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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.
184 PASHUKANIS: SELECTED WRITINGS
The doctrine of the object of law
assumed an abstract character with the development of the abstract doctrine of
subjective law‑representing the universal capacities of the persona‑in
the bourgeois jurisprudence of the eighteenth and nineteenth centuries. At this
stage in the development of juridic thought, a whole
series of problems arose that were difficult to resolve. First, attempts were
made to depict objects as so‑called public subjective rights; and second,
there was a desire to construct a legal system based on the idea of norms
(understood as imperatives). But if the basis of law is an imperative and the
obligation which arises from that imperative, then, for example, the object of
the right of property does not logically represent the thing itself with its
specific use and exchange‑value, but something negative: the restraining
actions of all other people which hinder the owner in the possession, use and
disposal of his property.
Such dogmatic formal
constructions‑juridic categories devoid of
economic meaning‑are typical of the present time when the dominant role
in bourgeois jurisprudence, particularly, in the elaboration of general
questions, has. passed from the civilists to the publicists.
Notes
1. L.
Duguit, L'etat: droit objectif et droit
positif (1901), Paris.
2. L. Duguit, L'etat, les gouvernants et les agents (1903), Paris; Les transformations du droit prive (1912),
Paris; Traite de droit constitutionnel (1922‑1923, 2nd edition), 5 vols.‑the
first edition was translated into
Russian.
3. See
A. G. Goikhbarg's introduction to the translation of Duguit's Transformations,
and various places in his A
Course on the Economic Law
of the RSFSR.
4. H.
Bonfils, Traite de droit international
public (1894), Rousseau, Paris, p. 1.
5. J. Louter, Le droit international public positif (1920), Oxford, p. 17.
6. E. Bernstein, Vo1kerrecht und Volkerpolitik (1919).
7. K. Renner, Marxismus, Krieg und Internationale
(1918), Vienna.
8. V.
1. Lenin, Imperialism, the Highest Stage
of Capitalism (1917), LC W, vol. 22,
p. 253.
9. E. Korovin, International Law of the Transitional Period
(1924), Moscow. 10. F. Liszt, Das Vo1kerrecht
(1925),
Fleischinann, Berlin, sec. 5.
11. Loening, Die Gerichtsbarkeit uber fremde Souverane (1903), sec.
83. 12. 1, 5 Digests, 1, 1.
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185
13. F. Liszt, International Law (1913), Russian translation from the 6th edition, edited by V. E. Grabar, p. 81.
14. V. E. Grabar, The Basis of Equality between States in Modern International Law (1912), Publishing House of
the Ministry of Foreign Affairs, book. 1.
15. L. Oppenheim, International Law: A Treatise (1905), Longmans, Green & Co., vol. 1, p. 65.
16. L.
Gumplowicz, Allgemeines Staatsrecht
(1907), sec. 415.
17. G. Lasson, Prinzip und Zukunft des Volkerrechts (1871), p. 49.
18. T. A. Walker, A History of the Law of Nations, n.d., p. 19.