political economy be occupied with truisms, with scholasticism and
with the senseless struggle for facts, and let the question of 'social
inequalities' recede to the safer area of socio‑legal discussions; where
it is easier 'to escape' from these troubling questions."23
However, the correct Marxist
analysis of the legal form as a superstructure dependent upon the base may, in
certain circumstances, be turned into a caricature of Marxism, into a lifeless
and determinist view. Here, the superstructure emerges "by itself"
upon a given base, and form appears "by itself" at a certain level of
development of the given material content. Increasing emphasis upon the
regularity of social development is imperceptibly transformed into the
assertion of a certain social automatism, or, as expressed in our militant
political jargon, into "tailism". Lenin, being a fierce opponent of
every sort of tailism, could not of course fail to combat these types of views
and theories, and to expose them as deviations from Marxism. The first type of
fatalist distortion of Marxism was made, as is well known, by the
"economists". All class struggle, they affirmed, is political
struggle, and so they concluded that the political potential of working class
struggle is an automatic process. The Marxist doctrine that political forms,
and even forms of political struggle are inevitably engendered by their
economic content, is turned by the "economists" into justifying and
glorifying every sort of backwardness in the workers' movement. The Mensheviks
formally repeated the same mistake, beginning with the propagation of tailism
or organizational problems. "Content," they announced, "(i.e.
the content of the political struggle) is more important than form; programme
and tactics are more important then organization." Here the dispute is
transferred, so to speak, to a level which interests us. The form about which
they are speaking is the legal or constitutional formulation of the Party, in
which the latter appears not only as the totality of like‑minded
political thinkers, but
"LENIN
AND PROBLEMS OF LAW"
149
also as a formally unified whole,
i.e. an aggregate of organizations. The external expression of unity is the
hierarchy of Party institutions and the Party Charter. The struggle which Lenin
led at the Second Congress, and to which his Steps was dedicated, was also the struggle for the necessity of a legally formulated party
organization.
Here it is appropriate to note
that Vladimir Ilich had available all the necessary data, not only for
theorizing on law, but also for feeling himself fully assured about where law
appears in its Practic
function as a formal intermediary
of a particular kind of social relationship.24 These data, in the
first place, were interpreted by the iron logic of thought characteristic of
Vladimir Ilich. Being an incomparable dialectician and understanding the
subordinate position of formal logic, Vladimir Ilich nevertheless gave it its
deserved place. The dialectic was never turned into fogginess and confusion by
him. On the contrary, he did not propose anything diffuse, undefined or
confused. Each of his formulations was always thought out to the end; there is
nothing excessive in it, nothing which reveals a lack of theoretical clarity
that in such situations tries to shelter behind verbosity. A well‑developed
mind such as his is a necessary and a sufficient condition for being an
extraordinary jurist. We recommend that anyone who doubts this read carefully,
for example, Lenin's criticism of Martov's draft of the Party Charter in Steps.25 The mastery with
which Lenin exposes typical intellectual slovenliness, with respect to precise
"legal" definitions, combined with lack of content, verbosity,
pointless formalism and endless repetitions, speaks sufficiently for itself In
particular, this is a clear example of the fact that Lenin's criticism is
directed against form; for by his very act of publishing Martov's draft, his
purpose was to show that a particular nuance of substance (in the sense of the
negative relationship to centralism)‑contrary to the affirmations of
Martov‑was not revealed in his draft of the charter written before the
Congress.
The struggle at the Second Congress
and after it, the debates on the first paragraph of the charter on centralism
etc.... all this had of course a certain political significance and political
meaning, to be sure, revealed in full only later. But from the logical point of
view the argument flowed on the level of a different approach to the nature of
the charter or, in a broad sense, the legal formulation of our Party. The
opponents of Lenin simply denied the possibility of a formulation under which
the Party would have presented itself as
150
PASHUKANIS: SELECTED WRITINGS
something better defined than the
totality of persons considering themselves,
at any given moment, members of the Party. No rules, for instance, Axelrod said,
can forbid circles of revolutionary youth and individual persons from calling
themselves Social Democrats and even considering themselves part of the Party.
Lenin easily revealed the absurdity of this argument:
to forbid one to
call himself a Social Democrat is impossible and pointless, for this word expresses directly only a system of thoughts and not defined organizational
relationships. To forbid certain circles and persons "to consider
themselves part of the Party" is possible and necessary when these circles
and persons are dangerous for the affairs of the Party, corrupt it and
disorganize it. It would be comical to speak of the Party as a whole as a political quantity, if it could not
"forbid by decree" a circle "to consider itself part" of
the whole! And why then define the procedures and conditions for expulsion from
the Party?26
To Lenin himself it appeared very
early‑and he emphasizes this in many places in his Steps‑that the
organizational opportunism of Axelrod, Martov and others is only the inheritance
of the previous (not yet outlived) age of circlism, of the age when the Party
grew from a "family circle", without a formal character, without the
subordination of the minority to the majority, without the subordination of the
part to the whole. Lenin, more than anyone, understood the tremendous
significance of revolutionary circlism, i.e. the close ideological and
comradely welding of revolutionaries based upon unconditional faith in one
another. Many of the best pages in his What is to be Done? are devoted to the clarification of this significance. But
Lenin also understood that when the Party moves out into the broad arena of
political struggle, it must supplement ideological unity with the character of
external unity, it must put Party institutions in the place of the circle.
Lenin understood that a party which was arrested in its development at the
stage of the circle would not be in a position to fulfil those tasks designated
in its programme. The circle connection, informal, without a charter, while it
had great advantages, also had shortcomings that in the future would
necessarily become unbearable. Customs that grew up at this period became an
impediment to further growth. Lenin wrote:
"LENIN
AND PROBLEMS OF LAW" 151
To those who are
accustomed to the loose dressing‑gown and slippers of the Oblomov circle
household, formal rules seem narrow, restrictive, irksome, petty and
bureaucratic, a bond of serfdom and a fetter on the free process of the
ideological struggle. Aristocratic anarchism cannot understand that formal
rules are needed precisely in order to replace the narrow ties of the circle
with the broad tie of the Party. It was unnecessary and impossible to formulate
the internal tie of a circle or the ties between circles, for these ties rested
on friendship or on a confidence for which no reason or motive had to be given.
The Party bond cannot and must not rest on either of these; it must be founded
on formal, bureaucratically worded rules (bureaucratic from the standpoint of
the undisciplined intellectual), strict adherence to which can alone safeguard
us from the wilfulness and caprice characteristic of the circles, and from the
circle methods of in‑fighting that go by the name of the "free
process of the ideological struggle".27
The sharp attacks of Lenin, as
always, were explained by the fact that he clearly saw the next and the most
necessary step that at any given moment must be made by the Party, and he
violently attacked those who pushed the Party backward.
In answer to the announcement of
the editorial board of the new Iskra that
"trust is a delicate thing which cannot be hammered into the heart and the
head", Lenin noted:
When I was a
member only of a circle ... I had the right to rely only upon undefined faith
... and when I became a member of the Party I did not have the right to rely
only upon an undefined lack of faith . . .. I was obliged to motivate my
"trust or mistrust" by a formal conclusion, i.e. by reference to one
or another formally established procedures of our programme, tactics or rules;
I was obliged to follow a formally
prescribed path for the expression of distrust, for the conduct of those
views or those desires which flowed from this distrust.28
One Step Forward, Two Steps Back, is a book that, in addition to
all else, has profound educational significance. It teaches a serious
responsible relationship to Party affairs and to Party organizations; it
teaches not to confuse the political discussion which precedes the adoption of
a specific decision with endless and futile intellectual discussions; the
consideration of candidates at elections of officials of the Party with
ordinary family considerations of how not to annoy someone; the Party with a
group of friends. This book emphasizes
152
PASHUKANIS: SELECTED WRITINGS
the strict, formal, external side
of a matter to which many of the revolutionaries of that time related
carelessly. But Vladimir Ilich knew that "in its struggle for power the
proletariat has no other weapon but organization ... that the proletariat can
become and inevitably will become an invincible force only when its ideological
unification, by the principles of Marxism, is consolidated by the material
unity of an organization which will weld millions of toilers into an army of
the working class",29 that "the objective‑maximal
ability of the proletariat to unite into a class will be realized by living
people, will be realized in other ways than in definite forms of
organization",30 that, accordingly, the founding and
formalization (including the external‑character aspect of this organization)
is an important step forward in the history of the workers' movement.
When, after the Second Congress,
Lenin's opponents had conducted a struggle against "bureaucratic
formalism", they constructed their argument on a deeper and, it seemed,
more Marxist understanding of the course of historical development. Lenin, of
course, did not think of concealing the fact that his organizational plan had a
most definite political significance: to protect the Party from opportunism.
Against this, his opponents from the Menshevik camp put forth the following
weighty objection. "Opportunism", they said, "is created by more
complex, and defined by deeper causes than some paragraph of a charter."
(Trotsky)
"The problem is not",
Lenin replied, "that the paragraphs of the charter may create opportunism,
but to forge with their help a more or less sharp instrument against
opportunism." The formulae proposed by Lenin, Trotsky further asserted,
must be rejected, for historical definitions must correspond with the factual
relationships. "Trotsky speaks again as an opportunist", Lenin
responded. "Actual relations are not dead, but live and are developing.
Legal definitions may correspond to the progressive development of these
relations but may also (if these definitions are bad) 'correspond' to
regression or stagnancy." "The latter", added Vladimir Rich,
"is the case with Martov."31
Opportunism on the question of
organization was logically expressed in defending the primacy of
"content" over form and in the placing of the programme and tactics
before adoption of the charter, of "actual development" over
"legal definitions". Lenin reveals the full metaphysical nature of
this contrast which fails to account for
"LENIN AND
PROBLEMS OF LAW"
153
concrete historical conditions.
That which is appropriate and correct in one stage of development becomes a
crude mistake at another. Martov, speaking in defence of the old circle
approach, tried to rely upon citations from the earlier works of Lenin, where
he discussed "ideological influence" and the "struggle for
influence", and contrasted them with the "bureaucratic method of
influencing with help of the Rules", and the tendency to rely on authority
which, purportedly, Lenin developed after the Second Congress. "Naive
persons!" Lenin exclaims in this respect, "they have forgotten that formerly our Party was not a formally
organized whole, but only the sum of separate groups, and therefore, no other
relations except those of ideological influence were possible between these
groups. Now we have become an organized Party and this implies the
establishment of authority, the transformation of the power of ideas into the
power of authority [and] the subordination of lower Party bodies to higher
Party bodies. Why, it even makes one uncomfortable", Lenin concludes,
"to have to masticate such rudimentary ideas for the benefit of one's old
comrades."32 In this emphatic "now" is concentrated all the
wisdom of the Leninist dialectic. He, so to speak, says to his opponents: you
may, good gentlemen, affirm as much as you wish that content defines form, that
tactical correctness is a necessary condition of organizational solidarity,
that discipline in the Party depends in the final analysis on the authority of
ideas etc., but now the time has come when it is necessary to make a step
further, when it is necessary to act on the premises created for ideological
struggle, when it is necessary to understand the content of political struggle
at the next stage, moving into the new juridically finalized form of Party
organization,
"The work of Iskra", wrote Vladimir Ilich,
"and the whole matter of Party organization, the whole matter of the actual reconstruction of the Party,
could not be considered finished without recognition by the whole Party and
also of the formal confirmation of definite organizational ideas. The
organizational character of the Party also had to fulfil this task."33
With respect to the comments of
the Menshevik Iskra, Lenin venomously
notes at another place:
Content is more important than
form, and programme and tactics are more important than organization. Great and
profound truths. A programme is indeed more important than
154
PASHUKANIS: SELECTED WRITINGS
tactics, tactics are more important
than organizations. The alphabet is more important than etymology, etymology is
more important than syntax‑but what can be said of people, who having
failed the examination in syntax, now put on airs and pride themselves that
they have been held back in a lower class for another year?34
Lenin understands a formal and
centralized organization as something real, and he is not willing to dissolve
it into some sort of symbolism satisfying "spiritual unity".
"The adoption of a programme", stated the Menshevik Iskra, "contributes more to the
centralization of work than the adoption of rules." "How this
banality‑palmed off as philosophy‑‑smacks", Lenin
reacts, "of the spirit of the radical intelligentsia, and it is much
closer to bourgeois decadence than to Social Democracy. Indeed in this famous
phrase the word 'centralization' is understood in a sense which is very
symbolic."35 It is characteristic that a fetishist relationship
to the basis of formal democracy, which by that time was innate to Menshevism,
did not prevent Martov and his adherents within the Party from placing their
opinion (and the will of their circle) above the formal decision of the
majority of the Congress. Martov even cast doubt on the procedures of elections
as expressions of the will of the Party: "only by replacing the question
of the social consciousness of the members of the Party and the socialist
content of their work with the question of the 'reliability' of centres
invested with strong power, may we reach the point of seeing in the act of the
elections a specific expression of the will of Party."36 Lenin,
in the opinion of the four editors of the old Iskra, "gives prominence, not to internal union, but to
external, formal unity exercised and protected by purely mechanical methods, by
the systematic subjugation of individual initiative and independent social
action." Mocking the worth of this document‑which in fact recalls
more a pre‑revolutionary district council speech on reforms
("independent social action"), than a resolution on internal Party
questions‑Lenin continues: "What external, formal unity were they
talking about here, our Party members who had just returned from a Party
Congress, whose decisions they had solemnly proclaimed to be valid? Do they
happen to know of any method of achieving unity in a Party organized on any
lasting basis, except by a Party Congress?"37 Lenin mercilessly
dismantles the accusations of bureaucratic formalism and shows
"LENIN AND PROBLEMS OF LAW" 155
behind them are hidden only
"an anarchist phrase and intellectual instability". "You are a
bureaucrat", states Vladimir Ilich ironically, "because you were
appointed by the Congress against my wishes; you are a formalist because you rely
upon the formal decisions of the Congress, and not on my consent; you are
acting in a grossly mechanical way because you cite the 'mechanical' majority
at the Party Congress and disregard my wish to be co‑opted; you are an
autocrat, because you refuse to hand over the power to the snug little old band
who insist on their 'continuity' as a circle‑all the more because they do
not like the explicit disapproval of this circle by the Congress."38
Lenin firmly led the Party to a
new stage, to the organizational "instrumentalization" of its
political life, fighting its way free from those who pushed it back to the
bygone stage of ideological struggle and demarcation. "Unity on questions
of programme and tactics is an essential, but still insufficient condition, for
Party unity and for the centralization of Party work", explained Vladimir
Ilich to his new‑Iskra
opponents. At once, in parentheses, he exclaims with weariness: "For
heaven's sake, what rudimentaries have to be repeated nowadays, when all
concepts have been confused!" "This latter", he continues,
"requires, in addition, a unity of organization which, in a Party that has
grown to be anything more than a mere family circle, is inconceivable without
formal rules, without the subordination of the minority to the majority, of the
part to the whole. As long as there was no unity on the fundamental questions
of programme and tactics, we bluntly admitted that we were living in a period
of disunity and the circle spirit; we bluntly declared that lines of demarcation
must be drawn before we could unite; we did not even talk of the forms of a
joint organization, but exclusively discussed the new (at that time they really
were new) questions of how to fight opportunism on programme and tactics. When,
as we all agreed, this fight had already ensured a sufficient degree of unity‑as
formulated in the Party's resolution on tactics‑we had to take the next
step, and by common consent, we did take it, working out the forms of a united
organization that would merge all the circles together. But now these forms
have been half‑destroyed and we have regressed to anarchist conduct, to
anarchist phrasemongering, and to the revival of a circle in place of a Party
156
PASHUKANIS: SELECTED
WRITINGS
editorial board. And this
regression is justified on the grounds that the alphabet is more helpful to
literate speech than a knowledge of syntax!"39
But for opponents from the new Iskra the Leninist "syntax"
was unachievable, and they continued to regress towards the
"alphabet". "Discipline", wrote Trotsky," is sensible
only up to the point when it assures the possibility of struggling for that
which you consider right, and in the name of that for which you impose
discipline upon yourself But when attention is called in a certain way to the
perspective 'of denial of a right', i.e. denial
of the right to struggle for ideological influence, then the question of
its existence is, for him, transformed from a Rechtsfirage (question of law) into a Machtfrage (question of force)." How can one fail to compare
Trotsky's abstract opinions after the Second Congress‑on the theme of the
inevitability of dissidence‑with his concrete statement in 1908‑1914
for "unity" with those liquidators who had placed themselves both
ideologically and organizationally outside the Party? To popularize the
harmfulness of formal unity, after Iskra had
laid the basis in a 3‑year struggle for both programmatic and tactical
unity, and to raise a cry against dissidence and dissent when a whole political
chasm had opened between the parties and the liquidators‑this is a rare
and, one may say, classical example of the complete absence of a dialectical
approach to the question.
V
The mistake of the "economists"
and the Mensheviks was, as we saw, the same. It consisted in the failure to
understand the concrete forms of implementing the proletarian class struggle.
Moreover, in both situations, their distortion of Marxism was presented as an
alleged deepening of Marxist analysis, as the transfer of attention from the
"external" (from "form") to the very "essence".
Much later Vladimir Ilich had to fight with the same kind of mistake at the
time of the discussion of the "right to self‑determination".
His opponents, including the
Polish comrades, having cast doubt on this point of our programme, similarly
tried to bypass the specific requirement of a political and legal nature, the
requirement put forth by the very course of the liberation struggle of the proletariat,
under
"LENIN AND PROBLEMS OF LAW'' 157
the pretext that "in
essence" no "self‑determination" could exist under capitalism,
and that under socialism it was not necessary. The analogy between this line of
argument and the arguments of the .1 economists" was noted by Vladimir
Ilich himself In his answer to the argument that "socialism eliminates all
national subjugation just as it eliminates the class interest which produced
it", Lenin notes: "Why is there this discussion of the economic
premises of the elimination of oppression? They have been known for a long time
and are indisputable. The dispute is related to one of the forms of political
oppression, namely, the forceful domination of one nation by the state of
another nation. This is simply an attempt to avoid political questions. "40
And further: "indeed our opponents have even attempted to avoid whatever
is debatable ... They wish to think neither about borders, nor in general about
the state. This is a sort of 'imperialist' economism, similar to the old
'economism' of 1894‑1902 which argued that capitalism is victorious, therefore there is no point in political
questions."41 Such a political theory is fundamentally hostile
to Marxism.
Returning again to this analogy,
Lenin writes that "the old economists" have turned Marxism into a
caricature and have taught the workers that only "economics" is
important for Marxists. The new "economists" "think", it
seems, either that the democratic state of victorious socialism will exist
without borders (like a complex of "sensations" without matter), or
that the borders will be defined only by the needs of production. In fact these
borders will be determined democratically, i.e. according to the will and
"sympathies of the population".42 On the other hand,
arguments that the right of nations to self‑determination is unrealizable
under capitalism and that, therefore, one
must give it up, are, as Lenin shows, a concession to reformism. "Objectively their [i.e. the Polish
comrades'] phrases on impossibility are opportunist, for they silently assume
[that self‑determination] is impossible without a series of revolutions,
as unrealizable under imperialism as under democracy."43
Lenin's political acumen in this
dispute was frequently explained and commented upon in later Marxist
literature. But no one, so far as we know, has noted the fact that logically
the position of Rosa Luxemburg‑and those holding views like hers (among
whom spoke out even clear opportunists such as Semkovsky and the
158
PASHUKANIS: SELECTED WRITINGS
Bundist Liebman)‑may be,
incidentally, characterized as the complete rejection of the legal form and the
complete lack of understanding of its specific features. Begin with the fact
that Comrade Lenin had constantly and firmly to explain to his opponents the
difference between "the right to secession" and secession itself Rosa
Luxemburg, and indeed others, suppose that recognition of the "right of
secession" signifies obligatory support of every concrete demand for
secession, and that it inherently includes "the encouragement of
separatism". Lenin had to explain this lack of understanding with the
elementary example of the "night to divorce". "To blame the
champions of self‑determination (i.e. of the freedom of secession, of
encouraging separatism), is just as stupid and just as hypocritical as to blame
the champions of freedom of divorce for encouraging the destruction of family
ties."44
It was absolutely
incomprehensible to the opponents of Lenin that the struggle against national
oppression should find its most direct and appropriate expression in the
interest of the proletariat in the demand for the legal freedom of secession,
i.e. in technical language, in the struggle for the recognition of the
corresponding "subjective right". The discussion relates precisely to
the recognition that each nation has the "subjective right" to form
an independent state. Lenin explains this by comparing it with the slogan
demanding a federal or autonomous state structure:
It is not hard
to see that under the right to national self-determination it is impossible for
the Social Democrat to understand either federation or autonomy. Abstractly
speaking, both are subsumed by self‑determination. The right to
federation is completely meaningless, because federation is a bilateral
contract. It goes without saying that Marxists cannot defend federalism in
general in their programme. With respect to autonomy, Marxists defend not the
"right to autonomy", but autonomy itself
as a universal principle of democratic states which have a mixed national
composition and sharp differences in geographical and other factors. Therefore,
to recognize "the right to national autonomy" would be just as
meaningless as to recognize "the right of nations to federation".45
Such a statement of the question
(recognition of the right to self‑determination without obligatory
support of each concrete demand for secession) was definitely not mastered by
Lenin's opponents. It seemed "metaphysical" to them, deprived of
concrete
"LENIN AND PROBLEMS OF LAW"
159
political content, and without
practical indications for daily policy. The Bundist Liebman simply declared the
right to self‑determination "a fashionable expression" whose
meaning was surrounded by a haze.
The thought that this essentially
bourgeois‑democratic (and therefore inevitably formal and abstract)
slogan could be both a battle cry of the proletariat against the semi‑feudal
and bourgeois materialist reaction, but could also play a positive role even
after the victory of socialism, absolutely failed to find a place *in the
consciousness of people sincerely presenting themselves as consistent Marxists.
It seemed to them that the empty legal abstraction of equality of right
definitely had to be replaced by something real and practical. Lenin splendidly
exposed their mistake:
To demand an
answer "yes or no" to the question of secession in the case of every
nation may seem a requirement that is very "practical". But in
reality it is absurd, theoretically metaphysical, and in practice leaves the
proletariat subordinate to the policy of the bourgeoisie ...
It is
theoretically impossible to guarantee in advance whether the secession of a
given nation, or its equal legal position with another nation, will culminate
in a bourgeois‑democratic revolution. It is important in both cases to
ensure the development of the proletariat; the bourgeoisie impede this
development and give precedence to "national" development. Therefore,
the proletariat is limited to the "negative" demand for the
recognition of the right to self‑determination, which is not guaranteed
to any one nation. The whole task of the proletariat on the national question
"is not practical for the national bourgeoisie of each nation, because the
proletariat demands an 'abstract' equal right, an absence in principle of even
the slightest privilege, because it is opposed to all nationalism".46
Lenin
understood what his opponents failed to understand: that the
"abstract", "negative" demand of formal equal rights was,
in a given historical conjuncture, simultaneously a revolutionary and
revolutionizing slogan, and also the best method of strengthening the class
solidarity of the proletariat and of protecting it from infection by bourgeois‑national
egoism. In fact, in the concrete conjuncture in which the argument occurred
(i.e. on the eve of the Imperialist War and at its height, and thus on the eve
of the Russian 'Revolution), to deny the right to self‑determination by
proceeding from the fact that this was just a slogan of formal democracy‑and
160
PASHUKANIS: SELECTED WRITINGS
that Marxists are obliged to
expose this formal democracy in every way‑would have been. "to play
into the hands not only of the bourgeoisie but of feudal and absolutist
national oppression". Lenin understood that at any stage of development,
the demand for the abstract formal equality of right is a revolutionary demand
which destroys the semi‑feudal monarchy and in the first instance,
Russian absolutism.
But then 1920 arrived. In Russia
the October Revolution had already occurred and Soviet power was confirmed; the
next task was to struggle for the dictatorship of the proletariat on a world
scale. The imperialist bourgeoisie and it minions firmly tried to mask their
policy of oppression and robbery of conquered and colonial countries by empty
"Wilsonian" phrases on the equality of peoples, on the equal rights
of nations etc. Under these conditions a simple repetition of the old slogans
would have been meaningless. The basic task became a struggle against bourgeois
democracy, and the exposure of its lies and falsehoods. Lenin wrote his famous
theses on the national question for the Second Congress of the Comintern, and
they begin with the above‑cited exposure of the bourgeois democratic idea
of formal legal equality. The theses emphasized that "the Communist Party,
as the conscious expression of the struggle of the proletariat for the overthrow
of the yoke of the bourgeoisie, must not place abstract and formal principles at the apex of the national
question: compare with the declaration reproduced above that the proletariat
demands abstract equal rights" [our italics, E. P. I First, it must consider
the historical, concrete, and (above all) economic situation; second, the exact
difference between the 'interests of the oppressed, exploited working classes
and the general concept of the national interest, which signifies the interests
of the ruling class; third, the clear distinction between nations that are
oppressed, dependent and lacking in equal rights, and nations that are
oppressors and exploiters. These distinctions must be counterweights to the
bourgeois democratic lie that masks the enslavement of the great mass of the
population of the earth by an insignificant minority of the rich advanced
capitalist countries, an enslavement which is characteristic of the period of
finance capital and imperialism.47
Bourgeois democratic slogans
on the national question have lost their revolutionary quality. The defence of
the "abstract" equality of rights was a halfway house.
"LENIN AND PROBLEMS OF LAW" 161
In the area of
internal state relations the national policy of the Comintern cannot be limited
to the naked, formal and purely declarative recognition of the equal right of
nations to which the bourgeois democrats limit themselves‑it makes no
difference whether they recognize themselves openly as such, or mask themselves
in the guise of socialism.48
In turn a new task is created:
the task of
transforming the dictatorship of the proletariat from a national dictatorship
(i.e. existing in one country and incapable of determining world politics) into
an international dictatorship (i.e. a dictatorship of the proletariat of at
least several advanced countries 'capable of having a decisive influence on
world politics). Petit bourgeois nationalism declares internationalism to be
the recognition of the equal rights of nations, and it only preserves (not
speaking of the purely verbal character of such a recognition) inviolable
national egoism. However, proletarian nationalism demands, first, the
subordination of the interest of the proletarian struggle in any one country to
the interest of the struggle on the whole world scale; second, it demands the
ability and readiness on, the part of those nations which have achieved victory
over the bourgeoisie, to undertake great national sacrifices for the
destruction of international capital.49
This was a new stage, a new
situation, a new and higher level of struggle. And new priorities corresponded
to it. The bourgeois-democratic stage had passed, and with it the formal legal
demand for national self‑determination‑characteristic of this stage‑lost
its former significance. The slogan "overthrow the rule of the bourgeoisie
on a world scale and set up the international dictatorship of the
proletariat" became the immediate practical slogan.
Does this mean that national self‑determination
lost all significance; that it could be replaced with the "self‑determination
of the proletariat"?' Certainly not. This would have been to ignore the
presence of backward countries which had not passed through the stage of
bourgeois‑democratic national revolutions. The communist proletariat of
advanced countries had to support these movements; with all its strength it had
to struggle so that the accumulation of centuries of ill will and the distrust
by backward people of the dominant nations‑and of the proletariat of
these nations‑was overcome as quickly as possible. It was impossible to
achieve this goal without proclaiming and conducting in practice the right of
national self‑determination. Moreover, even for a socialist society
moving
162
PASHUKANIS: SELECTED WRITINGS
towards the elimination of
classes the question of national self-determination still remains a real one,
since although based on economics, socialism by no means consists solely of
economics:
For the
elimination of national subjugation, a necessary foundation is socialist
production, but it is also necessary to have a democratic organization of the
state, a democratic army etc., erected on this base. By transforming capitalism
into socialism the proletariat creates the possibility of eliminating national
subjugation. This possibility is transformed into reality ‑only"‑‑only
upon the full establishment of democracy in all areas, the determination of
borders according to "the sympathies of the population", and the full
freedom of secession. On this base, in its turn, the absolute elimination of
the least national frictions and distrust develops in practice. The accelerated movement towards the integration of
nations will be completed when the state withers
away.50
We hope that in these few
examples we have shown what rich material for the study of the revolutionary
dialectical approach to questions of law is contained in the theoretical and
political works of Lenin. We will consider our task fulfilled if we succeed in
attracting the attention of comrades to this little‑studied area.
Notes
1. A. G.
Goikhbarg, Fundamentals of the Law of Private Property (1924), Moscow, p. 68.
2. V. I. Lenin, What the "Friends of the
People" Are and How They Fight the Social Democrats (1894), LCW, vol.
1, p. 153.
3. P. Sagnac, La legislation civile de la Revolution
francaise 1789‑1804 (1898), Libraire
Hachette, Paris, vol. I, p.
2.
4. ibid. V. I. Lenin, "The Agrarian Question in Russia at the End of the
Nineteenth Century" (1918), LCW, vol.
15, p. 84.
6. ibid. pp. 84‑85.
7. ibid. p. 85.
8. A.
G. Goikhbarg (1924), op. cit. p. 23.
9. V. I.
Lenin, Left‑Wing Communism: An
Infantile Disorder (1920), LCW, vol.
31, pp. 35‑36.
10. V. I. Lenin, Sochinenii, vol.
1, p. 135.
11. V. I.
Lenin, "Instructions of the Council of Labour and Defence to Local Soviet
Bodies" (1921), LCW, vol. 32,
p. 387.
12. ibid. p. 389.
"LENIN AND PROBLEMS OF LAW"163
13. ibid. p. 394.
14. V. I. Lenin, Sochinenii, vol.
25, pp. 215‑216.
15. V. I.
Lenin, The Proletarian Revolution and
the Renegade Kautsky (1918), LCW,
vol. 28, pp. 276‑277.
16. V. I.
Lenin, "A Contribution to the History of the Question of
Dictatorship" (1920), LCW, vol.
31, p. 353.
17. V. I.
Lenin, The Proletarian Revolution and
the Renegade Kautsky (1918), op. cit.
p. 236.
18. ibid. p. 274.
19. ibid. pp. 274‑275.
20. V. I. Lenin, What the "Friends of the People" Are and How They Fight the
Social Democrats (1894), op. cit.
pp. 149‑150.
21. V. I. Lenin, "Preliminary Draft Theses
on the National and Colonial Questions" (1920), LCW, vol. 31, p. 145.
22. V. I. Lenin, Sochinenii, vol. 12, pt. 2, p. 388.
23. ibid.
24. We make
the reservation here, of course, that the formal‑organizational problems
of Party building may be classified as legal problems only in a conditional and
relative sense. First, however, the charter operates just as formally as an
intermediary for the political content of the activity of the Party, as law in
the narrow and exact sense of the word operates as an intermediary for relations
of production. Second, our Party charter‑and no one can deny this‑is
now one of the elements in the state structure of the Union of Soviet
Republics. From the additional perspective of its functional importance, it
therefore merits classification as one of the subjects treated by
jurisprudence.
25. V. I. Lenin, One Step Forward, Two Steps Back (1904), LCW, vol. 7, pp. 241‑249.
26. ibid. p. 272.
27. ibid. pp. 392‑393.
28. ibid. pp. 393‑394.
29. ibid. p. 415.
30. V. I. Lenin, Sochinenii, vol. 8, p. 479.
31. V. I. Lenin, One Step Forward, Two
Steps Back (1904), op. cit. p.
275.
32. ibid. p. 367.
33. ibid. p. 336.
34. ibid. p. 386.
35. ibid. p. 387.
36. L. Martov, "A State of Siege"
(1903), cf. LCW, vol. 7, p. 360.
37. V. I. Lenin, One Step Forward, Two Steps Back (1904), op. cit. p. 362.
38. ibid. p. 363.
39. ibid. pp. 387‑388.
40. V. I. Lenin, "The Discussion on Self‑Determination
Summed‑Up" (1916), LCW, vol.
22, p. 321.
41. ibid. p. 322.
42. ibid. p. 324.
164 PASHUKANIS:
SELECTED WRITINGS
43. ibid. p. 327.
44. V. I. Lenin,
"The Right of Nations to Self‑Determination" (1914), LCW, vol. 20, p. 422.
45. ibid. p. 441.
46. ibid. p. 410.
47. V. I. Lenin,
"Preliminary Draft Theses on the National and Colonial Questions" op.
cit. p.
145.
48. ibid. p. 147.
49. ibid. p. 149.
50. V. I. Lenin,
"The Discussion on Self‑Determination Summed Up" (1916), op. cit. p. 325.