6 "Economics and Legal
Regulation"*
Introductory Note
In his General Theory of Law and Marxism, and elsewhere, Pashukanis had developed a theory of the legal form which contained the provocative proposition that the state was a derivative concept. Indeed, the adamant denial of this proposition had been asserted by Stuchka at least since 1919. By 1929 the Party had set its uneasy course for industrialization and collectivization, the first Five Year Plan had been launched in pursuit of this goal, and Stalin had consolidated the supremacy of his own political line at the expense of other possibilities available with the demise of the New Economic Policy. At the April Plenum of the CPSU CC, Stalin demanded the intensification of the class struggle and the consolidation of the dictatorship of the proletariat. In effect, both demands seemed to require the increased use of state and administrative agencies. No longer merely the politics of academic discourse, but now the politics of Soviet law required that Pashukanis, the pre‑eminent figure within Marxist jurisprudence, adapt his thought to the new Party conception of Soviet state and law, His response was a lengthy essay, translated below, on the necessary role of the state in times of economic and political crises. The superficial object of his inquiry is the character and meaning of the economic intervention and regulation exercised by the German and English states during the 1914‑1918 war. But the reader quickly learns that Pashukanis uses this
*"Ekonomika
i pravovoe regulirovanie",
Revoliutsiia prava (1929),
no. 4, pp. 12‑32 and no. 5, pp. 20‑37.
"Economics and Legal Regulation"
I
In starting work on this theme, I
experienced a misgiving of the following nature. The main problem amounts to
the so‑called reflexive effect of superstructures on the base. It may be
asked, what new can be said in this respect other than positions long since
stated and justified? Does this not invite the danger of repeating in one's own
words truth long known to all? This abuse occurs rather often among us and,
moreover, physiology teaches that the monotonous repetition of one and the same
irritation merely reduces the receptivity of the nervous system.
Therefore, first of all I posed
the following question for myself. what is new on the subject of the problem
before us? And indeed, after the most cursory survey of the literature a great
deal appeared to be new. Finally I had to worry about something else, namely
that in a brief essay I could hardly succeed in covering all those separate
aspects and details of the problem which stands before us.
The influence of the state upon
the economy‑and legal regulation is merely a special form of this
influence must now be considered in the light of the experience of the
imperialist stage of capitalist development, particularly in the light of those
attempts at control and regulation of the national economy which took place at
the time of the World War. Those attempts generated a whole literature which,
it must be said, is still insufficiently studied among us. While, for instance,
the experience of Germany is more or less well known and studied, the no‑less
interesting attempts at the control and regulation of the national economy
conducted by the English government are significantly less known among us. 1,
at least, would have difficulty in naming even one work devoted to the regulation
of the English economy during the war, although no small number of
238
PASHUKANIS: SELECTED WRITINGS
such works were published abroad.
Another fact of colossal significance is our construction of socialism. Here we
can observe the deepest influence of the superstructure upon the base, which is
accompanied by the fact that a superstructural
organization‑the state‑is becoming part of the base. The planning
of the national economy is a combination of conscious and volitional elements,
scientific prediction and purposeful arrangement. This gives a new aspect to
the problem and imparts to it a richness of nuances that earlier eluded
attention. In our literature these problems must be considered in the light of
various attempts to define the limits and nature of the operation of the law of
value in our economy. A controversy arose around the statements of Preobrazhensky, who put forth the concept of the law of
primitive socialist accumulation, contrasting it with the law of value.* The
acuity of the arguments was undoubtedly caused by the fact that t he matter
related to the most urgent problems of economic policy. However, very weighty
reproaches were heard from both sides at the purely methodological level. In
particular, Preobrazhensky saw among his opponents a
tendency to deny historical materialism and to slip into the position of Stammler.
As will be apparent from what
follows, two other discussions, which have developed among Marxist economists,
will also have a bearing on the problems with which we are dealing. These are
the discussion about the subject of theoretical political economy, and the
continuing discussion unfolding on 1. 1. Rubin's book, Essays on Marx's Theory of Value.
In bourgeois economic literature
we have a whole series of works dedicated to the interaction between economic
laws and so‑called social influences. The urgency of this problem began
to be felt even before the World War and before the expansion of state
regulation. A decisive part was played both by the intensification of the class
struggle inherent in the Imperialist period, and by the growing role of state
organization. The bourgeois economists felt the need to turn to the study of
the social element in economic phenomena. Characteristic, in this respect, is
the statement of one of the shining representatives of the individualist,
subjective‑psychological
* This concept is found
especially in E. A. Preobrazhensky, The New Economics (1926), Clarendon Press, Oxford, 1965; and in
his articles in Vestnik kommunisticheskoi
akademii, (1924)‑[eds.].
"ECONOMICS AND LEGAL REGULATION"
239
approach in political economy,
the leader of the Austrian School, Bohm‑Bawerk.
In his work, Power or Economic Law, written
on the eve of the 1914‑1918 war, Bohm‑Bawerk
stated that there was a gap in economic science precisely in the area of the
study of social influences.
This gap [we
read in his work] has been always felt as such; but during the past decade it
has become particularly noticeable, because the intervention of factors of
social power has been continually growing in our most recent economic
development. Trusts, cartels, pools and monopolies, on the one hand; workers'
organizations with coercive methods in the form of strikes and boycotts, on the
other‑‑exercise pressure forcing their way into price formation and
distribution; and we still have not even spoken of those fast‑growing
artificial influences which proceed from state economic policy.1
In recent decades in the
bourgeois (primarily the German) economic literature, a whole school has taken
shape, firmly emphasizing the significance of social regulation as a factor
which must be considered in the study of economic phenomena. Karl Diehl belongs
to this trend; its most outstanding representatives include Stolzman,
Ammon, Oppenheimer, Spann and others. The
productivity of this trend has not weakened but, on the contrary, has grown
stronger during the post‑war years. The problems of the social and
economic relationship have begun to interest even the more or less orthodox marginalists; I will point out merely the work of Strigl.2
A series of chapters of Max Weber's Essays
on Social and Economic Organization are dedicated to the same theme;3
Dobretzberger gives a summary of the various
theoretical views on the. question of the relationships between economy and
law.4
Finally, as a new element, it is
necessary to take into account that our revolutionary practice and the Marxist
criticism of the theory of law has created an image of the specific features of
the legal superstructure, and one much clearer than before. Thus, for instance,
while in the pre‑Soviet period one often met the assertion that socialism
would result in the uncommon development of the legal superstructure, now, of
course, none of the Marxists would agree with this. For us it is now
indisputable that the growing significance of the conscious regulation of
economic processes, and generally the
240 PASHUKANIS: SELECTED WRITINGS
development of a conscious
collective will on the basis of historical materialism and the basic features
of socialist society, are in no way equivalent to the expanding role of law.
But on the contrary, they are accompanied by its inevitable withering away.
In its most general formulation,
the problem economics and law, or, more broadly, economics and social‑regulatory
influences-represents and represented an arena for the struggle for the
materialist understanding of history. It is along these lines that Marxism must
defend its position from attack from all possible varieties of philosophical idealism.
The social trend in political philosophy, which was discussed above, has an
undoubted ideological affinity with the philosophy of neo‑Kantianism, in
particular with the philosophical constructs of Rudolf Stammler.
Of course, Stammler has tried to refute the
materialist understanding of history, declaring legal regulation to be a
logical premise of economic processes. The following is one of the formulations
which most vividly communicates his basic thought:
At the basis of
all studies of political economy, and hence of all study of the national
economy, lies a definite legal or conventional regulation in the sense that
this concrete legal ordering is a logical condition of the given concept or
principle of political economy. If we ever intellectually discard this defined,
necessarily assumed regulation, we would be left with nothing from that
economic concept or principle.5
. . . . . . . . . . . . . .
The unsatisfactory nature of
solutions based upon philosophical idealisms does not, of course, eliminate the
problem. Its essence is expressed in the following. A series of spontaneous and
entirely objective regularities in the economic order, finding their expression
in economic categories, are given; on the other hand, on the basis of these
economic regularities, more or less subjectivist factors develop in the form of
the interference of organized class forces, preeminently the state as the most
all‑encompassing organization of the ruling class. It may be asked, how
must one conceive of the relationship between the elementary laws of economics
and the forceful intervention of social organization? Above all, it is
indisputable that the economic and the non‑economic should be regarded as
a
I
I"ECONOMICS AND LEGAL REGULATION"
241
kind of unity. Social forces do
not encroach upon the economic process, tangentially, or deus ex machina. The social, as Bukharin properly emphasized in his polemic with Tugan‑Baranovsky, is the alter ego of the economic. It is absurd to regard, as does Bohm‑Bawerk, the economic and the social as pure
opposites. However, it is also wrong to limit oneself to emphasizing the
element of their unity, thus transforming them into an identity. It is
impossible to be complacent about the fact that the class struggle is already included in economic categories. The
dialectical method requires the consideration of social and economic phenomena
as the unity of opposites. Economics not only includes elements of class struggle, but also assumes them outside itse!f, as basic, as
opposed, comprised of the same unity. Economics achieves its potential through
the non‑economic ("politics is concentrated economics"); it not
only determines its alter ego, but in
its turn is also determined by it. Socio‑political processes not only
reflect completed changes in the economic base, but also anticipate future
changes. Such is the significance of the proletarian revolution and the
dictatorship of the proletariat.
We find an extremely valuable
indication of how Marx himself viewed economic categories, in one of his
letters to Engels, of October l0th, 1868:
By chance I
found in a little bookshop the book Report
and Evidence about the Irish rent law of 1867 (House of Lords). This was a
real find. At a time when gentlemen economists are considering the dispute
about whether ground rent is payment for natural differences in the soil or if
it is merely interest upon capital invested in land, a purely dogmatic dispute,
here we see a practical life‑and‑death struggle between the farmer
and the landlord‑‑to what
extent rent should also include, beside payment for the different qualities
of land, interest upon the capital invested in the land not by the landlord,
but by the tenant. Political economy can be transformed into a positive science
only in this way, by replacing competing theories with competing facts and the
real contradictions forming the hidden basis of the former.6
What can be inferred from this
letter? First, that Marx proposed searching out the class struggle in a place
where the doctrinaires saw merely the task of delimiting economic categories.
Secondly, the economic result, and the degree to which one category or another
is
242
PASHUKANIS: SELECTED WRITINGS
embodied
purely, will depend upon the practical result
of the class struggle. The abstract categories of political economy
indicate only general and rather broad limits. The more concrete regularity is
that of the class struggle and may be established only by taking into full
account all the conditions of the latter. It seems to us that Marx's thoughts
have still not been sufficiently mastered by the economists. Although there is
a discussion of conflict in the more or less abstract economic studies, this,
nevertheless, is usually understood to mean market competition, competition
between similar enterprises, in which one defeats another by higher labour productivity or higher technology; in a word, by
lower costs and lower market prices. However, in fact, market competition is
just one and by no means the only form of economic struggle. In The Economics of the Transitional Period, Bukharin distinguishes "vertical, horizontal, and
combined competition". Only 'in the case of horizontal competition, i.e.
when we have the struggle between similar enterprises for a market, does the
method of lower prices find its full application. But this method is
inapplicable in those cases when the struggle is over the division of secondary
surplus value among enterprises located in a vertical relationship (raw
material, semi‑finished commodities, final products). The same is true
with respect to the struggle between large‑ and small‑scale
agriculture for land, and with respect to the struggle between monopolistic
organizations for sources of raw material and for areas of capital investment.
Although all these phemonena are undoubtedly
reflected in prices and, accordingly, are in one way or another connected with
the market, this does not nevertheless make them market phenomena.
The
overwhelming majority of bourgeois economists is characterized by the attempt
to remain in the sphere of market competition and to concentrate exclusively
upon the laws of price for mation. These laws are
considered as the specific subject matter
of "pure" economic theory. The Austrian School is based on the
derivation of these laws from the simplest assumptions: the importance of
demand for, and supply of disposable wealth gives a completed form to an
economic theory which chooses to have nothing in common with reality and its
laws of development.
As one of the examples in which
one may see the difference between Marxist theory and the "pure
economic" theories of bourgeois scholars, we direct attention to the
problem of imperial-
"ECONOMICS AND LEGAL REGULATION" 243
ism. On the one hand we have the
economic theory of imperialism as Lenin formulated it, a theory which includes
a whole series of very concrete elements: the degree of concentration of
production, the transformation in the role of banks, the export of capital, the
monopolistic division of the world etc.; while on the other hand we have, for
example, the conclusions of such a prominent bourgeois economist as Schumpeter,
who proposes that the concentration and centralization of capital is economically profitable only up to
certain rational limits‑if it goes beyond these limits, this is because
causes not Of an economic nature are
added to purely economic causes:
If nevertheless
giant enterprises and trusts arise, which dominate the industries of whole
countries [he writes] and even more‑if the economy of free competition
increasingly gives way to struggle between huge monopolies, then for this there
are other, not purely economic causes. Above all, this is the influence of
nationalist, military, imperialist instincts of struggle, which cannot be
entirely explained by the economic condition of our period. In other words, a
state policy of force has transformed the economy‑by means of protective
tariffs, the dumping of commodities and capital‑and has made our world
economy something other than what would have been achieved as the result of the
egoistic economic calculation of isolated individuals left to themselves.7
Thus, Schumpeter refuses to use
economic regularities in the explanation of the most important phenomenon in
capitalist development. His economic theory stops short of this point.
Another representative of the
Austrian School‑Strigl‑goes much further.
He simply denies the social element as having any significance whatsoever for
economic theory.
. . . . . . . . . . . . . .
It is clear that such an economic
theory is incapable of explaining anything of the economic processes which
occur in reality. But it does not even propose to do this. The conclusions of Strigl demonstrate to use that the methodology of the
Austrian School is a reductio ad absurdum. Pure economic laws turn
out to be quite useless. This is certainly not the key opening the door to the
cognition of reality, but, as Comrade Stepanov
expressed it, "simply the key of a gentleman‑in‑waiting which
the bourgeoisie awards the priests of its science".
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PASHUKANIS:
SELECTED WRITINGS
II
Every economic theory worthy of
the name must have its basis in some sociological conception. Only from such a
theory is it possible to anticipate an answer to our question of the
relationship between economic and non‑economic elements. Bourgeois
political economy, as we saw, was not in a condition to deal with such a task.
It attempted either to wrench economics from its social context and to
construct economic laws abstracted from social production, or to introduce
social elements, which immediately lapses into idealism and naive teleology.
The colossal advantage of Marxism
lies in the fact that its economic theory rests upon the solid foundation of
historical materialism, constituting a single whole. Economic categories, from
the Marxist perspective, are the reflection of a specific system of production
relations. In every antagonistic society class relationships find continuation
and concretization in the sphere of political struggle, the state structure and
the legal order. On the other hand, the particular irreducible quality of
economics‑as the totality of the social relationships of production‑eliminates
neither the unity of these relationships nor the material process of production
as a process between man and nature. The qualitative and quantitative
characteristic of this process, which we find in the concept of productive
forces, is decisive in the final analysis. Economics, therefore, must be
considered in its dialectic relationship both with the very material process of
production and with the superstructural relations in
which its potential inheres. Thus, while the primarily Kantian methodology of the
bourgeois economists and political scientists seeks relationships of formal
logical conditionality, the Marxist dialectic must reveal the real dependence,
the real movement of things themselves.
This is by no means such a simple task, for real relationships are much more complex than a priori dependencies. One should not be surprised, therefore, that our Marxist theory had to devote no small amount of attention to certain preliminary questions. Instead of immediately realizing those undoubted scientific advantages which the Marxist theory of political economy enjoys, it was necessary to debate how in fact these advantages should be used. We will presume to intervene in this debate only because the problems
"ECONOMICS AND LEGAL REGULATION"
245
dealt with are by no means
special, but instead have a general methodological nature and are linked in the
closest manner with our own theme.
The point of departure for the
discussion was the Bogdanovian conception, which for
a long time was recognized as a model discussion, from the perspective of co‑ordinating the Marxist theory of political economy with
historical materialism. For this reason, The
Short Course in Economic Science was, in its time, so highly valued by
Lenin. "The outstanding virtue of Mr. Bogdanov's
Course", wrote Lenin,
"consists of the fact that the author has consistently adhered to
historical materialism."8
Nevertheless, a further step in
the development of Marxist economic science here could be made only by way of
criticizing and surmounting Bogdanov's conception.
For, while at first the connection between the anti‑Marxist philosophy of
Bogdanov and his understanding of the basic questions
of economic theory was not sufficiently obvious (the more so since the
philosophical views of Bogdanov at the end of the
1890s had still not taken shape in that finished anti‑materialist system
in which they were moulded in the period of Empirio‑Monism and Tectology);* nevertheless, later no doubts could remain in that regard. It
is impossible to construct and develop a Marxist theory of political economy by
rejecting both materialism and the dialectic. The anti‑dialectical and
vulgar mechanistic conception of Bogdanov in the area
of political economy above all influenced his understanding of the category of
value. In Bogdanov, the special quality of this
category corresponding to specific social relationships, disappears; value
loses its historically conditioned and transient nature; it is equated with
physiology and energy. Such a concept cannot be described as anything other
than a vulgarization and distortion of Marx's economic theory.
The end of the struggle with Bogdanovism, in the area of economic theory, is usually
considered to be the discussion on the subject of political economy which took
place in 1925 within the walls of the Communist Academy. But, as often happens,
the end of the struggle served as the start for a new, no less heated
discussion, kindled in the ranks of Bogdanov's
opponents.9 One must assume one of two things: either Bogdanov's mistakes and his anti-
*
See V. I. Lenin, Materialism and Empirio‑Criticism (1908), LCW, vol. 14, esp. pp.
226‑232, and 322‑330 [eds.].
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PASHUKANIS:
SELECTED WRITINGS
dialectical aims still continue
to nestle somewhere among the Marxists or, that in the course of struggling
with these mistakes, new mistakes and deviations from the Marxist method were
in turn committed, and which required prompt correction. I must say that, in my
view, it is the latter version which is correct, the version put forward by
Rubin's opponents, although even they do not thoroughly think through certain
positions to the end. To put it more clearly, I consider that the so‑called
Rubinite conception, with all its shortcomings, is a
logical conclusion from the position according to which the subject of
theoretical political economy is exclusively
the category of commodity capitalist economy and the corresponding
production relations. And, on the contrary, I affirm that the struggle for a
Marxist, i.e. for an historical understanding of the categories of value, by no
means requires a truncated understanding of the subject of political economy. 10
Thus, despite the most
categorical statement that the question of the subject of political economy has
been decided once and for all, and that in a limited sense this decision is
confirmed by the signatures of all the Marxist authorities, I consider it
possible and necessary to pose this question anew‑precisely in the
interest of the Marxist dialectic to which so much attention has been given
among us. For it is very good when a vulgar mechanistic conception gives way to
the materialist dialectic, but very bad when bourgeois economists, such as Ammon, become the guides for Marxists in the struggle
against Bogdanovism, economists for whom the unit of
their scientific subject is not the result of the material unity of the
phenomena being studied, but is constructed from the unity and synonymity of logical assumptions.
In fact, it is the concept of the
historical specificity of the categories of value that requires of the Marxist
dialectician not only the ability to deal with them in their final form, but
the ability to show their historical origin, and consequently to show the
connection of the commodity‑money and the commodity‑capitalist
economy with the previous economic formations. Economic theory may in no way
decline this task if, according to the views of Marx, it must study economic
phenomena in their movement and development, i.e. establish the laws of
movement from one form to another, from one system of relationships to another.
What does it mean, for instance, to study the capitalist system in its origin,
development and
" ECONOMICS AND LEGAL REGULATION"
247
decline? Does this mean to be limited to the abstract analysis
of the forms of value? No, for the forms of value themselves, in their full
development, already assume established capitalism. "For the abstract
theory of capitalism", wrote Lenin, "there exists only fully
developed and established capitalism, and the question of its origin is
removed." The same relates, of course, to the decline and destruction of
the capitalist order.
Further, when Marx affirms that
the concept of ground rent reveals to us the essence of the feudal metayage and tithe, how can this be if the
subject of political economy is only the objectified (i.e. the value) form of
social relationships? In natural economy this form is in fact absent. Why then
is it necessary, perhaps, to state that Marx had in mind not the economic
essence of metayage and tithe but something else? But what?
One can hardly find a satisfactory answer to this question. Certain authors, it
is true, make attempts to contrast economic regularities (relating only to
commodity production) with general sociological laws effective in pre‑exchange
and postexchange formations. But it occurs to us that
such a contrast accords badly with Marxism in general, and with historical
materialism in particular.
In general, it is in the example
of this category, i.e. the category of exploitation, that the distortion of a
limited treatment of the subject of political economy can be seen clearest of
all. No one would dare deny that exploitation is an economic concept, and also
no one dares deny that relationships of exploitation are in general not
restricted by the limits of the form of value. Until now we have thought that
Marx's contributions consisted both of the fact that he showed the specific
nature of the capitalist form of exploitation, and that he established its
connection with other forms (slavery, serfdom). And now, you can see that they
teach us that Marxist economic theory ends where the analysis of the particular
features of the value form ends, and that every attempt to go beyond the limits
of objectified relationships and to identify the natural and the commodity‑capitalist
economy as two phases of development, threatens to fall into Bogdanovism and portends the physiological and energy‑oriented
treatment of social relationships.
Let us pause on still another
consideration, which was expressed by Comrade Osinsky
in a discussion with I. I. Skvortsov‑Stepanov
and was formulated thus: "To the extent that exchange does not
248
PASHUKANIS:
SELECTED WRITINGS
exist, a national economy does
not exist, and to that extent political economy also does not exist."11
Thus, the concepts of social
relationships and exchange relationships are declared coincident and isomorphic
with one another. In fact the first, of course, is broader. Any system of
natural exploitation in the ancient Egyptian state, or in the state of the
Incas, combined significant human masses with an economic relationship,
although this was not a relation through the market, or through exchange. Thus,
in the first place, the statement that only exchange creates the concept of a
national economy does not correspond to historical reality. In the second
place, when exchange is introduced as a concept "constituting" the
subject of political economy it by no means bears the features of an historical
phenomenon which passed a determinate path of development, which is connected
with the natural economy by a thousand different transitions, which have
gradations from the exchange of surpluses and of particularly rare products to
developed commodity exchange; no, it is taken as something always equal to
itself, as a complex of completed formal characteristics, as the logical
condition for the development of the theoretical problems of political economy.
If we approach exchange from an historical perspective, then we
cannot confine ourselves to the limits of the category of value, for we must
study the process which first creates this category. If exchange is treated as
a logical basis, constituting the unit of the subject of theoretical economy,
then we risk imperceptibly sliding into the formal logical conception of
bourgeois economists of the type of Diehl, Ammon and
others. For the latter, for example, the premise of the theoretical problems of
economic science is the individual freedom of those engaging in exchange.
If we imagine
the absence of this freedom (the freedom of determining the quantitative
exchange relationship of the objects exchanged) and in its place a definite
ratio of exchange established for individuals by the social order, and the
fixing of prices independent of its individual regulation; then, properly
speaking, the theoretical problem of political economy, the problem of price,
is destroyed by this.12
Linked with the tendency toward
the restrictive interpretation of the subject of political economy stands the
oversimplified contrast between the organized (pre‑exchange and post‑exchange)
and unor-
I
"ECONOMICS AND LEGAL
REGULATION"
249
ganized
(exchange) economy, oversimplified in the sense that in the organized economy
all relationships and all development are depicted as entirely and fully
subordinated to a collective or other ruling will. And from this the conclusion
can be drawn that no objective laws of the development of organized society can
exist in general, and that the task of cognition in this case is reduced to
pure description plus the assertion of some system of norms.
With respect to pre‑exchange
society, i.e. primitive forms of natural and semi‑natural economy, it is
entirely incomprehensible why, in studying the transition from these forms to
the more complex, we must be limited to the descriptive method and may not rise
to generalization (it is possible not to speak of a "system of
norms", for hardly anyone undertakes to affirm that, for instance, the
decay of natural economy was the projection of some earlier established norms).
There remains, accordingly, only
one thing that is true: the corresponding regularities are not embedded in the
form of the law of value, for this form had still not taken shape. If we take
the economy of the transitional period to socialism, then no one will be likely
to deny the presence of objective regularities in the economic order, which
again are by no means confined to the form of the law of value. Finally, under
developed socialism, the relationships of production will be maximally
determined by the conscious will of the collective. Therefore, there is every
basis to say that social technology is the science of the future. However, it
would be naive to imagine that social technology is entirely capable of
replacing the science of the objective laws of social development. For every
technology is nothing other than the application, in practice, of the laws of
some science‑physics, chemistry, biology etc. One may ask how can social
technology develop if it is not accompanied by the powerful development of the
science of society? And, on the contrary, how can one imagine the development
of a social experiment (and technology is nothing without experiment) which
would not involve a deeper, more detailed, and more exact comprehension of
objective relationships and connections? It seems to certain comrades that
these objective regularities should receive the name "general‑sociological".
250 PASHUKANIS: SELECTED WRITINGS
But one may ask, how can any
general social regularities remain with the disappearance of economic
regularities? For to the extent that social relationships‑in their
character and changes‑are subordinated to some necessity, then, of
course, first, they are subordinated to that necessity which is included in
joint production, in the labour relationship. If all
objective laws disappear in this area, then, it may be asked, in what manner
can any general social regularities be preserved? The whole issue consists in
the fact that Engels' "leap from the kingdom of
necessity to the kingdom of freedom" is understood too simplistically, too
literally.13
The broadest, most consistent
rationalization of the national economy nevertheless cannot eliminate the fact
that the unification of people in society is not the product of their free
conscious decision, as Rousseau proposed, but is compelled by the conditions of
their existence; these conditions prescribed even the form of this union for
them. If this necessity ceased to be blind and was clearly recognized by
people, then it would not entirely disappear because of this‑no
recognition of objective laws destroys their effect. Thus, even under developed
socialism there will remain, or rather will grow, the necessity of a science
which studies the objective laws of the movement and development of the social
relationships of production‑which are at the base of all social
development as a whole. If the study of economic regularities is reduced exclusively to the abstract analysis of
the categories of value, then the very succession of economic forms will be
entirely incomprehensible for us. At the same time Marx's economic theory will
be deprived of all its dynamism. Take for instance such facts as the
expropriation of small producers, which constitutes a premise for the
development of capitalism, or the development of monopoly capitalism. Is it
really possible to derive them from the abstract analysis of the categories of
a commodity‑capitalist economy? Incidently,
Rosa Luxemburg attempted to construct an economic theory of imperialism on the
basis of an analysis of abstract schemes of reproduction, and she suffered
complete failure. On the contrary, Lenin's "description" revealed the
essence of the growth of pre‑monopoly capitalism into monopoly
capitalism.
The law of value is in general
given disproportionately great significance among us. Thus, for instance, the
construction of a theory of the economy of the transitional period was almost
entirely
"ECONOMICS AND
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251
reduced to the problem of the
limits of the effectiveness of the law of value in our economy.
The methodological question of
the fate of the categories of a commodity‑capitalist economy in the
conditions of our economy grew disproportionately and pushed everything else
into the background. The correct resolution of this question has, of course,
very great significance, but nevertheless it does not reveal for us the actual
regularities of the development of the Soviet economy. They can be established
only after having studied and generalized concrete material involving such
questions, for example, as the increased labour
productivity under our conditions, and the methods of this increase; the
increase in demand by the working masses, and its influence on the economy; the
new interrelationship between the so‑called popular and the so‑called
state economy; the economics of co‑operation and collectivization etc.
Unfortunately, both Bukharin and Preobrazhensky
merely promised us a second, substantive part of their studies. Meanwhile it
will only be possible to establish the actual laws of the development of the
economy of the transitional period in this substantive part.
Disputes over the significance of
the law of value for the Soviet economy were raised in connection with the well‑known
work of Preobrazhensky. There we encountered a
problem which has great importance also for us jurists. I will cite just the
testimony of Professor Venediktov:
In the seminar
on economic law at the Economic Faculty of the Leningrad Polytechnic Institute
[he writes], we made an attempt to analyse jointly
with the participants in the seminar the problem "Plan and Law" in
direct connection with the problem of value in the Soviet economy. This attempt
revealed all the difficulty of the legal analysis of this problem in the
presence of sharp disagreements on the question of "regulators" of the
Soviet economy in the economic literature.
Preobrazhensky,
as is well known, put forth the concept of the law of primitive socialist
accumulation, which, in his opinion, would be in effect throughout the period
when the socialist sector of our society was not yet sufficiently strong to
struggle with the private economic sector under conditions of full freedom of
competition. This law, in his expression, "dictates, with external
coercive force, definite ratios of accumulation for the Soviet state",
contrary to the
252
PASHUKANIS: SELECTED WRITINGS
law of value and in conflict with
it. This conception of Preobrazhensky includes a
series of vague points and ambiguities. In the first place, the struggle with
the law of value could mean the full liquidation of the historical form of the
objectification of social relationships, i.e. the final victory of planned,
collectivized economy over the market economy; in the second place it could
signify the distortion, from one or another side (by state intervention or with
the help of monopolies), of those exchange ratios which would be established
under free competition. In the former, one is speaking of extirpating the roots
of capitalism, of the liquidation of small commodity production which
"produces and cannot but produce capitalism". The full unlimited
effectiveness of the law of value signifies the unleashing of competition, the
merciless struggle of private interests, as a result of which the group of
small commodity producers sides partly with the proletariat, and partly with
the capitalists. The main policy of the Soviet government is directed towards
transforming the development of the peasant economy from the capitalist road to
the socialist road. But this process clearly is not embraced by the formula
"primitive socialist accumulation". It would be senseless, for
example, to affirm that the organization of collective farms is a phenomenon of
the law of primitive socialist accumulation. This term relates to another
aspect of the matter and the struggle with the law of value has another sense
here. It is a matter of measures for the achievement of the maximum level of
accumulation in the socialist centre, which would be impossible under
conditions of free competition, i.e. the centre of gravity here lies not in the
collision between the planned base and the form of value as such, but in the
influence on concrete exchange ratios, i.e. in price policy. This influence is
encountered at every step in the practice of capitalist states, for nowhere in
the world does the redistribution of surplus value take place on the basis of
the law of value even in its complex form of prices of production. The true
dynamics of the development of each new economic formation is always reflected
in the violation of "customary" normal ratios of reproduction. This
violation occurs because of the pressure of organized class forces, primarily
of the state (politics is concentrated economics). Capitalism, while
developing, financed itself most generously. The matter was by no means reduced
to the fact that the bourgeoisie struggled against the fetters and constraints
of the
I
"ECONOMICS AND LEGAL REGULATION" 253
feudal‑guild order. In the
U.S.A., for instance, waging such a struggle was almost unnecessary (if one
does not count the defeat of the Southern states in the 1860s). However, the struggle
in the area of money circulation, credit, customs policy and railroad policy,
consisted specifically in the creation of particularly favourable
conditions for large‑scale capital at the expense of all the remaining
classes and social groups. Capital, or the means of production, never flowed
from one sector to another in those ratios which would have derived from the
pure effect of the law of value, even in the forms of prices of production;
heavy industry, for instance, always achieved a privileged position for itself
It is sufficient to recall budgetary investment in the form of governmental
directives, protectionism, bonuses, tariff policy etc.
Thus, the spontaneity with which
the law of value acts is entirely sufficient for the constant reproduction of
capitalist relationships in the area of small commodity production. However,
this spontaneity is insufficient to ensure capitalism a swift and final
victory, it is insufficient to strengthen the domination of the leading
branches of industry, of powerful industrial and financial capital. The
inherent economic potential and concentrated economics always come to the aid
in this case, i.e. the policy of the ruling class and the state which is at its
disposition. The struggle with the law of value in this sense is something
entirely routine in the practice of capitalist states. In Preobrazhensky
it appears as if a change in the ratios of accumulation by a definite policy is
possible only in the interests of the growth of the socialist sector. This is
by no means the case it has been applied and is being applied by large‑scale
capital for its own benefit.
The struggle between the
collective and private sectors cannot therefore be equated with the struggle
against the law of value, for the transfer of assets does not take place only
through the market.
Imagine that certain economic
wealth moves from the collectivized sector to the private economic sector, but
not in the order of market exchange and apart from any law of value. Obviously
this would be just as undesirable a phenomenon for us, and would threaten us
with the same danger of the restoration of bourgeois economic relations. The
problem, it appears, is by no means restricted to the effect of the law of
value. One might say that in this case I have in mind simple abuses, while Preobrazhensky had in mind economic laws, but this is
nothing other than the fetishization of
254 PASHUKANIS: SELECTED WRITINGS
economic laws. In fact everything is reduced to the pressure which
the proletarian dictatorship experiences from those first manifestations of
capitalism which are inevitable with the presence of small commodity
production. And it is enough to imagine that the dictatorship of the
proletariat became somewhat weakened, to agree that the inevitable result of
this would be the transfer of all sorts of social funds into the hands of
private businessmen, kulaks etc.
There are no grounds for
separating the policy of the protection of collective assets from the policy of
supporting the more rapid growth of the socialist sector. However, in the first
instance we are dealing with measures which are not connected with interference
in exchange ratios, but most often consist of the total removal of the specific
objects from circulation (nationalization of land). Thus, undoubtedly, those
comrades who objected to Preobrazhensky were more
correct, who proposed to speak not of the struggle between the law of primitive
socialist accumulation and the law of value as the basic phenomenon of the
economy of the transitional period‑but of the struggle between the
socialist and the private capitalist sectors. Then the policy of
collectivization and co‑operative formation would also be included here,
a policy which likewise is by no means exhausted by interference in
spontaneously established exchange ratios,
We are not touching, in this
connection, upon the basic error of Preobrazhensky's
conception, an error which consists in the fact that he depicted the
contradictions of our economy as capitalist contradictions, not taking into
account the elements of unity included in it, the expression of which is the
union of the working class and the peasantry (hence from here to the peculiar
similarity of the peasant economy to colonies etc.).
Speaking generally, the whole
"law of primitive socialist accumulation" comes down to the need of
preserving, for a certain time, non‑equivalent exchange between the city and the country. But along with
this necessity there exists no small number of laws which are just as
imperative: for instance, the necessity of increasing labour
productivity; the necessity of raising the annual wellbeing of the working
people; the necessity of protecting collectivized assets etc. It is entirely
incomprehensible why the whole sum of objective conditions, with which it is
necessary to build
"ECONOMICS AND LEGAL REGULATION" 255
socialism, must be embodied in
the necessity of non‑equivalent
exchange and in this alone.
Finally, the last, but by no
means the least insignificant misunderstanding, befell Comrade Preobrazhensky with the law of proportional distribution of
labour expenditures. Initially, the very mention of the existence of such a law, although it was accompanied by an exact citation to
Marx, brought forth sharp accusations of Bogdanovism, of failure
to understand the historically transient nature of the category of value
etc. However, it proved impossible to solve this problem by means of clamour,
and therefore we have an attempt at an explanation in the publication of the second edition of The New Economics. It turns out that Preobrazhensky's opponents reveal a
naturalistic, a
historical conception of the law of value, when they confuse the form of
regulation of economic processes with the regulatory role in the economics of
social labour expenditures in general, and of the
role these expenditures played and will play in every system of social production.14
Thus we sum up: the law of labour
expenditures exists, moreover, it functioned and will function in every system of social production. But what the
relation of this law to the law of value is, remains nevertheless
unclear. One must return to Marx. In the letter of Marx to Kugelmann of July 11, 1868, we read:
As for the Centralblatt, the man is making the greatest
possible concession in admitting that, if one means anything at all by value,
the conclusions I draw must be accepted. The unfortunate fellow does not see
that, even if there were no chapter on "value" in my book, the
analysis of the real relations which I give would contain the proof and
demonstration of the real value relation. All that palaver about the necessity
of proving the concept of value comes from complete ignorance both of the
subject dealt with and of scientific method. Every child knows, too, that a
nation which ceased to work, I will not say for a year, but even for a few
weeks, would perish. Every child knows, too, that the masses of products
corresponding to the different needs require different and quantitatively
determined masses of the total labour of the society.
That this necessity of the distribution of social labour in definite proportions cannot possibly be done away
with by a particular form of social
production but can only change the mode of
its appearance, is self‑evident.
No natural laws can be done away with. What can change in historically
different
I
256 PASHUKANIS: SELECTED WRITINGS
circumstances is only the form in which these laws assert
themselves. And the form in which this proportional distribution of labour asserts itself, in a condition of society where the
interconnection of social labour is manifested in the
private exchange of the individual
products of labour, is precisely the exchange value of these products.15
Thus, Marx states, absolutely
clearly, that the law of value is a form of expression of the more general law
of the ratios of labour expenditures. Does this mean
that the concrete quantitative ratios which we establish in our plan between
separate branches of the economy must necessarily repeat‑and moreover in
the purest form‑those ratios which would have been established on the
basis of the law of value, i.e. in conditions of free competition? Of course
not. This is not subject to any doubt. But how do we connect this with the
indisputable proposition that the law of proportionality of labour
expenditures was in effect in each social formation, is in effect now, and
"in general cannot be eliminated"? This question is unanswered by Preobrazhensky, but the answer is clear. The law of
proportionality of labour expenditures shows only the
most general conditions of equilibrium; it provides broad bounds, within which
divergences are possible from one side to the other. By virtue of its
generality this law is totally inadequate for the determination of concrete
quantitative ratios which are established by one method in the mechanism of
market value, and by another method in the plan of socialist construction. To
explain how we understand the relation between these "regulators" we
will use the following analogy. The process of nourishment is basically
conditioned by the necessity of occasionally renewing the energy expended by
the organism. The feeling of hunger is the form in which we feel a given
physiological necessity. Finally, in terms of quantity, quality and time, the
conscious regulation of nourishment is another superstructure. All these things
by no means correspond to each other. There are 'instances of absence of
appetite during biological hunger; there are instances of false hunger. The
objective law and the form of its appearance may diverge from one another, just
as the conscious regulation of nourishment by no means must deal exclusively
with the manifestation of subjective feelings. Finally, within the bounds of
general physiological laws, the‑ conscious regulation of nourishment may
"ECONOMICS AND
LEGAL REGULATION"
257
be exercised in different ways,
varying in the qualitative and in the quantitative aspect, and with respect to
time.
In our economy we have just as
complex a picture. The law of proportional distribution of labour
expenditures marks the most general conditions of equilibrium; within these
limits concrete exchange ratios are determined under the powerful and many‑sided
influence of the economic policy of the proletarian state. Finally, value, as a
specific form of the manifestation of the law of labour
expenditures, will be in different phases of withering away in relation to the
successes of the development of the socialist planned economy. However, there
is no basis whatsoever for reducing this complex picture to the simplified form
of the struggle between the law of value and the "law of primitive
socialist accumulation".
III
A grandiose experiment in the
regulation of the national economy was made by the capitalist states during the
war. The study of this experiment has not yet been presented properly in the
USSR. In fact it has not only a great theoretical, but also a profoundly
practical interest. There is no doubt that in the imminent world conflicts the
problem of the organization of economic life will again rise to the fore, and
its more or less successful solution will be one of the most important
conditions of victory. Only the German experience has been more or less well
studied here; there are suitable works and the German literature has been
studied. The experience of England is much less well known, but it is just as,
if not more, significant. The regulation of economic life in England was in a
certain respect more successful than in Germany. Supply in England was never
reduced to such a low level as that in Germany. The whole world market of raw
materials and food remained at England's disposal. This is why England was not
in such a desperate position, and it was for this reason that it was much
easier to organize regulatory measures, in particular for food rationing, and
the fixing of stable prices. On the other hand, its greater effectiveness of
regulation is explained by the fact that England obtained four‑fifths of
her food and almost all her raw material by sea, which, of course, greatly
facilitated supervision.
258 PASHUKANIS: SELECTED WRITINGS
In every instance the conclusions
that we made on the basis of the German experience were too hasty. Thus, for
instance, Bukharin, in his Economics of the Transitional Period, depicts the breakdown of
fixed prices by speculative commerce as an unavoidable phenomenon. However, all
of the authors testify to the fact that in England fixed prices were commonly
observed, and that regulation maintained its effectiveness with the energetic
support not only of the population, but also of the businessmen themselves,
each of whom conformed to the actions of his competitor.
There is another question which
deserves no less attention‑the fate of regulation after the war. In the
same Economics of the Transitional Period,
Bukharin painted a rounded picture of state
capitalism as it developed from war regulation. Reality has refuted this picture.
After the war we see the rapid and decisive destruction of all forms of
supervision and intervention by state power in economic life. However, we
should not stop at the fact that we are said to have exaggerated the potential
of state capitalism. The process of destruction of "the coercive
economy" must be studied in all its details, both from the perspective of
the arguments which were offered for and against, and from the perspective of
the interests hidden behind these arguments and, finally, the essence of this
dispute. Again, we mainly know the German literature, in particular the
literature dedicated to questions of socialization, where the problem of the
systematic organization of economic life is directly linked to the solution of
the problems of the fate of the organization that was created during the war.
Moreover, much that is interesting in this regard can also be found in the
English literature.16
. . . . . . . . . . . . . .
Thus, the absolute statement of
the proposition, which was heard before the war, that state power is not able to
regulate prices, gives way to a relative statement of the proposition:
regulation is possible, but only within certain limits; these limits must be
sought out empirically in each separate case.
The English government, in
its supervision of industry, made wide use of the support of all sorts of
official and semi‑official organizations‑councils, committees etc.
Some of these organizations were occupied exclusively with negotiations and, so
to speak, bargaining with the state; others appeared in a consultative
capacity;
"ECONOMICS AND LEGAL REGULATION"
259
still others undertook the
function of appellate consideration of the various conflicts between the
government and individual enterprises, and yet others, finally, directly
undertook administrative functions, the distribution of raw materials, orders
etc. Through these organizations the imperialist bourgeoisie involved the upper
stratum of the working class, providing a place for the representation of trade
unions. The bourgeoisie tried to perform this experiment here, organizing
military‑industrial committees with the participation of workers'
representatives. In the period of the war, organized supply and distribution in
many respects merely copied on a broader scale the practice which was also used
earlier by large monopolies, For instance, commerce in oil products, tobacco
and milk products in England, was organized even earlier in such a way that the
distribution of commodities was made on the basis of a statistical calculation
of the demand in different markets. There was a delivery plan for each
district; the commodities were distributed with set prices which could be
raised by small merchants only under penalty of cessation of supply.
It is interesting to consider the
legal basis which was used by the English government for the regulation of
economic life. Special powers were contained in the Act on the Defence of the
Realm (DORA). However, it contained only the authority to requisition parcels
of land, factories and all other objects necessary for military purposes; the
question of prices was left open. At first the form of payment of a fair market
price was decided. But such a formulation of the procedure clearly did not
limit the increase of market prices. Soon the English government had to worry
about finding legal grounds for the setting of prices. For this it used a
medieval theory which stated that the Crown has the right to seize any portion
of property by virtue of its royal prerogative, and that payment of
compensation is a matter of grace. Relying on this doctrine, the English
government initiated price regulation but, it must be said, it did this very
timidly, beginning by agreement and only gradually moving to the decreeing of
prices. The doctrine of the denial for the subjects of the right to
compensation was effective throughout the entire war and was recognized by a
decision of the Court of Appeal in 1915, in the Shoreham Airport Case.17 Only in 1920 did a decision of the House
of Lords strike a blow at this doctrine. But the results of this decision were
annulled by the Bill on Indemnity, also
260 PASHUKANIS:
SELECTED WRITINGS
of 1920. During the consideration
of this latter Bill, an opinion was stated in the House of Commons that if the
decision of the House of Lords was not changed by legislation, then the
government would have to deal with suits for hundreds of millions of pounds. A
special commission on damages (Defence of the Realm Losses Commission), in
accordance with the above‑mentioned doctrine, established the principle
that suits for compensation were permissible only in those cases where a
particular measure was specially directed against an owner; if damages were
caused not by some special regulation, but by a regulation of a general nature,
then those who suffered losses did not have the right to compensation. The
royal prerogative thus played a conspicuous role in justifying the right of
intervention. "Only with the help of a doctrine from the age of
absolutism", notes one author "was it possible to overthrow the
tyranny of market prices."18 The first departure from market prices
occurred as a general order, in the so‑called Decree 2B of February 1916.
There it was established that for a producer, the requisition price was equated
with the costs of production plus an average profit; for a merchant it was his
purchase price, but (only) if it was not excessive and was reasonable.
Moreover, a person who was in possession of commodities not by virtue of his
normal operations, could not claim a profit. The right to establish maximum
prices was contained in the same decree. The scrupulousness of the English
lawyers went so far at that time that they considered it impossible, in one and
the same Act, to make requisitions and to establish prices; by virtue of this,
in practice two Acts were issued at different times, one of which prescribed
the requisition of supplies, and the other immediately established maximum
prices for them. Only towards the end of the war was this scrupulousness
discarded, and the practice of fixing maximum prices by decree of individual
government agencies began to be widely applied. By then the decrees did not
give rise to any complaints, and received support in every court. In 1915 such
a practice was still considered "unconstitutional and legally
impossible". A further step was the granting. to the government of the
right to establish the costs of production by all methods, i.e. up to and
including the inspection of books‑this was the so‑called Decree 7.
Thus, commercial and production secrecy was abolished. One should also mention
Decrees 30A and 2E. The first contained a general law for the regulation of commerce,
and introduced a licensing procedure. It began with
"ECONOMICS AND LEGAL REGULATION"
261
commerce in weapons, but was
gradually extended to all the remaining branches of commerce. The second gave
the right to regulate any branch of commerce or industry, establishing all
possible limitations and prohibitions, to make the issuance of licences depend upon conditions, the non‑observance
of which was punished criminally. On the basis of Decree 2E, a system of
commercial regulation in food products was also established.
One must say that the vaunted
partiality of Englishmen to legality generally fluctuated strongly during the
war. Lloyd, whom we have cited repeatedly, and who in his book dedicated a
special chapter to the "legal basis of control", as a general
conclusion expresses the following thought:
In fact in the 'majority of cases
the legality or illegality of what was done had no significance. What was
important was the extent to which it obtained general support and was applied
impartially and equally to all.19
. . . . . . . . . . . . . .
It is interesting to consider the
general evaluation of the results of state regulation during the war. Almost no
disputes were caused by the proposition that it is unthinkable to wage modern
war while maintaining a so‑called free economy. The system of state
regulation showed its undoubted advantages. In Baker's opinion, it saved the
life of the U.S.A. and England.20 But then a single question arises:
why cannot these advantages be used in peacetime? In this regard opinions
greatly differed. Gray, whose book was published in 1919, i.e. directly after
the war, expresses himself very cautiously:
What the long‑term
significance of government control will be cannot be foreseen at the present
moment ... but that which has been done will serve as a precedent and
experience; and for the industrial structure which emerges from the war, this
experience may take on a greater significance than we suppose.21
However, in the next few years a universal repeal of the various types and forms of state intervention occurred, and therefore even the strong, zealous defenders of organizing the economy for military
262 PASHUKANIS: SELECTED WRITINGS
purposes decided not to recommend
it for peacetime. Lloyd, having given a very high evaluation of state
intervention during the war, has a most evasive and rather negative position on
this question.22 Baker also tends to link the successes of state
regulation with the special conditions of the war, when it was necessary "to
lose money to win time".23 In the opinion of Briefs, which is
similar, the methods of economic organization applied during the war were "extraordinary"
and may not be transferable to normal conditions. However, even Briefs admits
that "the consolidation of the position of the large enterprise, because
of the war economy, and the concentrated mass production with the most economic
use of raw material and the working masses, are achievements which cannot be
rescinded." "However", he proposes, "in both cases it is a
matter of the increased manifestation of already‑existing or new
tendencies, but in any event not of a fundamental reconstruction of the old
economic world view. "24 His point of view may be recognized as typical.
The experience of state control during the war was acknowledged by bourgeois
economists only "so far".
On the one hand, faith was
undoubtedly shaken in the unconditional and all‑saving power of private
initiative. Even in England with the traditions of the Manchester School, the
usual opinion that a civil servant is said to be incompetent in economics, and
that state intervention will entail bureaucratization, encounters criticism in
the form of statements that the pure entrepreneurial type also has its negative
aspects, and that maximal effectiveness requires a middle road between the
entrepreneurs, with initiative, striving for maximum profit, and the state
civil servant who is guided by a consciousness of duty and by general
considerations of state interest. It is also recognized that the state
organization of industry had a very positive influence in the exchange of
technical experience, in the setting up of correct commercial calculation, and
in the rationalization of supply etc. Even competition, to which the champions
of the free economy allocate such a major role, it transpires, is by no means
eliminated and may be used within the limits of the regulated centralized
organization. In Lloyd one finds the thoroughly sensible thought that the
hopeless struggle of some shopowner with a huge
commercial firm essentially brings little benefit‑for such a small
merchant, condemned to bankruptcy and realizing the hopelessness of his
position, in fact is not able to introduce any improvement into his
"ECONOMICS AND LEGAL REGULATION"
263
business; while if he becomes an
agent of the huge centralized firm, as the manager of a store or department
working for a bonus, for example, he may develop a very healthy competitiveness
which will bring real benefit.25 However, all these admissions do not prevent
the majority of authors from recoiling with horror at the picture of military‑state
capitalism. Here is a typical statement from the foreword to Lloyd's book:
I was convinced
and am now convinced that the waging of war necessarily involves the
replacement of private initiative by collective organization. In this respect I
am in agreement with those who consider that the necessity in wartime of
establishing control over life, liberty, and property, is an additional
argument for the elimination of war. The next Great War will plunge the world
into some species of war communism, in comparison with which the control
exercised during the present war will seem to be Arcadia. Individual freedom
and private property are condemned by the requirements of modern war; and I
admit that I have a prejudice towards both.26
. . . . . . . . . . .
. .
From the point of view of
individual entrepreneurs, the benefits of centralized organization are nothing
in comparison with the possibility of appropriating for one's own enterprise
the lion's share of surplus value. Why should an entrepreneur make a
concession, agree to egalitarianism, if the possibility exists of reaping a
super‑profit for himself at the expense of his neighbour?
The same relates even more to a period of depression or crisis when each
capitalist entrepreneur strives primarily to escape the consequences by cutting
his losses from the crisis as much as possible, dumping them on his neighbour. The fate of state regulation after the war,
better than anything else, proves the proposition that the combination of
capitalist enterprises and the elimination of competition among them, may take
place only by way of coercion or force by the more powerful of the enterprises,
1. e. by the "natural" method of cartels and trusts, and not by the "artificial"
method of state action. The period of state control brought many benefits for
the monopolies. In the United States the anti‑trust legislation, the
famous Sherman Act, which even before had no real significance, was now turned
entirely into an incorporeal ghost.27 Many monopolies in English industry trace
their pedigree from the councils and committees organized in wartime. Lloyd
tells
264 PASHUKANIS: SELECTED WRITINGS
of one curious example, how
during the war there was created with the help of the government, and under its
supervision, an association of leather factory owners with the purpose of
holding the prices of leather raw materials at a certain level. The war passed,
but from bitter experience the farmers were convinced that this organization,
this "ring", continued to exist and function, now without any help
from the government and without its supervision, holding down the prices on raw
leather. Another motive which leads business circles to struggle for the
elimination of state control was the fear of a socialist revolution, the fear
of socialism. Well‑meaning liberalsocialist and
pacifist discussions, on the theme that it would be good to apply the gigantic
productive possibilities revealed by the war for the elevation of world
culture, were greeted with no enthusiasm by capitalist society.
The same Baker, to whom the
passage cited below belongs, had to recognize that most of the capitalist world
turned out to be the most zealous opponents of the preservation of state
control, precisely because there seemed to be a danger of socialism in these
plans:
Since state
control of industry during the war was considered as something opening the way
to socialism, the overwhelming majority was unconditionally ready to condemn
this control. The revolution in Russia, and the development of Bolshevism
there, the heavy wave of economic and social discontent, with its strikes,
socialism and anarchism, which spread over Europe and the United States,
produced a wave of conservatism, a wave of sympathy towards law and order which
was so apparent in England and the United States. This conservative mood did
not have the patience to investigate which of the 57 varieties of socialism was
represented by wartime state control, and which could in general be classified
as socialism in the real sense. The conservative mood went to the limit in its
demand for the abolition of state control, and did not want to examine those
positive achievements which it had accomplished.28
. . . . . . . . . . . .
.
The experience of wartime
regulation clearly shows to what extent, and to what degree, monopoly
capitalism prepares the transition to socialist production, and to what extent
it does this against its will. For the realization of socialism, leaps are
necessary, the dialectical transformation of quantity into a new quality. The
"ECONOMICS AND LEGAL REGULATION" 265
most farsighted bourgeois
economists, for example Schumpeter, clearly understood this. In his article, "Socialist
Possibilities of Today", Schumpeter writes:
In principle
socialization is possible from that moment when huge and giant enterprises have
appeared, when the processes of rationalization of the national economy have
been clearly revealed, when the machine and calculation have started to
transform the psyche. Although this age has no identifiable starting point,
nevertheless it is undoubtedly true that it lies far behind us.29
Schumpeter thus does not share
the reformist dogma concerning capitalist society's unreadiness
for the transition to socialism. He considers that the period when socialism
has become possible in principle lies behind us, and that therefore the
decisive steps to the realization of socialism will be, as he expresses it, "a
matter of will and chance".
. . . . . . . . . . .
. .
Alongside such open enemies may
be placed the true doctrinaires who have thought of the transition to socialism
as a purely organizational task, the task of the rational construction of a
socialist economy, entirely abstracting this from the political class struggle.
Beck, whose works are cited by Bukharin and are well
known in our literature, can serve as a good example of such doctrinarism.30
These people opposed economic "determinism" (which is purportedly
inherent in Marxism) and called for active conscious interference in economic
life, and saw in this interference an antidote to the chaos of revolution.
Thus, under the conditions of the
post‑war crisis of economic dislocation we see, on the one hand, the
petit bourgeois, frightened by war and its calamities, thirsting above all to
return to peacetime conditions of existence; in their imagination these
peacetime or normal conditions are connected above all with the abolition of
state control. On the other hand, there are the doctrinaires who come forward
with plans for the organization of a planned socialist economy, but who turn
their back on the most urgent political tasks, the tasks of class struggle;
finally, the commercial bourgeosie, defending
capitalism tooth and nail, comes out against any attempt to preserve and
strengthen the system of state control, using at the
266 PASHUKANIS: SELECTED WRITINGS
same time the achievements of the
war period for strengthening the position of monopolies and for the process of
capitalist rationalization.
This conclusion presents nothing
new for us: the subject of the transition to a planned economy can only be the
proletariat led by the Communist Party, the proletariat which has set itself
the task of destroying the bourgeois state and establishing its own
dictatorship.
IV
Moving to the regulation of the
economy under Soviet conditions, we must first of all note that this is not
merely the technical task of the rational structuring of the national economy,
the achievement of proportionality among the separate branches of production;
this is not just the task of compilation of an exact balance of the national
economy as a whole. This is above all a political task, the continuation of the
class struggle, the founding of a socialist economy despite the resistance of
hostile strata, despite the still intact ideology of private property; and by
means of making many sacrifices. Our regulation has a definite purpose the
fastest possible creation of the technical and cultural base for socialism. Our
plans must include and do include a particular guiding principle, and are not a
simple mechanistic adjustment of demand and supply.
Our regulation is further
distinguished by the fact that it is based on nationalization. We did not stop
before the sanctity of private property, and we opened up the path of directly
influencing the production process. In fact this was considered impossible by
bourgeois theorists. Regulation by capitalist states began 'in the sphere of
distribution, and was essentially limited to it.
What changes in the area of law
derive from the fact of regulation of the national economy? The first and most
important is the merger of legislation with administration. We proclaim the
unity of legislative and executive power as the basic principle of our state
structure, but the principle penetrates especially deeply into practice just as
soon as we move to regulated and planned activity. It is sufficient to cite
such examples as the approval of production and financial plans in individual
branches of industry, approval of plans of export and import, plans of
delivery, plans of construction‑in all these cases the
"ECONOMICS AND
LEGAL REGULATION"
267
creation of a general norm is
inseparably merged with individual concrete acts of administration. In all
these cases one cannot think of ,two agencies of which one solely legislates, while the other only administers the laws.
Regulation with the help of laws alone, regulation establishing only the
general forms in which the economic activity of entirely autonomous entities
proceeds‑and this is the basic principle upon which every civil code is
built‑this, in fact, is not regulation. Economic processes that are most
varied in their character and tempo may be put into these general forms,
starting from simple commodity production all the way up to capitalism, and
even up to its higher monopolistic forms. True regulation begins where the
activity of the state replaces the so‑called economic motive, i.e. the
motive of individual profit, the egoistic interest of the isolated economic
subject. At the same time, state regulation is characterized by the
preponderance of the technical and organizational aspect of content over the
formal aspects. Legislative and administrative acts, transformed into
operational tasks, preserve only a very weak admixture of legal, i.e. formal,
elements. Those executors of operative economic tasks have of course formally
delineated powers, and bear formal responsibility as administrators. But these
elements assume a lower priority in comparison with economic expediency, both
in the task itself and in the methods of its execution. On the contrary, the
less the state acts directly as an organization engaged in economic activity
(and this must be. according to classical bourgeois doctrine), the greater the
acts of administration are occupied by their formal side. The process of
curtailment of the legal form undergoes a series of stages, in general
corresponding to the disappearance of market relations, of relations of
exchange. The 'interesting studies of Professor Venediktov
show us how the transition from commodity‑exchange relationships to
purely planned relationships transforms the economic agency‑from a
special subject of law contrasted to other such subjects, and connected with
them by contractual relationships‑simply into one of the cogs of the
state machine.
In this case the trust, as a juridic person, as the bearer of a civil‑law mask, disappears; it is no longer a question of its (the trust's) rights and duties, but simply of the duties of the officials heading the trusts, duties lying on a purely administrative plane. A demand made to the trust, on the basis of a commodity‑exchange transaction, is made to
268 PASHUKANIS: SELECTED WRITINGS
it precisely as to a juridic person. This demand proceeds as a rule from the same
kind of juridic subject, which has been granted civil
legal capacity, the previous agreement of the parties serves as a basis for the
demand. A demand made to the trust according to the procedure for
redistribution of state property, on the direct order of the planning and
regulating agencies, is addressed not to the legal personality of the trust,
but to its managers by way of administrative subordination. In this case, no
role is played by whether or not another enterprise, which has received the
property, has been granted the rights of a juridic
person‑just as no previous agreement whatsoever is required between these
enterprises, and no transaction. The transfer of property itself seems to us
(if one excludes the element of administrative subordination of the subordinate
organizations or agents to the superior) not a legal, but a
technical-organizational act.
However, a brick wall does not
exist, of course, between the spheres of commodity exchange and pure planning.
These relationships intersect and mutually penetrate one another. A border
region is created; a gradual movement occurs from purely commercial forms to
mixed forms, and from them to purely planned forms. A typical example of
intermediate relationships is general contracts which have long since ceased to
be free bilateral transactions, although they preserve the external contractual
form. The same may be said of intra‑syndicate relations. Acts of purchase
and sale within a syndicate have long since been turned into a simple
executive-technical act. The content of rights and duties and the very
obligatory power of these acts, is not based at all on the corresponding
expression of will of the parties, but on the decision of a meeting of
delegates adopted in accordance with the charter of the syndicate. The fact
that non‑fulfilment of the obligation
nevertheless still entails civil liability in court, merely shows the
intermediate nature of this category of relationships.
This perspective of the
development of organizational and technical acts and relations at the expense
of formal legal ones, is the perspective of the withering away of law, which is
most closely linked with the withering away of state coercion in proportion to
the transition to a classless society.
The problem of the withering away
of law is the cornerstone by which we measure the degree of proximity of a
jurist to Marxism.
"ECONOMICS AND LEGAL REGULATION"
269
The attempt to adopt some sort of
neutrality on this question is just as impossible as it is to maintain
neutrality in the struggle for socialism, or for the successes of the
construction of socialism which we are carrying out in practice. One who does
not admit that the planned organizational base eradicates the formal legal
basis is, essentially speaking, convinced that the relationships of
commodity-capitalist economy are eternal, and that their loss at the present
moment is merely an abnormality which will be eliminated in the future.
Considering the process of
curtailment of the legal form, however, we must take full account of the fact
that, so long as the element of state coercion remains in operation, even in
the sphere of relationships having nothing in common with the market and
exchange, we will be dealing with legal regulation. Until such time as there
ensues the full merger of administration with the economy, as a formal
function, that is, with the fulfilment of pure
production tasks (i.e. for as long as the state of the transitional period is
retained), it will be necessary to preserve the systematization of these formal
elements, e.g. the jurisdictional areas of individual agencies, their mutual
subordination etc. Consequently, a particular type of legal system, which may
be called public‑economic or a system of administrative‑economic
law, will also be retained. Even more of these legal elements will remain in
the case of regulation of small economic operations, especially by way of
direct regulation. Schematically, the matter may be presented in the following
manner: the state modifies or limits the possibility of the economic use of
certain means of production or consumption. This may be achieved either by way
of direct indications of a negative nature, i.e. prohibitions (for instance the
prohibition of distilling, the prohibition of contraband), or by way of
positive instructions and prescriptions (e.g. maximum prices, fulfilment of a sowing plan); this may also be achieved
indirectly, for instance by way of fiscal legislation. Further, the state may,
without addressing itself to the small producer with direct instructions or
requirements, create economic incentives (e.g. privileges for collective farms,
or planned deliveries of manufactured commodities and bread to Central Asia as
a stimulus for the expansion of the planting of cotton), or devise coercive
economic conditions by using its monopolistic position. Finally, influence may
be formalized in the form of a contract (e.g.
270 PASHUKANIS: SELECTED WRITINGS
procurement), or it may take the
form of purely cultural influence, cultural propaganda, propaganda for
collectivization, agronomic propaganda, the struggle against the use of alcohol
etc. In the evaluation of the purely legal forms of influence, one must bear in
mind that the regulation of the economy moves organizational tasks to the
foreground as opposed to purely normative tasks. Any broad measures of an
economic regulatory nature require, above all, a corresponding and well‑adjusted
staff that knows its work. Particularly important is the role of staff not of a
purely adminisirative‑police nature, but
instead an economic operational staff, armed with economic information, using
scientific data. The success of regulation largely depends upon scientific
research, primarily upon exact and correct statistics. It is particularly
necessary to note that the regulatory function of state power will be
successful only if it rests upon the support of social class organizations.
During the war the imperialist states made very broad use of class
organizations, the bourgeois press and all possible types of propaganda among
the population. It is the support of the population, as many authors have
pointed out, which ensured the success of a whole series of measures. These
methods must, of course, be adopted even more extensively, and are adopted in a
state where power belongs to the working people. We must consider the
experience of our opponents, who openly recognized that the success of a given
measure depended much more on the support and sympathy of the population, than
on whether or not it was strictly constitutional. Finally, an enormous role is
played by the creation of economic motives, the use of economic levers, the
creation of the appropriate economic conditions. Only in these conditions can a
direct order, or a prohibition with a criminal sanction, be effective.
A general conclusion can be made
as follows. If one compares the policy of struggle against usury, attempts to
limit interest (which had occurred in the Middle Ages) or the establishment of
maximum prices during the time of the great French Revolution, the results of
these measures appear inconsequential compared with the effectiveness with
which regulation of the economy was conducted by the imperialist states during
the war, and in particular with the effectiveness with which it is conducted
under conditions of the dictatorship of the proletariat. But at the same time
the role of the purely legal superstructure‑the role of law‑declines,
and from this can be deduced the general rule that regulation becomes more
effective, the
I
"ECONOMICS AND LEGAL REGULATION" 271
weaker and less significant the
role of law and the legal superstructure in its pure form.
Notes
1. E. von Böhm‑Bawerk, Macht oder ökonomisches
Gesetz, Gesammelte Schriften (1924), pp. 235.
2. R. Strigl, Die ökonomischen
Kategorien und die Organisation
der Wirtschaft (1923).
3. Max Weber, Grundriss der Sozialökonomie,
in particular Part III, Wirtschafit und Gesellschaft (1925),
Tubingen.
4. Dobretzberger,
"Beziehungen zwischen Rechts‑ und Staatskategorien",
Archiv für Rechts und Wirtschaftsphilosophie
(1927), vol. 20, no. 4.
5. R. Stammler,
Economy and Law (1907), St. Petersburg, vol. I, p. 200.
6. K. Marx,
"Letter to Engels" (10th October, 1868), in
Marx and Engels:
Selected Correspondence (1942), International Publishers, New York, p. 249 [eds.].
7. J. Schumpeter, "Socialist
Possibilities of Today", Archiv für Sozialwissenschaften (1920),
vol. 48.
8. Moving ahead somewhat, it may
incidentally be noted that Lenin's assessment concurs with the author's
"clear and exact definition" of political economy: "the science
which studies the development of the social relations of production and
distribution". Lenin did not object to this definition on the grounds that
the subject of theoretical political economy is solely the production relations of commodity‑capitalist
society, or only production relations
which have assumed an objectified form. On the contrary, Lenin proceeds from a
conception of political economy as a science which studies not one, but various
economic systems, and which explains the laws of transition from one system to
another. See V. I. Lenin, Sochinenii, Vol.
2, p. 371.
9. We have in mind the discussion, which
lasted for more than a year, concerning I. I. Rubin's Essays on Marx's Theory of Value. See I. I. Rubin, Essays on Marx's Theory of Value (1972), Black Rose, Detroit.
10.
The developed perspective on the question of the subject of political economy
met greater objections within the Section of State and Law, where I outlined it
in a talk on the theme "Economics and Legal Regulation". It seemed to
me that certain places in my The General
Theory of Law and Marxism provide a basis for the conclusion that‑I
myself had earlier held other views on this question. In fact, in the period
when this work was written, my attention was exclusively concentrated on the
social forms of production relations, because I linked them with the
characteristic features of the legal form. It also seemed to me, therefore,
that natural economy could not be the subject of political economy as a
theoretical science. But during the discussion
272 PASHUKANIS: SELECTED WRITINGS
with
Preobrazhensky I was forced to alter my opinion‑in
the sense that the problems of objectification, and fetishized
and defetishized production relations, had
necessarily to be included in political economy. Further reflection on this
theme has led me to conclude that the attempt to confine economic theory solely
to the study of objectified forms threatens to turn Marx's militant
revolutionary theory into a collection of fruitless logico‑formal
exercises.
11. Herald of the Communist Academy (1925),
no. 11, p. 319.
12. Ammon, Objekt und Grundbegriffe der theoretischen Nationalökonomie,
2nd edition, p. 199.
13. . . . from the fact that under socialism one
specific divergence between the essence and the form of social relationships‑a
divergence characteristic of a commodity economy‑is eliminated, it by no
means follows that in general every divergence between the essence of things and
the form of their manifestation is eliminated, or even that this elimination
occurs in the area of the social relations of production. To expect this would
mean that in one area the laws of the dialectic cease to operate, and that
instead of movement and development through contradiction, a dead and
indifferent calm ensues.
14. E. A. Preobrazhensky, The New Economics (1965), Clarendon Press,
Oxford, p. 3.
15. K. Marx,
"Letter to L. Kugelmann in Hanover" (July
11, 1868), MESW, vol. 2, pp. 418‑419
[eds.1
16. The
following works have generally been used as the basis of discussion: E. M. H.
Lloyd, Experiments in State Control
(1924), Clarendon, Oxford; C. W. Baker, Government
Control and Operation of Industry in Great Britain and the United States during
the World War (1921), Oxford University Press, New York; The State and Industry during and after the
War, a conference report from Ruskin College (Oxford), held at Manchester
in May 1918; H. L. Gray, Wartime Control of
Industry (1918), Macmillan, New York....
17. See E. M.
H. Lloyd (1924), op. cit. p. 52.
18. ibid. p. 52.
19. ibid. p. 64.
20. C. W.
Baker (1921), op. cit. p. 126.
21. H. L. Gray
(1918), op. cit. p. xv.
22. E. M. H.
Lloyd (1924), op. cit. p. 387ff
23. C. W.
Baker (1921), op. cit. p. 121.
24. G. Briefs,
"Kriegswirtschaftslehre und Kriegswirtschaftspolitik",
Handwörterbuch der Staatswissenschaften (1926), pp. 984‑1022, at p. 989.
25. E. M. H.
Lloyd (1924), op. cit. p. 358.
26. ibid. p. ix.
27. C. W.
Baker (1921), op. cit. p. 119.
28. ibid. p. 124.
29. Schumpeter
(1920), op. cit. p. 332.
30. H. Beck, Sozialisierung als Organisationsaufgabe (1919),