4 "The Marxist Theory of Law and
the Construction of Socialism"*
Introductory
Note
By
1927 Pashukanis was rapidly moving into the dominant position within Marxist
legal philosophy and the Soviet legal profession. Simultaneously, he was partly
instrumental in launching the journal The
Revolution of the Law which appeared under the auspices of the Communist
Academy. But this same period, which contained both the approaching end of the
New Economic Policy and the apex of the intra‑Party debates on
collectivization and industrialization, also witnessed the first serious
criticism of his commodity exchange theory of law. The gist of this criticism‑which
did not yet assault the theory as a whole, but only certain of its essential
parts‑was that Pashukanis had overextended the concept of commodity
exchange as ‑the basis of the legal form. Leading the criticism was
Stuchka himself, the principal Marxist theorist of civil law‑the very
source of Pashukanis' theory. In a constructive manner Stuchka expressed part
of his criticism in the second issue of The
Revolution of the Law, in an essay entitled "State and Law in the
Period of Socialist Construction". Pashukanis' essay "The Marxist
Theory of Law and the Construction of Socialism" appeared in the
subsequent issue, and was directed as a reply both to Stuchka and to the
swelling criticism of his own followers in the Communist Academy. In this
particular essay Pashukanis seems successfully to have accommodated himself to
the fact that the legal form was embryonically present in
* "Marksistskaia teoriia
prava i stroitel'stvo sotsializma", Revoliutsiia prava (1927), no. 3, pp.
3‑12.
"THE MARXIST THEORY OF LAW" 187
pre‑capitalist modes of
production. In a later article ("The Situation on the Legal Theory
Front", Sovetskoe gosudarstvo i
revoliutsiia prava, 1930, no. 11‑12,
pp. 16‑49) he more bluntly admitted that the basic defect of The General Theory of Law and Marxism was
that ". . . the problem of the transition from one socio‑economic
formation to another‑and particularly the transition from feudalism to
capitalism ... was not posed therein with historical concreteness". But in
both cases Pashukanis combines a sensitivity to the pragmatic aspects of
socialist construction with a resolute denial that the legal form can be
socialist in either form or content.
"The Marxist Theory of Law and the
Construction of Socialism"
A Marxist analysis of the
problems of a general theory of law is by no means merely an academic matter. A
revolutionary epoch is differentiated from periods of peaceful, evolutionary
development by the fact that it becomes necessary to formulate all problems in
the broadest possible form. Neither piecemeal concepts nor even a correct
approach to one or another particular problem is sufficient for revolutionary
action; instead, a general orientation is required, a correct general approach
which makes possible the solution of a problem in all of its aspects.
When we were confronted with the
necessity of smashing the old judicial machine immediately after the October
Revolution, this basically practical matter necessitated an immediate solution
of the general theoretical problems of the relationship between statutory law
and law in general. For it was obvious that the revolution could neither leave
the mass of old tsarist laws and the laws of the Provisional Government intact,
nor immediately replace all the rules superseded and destroyed by the
revolution with new rules. Consequently, the question arose as to how these
courts would exercise justice and upon what this justice would be based. The
doubts which arose as how to answer this question contributed to some
indecision. As Comrade Stuchka reports, the implementation of Decree No. I on the Court encountered
certain difficulties. *
In order to extricate ourselves from this dilemma and solve the problem posed above, some type of general conception of law was needed and one was proposed; unfortunately, it was
* See P. I. Stuchka, "State
and Law in the Period of Socialist Construction", Revoliutsiia prava (1927), no. 2; and P. 1. Stuchka, "The Old
and the New Court", Pravda,
January 3‑5, 1918 [eds.]
"THE MARXIST THEORY OF LAW"
189
the psychological theory of
intuitive law borrowed from Petrazhitsky rather than a Marxist conception of
law.
Thus, a paradox occurred; a
revolutionary and politically correct step was based on a theory which could
neither be called correct nor Marxist. This divergence between theory and practice
could not of course be ignored. The idea of law as the sum of
"imperativeattributive experiences" was not adopted as official
Soviet doctrine. Reisner's attempt to elaborate and develop this conception of
law in his later writings led to conclusions which were clearly unacceptable.
It is not possible simultaneously to regard the [Party's] policy on the
movement towards socialism within the context of the New Economic Policy
seriously, and to maintain that in the field of law, "We are in transition
to a certain compromise and to the re‑establishment of particular
institutions of the class law of the enemy as a constituent part of the legal
order".1 It is impossible to accept the Leninist teaching on
the dictatorship of the proletariat and simultaneously to declare that
"like the bourgeois state, our Soviet state also contains both a general
legal order and also proletarian, peasant and bourgeois law".2
However, such assertions logically follow from the view of law not as a real
system of relationships subordinated to the political will of the ruling class,
but as "an ideology which is based in our consciousness primarily on the
concept of right, justice, and equality",3 "an ideology
striving for compromise with reality or appearance", an ideology which "as
a result leads to the reconciliation and weakening of contradictions since it
bears within itself a desire not only for general peace, but also for general
law."4
Clearly with such an approach the
role of law in contemporary Soviet reality can be evaluated any way one wishes
except from the perspective of the movement towards socialism because,
according to Reisner, law is obviously an unsuitable instrument for this
purpose.
The process of compiling the
Civil Code of the RSFSR was another decisive turning point at which some type
of general conception of law became urgently necessary. The impact of bourgeois
restorationist tendencies‑as reflected by the legal practitioners‑led
to the search for formulations which would protect Soviet civil law from infiltration
by the bourgeois principles of individualism. The most explicit and basic
expression of this restorationist tendency could be found in the question of
subjective legal
190 PASHUKANIS: SELECTED WRITINGS
capacity. The most serious
practical threat [however] was presented by attempts to remove ‑from the
Code every mention of the "commanding heights" in the hands of the
proletarian state, and also the attempt to foreclose the possibility of
extensive [judicial] interpretation. In order to counteract these latter
dangers, it was insufficient to insert the appropriate concrete provisions both
in the Code itself and also in the enabling statute. But in regard to the
question of subjective legal capacity it was necessary to introduce a new and
general idea. This idea found its expression in Arts. 1 and 4 of the Civil
Code.* However, unfortunately once again a line which was completely correct
and indisputable from the political perspective was expressed in an inadequate
theoretical form which moreover was borrowed from bourgeois jurists.
The negative intention included
'in these articles is beyond dispute: we
do not recognize any kind of absolute legal capacity or any inalienable and
subjective private rights. For such inalienability is the inalienability of
capitalist exploitation. But our October Revolution eliminated this
exploitation (nationalization of land, banks, heavy industry, transportation,
foreign trade etc.), and left in its wake the task of the final elimination of
capitalism. The law of the state that sets itself this task cannot recognize
absolute and inalienable private rights; there can be no doubts on this matter.
However, the positive
interpretation of subjective legal capacity which is given by the above‑mentioned
articles of the Civil Code, and in particular by various commentators on these
articles, is much more doubtful.
We have deprived and are
depriving the capitalists of their existing private rights, but does it follow
from this that we, i.e. the proletarian state, "grant" these private
rights to the small producer, i.e. first of all to the peasant? Is declaring
this the equivalent of asserting that the proletarian state has created small peasant farms with their
atomization and their inability to relate to the external world other than
through the market and market exchange?
Instead of constructing a Marxist
critique of one of the basic legal concepts by grasping its economic roots, we
have remained in the present instance under the influence of dogmatic legal
positivism which resembles the dogmatism of natural law.
* See Z. L. Zile, Ideas and Forces in Soviet Legal History (1970),
College Printing and Publishing Co., Madison_ Wis., p. 84, 2nd edition, [eds.].
1
"THE
MARXIST THEORY OF LAW"
191
Civil legal rights, as Art. 1
states, are protected by law with the exception of those instances when these
rights are exercised in contradiction to their "socio‑economic
purpose". But what is the "socio‑economic purpose" of a
civil legal right? The answer to this question can be found in Art. 4 where the
granting of civil legal capacity is justified by the purpose of developing the
forces of production. The idea lying at the basis of both formulations is clear
and simple. The proletarian state allows private property and private exchange,
but for the exclusive purpose of developing the forces of production. This is
nothing other than an attempt to translate into the language of legal
definitions the idea which lay at the basis of the New Economic Policy.
However, in so doing, two
entirely unforeseen misconceptions arose. The first consists of the fact that
the reservation with respect to socio‑economic purpose as a condition of
the protection of civil‑law rights, is clearly aimed at private ownership
of the means of production (this is the spirit of the conventional commentary
on Art. 1); then it becomes entirely permissible to consider "socio‑economic
purpose" as the development of the forces of production. But, it may be
asked, what relation to the development of the forces of production has the
right to compensation for harm, say for injury, or the right to support
payments for a member of the family who is unable to work? Can the development
of the forces of production serve as the criterion for the determination of
whether or not this right is subject to legal protection?
It is not difficult to adduce a
series of legal requirements of this type whose satisfaction (and accordingly,
the protection of the given right) cannot be considered from the point of view
of the development of the forces of production, but which can be considered
quite naturally and must be considered by the court from the point of view of
justice or fair exchange. But we conclude from this, that in granting and
protecting civil‑law rights, the proletarian state by no means intended
to develop the forces of production in all instances. At times there was simply
no alternative to this method of protecting civil‑law rights due to the
insufficient development of the planned economy and the fact that the tasks of
social security and social insurance were not yet fully completed.
This is one side of the problem.
But on the other hand, the criterion of [what constitutes] development of the
forces of produc-
192
PASHUKANIS: SELECTED WRITINGS
tion, having been established by
the [bourgeois] jurists, immediately took on a certain absolute character.
Zealous commentators on our Civil Code eagerly attributed to the concept of the
development of the forces of production a neutral character with respect to class
and policy. A kind of fusion of our Soviet law with the tendencies of the
verbal conventions of capitalism as reflected in foreign legislation followed.
This easy method of converting private property into a "social
function" has nothing in common with our situation, which was defined at
the time of introduction of NEP by two circumstances: a desire to meet the
economic needs of the peasantry (a free disposition of the surpluses as well as
the "co‑operative plan"), and readiness to "pay for
science" (concessions, rent and other forms of state capitalism).
In the time which has passed
since 1921, our "movement toward socialism in the context of NEP",
has made a significant step forward and it has already long since become time
for Soviet jurists to make the supreme criterion of their dogmatic and politico‑legal
purpose not the development of the forces
of production for themselves, but the perspective of the victory of the
socialist elements Of our economy over the capitalist ones.
We will deal only with these two
points. However, one could adduce an endless number of instances related to
other branches of law which just as sharply posed problems of a general
character, that required not only a clear understanding of the social class
goal and political problem, but a no less deep understanding of the particular
features of the legal form. To separate one from the other becomes more and
more dangerous. The practice of our Soviet administrative agencies, which
consists in the fact that the executive personnel of these institutions have
employed in the role of "legal commissars", special legal advisers‑in
99 cases out of 100 old specialists‑cannot but lead to the saddest
results. An ordinary question with which they turn to the legal adviser,
"Can something or other be done from the legal point of view?"
proceeds from the naYve presumption that everything consists of searching out
the appropriate decree or the appropriate article in the Code. In fact of
course, the conclusion required is by no means the consequence of a deus ex machina. In 75 cases out of 100
a conscientious legal adviser must pose the question in reply, "But what
do you think, can this or that be done from the
"THE MARXIST THEORY OF LAW" 193
political perspective?" For
every serious question of administration is connected with legal form not just
by its external appearance but by its very essence. He who does not understand
the class nature of the matter will either be helpless to give anything other
than a miserable hackwork analysis of it from the legal point of view, or will
simply pervert its nature. Extreme disregard for legal form‑it still
exists among many [jurists]‑takes vengeance on us and takes vengeance in
the most dialectical manner by the development of senseless formalism and
bureaucratism. But until the time when legal formulation is considered as an
integral part of the political and socio‑economic nature of the activity
of the state, a matter which cannot be left 'in "strange hands",
until then an abundance of empty lifeless formalism is inescapable for us.
Accordingly, the task consists in
connecting the study of legal form and its practical application with the
economic and social‑class factors which are the bases of this form
itself, of its individual aspects and, finally, of individual legal
institutions.
The categories most characteristic of bourgeois law‑the subject
of a right, ownership, contract etc., primarily and most clearly reveal their
material basis in the phenomenon of exchange. The category of the legal subject
corresponds to the category of the value of labour. The impersonal and general
quality of commodities is enhanced by the formal qualities of equality and
freedom which owners of commodities confer upon one another. This is the
starting point of Marx's criticism of abstract legal categories.
In my essay The General Theory of Law and Marxism, I tried consistently to
apply this point of view to different branches of law and different legal
categories. It seemed to me that, as a result, a more or less structured
concept was achieved, which also incidentally agreed with those brief remarks
that are found in Marx concerning the law of the transitional period to
socialism. In this approach, the contrast between the principle of socialist
planning and the principle of equivalent [exchange] or between the technical
and social division of labour, achieves a decisive significance for the
explanation of a whole series of incompletely formulated problems of a theory
of law. The best proof of the utility of my point of view is the fact that many
comrades have used it successfully for both critical and constructive purposes
in the various branches of law.
At the same time, a further
critical verification of the proposed
194
PASHUKANIS:
SELECTED WRITINGS
hypothesis is, of course,
necessary. Criticisms of substance are always useful. It is wrong, however, to
resort to a simplistic outcry against legal ideology in general. The merit of the Section of Law of the Communist
Academy consists, among other things, in the fact that it has avoided this
seductive path.
In his article "State and
Law in the Period of Socialist Construction", 5 Stuchka has formulated a
series of points with respect to my conception, which for brevity, following
Stuchka, we will term the "labour theory". This requires certain
clarification and correction.
First, I readily agree that [my]
above‑mentioned essay in many respects needs further development and
perhaps reworking. A whole series of problems could not be covered in the book
and indeed, at that time simply did not come within the author's field of
vision. Such for example, is the problem of the law of the transitional period,
or Soviet law, fully posed by Stuchka, which is among his outstanding
contributions to the theory of law.
Of course, I did not view the
process of the withering away of law as a "direct transition from
bourgeois law to non‑law". If one could get such an impression, then
this is because I directed my main attention to commenting on the well‑known
place in Marx's "Critique of the Gotha Programme", which refers to
the "narrow horizon of bourgeois law". Of course, this
"bourgeois law without the bourgeoisie" (Marx refers to the stage
when classes are already destroyed and only the principle of distribution in
proportion to labour time is retained) is as far away as heaven is from earth
from bourgeois law without quotes, which is a facilitating element of the
process of exploitation. The class functionality of this law and not only of
this, but also of our current Soviet law, corresponding to a lower level of
development than that which Marx envisaged in the "Critique of the Gotha
Programme" , is fundamentally different from genuine bourgeois law. Only
"bourgeois law" in quotes‑which is not genuine bourgeois law‑can
wither away. The law of the bourgeois state, protected by the force of the
latter, can only be destroyed by the proletarian revolution.
I repeat that the great service
of Comrade Stuchka is his continuous emphasis upon the particular nature of
Soviet law which flows from its revolutionary origin, in contradistinction to
every attempt to consider our Soviet law as a fuller realization of certain
"social" tendencies observed in the bourgeois legal order.
Similarly [to Stuchka's credit is
due the recognition of] the
1
"THE
MARXIST THEORY OF LAW" 195
indisputable fact of the
existence of feudal law, which had as its specific class‑functional
significance a whole series of particular features derived primarily from a
specific form of exploitation. Can there be discussion of the question form of
exploitation? Can there be discussion of the question if the specific features
of feudal law, and its particular form are related to the absence of the
development of a commodity and money economy and to the primacy of relations
'in kind? I think that Comrade Stuchka will not deny this relationship. On the
contrary, in his writings he repeatedly emphasizes the notion that, for
example, ownership of land loses its feudal character at the same time that
land becomes a commodity like other commodities, and its owner a commodity
owner. Thus, the transition from the feudal law of sovereignty over land (and
over people) to the bourgeois law of private ownership of land (from which
political authority was distinguished as a special force)6 can be
considered not only from the perspective of a revolution of the functional‑class
character of law, but also from the point of view of a reversal of its form. It
is indeed because of this that the bourgeoisie not only substitute their new
law for feudal law but give such an all encompassing significance to the legal
element in social life and ideology.
It should also not be forgotten
that the division of labour, and the exchange connected with it, are the
essence of a phenomenon that appears earlier than the feudal system. Although
feudalism, compared with the later stages of development, is characterized by
the preponderance of relationships in kind, we however meet with purchase and
sale, with products and labour assuming the form of commodities, and with a
universal equivalent, i.e. money, throughout the entire feudal period.
Thus, the premises are already
present for the construction of economic relations as relations of exchange.
The appearance of private property, which likewise precedes feudalism, is the
result of the division of labour. Private property first appears as movable
property.7
At the time when the large landholdings
of the ecclesiastical and secular aristocracy began to develop in place of
family and tribal ownership of land, feudalism matured as a result and movable
property and certain rudiments of the law of obligations were already in
existence. In particular one must agree with this [position] if one accepts the
point of view of one of the most contemporary
196 PASHUKANIS: SELECTED WRITINGS
historians of early feudalism,
Alphonse Dopsh, who has denied the catastrophic nature of the destruction of
Roman culture by the German tribes. However, for our purposes it suffices to
accept the incontrovertible evidence concerning the presence of a developed
form of value contained in the so‑called barbarian laws in the era of
early feudalism. Merely recall that wergeld*
was always calculated in monetary units.
It follows from this, incidently,
that private property, which is based on the fact of the social division of
labour and upon exchange, not only succeeded the feudal law of things as the
sole and universal form of property, but co‑existed with and even
preceded it.
In considering the law of feudal
society, we can, similarly, establish a relationship between the particular
features of the content and class function of the law of a given period on the
one hand, and its particularities of form on the other. For this we need
neither deny the existence of feudal law nor convert it into bourgeois law. The
tithe and the cropshare should not be confused with the surplus value of
capitalist society. However, having completely understood this latter category,
we can also, as Marx further indicated, additionally explain the significance
of the feudal forms of exploitation. In the same manner, criticism of the most
abstract and perfected definitions of bourgeois law can be useful in explaining
the preceding forms, although in many respects they embody completely
contradictory characteristics.
The relationship between two
commodity owners, as a real basis for the whole wealth of legal constructions,
is itself a rather empty abstraction. Much is hidden behind the will of the
commodity owner: the will of the capitalist, the will of the small producer of
commodities and the will of the worker selling his only commodity‑labour
power. The formal character of the legal transaction says nothing of its
economic and social class content.
On this point Comrade Stuchka quite correctly appeals to us "to confine ourselves to the abstract world of simple commodity producers for no longer than is necessary to reveal the secrets of the abstractions of bourgeois law. Once this is done, back to
* In ancient Teutonic and Old
English law wergeld was the monetary
equivalent calculated to release an offender from further liability for
homicide and certain other crimes [eds.].
"THE
MARXIST THEORY OF LAW" 197
reality, to class society. "
One can hardly object to this
appeal. The interpretation of the meaning of formal categories of law does not
deprive them of their formal character and consequently does not eliminate the
danger of reverting to a legal ideology veiled in protective Marxist
coloration. Comrade Stuchka is certainly right to raise his voice in warning
against this tendency.
Especially beyond question is
Stuchka's statement that the will of the commodity owner under simple commodity
production, and the will of the capitalist commodity owner, are qualitatively
different wills, although in transactions of purchase and sale they project an
identical formal appearance. The direction of will in one case is expressed by
the economic formula C‑M‑C, and in the other case by the formula M‑C‑M‑+i.
The central importance of this distinction is very clearly revealed for us in
connection with the recent intra‑Party discussion when we had to struggle
against the uncritical usage of the term "private enterprise" and
demonstrate the necessity for a strict distinction between capitalist
production on the one hand and simple commodity production, i.e. peasant
farming, on the other.
In conclusion, a few remarks are
in order with regard to the relationship between state and law. On this point
Comrade Stuchka warns against economism and observes a certain lack of
understanding in my positions in this connection. I cannot agree that my work
contains any lack of understanding in the sense of a concession to economism or
to a fatalistic distortion of the Marxist teaching on social development. I was
making two points. In the first place, I warned against confusing the real
possibilities of state power and the results actually achieved by it, with what
is contained in the laws issued by the state. 'For revolutionary periods in
particular, it is important to distinguish two different things mentioned by
none other than Stuchka himself, laws which "work" and those which
"do not work". Further, I asserted that the social division of labour
and, accordingly, the appearance of economic subjects as participants in this
exchange, are facts that are not connected in their origin with state
imperatives. This is also a proposition which would seem to be beyond question.
However, these facts contain the basic and principal prerequisite for a legal
relationship. It goes without saying that the concrete means of a given system
of legal relationships are a matter of state power and the laws issued by it.
It would be
198 PASHUKANIS: SELECTED WRITINGS
absurd to deny this, but it would
be even more absurd if, in the course of analysing legal regulation as an
historical phenomenon, we reduced everything to an objective norm, to a rule as
such, if we "abolished" subjective rights without making an effort to
give some thought to the real economic facts which are concealed by this
category. Therefore, those jurists who are inextricably the prisoners of legal
ideology (or of the concept of public power as the source of objective norms,
itself a thoroughly legal concept) make a humorous impression when claiming they
are making some sort of step forward and leading us away from
"individualistic and metaphysical constructions". In fact they are
continually going round and round in the circle of their discredited
definitions, arriving only at a complete misunderstanding of what they
themselves are discussing.
I tried in my work to show that
for the Marxist it is not necessary to follow this example, i.e. to explain law
through a juridicized state [i.e. a legal state]. From such a
"positivist" theory of law, I called for a return to Marx who shows
how "the creation of a political state and the division of civil society
into independent individuals ... is accomplished by one and the same
action".
By concentrating attention on the
omnipotent state in the sphere of the creation and support of the legal form
(generally obligatory laws, the force of judicial decision, the strict
execution of sentences etc.), the positivist jurists consciously or
unconsciously conceal the far more important extra‑legal, extra‑statutory
[and] extrajudicial power of the state which is directed towards the defence of
class sovereignty by every means, all of which are outside the legal form.
Comrade Stuchka is absolutely
right in emphasizing the significance of state power in the process of accelerating
the transition from one mode of production to another. But this was not the
subject of discussion in my study.
The problem posed by Stuchka is
much broader and we are not in disagreement with it. My task was much more
modest; to show the internal connection between the social division of labour
expressed in the form of a commodity, and the basic concepts of so‑called
private and public law.
I am convinced that only through this approach can Marxist
I
"THE
MARXIST THEORY OF LAW"
199
criticism overcome all regression
into absolutist juridical dogmatism which, as experience has shown, are
inevitably transformed into a reversion to bourgeois legal ideology.
Notes
1. M.
Reisner, Law, Our Law, Foreign Law,
General Law (1925), Leningrad‑Moscow, p. 209.
2. ibid. p. 198.
3. ibid. p. 24.
4. ibid. p. 119.
5. See Revolution of the Law (1927), no. 2, pp.
3‑26.
6. "Through the emancipation of
private property from the community, the State has become a separate entity,
beside and outside civil society; but it is nothing more than the form of
organization which the bourgeoisie necessarily adopt both for internal and
external purposes, for the mutual guarantee of their property and
interests". K. Marx and F. Engels, "Feuerbach: Opposition of the
Materialistic and Idealistic Outlook" (1845‑1846), MESW, vol. 1, p. 77.
7. "Real private property began with
the ancients, as with modern nations, with movable property." ibid. p. 77.