7 "The Marxist Theory of
State and Law"*
In the winter of 1929‑1930, during the first Five Year Plan, the national economy of the U.S.S.R. underwent dramatic and violent ruptures with the inauguration of forced collectivization and rapid heavy industrialization. Concomitantly, it seemed, the Party insisted on the reconstruction and realignment of the appropriate superstructures in conformity with the effectuation of these new social relations of production. In this spirit Pashukanis was no longer criticized but now overtly attacked in the struggle on the "legal front". In common with important figures in other intellectual disciplines, such as history, in late 1930 Pashukanis undertook a major self‑criticism which was qualitatively different from the incremental changes to his work that he had produced earlier. During the following year, 1931, Pashukanis outlined this theoretical reconstruction in his speech to the first conference of Marxist jurists, a speech entitled "Towards a Marxist‑Leninist Theory of Law". The first results appeared a year later in a collective volume The Doctrine of State and Law.
Chapter I of this collective work is translated below, "The Marxist Theory of State and Law", and was written by Pashukanis himself It should be noted that this volume exemplifies the formal transformations which occurred in Soviet legal scholarship during this heated period. Earlier, Pashukanis and other jurists had authored their own monographs;
* "Marksistskaia teoriia gosudarstva i prava", pp. 9‑44 in E. B. Pashukanis (ed.), Uchenie o gosudarstve i prave (1932), Partiinoe Izd., Moscow.
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the trend was now towards a collective scholarship which promised to maximize individual safety. The source of authority for much of the work that ensued increasingly became the many expressions of Stalin's interpretation of Bolshevik history, class struggle and revisionism, most notably his Problems of Leninism. Last, but not least, the language and vocabulary of academic discourse in the 1920s had been rich, open‑ended and diverse, and varied tremendously with the personal preferences of the individual author; this gave way to a standardized and simplified style of prose devoid of nuance and ambiguity, and which was very much in keeping with the new theoretical content which comprised official textbooks on the theory of state and law. The reader will perhaps discover that "The Marxist Theory of State and Law" is a text imbued with these tensions. Pashukanis' radical reconceptualization of the unity of form and content, and of the ultimate primacy of the relations of production, is without doubt to be preferred to his previous notions. But this is a preference guided by the advantages of editorial hindsight, and we feel that we cannot now distinguish between those reconceptualizations which Pashukanis may actually have intended and those which were produced by the external pressures of political opportunism.
"The Marxist Theory of State and Law"
Socio‑economic Formations, State, and Law
1. The doctrine of socio-economic formations as a basis for the Marxist theory of state and law
The doctrine of state and law is part of a broader whole, namely, the complex of sciences which study human society. The development of these sciences is in turn determined by the history of society itself, i.e. by the history of class struggle.
It has long since been noted that the most powerful and fruitful catalysts which foster the study of social phenomena are connected with revolutions. The English Revolution of the seventeenth century gave birth to the basic directions of bourgeois social thought, and forcibly advanced the scientific, i.e. materialist, understanding of social phenomena.
It suffices to mention such a work as Oceana‑by the English writer Harrington, and which appeared soon after the English Revolution of the seventeenth century‑in which changes in political structure are related to the changing distribution of landed property. It suffices to mention the work of Barnave‑‑one of the architects of the great French Revolution‑who in the same way sought explanations of political struggle and the political order in property relations. In studying bourgeois revolutions, French restorationist historians‑‑Guizot, Mineaux and Thierry‑concluded that the leitmotif of these revolutions was the class struggle between the third estate (i.e. the bourgeoisie) and the privileged estates of feudalism and their monarch. This is why Marx, in his well‑known letter to Weydemeyer, indicates that the theory of the class struggle was known before him. "As far as I am concerned", he wrote,
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no credit is due to me for discovering the existence of classes in modern society, or the struggle between them. Long before me bourgeois historians had described the historical development of this class struggle, and bourgeois economists the economic anatomy of the classes.
What I did that was new was to prove: (1) that the existence of classes is only bound up with particular historical forms of struggle in the development of production ... ; (2) that the class struggle inevitably leads to the dictatorship of the proletariat; (3) that this dictatorship itself only constitutes the transition to the abolition of all classes and the establishment of a classless society.1
[Section 2 omitted‑eds.]
3. The class type of state and the form of government
The doctrine of socio‑economic formations is particularly important to Marx's theory of state and law, because it provides the basis for the precise and scientific delineation of the different types of state and the different systems of law.
Bourgeois political and juridical theorists attempt to establish a classification of political and legal forms without scientific criteria; not from the class essence of the forms, but from more or less external characteristics. Bourgeois theorists of the state, assiduously avoiding the question of the class nature of the state, propose every type of artificial and scholastic definition and conceptual distinction. For instance, in the past, textbooks on the state divided the state into three "elements": territory, population and power.
Some scholars go further. Kellen‑‑one of the most recent Swedish theorists of the state distinguishes five elements or phenomena of the state: territory, people, economy, society and, finally, the state as the formal legal subject of power. All these definitions and distinctions of elements, or aspects of the state, are no more than a scholastic game of empty concepts since the main point is absent: the division of society into classes, and class domination. Of course, the state cannot exist without population, or territory, or economy, or society. This is an incontrovertible truth. But, at the same time, it is true that all these "elements" existed at that stage of development when there was no state. Equally, classless communist society‑having territory, population and an economy‑will do
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without the state since the necessity of class suppression will disappear.
The feature of power, or coercive power, also tells one exactly nothing. Lenin, in his polemic of the 1890s with Struve asserted that: "he most incorrectly sees the distinguishing feature of the state as coercive power. Coercive power exists in every human society‑both in the tribal structure and in the family, but there was no state." And further, Lenin concludes: "The distinguishing feature of the state is the existence of a separate class of people in whose hands power is concentrated. Obviously, no one could use the term 'State' in reference to a community in which the 4 organization of order' is administered in turn by all of its members.2
Struve's position, according to which the distinguishing feature of a state is coercive power, was not without reason termed 6 'professorial" by Lenin. Every bourgeois science of the state is full of conclusions on the essence of this coercive power. Disguising the class character of the state, bourgeois scholars interpret this coercion in a purely psychological sense. "For power and subordination", wrote one of the Russian bourgeois jurists (Lazarevsky), "two elements are necessary: the consciousness of those exercising power that they have the right to obedience, and the consciousness of the subordinates that they must obey."
From this, Lazarevsky and other bourgeois jurists reached the following conclusion: state power is based upon the general conviction of citizens that a specific state has the right to issue its decrees and laws. Thus, the real fact‑concentration of the means of force and coercion in the hands of a particular class‑is concealed and masked by the ideology of the bourgeoisie. While the feudal landowning state sanctified its power by the authority of religion, the bourgeoisie uses the fetishes of statute and law. In connection with this, we also find the theory of bourgeois jurists‑which now has been adopted in its entirety by the Social Democrats whereby the state is viewed as an agency acting *in the interests of the whole society. "If the source of state power derives from class", wrote another of the bourgeois jurists (Magaziner), "then to fulfil its tasks it must stand above the class struggle. Formally, it is the arbiter of the class struggle, and even more than that: it develops the rules of this struggle."
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It is precisely this false theory of the supra‑class nature of the state that is used for the justification of the treacherous policy of the Social Democrats. In the name "of the general interest", Social Democrats deprive the unemployed of their welfare payments, help in reducing wages, and encourage shooting at workers' demonstrations.
Not wishing to recognize the basic fact, i.e. that states differ according to their class basis, bourgeois theorists of the state concentrate all their attention on various forms of government. But this difference by itself is worthless. Thus, for instance, in ancient Greece and ancient Rome we have the most varied forms of government. But all the transitions from monarchy to republic, from aristocracy to democracy, which we observe there, do not destroy the basic fact that these states, regardless of their different forms, were slave‑owning states. The apparatus of coercion, however it was organized, belong to the slave‑owners and assured their mastery over the slaves with the help of armed force, assured the right of the slave‑owners to dispose of the labour and personality of the slaves, to exploit them, to commit any desired act of violence against them.
Distinguishing between the form of rule and the class essence of the state is particularly important for the correct strategy of the working class in its struggle with capitalism. Proceeding from this distinction, we establish that to the extent that private property and the power of capital remain untouchable, to this extent the democratic form of government does not change the essence of the matter. Democracy with the preservation of capitalist exploitation will always be democracy for the minority, democracy for the propertied; it will always mean the exploitation and subjugation of the great mass of the working people. Therefore theorists of the Second International such as Kautsky, who contrast "democracy" in general with "dictatorship", entirely refuse to consider their class nature. They replace Marxism with vulgar legal dogmatism, and act as the scholarly champions and lackeys of capitalism.
The different forms of rule had already arisen in slave‑owning society. Basically, they consist of the following types: the monarchic state with an hereditary head, and the republic where power is elective and where there are no offices which pass by inheritance. In addition, aristocracy, or the power of a minority (i.e. a state
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where participation in the administration of the state is limited by law to a definite and rather narrow circle of privileged persons) is distinguished from democracy (or, literally, the rule of the people), i.e. a state where by law all take part in deciding public affairs either directly or through elected representatives. The distinction between monarchy, aristocracy and democracy had already been established by the Greek philosopher Aristotle in the fourth century. All the modern bourgeois theories of the state could add little to this classification.
Actually the significance of one form or another can be gleaned only by taking into account the concrete historical conditions under which it arose and existed, and only in the context of the class nature of a specific state. Attempts to establish any general abstract laws of the movement of state forms‑with which bourgeois theorists of the state have often been occupied‑have nothing in common with science.
In particular, the change of the form of government depends on concrete historical conditions, on the condition of the class struggle, and on how relationships are formed between the ruling class and the subordinate class, and also within the ruling class itself
The forms of government may change although the class nature of the state remains the same. France, in the course of the nineteenth century, and after the revolution of 1830 until the present time, was a constitutional monarchy, an empire and a republic, and the rule of the bourgeois capitalist state was maintained in all three of these forms. Conversely, the same form of government (for instance a democratic republic) which was encountered in antiquity as one of the variations of the slave‑owning state, is in our time one of the forms of capitalist domination.
Therefore, in studying any state, it is very important primarily to examine not its external form but its internal class content, placing the concrete historical conditions of the class struggle at the very basis of scrutiny.
The question of the relationship betwen the class type of the state and the form of government is still very little developed. In the bourgeois theory of the state this question not only could not be developed, but could not even be correctly posed, because bourgeois science always tries to disguise the class nature of all states, and in particular the class nature of the capitalist state. Often therefore,
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bourgeois theorists of the state, without analysis, conflate characteristics relating to the form of government and characteristics relating to the class nature of the state.
As an example one may adduce the classification which is proposed in one of the newest German encyclopaedias of legal science.
The author [Kellreiter] distinguishes: (a) absolutism and dictatorship, and considers that the basic characteristic of these forms is that state powers are concentrated in the hands of one person. As an example, he mentions the absolute monarchy of Louis XIV in France, tsarist autocracy in Russia and the dictatorial power which was invested by the procedure of extraordinary powers in the one person, for instance the president of the German Republic on the basis of Art. 48 of the Weimar Constitution; (b) constitutionalism, characterized by the separation of powers, their independence and their checks and balances, thereby weakening the pressure exerted by state power on the individual (examples: the German Constitution before the 1918 revolution, and the U.S.A., where the President and Congress have independent powers); (c) democracy, whose basic premise is monism' of power and a denial in principle of the difference between power and the subject of power (popular sovereignty, exemplified by the German Republic); and (d) the class-corporative state and the Soviet system where as opposed to formal democracy, the people appear not as an atomized mass of isolated citizens but as a totality of organized and discrete collectives.3
This classification is very typical of the confusion which bourgeois scholars consciously introduce 'into the question of the state. Starting with the fact that the concept of dictatorship is interpreted in the formal legal sense, deprived of all class content, the bourgeois jurist deliberately avoids the question: the dictatorship of which class and directed against whom? He blurs the distinction between the dictatorship of a small group of exploiters and the dictatorship of the overwhelming majority of the working people; he distorts the concept of dictatorship, for he cannot avoid defining it without a relevant law or paragraph, while "the scientific concept of dictatorship means nothing less than power resting directly upon force, unlimited by laws, and unconstricted by absolute rules".4 Further it is sufficient to indicate, for instance, that under the latter heading the author includes: (a) a new type of state, never encountered before in history, where power belongs to the proletariat; (b) the reactionary
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dreams of certain professors and so‑called guild socialists, about the return to the corporations and shops of the Middle Ages; and, finally (c) the fascist dictatorship of capital which Mussolini exercises in Italy.
This respected scholar consciously introduces confusion, consciously ignores the concrete historical conditions under which the working people actually can exercise administration of the state, acting as organized collectives. But such conditions are only the proletarian revolution and the establishment of the dictatorship of the proletariat.
4. The class nature of law
Bourgeois science confuses the question of the essence of law no less than the question of the state. Here, Marxism‑Leninism opposes the diverse majority of bourgeois, petit bourgeois and revisionist theories which, proceeding from the explanation of the historical and class nature of law, consider the state as a phenomenon essential to every human society. They thus transform law into a suprahistorical category.
It is not surprising, therefore, that bourgeois philosophy of law serves as the main source for introducing confusion both into the concept of law and into the concept of state and society.
The bourgeois theory of the state is 90% the legal theory of the state. The unattractive class essence of the state, most often and most eagerly, is hidden by clever combinations of legal formalism, or else it is covered by a cloud of lofty philosophical legal abstractions.
The exposure of the class historical essence of law is not, therefore, an unimportant part of the Marxist‑Leninist theory of society, of the state and of law.
The most widespread approach of bourgeois science to the solution of the question of the essence of law consists in the fact that it strives to embrace, through the concept of law, the existence of any consciously ordered human relationships, of any social rules, of any phenomenon of social authority or social power. Thus, bourgeois scholars easily transfer law to pre‑class society, find it in the pre‑state life of primitive tribes, and conclude that communism is unthinkable without law. They turn law as an empty abstraction into a universal concept devoid of historical content. Law, for bourgeois sociologists,
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becomes an empty form which is unconnected with concrete reality, with the relationships of production, with the antagonistic character of these relationships in class society, [and] with the presence of the state as a particular apparatus of power in the hands of the ruling class.
Representatives of idealist philosophy of law go still further. They begin with "the idea of law", which stands above social history as something eternal, immutable and independent of space and time.
Here, for example, is the conclusion of one of the most important representatives of the ideological neo‑Kantian philosophy of law‑Stammler:
Through all the fates and deeds of man there extends a single unitary idea, the idea of law. All languages have a designation for this concept, and the direction of definitions and judgements expressed by it amount, upon careful study, to one and the same meaning.
Having made this discovery, it cost Stammler nothing "to prove" that regardless of the difference between the "life and activity of nations" and "the objects of legal consideration", we observe the unity of the legal idea and its equal appearance and intervention.
This professorial rubbish is presented without the least attempt at factual proof In actuality it would be rather difficult to explain how this "unity of the legal idea and its equal appearance" gave birth to the laws of the Twelve Tablets of slave‑owning Rome, the serf customs of the Middle Ages, the declarations of rights of capitalist democracies, and our Soviet Constitution.
But Stammler is not embarrassed by the scantiness of factual argument. He deals just as simply with the proof of the eternity of law. He begins from those legendary Cyclops described in the Odyssey; even these mythical wonders were the fathers of families and, according to Stammler, could not do without law. On the other hand, however, while Stammler is ready to admit that the pigmy tribes of Africa and the Eskimos did not know the state, he simply denies as deceptive all reports about peoples not knowing law. Moreover, Stammler immediately replaces the concrete historical consideration of the question with scholastic formal‑logical tightrope walking, which among bourgeois professors is presented as a methodological precision.
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We present these conclusions, for they typify the whole trend and, moreover, are most fashionable in the West.
Stammler proposes that the concrete study of legal phenomena is entirely unable to provide anything in the understanding of the essence of law. For if we assign any phenomenon to the list of legal ones, this means that we already know that this is law and what its characteristics are. The definition of law which precedes the facts presupposes knowledge of what is law and what is not law. Accordingly, in the opinion of Stammler, in considering the concept of law, it is necessary to exclude all that is concrete and encountered in experience and to understand "that the legal idea is a purely methodological means for the ordering of spiritual life",
This conclusion, which confronts one with its scholasticism, is nothing other than a Kantian ideological thesis embodied in the context of Stammler's legal stupidity. It shows that the so‑called forms of knowledge do not express the objective characteristics of matter, are determined a priori, and precede all human experience and its necessary conditions.
Having turned law into a methodological idea, Stammler tries to locate it not in the material world where everything is subordinate to the law of cause and effect, but in the area of goals. Law, according to Stammler, is a definition which proceeds not from the past (from cause to effect), but from the future (from goal to means). Finally, adding that law deals not with the internal procedure of thoughts as such, but with human interaction, Stammler gives this agonizing and thoroughly scholastic definition:
The concept of law is a pure form of thought. It methodically divides the endlessly differentiated material of human desires apprehended by the senses, and defines it as an inviolable and independent connecting will.
This professorial scholasticism has the attractive feature for the bourgeoisie that verbal and formalistic contrivances can hide the ugly reality of [their] exploiting society and exploiting law.
If law is "a pure form of thought", then it is possible to avoid the ugly fact that the capitalist law of private property means the misery of unemployment, poverty and hunger for the proletarian and his family; and that in defence of this law stand police armed to the teeth, fascist bands, hangmen and prison guards; and that this law signifies a whole system of coercion, humiliation and oppression in colonies.
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Such theories allow the disguising of the fact that the class interest of the bourgeoisie lies at the basis of bourgeois law. Instead of class law, philosophers such as Stammler dream up abstractions, "pure forms", general human "ideas", "whole and durable bonds of will"‑and other entirely shameless things.
This philosophy of law is calculated to blunt the revolutionary class consciousness of the proletariat, and to reconcile it with bourgeois society and capitalist exploitation.
It is not without reason that the social fascists speak out as such zealous exponents of neo‑Kantianism; it is not without reason that Social Democratic theorists on questions of law largely subscribe to neo‑Kantian philosophy and re‑hash the same Stammler in different ways.
In our Soviet legal literature, a rather wide dissemination has been achieved by bourgeois legal theories. In particular, there have been attempts to spread the idealist teaching of Stammler in the works of Pontovich and Popov‑Ladyzhensky. The criticism and unmasking of this eructation is necessary for the purpose of eradicating this bourgeois ideological infection.
Thus, we know that the state is an historical phenomenon limited by the boundaries of class society. A state is a machine for the maintenance of the domination of one class over another. It is an organization of the ruling class, having at its disposal the most powerful means of suppression and coercion. Until the appearance of classes the state did not exist. In developed communism there will be no state.
In the same way as the state, law is inseparably tied to the division of society into classes. Every law is the law of the ruling class. The basis of law is the formulation and consolidation of the relationship to the means of production, owing to which in exploitative society, one part of the people can appropriate to itself the unpaid labour of another.
The form of exploitation determines the typical features of a legal system. In accordance with the three basic socio‑economic formations of class society, we have three basic types of legal superstructure: slave‑owning law, feudal law and bourgeois law. This of course does not exclude concrete historical national differences between each of the systems. For instance, English law is distinguished by many peculiarities in comparison with French bour-
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geois law as contained in the Napoleonic Code. Likewise, we do not exclude the presence of survivals of the past‑transitional or mixed forms‑which complicate the concrete picture.
However, the essential and basic‑that which provides the guiding theme for the study of different legal institutions‑is the difference between the position of the slave, the position of the serf and the position of the wage labourer. The relationship of exploitation is the basic lynchpin, around which all other legal relationships and legal institutions are arranged. From this it follows that the nature of property has decisive significance for each system of law. According to Lenge, the brilliant and cynical reactionary of the eighteenth century, the spirit of the laws is property.
5. Law as an historical phenomenon: definition of law
The appearance and withering away of law, similar to the appearance and withering of the state, is connected with two extremely important historical limitations. Law (and the state) appears with the division of society into classes. Passing through a long path of development, full of revolutionary leaps and qualitative changes, law and the state will wither away under communism as a result of the disappearance of classes and of all survivals of class society.
Nevertheless, certain authors, who consider themselves Marxists, adopt the viewpoint that law exists in pre‑class society, that in primitive communism we meet with legal forms and legal relationships. Such a point of view is adopted for instance by Reisner. Reisner gives the term "law" to a whole series of institutions and customs of tribal society: marriage taboos and blood feud, customs regulating relationships between tribes, and customs relating to the use of the means of production belonging to a tribe. Law in this manner is transformed into an eternal institution, inherent to all forms of human society. From here it is just one step to the understanding of law as an eternal idea; and Reisner in essence leans towards such an understanding.
This viewpoint of course fundamentally contradicts Marxism. The customs of a society not knowing class divisions, property inequality and exploitation, differ qualitatively from the law and the statutes of class society. To categorize them together means to introduce an unlikely confusion. Every attempt to avoid this qualita-
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tive difference inevitably leads to scholasticism, to the purely external combination of phenomena of different types, or to abstract idealist constructs 'in the Stammlerian spirit.
We should not be confused by the fact that Engels, in The Origin of the Family, Private Property and the State, uses the expression "the eternal law"; or, that he cites, without particular qualification, Morgan's description of the member of a tribal community as having "equality of rights", and of a person violating tribal customs as having placed himself "outside the law".
It is clear that the terms "right" and "law" are used here not in their direct sense, but by analogy. This does not mean, however, that in classless society we will be dealing only with purely technical rules. Such an argument was put forward by Stuchka in his dispute with Reisner. To assign the customs and the norms of pre‑class society to the area of technology would mean to give the concept of technology a very extended and undefined sense. Marriage prohibitions, customs relating to the organization of the tribe, the power of the elders, blood feud etc.‑all this of course is not technology and not technical methods, but the customs and norms of social order. The content and character of these customs corresponded of course to the level of productive forces and the production relationships erected on it. These social forms should be considered as a superstructure upon the economic base. But the basic qualitative difference between this superstructure and the political and legal superstructures of class society, consists in the absence of property inequality, exploitation, and organized class coercion.
While Marxism strives to give a concrete historical meaning to law, the characteristic feature of bourgeois philosophers of law is, on the contrary, the conclusion that law in general is outside classes, outside any particular socio‑economic formation. Instead of deriving a concept of law from the study of historical facts, bourgeois scholars are occupied with the concoction of theories and definitions from the empty concept or even the word "law".
We already saw how Stammler, with the help of scholastic contrivances, tries to show that concrete facts have no significance for the definition of law. We, however, say the opposite. It is impossible to give a general definition of law without knowing the law of slave‑owning, feudal and capitalist societies. Only by studying the law of each of these socio‑economic formations can we
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identify those characteristics which are in fact most general and most typical. In doing so we must not forget Engels' warning to those who tend to exaggerate the significance of these general definitions.
For example, in Chapter VI of the first part of Anti‑Dühring, having given a definition of life, Engels speaks of the inadequacy of all definitions because they are necessarily limited to the most general and simplistic areas. In the preface to Anti‑Dühring, Engels formulated this thought still more clearly, indicating that "the only real definition is the development of the essence of the matter, and that is not a definition". However, Engels at once states that for ordinary practical use, definitions which indicate the most general and characteristic features of a category are very convenient. We cannot do without them. It is also wrong to demand more from a definition than it can give; it is wrong to forget the inevitability of its insufficiency.
These statements by Engels should be kept in mind in approaching any general definition, including a definition of law. It is necessary to remember that it does not replace, and cannot replace, the study of all forms and aspects of law as a concrete historical phenomenon. In identifying the most general and characteristic features we can define law as the form of regulation and consolidation of production relationships and also of other social relationships of class society; law depends on the apparatus of state power of the ruling class, and reflects the *interests of the latter.
This definition characterizes the role and significance of law in class society. But it is nevertheless incomplete. In contradistinction to all normative theories‑which are limited to the external and formal side of law (norms, statutes, judicial positions etc.)‑Marxist‑Leninist theory considers a law as a unity of form and content. The legal superstructure comprises not only the totality of norms and actions of agencies, but the unity of this formal side and its content, i.e. of the social relationships which law reflects and at the same time sanctions, formalizes and modifies. The character of formalization does not depend on the "free will of the legislator"; it is defined by economics, but on the other hand the legal superstructure, once having arisen, exerts a reflexive effect upon the economy.
This definition stresses three aspects of the matter. First is the class nature of law: every law is the law of the ruling class. Attempts to
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consider law as a social relationship which transcends class society, lead either to superficial categorization of diverse phenomena, or to speculative idealistic constructs in the spirit of the bourgeois philosophy of law. Second is the basic and determinant significance of production relationships in the content that is implemented by law. Class interests directly reflect their relationship to the means of production. Property relationships occupy the prominent place in the characterization of a specific legal order. Communist society, where classes disappear, where labour becomes the primary want, where the effective principle will be from each according to his abilities, to each according to his needs: this does not require law. The third aspect consists of the fact that the functioning of a legal superstructure demands a coercive apparatus. When we say that social relationships have assumed a legal expression, this means inter atia that they have been given a coercive nature by the state power of the ruling class. Withering away of the law can only occur simultaneously with the withering away of the state.
Relationships which have received legal expression are qualitatively different from those relationships which have not received this expression. The form of this expression may be different, as was indicated by Engels;5 it may sometimes be good and sometimes be bad. It may support the progressive development of these relationships or, on the contrary, retard them. Everything depends on whether power is in the hands of a revolutionary or a reactionary class. Here the real significance of the legal superstructure appears. However, the degree of this reality is a question of fact; it can be determined only by concrete study and not by any a priori calculations. Bourgeois jurists characteristically concentrate their attention on form, and utterly ignore content. They turn their backs on life and actual history. As Engels showed, "they consider public and private law as independent areas, which have their own independent development and which must and may be subjected to independent systematic elaboration by the consistent elimination of all internal contradictions."6
Bourgeois jurists usually define law as the totality of norms to which a state has given coercive power. This view of law typifies so‑called legal positivism. The most consistent representatives of this trend are the English jurists: of the earliest Blackstone
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(eighteenth century), and thereafter Austin. In other European countries legal positivism also won itself a dominant position in the nineteenth century, because the bourgeoisie either gained state power or everywhere achieved sufficient influence in the state so as not to fear the identification of law with statute. At the same time nothing was better for legal professionals, for judges, [and] for defence counsel since this definition fully satisfied their practical needs. If law in its entirety was the complex of orders proceeding from the state, and consolidated by sanction in the case of disobedience, then the task of jurisprudence was defined with maximum clarity. The work of the jurist, according to the positivists, did not consist in justifying law from some external point of view‑philosophers were occupied with this; the task of the jurists did not include explaining from where a norm emerged, and what determined its content‑this was the task of political scientists and sociologists. The role of the jurist remained the logical interpretation of particular legal provisions, the establishment of an internal logical connection between them, combining them into larger systematic units in legal institutions, and finally in this way the creation of a system of law.
The definition of law as the totality of norms is the starting point for supporting the so‑called dogmatic method. This consists of using formal logical conclusions in order to move from particular norms to more general concepts and back, proceeding from general positions to propose the solution of concrete legal cases or disputes. It is obvious that the practical part of this role developing especially luxuriantly in the litigious circumstances of bourgeois society‑has nothing in common with a scientific theory of law. Applications of so‑called legal logic are not only theoretically fruitless, they are not only incapable of revealing the essence of law and thus of showing its connection with other phenomena‑with economics, with politics, with class struggle‑but they are also harmful and impermissible in the practice of our Soviet courts and other state institutions. We need decisions of cases, not formally, but in their essence; the state of the working people, as distinct from the bourgeois state, does not hide either its class character or its goal‑the construction of socialism. Therefore, the application of norms of Soviet law must not be based on certain formal logical considerations, but upon the consideration of all the concrete features
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of the given case, of the class essence of those relationships to which it becomes necessary to apply a general norm, and of the general direction on of the policy of Soviet power at the given moment. In the opposite case a result would be obtained which Lenin defined as: "Correct in form, a mockery in substance."
The denial of formal legal logic cultivated by the bourgeoisie does not mean a denial of revolutionary legality, does not mean that judicial cases and questions of administration must be decided chaotically in the Soviet state, systematically on the basis of the random whims of individuals, or on the basis of local influences. The struggle for revolutionary legality is a struggle on two fronts: against legal formalism and the transfer to Soviet soil of bourgeois chicanery, and against those who do not understand the organizational significance of Soviet decrees as one of the methods of the uniform conduct of the policy of the dictatorship of the proletariat.
Thus, the law is the means of formulating and consolidating the production relationships of class society and the social relationships which are connected with them. In the legal superstructure, these relationships appear as property relations and as relations of domination and subordination. They appear, in particular, as relations of an ideological nature, i.e. as relations which are formed in connection with certain views and are supported by the conscious will of the people.
We shall not touch upon the question of the degree to which the legal ideology of the exploiting classes is capable of correctly reflecting reality, and in what measure it inevitably distorts it (representing the interest of the exploiting class as the social interest in order, legality, freedom etc.). Here, we merely emphasize the fact that without the work of legislators, judges, police and prison guards (in a word, of the whole apparatus of the class state), law would become a fiction. "Law is nothing without an apparatus capable of enforcing observation of the norms of law" (Lenin).
The conscious will‑towards the formulation and consolidation of production and other relationship s‑is the will of the ruling class which finds its expression in custom, in law, in the activity of the court and in administration. The legal superstructure exists and functions because behind it stands an organization of the ruling class, namely the apparatus of coercion and power in the form of the army, the police, court bailiffs, prison guards and hangmen. This does not
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mean that the ruling class has to use physical force in every case. Much is achieved by simple threat, by the knowledge of helplessness and of the futility of struggle, by economic pressure, and finally by the fact that the working classes are in the ideological captivity of the exploiters. It is sufficient to mention the narcotic of the religious ideology of humility and meekness, or the genuflection before the idol of bourgeois legality preached by the reformist.
But the ultimate argument for, and the basis of, the legal order is always the means of physical force. Only by depending on them could the slaveowner of antiquity or the modern capitalist enjoy his right.
The attempts by certain bourgeois jurists to separate law from the state, or to contrast "law" and "force", are dictated by the attempt to hide and conceal the class essence of law.
Often these proofs that law is independent of the state bear a truly laughable character. Thus, for instance, Stammler claims that he has proved this thesis relying on the fact that on a dirigible which flies over the North Pole, i.e. outside the sphere of action of any state power, the emergence of legal relationships is possible.
By such empty dogmatic chicanery the scientific question of the relationship of state and law is decided. Can one be surprised at Lenin's sharp reaction to Stammler when he says that: "From stupid arguments, Stammler draws equally stupid conclusions."
The dependence of law on the state, however, does not signify that the state creates the legal superstructure by its arbitrary will. For the state itself, as Engels says, is only a more or less complex reflection of the economic needs of the dominant class in production.
The proletariat, having overthrown the bourgeoisie and consolidated its dictatorship, had to create Soviet law in conformity with the economy, in particular the existence of many millions of small and very small peasant farms. After the victory of the proletarian revolution the realization of socialism is not an instantaneous act but a long process of construction under the conditions of acute class struggle.
From the policy of limiting its exploitative tendencies and the elimination of its front ranks, we moved to the policy of liquidating the kulaks as a class by widespread collectivization. A successful fulfilment of the first Five Year Plan; the creation of our own base for the technical reconstruction of the whole national economy; the
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transfer of the basic mass of the peasantry to collectivization; these events enabled the basic task of the second Five Year Plan to be:
the final liquidation of capitalist elements and classes in general, the full elimination of the causes of class differences and exploitation, the overcoming of the survivals of capitalism in the economy and the consciousness of the people, the transformation of the whole working population of the country into conscious and active builders of a classless society.7
At each of these stages Soviet law regulated and formulated production relationships differently.
Soviet law in each of the stages was naturally different from the law of capitalist states. For law under the proletarian dictatorship has always had the goal of protecting the interest of "the working majority, the suppression of class elements hostile to the proletariat, and the defence of socialist construction. Those individual Soviet jurists who considered law as the totality of norms (i.e. externally and formally) are not in a position to understand this. Finding identically formulated norms in the system of bourgeois and Soviet law, these jurists began to speak of the similarity between bourgeois and Soviet law, to search out "general" institutions, and to trace the development of certain "general" bases for bourgeois and Soviet law. This tendency was very strong in the first years of NEP. The identification of Soviet with bourgeois law derived from an understanding of NEP as a return to capitalism, which found expression in the Marxist ranks.
If NEP, as the Zinoviev opposition asserted at the XIVth Party Congress, is "capitalism which holds the proletarian state on a chain", then Soviet law must be presented as bourgeois law, in which certain limitations are introduced, to the extent in the period of imperialism that the capitalist state also regulates and limits the freedom of disposition of property, contractual freedom etc.
Such a distortion in the description of NEP led directly to an alliance with bourgeois reformists in the understanding of Soviet law.
In fact, NEP "is a special policy of the proletarian state intended to permit capitalism while the commanding heights are held by the proletarian state, intended for the struggle between the capitalist and socialist elements, intended for the growth of the role of the socialist elements at the expense of the capitalist elements, intended for the
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victory of the socialist elements over the capitalist elements, intended for the elimination of classes and for the construction of the foundation of a socialist economy."8
Soviet law as a special form of policy followed by the proletariat and the proletarian state, was intended precisely for the victory of socialism. As such, it is radically different from bourgeois law despite the formal resemblance of individual statutes.
Juridicial formalism, which conceives of nothing other than the norm and reduces law to the purely logical operation of these norms, appears as a variety of reformism, as a Soviet "juridical socialism". By confining themselves only to the norm and the purely juridical (i.e. formal ideas and concepts), they ignored the socio‑economic and political essence of the matter. As a result, these jurists arrive at the conclusion that the transformation of property from an arbitrary and unrestricted right into a "social function" (i.e. a tendency which is "peculiar to the law of the advanced", that is, capitalist, countries), finds its "fullest" expression in Soviet legislation. Making this contention, the Jurists "forgot" such a trifle as the October Revolution and the dictatorship of the proletariat.
It is not only important to "read" the norm, but also to know what class, what state, and what state apparatus is applying this norm.
6. Law and production relationships
Production relationships form the basis of society. It is necessary to begin with these relationships in order to comprehend the complex picture presented by the history of mankind.
To search for the basic characteristic of society and social relations in an area other than production relationships means to deprive oneself of the possibility of a scientific understanding of the laws of development of social formations. However, it by no means follows from this that, according to Marx, only relations of production and exchange are social relations. Such a concept is a caricature of Marxism. The equation of social relations with production relations in this case is understood purely mechanically. However, a number of times Lenin noted that Marx's great service was that he did not limit himself to the description of the economic "skeleton" of capitalist society, but that:
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in explaining the construction and development of a definite social formation "exclusively" by production relations, he nonetheless thoroughly and constantly studied the superstructure corresponding to these production relations, which clothed the skeleton with flesh and blood. The reason that Das Kapital had such enormous success was that this book ("by a German economist") showed the capitalist social formation as a living thing‑with its everyday aspects, with the actual social phenomena essential to the production relations between antagonistic classes, with the bourgeois political superstructure protecting the domination of the capitalist class, with the bourgeois ideas of freedom, equality etc., with bourgeois family relations.9
Stuchka looks differently at the matter. In his opinion, Marx considered only relations of production and exchange to be social relations. But this would mean affirming that Marx limited himself to the "skeleton" alone, as if having indicated the basic and eventually determinant in social life and social relations he then passed by that which is derivative and requires explanation. However, more than once Marx directly points out the existence of social relationships which are not production relations but which merely derive from them and correspond to them. Characterizing revolutionary proletarian socialism in France in 1848, Marx wrote:
This socialism is the proclamation of the permanence of the revolution, a proclamation of the class dictatorship of the proletariat as a necessary transition toward the elimination of class differences altogether, toward the elimination of all production relations upon which these differences are based, toward the elimination of all social relationships corresponding to these production relations, toward a revolution in the entire world of ideas arising from these relationships.10
Nevertheless, Comrade Stuchka firmly defends his understanding of the term "social relationships":
We proceed from social relationships; I emphasize the word "social", for here my critics are desperately confused. I thus selected the word "social" and a whole chapter in my first book was dedicated to it only in the sense of relations of production and exchange (as Marx and every Marxist understands this).11
Proceeding from the equation of production and social relationships, Stuchka defined law as a "system (or order) of social
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relations corresponding to the interests of the ruling class and protected by its organized force". In this definition, as he himself indicated, there was room only for the law of property and the law of obligations.
As earlier, so even now,
I consider basic law, law in general, to be civil law, understanding thereby the form of organization of social relationships in the narrow and specific sense of the word (i.e. relations of production and exchange). I consider that all the remaining areas of law are either of a subordinate or derivative character, and that only bourgeois law (subjecting to its influence all the remaining areas of law) created a legal state, or state law and criminal law, as an equivalent norm for crime and punishment, not even mentioning administrative, financial etc., and finally international law or even the law of war.12
The positions outlined in this excerpt contain a series of mistakes. There is no doubt that the formulation and conformation of social relationships to the means of production is basic to law. Proceeding from the economic basis, from different forms of exploitation, we differentiate slaveowning, feudal and capitalist systems of law. But, in the first place, it is 'incorrect to subsume the property relations of slaveowning or feudal society under the concept of civil, i.e. bourgeois, law as "law in general". In the second place, state law may not be equated with the so‑called Rechtsstaat of the bourgeoisie. If one takes this point of view then one must either deny the existence of a distinctive feudal state law, or show that despite the existence of a Soviet state we do have Soviet state law. At the same time, in other places in his textbook, Stuchka proceeds from the existence of different class systems of law: feudal, bourgeois, Soviet. Here he argues for a "general law" which is equated with the civil law of bourgeois society. At the same time state law is equated with the theory of bourgeois jurists of the so‑called Rechtsstaat, and criminal law (i.e. formalized class repression) with the ideology of equivalent retribution.
The basic question‑do relationships exist that enter into the content of law, which are not, however, relations of production and exchange?‑is avoided by Stuchka; he cites the subsidiary, derivative etc. character of state, criminal etc. law. However, it is clear that the
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structure of family relationships, the formalization of class domination in the state organization, the formalization of class repression, all this is embraced by the different branches of law (family, state and criminal).
The content of this legal intermediary is the social and political relationships which, in the final analysis, are reducible to the same production relationships, but by no means correspond to them.
Stuchka's subsequent definition of law suffers from the shortcoming that he limits the area of law merely to production relations. This definition also introduces confusion because it confuses law with economics. Proceeding from the indisputable position that not all which is stated in a norm (in a statute) is realized in fact, Stuchka has made the incorrect conclusion that law is indeed the very relation of production and exchange. Stuchka has therefore declared Marx's teaching‑‑‑that law is an ideological superstructure to be a tribute to the “volitional theory” of the old jurists.
Whoever has mastered the form of theorizing of Marx and Engels that capital, money etc., are social relationships, will at once understand my views on the system of social relationships. This will be hardest of all for a jurist for whom law is a purely technical and artificial superstructure, strangely enough, holding sway over its base. Even Karl Marx gave a small tribute to this concept when he spoke of law as an ideological superstructure. But Marx was raised on Roman law and in general on the juridic concepts of the 1830s, considering it an expression “of the general will” (Volkswillen), and he was [therefore] accustomed to its terminology.13
In conducting the struggle with the narrow, formal legal concept of law as a totality of norms, we cannot deny the real existence of the legal superstructure, i.e. of relationships formulated and consolidated by the conscious will of the ruling class. Only to the extent that this process of formulation and consolidation proceeds may one speak of law. To study law only as totality of norms means to follow the path of formalism and dogmatism. But to study law only as relationships of production and exchange means to confuse law with economics, to retard the understanding of the reciprocal action of the legal superstructure and its active role. At the same time as production relations are imposed on people regardless of their will, legal relationships are impossible without the participation of the conscious will of the ruling class. The teaching of Marx, Engels and Lenin
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on law as an ideological superstructure needs no correction. Law cannot be understood unless we consider it as the basic form of the policy of the ruling class. In the later editions of The Revolutionary Role of State and Law, Stuchka supplemented his definition of law, developing the theory of the so‑called three forms of law. The first, or in Stuchka's words, the concrete form of law, is a legal relationship which corresponds to a production relationship and, with it, constitutes the base [or] reality. On the contrary, the two “abstract” forms‑statute and legal ideology as Stuchka expresses it‑are the essence of “the manifest superstructure”.14
This approach is also incorrect and non‑dialectical. A legal relationship is a form of production relations because the active influence of the class organization of the ruling class transforms the factual relationship into a legal one, gives it a new quality, and thus includes it in the construction of the legal superstructure. This result is not achieved automatically by laissez faire, in the same way that prices are established under free competition. Even in the case of so‑called customary law, the ruling class‑through its special agencies, through the courts‑ensures that the relations correspond to obligatory rules. This is all the more true with respect to the legislative creation of norms.
In particular, the revolutionary role of the legal superstructure is enormous in the transitional period when its active and conscious influence upon production and other social relationships assumes exceptional significance. Soviet law, like any law, will cease to exist if it is not applied. But the application of law is an active and conscious process by which the state apparatus plays the decisive role as a powerful weapon of class struggle. Would it be possible, for instance, to speak of Soviet law which did not somehow recognize the Soviet state, the Soviet agencies of power, Soviet courts etc.? It is clear that while an individual statute may be removed from the real legal order and remain a pious wish, concrete legal relationships may never be removed from the consciousness and will of the ruling class, may never be transferred from the superstructure to the base without parting from the heart of historical materialism.
From all that has been said above it is clear that the definition of law as a formal intermediary of the economy must be recognized as insufficient and incorrect. The different branches of law are connected differently with the economy; this must never be forgotten, and this is not expressed in the above‑mentioned definition. On the
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contrary it can lead to the notion that the area of law is limited to property relationships alone. Then all the other types of law must be declared non‑existent. Stuchka would, in fact, have had to reach this conclusion. But he speaks of criminal and state law, not entirely consistently with his other position, i.e. by referring to them he recognizes their existence.
There is no doubt that economics is at the base of political, familial and all other social relations.15 But the election law of any capitalist country facilitates the economy differently from civil law or the Criminal Code. To try to force all the varied branches of law into one formula is to give preference to empty abstractions.
Law as a formal facilitation of social and (primarily) production relationships must be studied concretely. This study may not be replaced with ready citations from Hegel with respect to the “transformation of form into substance and substance into form”. The dialectical method, which teaches that every truth is concrete, becomes in this instance its own opposite‑dead scholasticism, barren arguments and disputes on the theme that “form is not without content and content not without form”. However, the matter really consists of showing the role and character of law as form in specific and concrete branches of law and concrete historial conditions with a relation to concrete content. Only in this manner can the real relation of form and content be established and can one be convinced that it is far from identical in different instances. Often legal form hides economic content directly contrary to it (thus in the period when we conducted the policy of restricting the kulak, the leasing of a horse or tools by a poor peasant to a rich one often hid the sale of the first's labour power to the second). A transaction of purchase and sale can hide the most diverse economic content. The same could be said about any other relationships within the so‑called law of obligations. Here we meet with a phenomenon whose form is relatively indifferent to its content, but it I's improper to conclude from this that in civil law we have a “faceless instrumentality” which must be used independently of the economic class content of the relationships which it implements. On the contrary, the significance of form is recognized only through content, through economics, through politics and through relations between classes.
. . . . . . . . . . . . . .
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Therefore, it is a flagrant error to equate law as an historical phenomenon‑including various class systems‑with the totality of those features of bourgeois law that derive from the exchange of commodities of equal value.16 Such a concept of law minimizes the class coercion essential to bourgeois law, essential to feudal law and to all law. Law in bourgeois society serves not only the facilitation of exchange, but simultaneously and mainly supports and consolidates the unequal distribution of property and the monopoly of the capitalist in production. Bourgeois property is not exhausted by the relationships between commodity owners. These [owners‑eds.] are tied by exchange and the contractual relationship is the form of this exchange. Bourgeois property includes in a masked form the same relationship of domination and subordination which, in feudal property, appears chiefly as personal subordination.
This methodological mistake was related to the relegation of the class repressive role of law, and to an incorrect presentation of the relation between state and law (the state as the guarantor of exchange), and to mistakes in questions of morality (the denial of proletarian morality) and in questions of criminal law.
The attempts to distinguish between formal characteristics and abstract legal concepts expressing the relationship between commodity owners, and to proclaim this “form of law” as the subject of the Marxist theory of law, should be recognized as grossly mistaken. This paves the way to the separation of form and content, and diverts theory from the task of socialist construction to scholasticism.
The immediate relation, in practice, between the proletariat (as the ruling class) and law (as a weapon with whose help the tasks of class struggle at any given stage are decided) is in this case replaced by the abstract theoretical denial of the “narrow horizons of bourgeois law” in the name of developed communism.
From this perspective Soviet law is seen exclusively as a legacy of class society imposed on the proletariat and which haunts it until the second phase of communism. The abstract theoretical exposure of “bourgeois” law hides the task of the concrete analysis of Soviet law at different stages of the revolution. Accordingly, it gives insufficient concrete indication of the practical struggle against bourgeois influences, and against opportunist distortions of the Party's general line on Soviet law.
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The theoretical mistake of exaggerating the importance of market relations can be the basis for right opportunist conclusions about always preserving the bourgeois forms of law corresponding to private exchange. Conversely, to ignore exchange in considering the problems of Soviet law leads to “leftist” positions about the withering away of law which is now in the process of socializing the means of production, and about the withering away of economic accountability and the principle of payment according to labour, i.e. to the defence of the elimination of individual responsibility and wage egalitarianism.
1. K. Marx, “Letter to Weydemeyer” (March 5, 1852), MES W, vol. 1, p. 528.
2. V. I. Lenin, “The Economic Content of Narodnism” (1895), LCW, vol. 1, p. 419.
3. See Kellreiter's article “The State”, in D. Elster et al. (eds), Handwörterbuch der Rechtswissenschaft (1923), Fischer, Jena, p. 599.
4. V. I. Lenin, “A Contribution to the History of the Question of Dictatorship” (1920), LCW, vol. 31, p. 353.
5. F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), MESW, vol. 3, p. 371.
6. ibid. p. 371.
7. From a resolution of the XVIIth Party Conference (1932).
8. J. Stalin, “The Fourteenth Congress of the CPSU” (1925), Stalin: Works, Foreign Languages Publishing House, Moscow (1954), vol. 7, p. 374.
9. V. I. Lenin, “What the “Friends of the People” Are (1894), LCW, vol. 1, pp. 141‑42.
10. K. Marx, “The Class Struggles in France” (1850), MESW, vol. 1, p. 282.
11. P. 1. Stuchka, A Course on Soviet Civil Law (1927), Communist Academy, vol. 1, p. 13.
12. ibid. pp. 78‑79.
13. P. 1. Stuchka, The Revolutionary Role of Law and State (1921), Moscow, p. 15.
14. ibid. (3rd edition); and P. 1. Stuchka's article “Law” in Encyclopaedia of State and Law, (1925‑1927), vol. 3, pp. 415‑430.
15. “The state and law are determined by economic relations. Of course, the same must be said of civil law whose role in essence consists of the legislative clarification of the existing economic relations between individuals which are normal in the given circumstances.” F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), op.
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cit. p. 370.
16. This erroneous conception was developed in E. B. Pashukanis, The General Theory of Law and Marxism (1927), 3rd edition. See also E. B. Pashukanis, “The Situation on the Legal Theory Front”, Soviet State and the Revolution of Law (1930), no. 11‑12; and For a Marxist‑Leninist Theory of State and Law (1931) Moscow, where a critique of this mistaken conception is given.