168 PASHUKANIS:
SELECTED WRITINGS
Duguit repeatedly
declared himself to be an opponent of socialism but, nevertheless, his theories
have often been classified as socialist. After the October Revolution even our
jurists attempted to depict Duguit's doctrine as a practico-juridic basis for
socialist revolution.3 Duguit's sympathies for corporate and estate
representation convinced some of his opponents that the practical conclusion of
his conception was the system of soviets. In this respect, of course, Duguit
subjectively exhibits great hatred and utter incomprehension for the October
Revolution and the Soviet Republic as he demonstrates in the second edition of
his Constitutional Law. Objectively, also, his theories are an attempt to conceal
and disguise the contradictions of capitalism. He depicts capitalism, driven by
the craving for profit and the vicious class struggle, as a collectivity
founded or) the basis of social solidarity. He presents capitalist property as
the fulfilment of a social function, and the imperialist and militarist state
as an institution that is transfomed from an authoritarian power to a
participant group. Duguit's scholarship is a, sure sign, on the one hand, that
individualist doctrines have lost their ideological pathos and yet are still
incapable of fascinating anyone. And this is despite their dogmatic advantages:
the dogmas of law and "sovereignty" and "subjective law"
remain fashionable notions, and criticism here would not produce any radical
change. On the other hand, Duguit incarnates the period of finance capital this
has made free private property a problematic notion, and it is overtly apparent
on the politicai scene in the form of the real power of large capitalist
corporations. These corporations collaborate with opportunist union leaders,
when the need arises, and ignore the outdated fiction of classless state
sovereignty.
Duguit's most
noted French disciple is Professor Jaise; in England his ideas are shared by
the young political theorist Harold Laski,
"International Law"
International law
(ius gentium, droit des gens, Völkerrecht)
is usually defined as the totality of norms regulating the relationships between
states. Here is a typical definition: "International law is the totality
of norms defining the rights and duties of states in their mutual relations
with one another".4 We find the same definition in the
I
ENCYCLOPAEDIA OF STATE AND LAW 169
Germans Hareis, Holtsendorf,
Bulmering, Liszt and Ulman; in the Belgian Rivie; in the Englishmen Westlake
and Oppenheim; in the American Lawrence etc.
But absent from this formal,
technical definition, of course, is any indication of the historical, i.e. the
class character of international law. It is extremely clear that bourgeois
jurisprudence consciously or unconsciously strives to conceal this element of
class. The historical examples adduced in any textbook of international law
loudly proclaim that modern international
law is the legal form of the struggle of the capitalist states among themselves
for domination over the rest of the world. However, bourgeois jurists try,
as much as possible, to silence this basic fact of intensified competitive
struggle, and to affirm that the task of international law is "to make
possible for each state what none could do in isolation, by means of co‑operation
between many states".5
Nor did the theorists of the
Second International move far from these bourgeois jurists. Abandoning the
class conception of the state, they were naturally compelled to discover in
international law an instrument, standing outside and above classes, for the co‑ordination
of the interests of individual states and for the achievement of peace.
It was from this perspective that
the well‑known Bernstein,6 and the equally‑famous
Renner,7 approached international law. With great assiduity, both of
these gentlemen stressed the "peaceful functions of international
law", but in so doing they forgot that the better part of its norms refer
to naval and land warfare, i.e. that it directly assumes a condition of open
and armed struggle. But even the remaining part contains a significant share of
norms and institutions which, although they refer to a condition of peace, in
fact regulate the same struggle, albeit in another concealed form. Every
struggle, including the struggle between imperialist states, must include an
exchange as one of its components. And if exchanges are concluded then forms
must also exist for their conclusion.
But the presence of these forms
does not of course alter the real historical content hidden behind them. At a
given stage of social development this content remains the struggle of
capitalist states among themselves. Under the conditions of this struggle,
every exchange is the continuation of one armed conflict and the prelude to the
next. Here lies the basic trait of imperialism.
Capitalists
[wrote Lenin] divide the world, not out of any particular malice, but because
the degree of concentration which
I
170 PASHUKANIS: SELECTED WRITINGS
has been reached
forces them to adopt this method in order to receive profit. And they divide it
"in proportion to capital", "in proportion to strength",
because there cannot be any other method of division under commodity production
and capitalism. But strength varies with the level of economic and political
development. In order to know what is taking place, it is necessary to know
what questions are decided by the changes in strength. The question of whether
these changes are "purely" economic or extra‑economic
(military, for example) is secondary . . . To substitute the question of the
content of the struggle and agreements (today peaceful, tomorrow warlike, the
next day peaceful again), is to descend to sophistry.8
When Renner depicts the
development of international law as the growth of institutions which ensure the
general interest of all states, and when he tries to show that this development
has been retarded by the larcenous and selfish policy of only one of the
states, Great Britain, then he too descends to sophistry. He must, moreover, be
'in the service of Austro‑German imperialism (Renner's book was published
before the Central Powers were defeated by the Entente). Conversely, we can see that even those agreements between
capitalist states which appear to be directed to the general interest are, in
fact, for each of the participants a means for jealously protecting their particular
interests, preventing the expansion of their rivals' influence, thwarting
unilateral conquest, i.e. in another form continuing the same struggle which
will exist for as long as capitalist competition exists. One may instantiate
any international organization, even the international commissions for the
supervision of navigation on the erstwhile "treaty rivers" (the
Rhine, the Danube, and after Versailles, the Elbe and the Oder). Let us begin
with the fact that the very composition of these commissions perfectly reflects
specific relations of forces, and is usually the result of war. After the World
War, therefore, Germany and Russia were ousted from the European Commission on
the Danube. At the same time the Commission on the Rhine was transferred to
Strasbourg and fell into French hands. Under the Treaty of Versailles, the very
transformation of German rivers into treaty rivers, which were controlled by
international commissions, was an act which divided the spoils among the
victors. The International Administration of Tangiers, a port in Morocco where
the interests of France, England and Spain intersect, is the same type of
organization for joint exploitation and
ENCYCLOPAEDIA OF STATE AND LAW
171
supervision. A final and typical
example is the International Organization for the Extortion of Reparations from
Germany (q.v.): the reparation commission and all types of supervisory agencies
envisioned by the expert's plan. As soon as some power feels strong enough to
take the plunder into its exclusive possession, it starts to combat
internationalization (q.v.). Thus, at the 1883 London Conference, Tsarist Russia
succeeded in placing the Kiliisky branch of the Danube outside the control of
the European Commission provided for by the international treaty of 1889. The
Commission for the Supervision of the Neutralization of the Suez Canal could
not be constituted at all: it was eliminated by a separate agreement between
England and France, whereby the first bought itself freedom of action in Egypt
in exchange for the latter's taking of Morocco (English‑French Convention
of April 8th, 1904). The struggle among imperialist states for domination of
the rest of the world is thus a basic factor in defining the nature and fate of
the corresponding international organizations.
There remain the comparatively
few and narrowly‑specialized interstate agreements. These have a technical
character and correspond to purposeful combines or so‑called
international administrative unions, for example the International Postal
Union. These organizations do not serve primarily as an arena for the struggle
between administrative groupings, but they occupy a secondary and subordinate
position. The origin of most of these organizations was in the 1870s and 1880s,
i.e. in the period when capitalism (q.v.) had still not fully developed its
monopoly and imperialist ‑traits. The intensified struggle for the
division of the world has moved forward to such an extent since that time, that
the actual ability of capitalist states to serve general economic and cultural
needs has diminished rather than expanded. In this respect a very clear
regression was marked by the World War in that it caused the downfall of a
whole series of cultural (in particular) and, for example, scientific links.
The bourgeois jurists are not
entirely mistaken, however, in considering international law as a function of
some ideal cultural community which mutually connects individual states. But
they do not see, or do not want to see, that this community reflects
(conditionally and relatively, of course) the common interests of the
commanding and ruling classes of different states which have identical class
structures. The spread and development of inter-
I
172 PASHUKANIS: SELECTED WRITINGS
national law occurred on the
basis of the spread and development of the capitalist mode of production.
However, in the feudal period the knights of every European country had their
codes of military honour and, accordingly, their class law, which they applied
in wars with one another; but they did not apply them in inter‑class
wars, for example in the suppression of burghers and the peasantry. The victory
of the bourgeoisie, in all the European countries, had to lead to the
establishment of new rules and new institutions of international law which
protected the general and basic interests of the bourgeoisie, i.e. bourgeois
property. Here is the key to the modern law of war.
While in feudal Europe the class
structure was reflected in the religious notion of a community of all Christians,
the capitalist world created its ‑concept of "civilization" for
the same purposes. The division of states into civilized and "semi‑civilized",
integrated and "semi‑integrated" to the international
community, explicitly reveals the second peculiarity of modern international
law as the class law of the bourgeoisie. It appears to us as the totality of
forms which the capitalist, bourgeois states apply in their relations with each
other, while the remainder of the, world is considered as a simple object of
their completed transactions. Liszt, for example, teaches that "the
struggle with states and peoples who are outside the international community
must not be judged according to the law of war, but according to the bases of
the love for mankind and Christianity". To assess the piquancy of this
assertion recall that, at the time of the colonial wars, the representatives of
these lofty principles, e.g. the French in Madagascar and the Germans in
Southwest Africa, liquidated the local population without regard for age and
sex.
The real historical content of
international law, therefore, is the struggle between capitalist states.
International law owes its existence to the fact that the bourgeoisie
exercises its domination over the proletariat and over the colonial countries.
The latter are organized into a number of separate state‑political
trusts in competition with one another. With the emergence of Soviet states in
the historical arena, international law assumes a different significance. It
becomes the form of a temporary compromise between two antagonistic class
systems. This compromise is effected for that period when one system (the
bourgeois) is already unable to
ensure its exclusive
I
ENCYCLOPAEDIA OF STATE AND LAW 173
domination,
and the other (proletarian and socialist) has not yet won it. It is in this sense that it seems possible, to us, to
speak of international law in the transitional period . The significance of
this transitional period consists in the fact that open struggle for
destruction (intervention, blockade, non‑recognition) is replaced by
struggle within the limits of normal diplomatic relations and contractual
exchange. International law becomes inter‑class
law, and its adaptation to this new function inevitably occurs in the form
of a series of conflicts and crises. The concept of international law during
the transitional period was first put forth, in Soviet literature, by E.
Korovin.9
Finally, international law assumes an entirely
different meaning as the inter‑state law of the Soviet states. It now
ceases to be a form of temporary compromise behind which an intensified
struggle for existence is hidden. Because of this the very opposition between
international law and the state, so characteristic of the preceding period,
disappears. The proletarian states, not having merged formally into one
federation or union, must present in their mutual relationships an image of
such a close economic, political and military unity, that the measure of
"modern" international law becomes inapplicable to them.
Turning now to consider the legal form of
international law, we will first note that orthodox theory considers the
subject of international legal relations to be the state as a whole, and only
the state. "Only states are subjects of international law, the bearers of
international legal obligations and powers."10 The real historical premise for this viewpoint is the formation of a
system of independent states which have, within their boundaries, a
sufficiently strong central power to enable each of them to act as a single
whole. "The sovereignty of the state, i.e. its independence from any
authority standing above it‑this is the basis of international law."11
These premises were historically realized in Europe
only at the end of the Middle Ages, in the period of the formation of absolute
monarchies which consolidated their independence, with respect to Papal
authority, and which severed internal resistance by the feudal lords. The
economic basis of this was the development of mercantile capital. The emergence
of standing armies, the prohibition of private wars, the instigation of state
enterprises, customs and colonial policy‑these are the real facts which
lie at the heart of the theory of
174 PASHUKANIS: SELECTED WRITINGS
the state as the sole subject of the international legal
community. The Catholic Church, which had claimed the position of supreme
leader of all the Christian states, was delivered a decisive blow by the
Reformation. The Treaty of Westphalia, which in 1648 proclaimed the basis of
equality between the Catholic and the "heretical" (Protestant)
states, is considered the basic fact in the historical development of modern
(i.e. bourgeois) international law.
The revolutions of the seventeenth and eighteenth centuries
made further strides along the same road. They completed the process of
separating state rule from private rule, and transformed political power into a
special force and the state into a special subject. The legal relations of the
state flowed independently, and they were not to be confused with those persons
who at any given moment were the bearers of state authority. Having
subordinated itself to the state machine, the bourgeoisie brought the principle
of the public nature of authority to its clearest expression. It may be said
that the state only fully becomes the subject of international law as the
bourgeois state. The victory of the bourgeois perspective over the feudal-patrimonial
perspective was expressed, among other things, in the denial of the binding
force of dynastic treaties for the state. Thus, in 1790 the National Assembly
of France rejected the obligations which flowed from the family treaty of the
house of Bourbon (1761), on the grounds that Louis XV had acted as a
representative of the dynasty and not as a representative of France.
It is typical that at the same time as French authors
(Bonfils, for example) consider this rejection to be proper, German monarcho-reactionary
professors (Heffken) find that the National Assembly violated international law
in this action.
The Roman Papacy is a curious vestige of the Middle Ages.
After the Church entered the constituency of Italy in 1870, the Pope continued
extra territorially to enjoy the right to send and receive ambassadors, i.e. he
had certain essential attributes of sovereign authority. When bourgeois Jurists
are forced to explain a phenomenon which contradicts their doctrine, they
usually argue that the Papal throne occupies a quasi international status and
that it is not in the strict sense a subject of international law.
In fact, of course, the influence of the leader of the
Catholic Church is no less in international affairs than that of the League of
Nations (q.v.). All authors classify the latter, as an exception, as being among the
[text corrected Sept. 22, 2004. P.M.]
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ENCYCLOPAEDIA OF STATE AND LAW
175
independent subjects of
international law along with individual states. As a separate force which set
itself off from society, the state only finally emerged in the modern bourgeois
capitalist period. But it by no means follows from this that the contemporary
forms of international legal intercourse, and the individual institutions of
international law, only arose in the most recent times. On the contrary, they
trace their history to the most ancient periods of class and even pre‑class
society. To the extent that exchange was not initially made between
individuals, but among tribes and communities, it may be affirmed that the
institutions of international law are the most ancient of legal institutions in
general. Collisions between tribes, territorial disputes, disputes over borders‑and
agreements as one of the elements in these disputes‑are found in the very
earliest stages of human history. The tribal pre‑state life of the
Iroquois, and of the ancient Germans, saw the conclusion of alliances between
tribes. The development of class society and the appearance of state authority
make contracts and agreements among authorities possible. The treaty between
Pharaoh Rameses 11 and the King of the Hittites is one of the oldest surviving
documents of this type. Other forms of relationships are equally universal: the
inviolability of ambassadors; the custom of exchanging hostages; one might also
point to the ransoming of prisoners, the neutrality of certain areas, and the
right to asylum. All these practices were known and used by the peoples of the
distant past. Ancient Rome observed various forms for the declaration of war (iusfetiale), concluded treaties,
received and sent ambassadors. The ambassadors of foreign countries enjoyed
inviolability etc. A special college of herald‑priests dealt with these
rules in Rome, and the majority of legal rules were protected by the gods at
that time. The sanction of religion did not, however, prevent the fact that
they were sometimes violated in the grossest manner.
On the other hand, a series of
rules were formed which related to international intercourse. These were
necessary both for regulating conflicts among tribes and peoples, and also for
ensuring commercial exchange between individuals who belonged to different
clans and tribes. Later, these rules were extended to include state
organizations. In this way so‑called private international law developed
(q.v.).
For example, during the period
when Athens was flourishing, there were no less than 45 000 foreign
inhabitants. They enjoyed all civil rights and were protected by a
representative elected from their [Translation editor's note: due to a
typographical error, the following words were omitted the bottom of
page 175 in the published English translation: "midst (embryos of
consular representation). The protec-"]
176 PASHUKANIS: SELECTED WRITINGS
tion of foreigners thus applied
to merchants who were temporary residents. We see the same phenomenon in
ancient Rome where the special office of praetor peregrinus was instituted for the hearing of foreigners' judicial
cases. Moreover, the so‑called actiones fictitiae aided in overcoming
those strict requirements of Roman procedure which gave the foreigner no
possibility of defending his rights.
In the understanding of the Roman
jurists, the law of nations (ius gentium) embraced equally that which is now
termed public international law, and also that which is inaccurately termed
private international law. Thus, for example, we read in the Digests: "By
this law of nations (ius gentium), wars are waged, nations are divided,
kingdoms are founded, property is distributed, fields are enclosed, buildings
are erected, trade, purchases, sales, loans and obligations are established‑with
the exception of certain transactions that are conducted in civil law."12
From this list it seems that the essential characteristic of international law
was deemed to be not merely that it regulated relations (borders, war, peace
etc.) among states but, and in contrast to the ius civile, that it established
the basis of a legal community devoid of local peculiarities and free from
tribal and national colouration. These universal rules could be nothing other
than a reflection of the general conditions of exchange transactions, i.e. they
were reduced to the bases of the equal rights of owners, the inviolability of
ownership and the consequent compensations for damages and freedom of contract.
The bond between the ius gentium‑in the sense of laws inherent in all
nations‑and norms regulating the mutual relations of states, was
consciously strengthened by the first theorist of international law, Hugo
Grotius (1583‑1684). His whole system depends on the fact that he
considers relations between states to be relations between the owners of private
property; he declares that the necessary conditions for the execution of
exchange, i.e. equivalent exchange between private owners, are the conditions
for legal interaction between states. Sovereign states co‑exist and are
counterposed to one another in exactly the same way as are individual property
owners with equal rights. Each state may "freely" dispose of its own
property, but it can gain access to another state's property only by means of a
contract on the basis of compensation: do
ut des.
The feudal‑patrimonial
structure greatly aided the theory of territorial rule in acquiring a clearly
civilist hue. Suzerains or
IENCYCLOPAEDIA OF STATE AND LAW
177
"Landesherren"
considered themselves as the owners of those holdings over which their
authority extended; the holdings were thought of as their private right, a
subject of alienation by the owner. Entering into relations with one another,
they disposed of their holdings as owners dispose of their objects, and
alienated them according to the system of private (Roman) law. From the very
beginning, therefore, many of the institutions of international law had a
private law foundation‑including the theory of modi aecuirendi dominii in international relations. Other methods
were also recognized: inheritance, dowry, gift, purchase and sale, exchange,
occupation, prescription.
On the basis of natural law
doctrine, Grotius's ideas continued to be developed by subsequent theorists:
Puffendorf (1632‑1694), Tomasius (1655‑1728), Wolff (1679‑1754),
Vattel (1714‑1767) and Burlamaki (1694‑1748). These theorists laid
the foundation for an abstract or philosphical theory of law. In contrast to
this school, which had given preference to abstract, concepts, there began the
collection and systematization of actual 'international customs and treaties
and the study of international practice. The forefather of this positive,
historico‑pragmatic school is considered to be Zouch (1590‑1669),
an Oxford professor and Admiralty judge; the Dutchman Binkerskuch (1673‑1743),
and Martens (1756‑1821) were later representatives. The doctrine of
natural law ceased to enjoy the recognition of most jurists in the second half
of the nineteenth century. However, even in our day Grotius's formulae continue
to exist in international law textbooks, under the guise of so‑called
"basic or absolute rights" of the state. For example, Hareis in Institutionen des VoIkerrechts (1888),
lists four such "basic rights": the right to self‑preservation;
the right to independence; the right to international exchange; and the right
to respect.
We read exactly the same in
Liszt: "From this basic idea (international legal intercourse] directly
follows a whole series of legal norms, by which are defined the mutual rights
and obligations of states and do not require any special treaty recognition in
order to have obligatory force.
They comprise a firm (!) basis
for all the unwritten legal rules of international law, and are its oldest,
most important and holiest content."13 It is most obvious that
we are dealing here with ideas drawn from the sphere of civil law relationships
with a basis in equality between the parties.
178 PASHUKANIS: SELECTED WRITINGS
To a certain degree the analogy
may be extended. Bourgeois private law assumes that subjects are formally equal
yet simultaneously permits real inequality in property, while bourgeois
international law in principle recognizes that states have equal rights yet in
reality they are unequal in their significance and their power. For instance,
each state is formally free to select the means which it deems necessary to
apply in the case of infringements of its right: "however, when a major
state lets it be known that it will meet injury with the threat of, or the
direct use of force, a small state merely offers passive resistance or is
compelled to concede."14 These dubious benefits of formal
equality are not enjoyed at all by those nations which have not developed
capitalist civilization and which engage in international intercourse not as
subjects, but as objects of the imperialist states' colonial policy.
In civil law transactions,
however, the relationships between the parties assume legal form not only
because they derive from the logic of objects (from the logic of the exchange
act, more accurately), but also because this form finds real support and
defence in the apparatus of judicial and state authority. Legal existence is
materialized in a special sphere, partitioned off from the intrusion of naked
fact. In his language the lawyer expresses this by asserting that every subjective
right depends upon an objective norm, and that private legal relationships
arose because of the public legal order. Moreover, in international law the
subjects of legal relationships are the states themselves as the bearers of
sovereign authority. A series of logical contradictions follows from this. For
the existence of international law it is necessary that states be sovereign
(for sovereignty in any given case is equated with legal capacity). If there
are no sovereign states then there are no subjects of the international law
relationship, and there is no international law. But, on the other hand, if
there are sovereign states, then does this mean that the norms of international
law are not legal norms? For in the opposite case, they must possess an
external power which constrains the state, i.e. limits its sovereignty.
Conclusion: for international law to exist it is necessary that states not be
sovereign. Bourgeois jurisprudence has devoted a great amount of fruitless
effort in solving this contradiction. For instance, Pruess‑the author of
the present German (Weimar) Constituion tended to the position of sacrificing
the concept of sovereignty for the sake of international law. Conversely,
writers such as Zorn and,
ENCYCLOPAEDIA OF STATE AND LAW
179
most recently, Wendel, are more
ready to abandon supra‑state international law. However, these dogmatic
arguments change nothing in reality. No matter how eloquently the existence of
international law is proved, the fact of the absence of an organizational
force, which could coerce a state with the same ease as a state coerces an
individual person, remains a fact. The only real guarantee that the
relationships between bourgeois states (and in the transitional period with
states of another class type) will remain on the basis of equivalent exchange,
i.e. on a legal basis (on the basis of the mutual recognition of subjects), is
the real balance of forces. Within the limits set by a given balance of forces,
separate questions may be decided by compromises and by exchange, i.e. on the
basis of law. Even then there is the qualification that each government calls
upon law when its interests demand it, and in every way will try to avoid
fulfilling some norm if it is profitable for it.15 In critical
periods, when the balance of forces has fluctuated seriously, when "vital
interests" or even the very existence of a state are on the agenda, the
fate of the norms of international law becomes extremely problematic.
This particularly relates to the
imperialist period, with its unprecedented intensification of the competitive
struggle which derives from the monopolisitic tendencies of finance capital,
and from the fact that after the whole globe has already been divided then
further expansion can only occur at the expense of robbing one's neighbour.
The best illustration of this is
afforded by the last war, of 1914‑1918, during which both sides
continuously violated international law. With international law in such a
lamentable condition, bourgeois jurists can be consoled only with the hope
that, however deeply the balance was disturbed, it will nevertheless be
reestablished: the most violent of wars must sometime be ended with peace, the
political passions raised by it must gradually be reconciled, the governments
will return to objectivity and compromise, and the norms of international law
will once again find their force. However, in addition to this hope the fact is
adduced, as an argument in favour of the positive nature of international law,
that every state in violating internaional law also tries to depict the matter
as if there had been no violation whatsoever. We find in Ulman, for example,
this curious reference to state hypocrisy as proof of the positive nature of
international law. Another group of jurists simply deny the very existence of
international law. Among them is the founder of
180 PASHUKANIS: SELECTED WRITINGS
the English school of positivist
jurisprudence, Austin. Defming "law in the proper sense", as an order
emanating from a definite authority and strengthened by a threat in the case of
disobedience, he finds that international law is contradictio in adjecto. "To the extent that it is law, it is
not international; to the extent that it is truly international, it is not
law." Gumplowicz holds the same opinion: "In a definite sense
international law is not law inasmuch as state law also is not law."16
Lasson says: "The norms of international law are but rules of state wisdom
which the state follows having in mind its own welfare, and from which it can
deviate as soon as its vital interests so demand."17
But the perspective of Austin,
Lasson, Gumplowicz and others is not shared by the majority of bourgeois
jurists. The open denial of international law is politically unprofitable for
the bourgeoisie since it exposes them to the masses and thus hinders
preparations for new wars. It is much more profitable for the imperialists to
act in the guise of pacifism and as the champions of international law.
Therefore, for example, the
English writer Walker18 censures the terminological cavils of
Austin, who did not want to define international law as law in the proper
sense, and who exclaims "it is better to permit peace and passivity to
reign without correct terminology, than to permit accuracy of language to exist
with the spirit of lawlessness!"
jurists who preach the cult of
force in international relations are both useless to the bourgeoisie (it needs
not preaching, but real force), and also dangerous because they conceal the
irreconcilability of the contradictions of capitalist society, and because they
compromise peace and tranquility needed even by a thief when he has had his
fill and is digesting his spoils.
From the Marxist perspective this
nihilist criticism of international law is in error since, while exposing
fetishism in one area, it does so at the cost of consolidating it in others.
The precarious, unstable and relative nature of international law is
illustrated in comparison with the largely firm, steady and absolute nature of
other types of law. In fact, we have here a difference in degree. For only in
the imagination of jurists are all the legal relationships within a state
dominated one hundred per cent by a single state "will". In fact, a
major portion of civil law relationships are exercised under influence of
pressures limited to the activities of subjects themselves. Furthermore, only
by taking the viewpoint of legal fetishism is it possible to think that the
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ENCYCLOPAEDIA OF STATE AND LAW 181
legal form of a relationship
changes or destroys its real and material essence. This essence, on the
contrary, is always decisive. The formalization of our relationship with
bourgeois states, by way of treaties, is part of our foreign policy, and is its
continuation in a special form. A treaty obligation is nothing other than a
special form of the concretization of economic and political relationships. But
once the appropriate degree of concretization is reached, it may then be taken
into consideration and, within certain limits, studied as a special subject.
The reality of this object is no less than the reality of any constitution‑both
may be overturned by the intrusion of a revolutionary squall.
It is commonplace to distinguish
a general and a special component in relation to the systematization of
international law. The first contains the theory of the state as the subject of
international law. Here lies the theory of sovereignty, the various forms of
limiting sovereignty, the theory of international law and legal capacity etc.
Starting from the traditional division of the state into three elements‑authority,
territory and population‑most treatises include within this general
component the regulation of territorial questions (borders, territorial waters,
methods of territorial acquisition etc.), and population questions
(citizenship, preference, etc.). The special component considers the
organization and forms of international legal relationships‑here he
diplomatic and consular representation, international courts and other
international organizations, the theory of international treaties etc. Further
conceptual areas are usually delineated as regulatory international legal
agreements (transportation, commerce, navigation, post and telegraphy, the
battle with epidemics, the protection of property etc.). Finally comes the part
dedicated to the law of war. This is usually prefaced with a consideration of
the peaceful means of settling conflicts (arbitration decisions). The law of
war may be divided into the law of military war, the law of naval warfare and
the theory of the rights and obligations of neutral states.
Sources of international law
To the extent that states have no
external authority above them which could establish their norms of conduct,
then in the technical legal sense the sources of international law are custom
and treaty. In
182 PASHUKANIS: SELECTED WRITINGS
Liszt's opinion both of these
sources may be reduced to one‑‑this is the "general legal
ideology of states", which is expressed partly in the form of legal
practice, and partly in the form of the direct and overt establishment of law
by way of agreement. But since (a) it is not always easy to decide which
ideology is general and which ideology is "legal", and (b) the
practice of the different states at any one time, and the practice of any one
state at different times, are far from the same‑in fact, therefore, the
source of the norms of even customary international law is drawn from the
opinions of "writers", or scholars, who usually differ decisively
with each other on every question. Common, therefore, are citations to the
"majority" or to the "overwhelming" majority of authorities.
If one further notes that each of these authorities consciously or
unconsciously defends those positions which are or seem beneficial to his own
state, then one can imagine how hopeless will be the application of customary
international law to the decision of any serious dispute.
The norms of written
international law, which are fixed in treaties and agreements, are of course
distinguished by comparatively greater precision. But there are rather few such
treaties which could establish general rules or, expressed in technical
language, which could create objective international law. The most important of
these are: the acts of the Congress of Vienna (1815); the Paris Declaration on
the Law of Naval Warfare (1856); the Geneva Conventions (1856 and 1906); the
General Acts of the Hague Peace Conference (1899 and 1907); the London
Declaration on the Law of Naval Warfare (1909); the League of Nations Treaty
(1919); and certain declarations of the Washington Conference (1921) etc.
However, parts of these treaties were not concluded by all states‑just by
some of them‑and therefore the norms created by these agreements may not,
strictly speaking, assume the significance of norms of general international
law. There are only particular international laws effective within the circle
of states which signed them or which later adhered to them. There are,
accordingly, few generally recognized written norms of international law.
Finally, the decisions of
international tribunals, arbitration panels and other international
organizations are usually adduced as sources of international law. Anglo‑Saxon
jurists add the judicial practice
I
ENCYCLOPAEDIA
OF STATE AND LAW 183
of national courts, especially so in prize
cases and in internal legislation dealing with questions of international
significance.
"The Object of Law"
The Object of Law is one of the basic systematic concepts of
jurisprudence, and is closely linked with the concept of a legal relationship
and a legal subject. "Every real law is a law of some thing." (Korkunov)
The object of law, as an abstract and general concept, is not related to any
one branch of law. Nevertheless, and in a similar way to the majority of
juridic categories, it has the clearest and most specific meaning in civil law
and, particularly, in property relationships. It is relatively easy to see what
the object of law is in property or the law of mortgage, or inheritance law.
But jurists have had great debates concerning the nature of this concept in
franchise qualifications, for example, or in citizenship. These difficulties
have convinced some of the existence of non‑objective law (Becker).
The abstract notion of the
object of law was virtually absent for
Roman jurists‑with their
pragmatic and non‑philosophical minds. It was replaced by the more
concrete category of the "thing" (res), and even human slaves were
regarded as this. The power of the head of household over his wife and children
(patria potestas) was closely linked to the law of things according to their
formal juridic basis. For a concrete understanding of the object of law, the
absence of an abstract notion of subjective law among the Romans fully
corresponds with the precise form of action‑‑actio. Hence, Roman
authors established systematic subunits of persons (personae), things (res) and
actions (actiones).
Roman jurists displayed some
talent for generalization by subdividing things, as objects of law, into the
corporeal (corporalia) and the non‑corporeal (incorporalia). This
distinction applied, for example, to the rights of inheritance and the exercise
of the right to agricultural produce.
The development of exchange
relationships advanced the actions of the responsible person as a special legal
concept. The law of things and the law of obligation were combined into the
general notion of property.