Foreword
Pashukanis was an imaginative
Marxist, the most imaginative to appear among Soviet lawyers immediately after
the October Revolution, or so Harvard's noted legal philosopher, Roscoe Pound,
told me when I contemplated entering upon the study of Soviet law in 1934.
Pound said he had been so impressed while reading a German translation of
Pashukanis' principal work that he had undertaken to study Russian so as to read
his works not yet translated.
Pound's verdict on Pashukanis'
place among Marxist legal theorists was shared by others. Members of a group
assembled to suggest what should be included in a volume on Soviet legal
philosophy to be published by the Association of American Law Schools said the
same thing in 1947. All of them put Pashukanis first among their choices.
Pashukanis' influence was
profound within the U.S.S.R., as I found when I became a student in what was
then called the Moscow Institute of Soviet Law. While he came to the Institute
only rarely to lecture, its teachers were largely his disciples, devoted to his
commodity exchange theory of law. His textbook was the key to the study of
legal philosophy, and his attitude toward law's future shaped the curriculum.
His expectation that civil law would wither away as market conditions became
overshadowed by socialism caused the introduction of a new discipline called
"Economic Law" to the very end of which were relegated a few lectures
on civil law.
Stripped of its complexities,
which can be appreciated only on reading the editors' comprehensive
Introduction following this Foreword, Pashukanis' theory held that Soviet
legislators and jurists were not creating a proletarian or socialist system of
law, but were merely putting to their own use the bourgeois law that they had
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inherited. Thus, there was no new
legal form in process of creation, but only a transformation by degrees of
content to meet the needs of those engaged in creating Soviet public order
during the limited period required for the state and its handmaiden, the law,
to wither away with the achievement of a classless society.
Pashukanis' influence reached
beyond the domestic scene. He became interested in international public law as
well, although this phase in his career did not fully begin until the mid‑1920s.
In this field he met resistance, for the noted Professor Evgeny Aleksandrovich
Korovin, who had published his first treatise in 1924, had caught the attention
not only of Soviet jurists but internationalists throughout the world. In his
volume, entitled The International Law of
the Transition Period, he had noted that Soviet diplomats, while rejecting
general international public law as the creation of imperialist states, were
finding it useful, and even necessary, to rely upon some of the norms of
general law to protect their diplomatic status, establish their state's
frontiers, and hold potential aggressors at bay. By so doing, the new diplomacy
was helping to create a "new" law which Korovin identified as the law
of the transitional period between capitalism and communism.
His theory of new law was in
direct opposition to Pashukanis' denial that new law was in the making.
Conflict was inevitable as Pashukanis turned his attention from municipal law
to international law. In that conflict, Pashukanis revealed a personality which
needs to be understood by those who can today see only his printed words. He
was not a kindly figure, as one might suppose when the international public law
term doyen of the profession is used
to describe him. He was a revolutionary, brought up in the school of "hard
knocks" where courtesies are unknown and where one attacks to survive.
Korovin appeared to Pashukanis to
be his enemy. He had already cowed those who opposed him on municipal law,
although he had some battles, recounted in the Introduction, but Korovin
remained. Pashukanis showed his colours as a man: he was not content to argue.
He was merciless in his personification of Korovin as politically disoriented,
if not hostile toward the new Soviet system. He made his intellectual argument
into a personal indictment, as so many other revolutionaries were to do in
their attacks upon theoretical positions they opposed.
FOREWORD
xiii
Korovin had learned to trim his sails
to meet the wind of the moment during the stormy years of War Communism when
the wind beat hard upon scholars coming from the former bourgeois intellectual
stratum. He adapted quickly because he knew where power lay, and Pashukanis
indubitably had power at this point. Nevertheless, he smarted under the attack,
as I was to learn in the 1930s in my many associations with him at his home on
visits to discuss his lectures at the Moscow Institute. It was on one of those
discussion evenings when I saw what Pashukanis' attack meant to one who had
felt it, for it was a few nights after Pashukanis was denounced in Pravda in
early 1937 as an "enemy of the people". Pravda's columnist had
singled out for attack Pashukanis' theory that Soviet law was not new in form,
but only in content. Korovin turned to me and said, "Ivan Ivanovich, don't
you think that I have been proven right?"
I had to agree that the Pravda
criticism of Pashukanis seemed to imply that his major error was to have
thought that Soviet socialism was not imparting a new form as well as a new
content to law, and that this position when applied to international public law
would seem to support Korovin's view that, as applied by Soviet diplomacy, it
was in process of transition, or metamorphosis. It had become the new "law
of the transitional period". Korovin felt himself vindicated, and I
thought him right in thinking so, although no subsequent praise of Korovin as a
pioneer ever appeared from any official pen. His reward was to be his survival
at a time when Stalin was rolling many academic heads, and his maintenance of
the chair of international public law at Moscow University until his sudden
death from a heart attack years later.
On looking back to those
turbulent times of 1934 to 1937 while I attended classes in Moscow, I have to
admit that I came to dislike Pashukanis. Perhaps it was my upbringing in
America which influenced my emotions. I turned against him not as a thinker,
for at the time I was trying to wash all emotion and evaluation out of my mind
as I tried to understand what Soviet Marxists were saying. I turned against him
as a man. It was quite out of my experience that academic argument would become
fortified by an imputation that an opponent was disloyal to his country and its
cause. Nor had I experienced deans and department chairmen acting as dictators
to their colleagues. Some had spoken with authority, but their direc-
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FOREWORD
tions were not dictates in the sense
that I came to understand dictatorship under Stalin. To my mind American
universities were priding themselves in presenting to their students ideas from
many positions upon the political spectrum; no one pretended to have a patent
on infallible truth.
To find myself in a Soviet law
school where the teachers projected a theory said to be infallible, and where
those who strayed from Pashukanis' line were castigated like Korovin or denied
faculty appointments, promotions and salary raises was novel to me. I saw
teachers compelled to conform not only to ideas of Marx but also to those of
Pashukanis as his infallible interpreter. This was unsettling to my sense of
justice, and more so since in my numerous conversations with Korovin in his
apartment, I caught his sense of frustration. He was not a new boy who might be
expected to reflect his professor's views, at least for a time until he
developed his own. He was a world figure with views of his own on what Marxism
meant, and he was being silenced and even threatened with one knew not what.
Korovin's plight extended even to
his family. One spring evening his wife brought in the traditional tea at the
end of the conversation. We had been discussing what Korovin thought he might
say in evaluation of the Communist Manifesto on a forthcoming anniversary. His
wife caught the end of the conversation, and blurted out, "But, Genia,
that will only make more trouble for you. Why do you keep trying?" I
sensed the problems Pashukanis had created for this one family whose integrity
and faithfulness to the ideas of the October Revolution were unquestionable.
Consequently, when it was learned that Pashukanis had been carried away by the
police in early 1937, 1 doubt that many of the learned jurists mourned the loss
to the law or thought that scholarship would suffer. Although no one among the
scholars seemed to be happy with the purge style of Pashukanis' ouster, his
removal was welcomed by those whose had experienced his authoritarian rule over
Soviet legal scholars for more than a decade.
Little did I realize as
Pashukanis' influence faded away and his disciples in the Law Institute were
dismissed, and sometimes arrested as well, that within a year, Andrei Ia.
Vyshinsky would mount the empty pedestal and proclaim a new doctrine of
normativism, which was to bind his subordinates with bonds as strong as those
FOREWORD
xv
Pashukanis had used. An outsider
like myself could not but meditate on the impact of the life of polemics which
revolutionaries had lived since the founding of what became the Communist
Party. There was no spirit of accommodation, of compromise, such as Anglo‑Saxons
usually favour. It was "we or they," or in the Russian revolutionary
language kto‑kogo.
Pashukanis as a physical being
was a dominating figure. While memories fade over decades, those heavy black
bushy eyebrows moving vigorously up and down above an animated face remain
before my eyes. He was a large man, or at least gave the impression of being
so, as he spoke behind a lectern or paced the floor of his office at ulitsa Frunze 10. His figure still
haunts that same office even today, for it is the office of the current
Director of what is now called the Institute of State and Law of the U.S.S.R.
Academy of Sciences, and many visit there. On one occasion in 1936 the late
Professor Samuel N. Harper of the University of Chicago took me along as an
observer to an interview on the forthcoming Constitution. Pashukanis was at the
time deputy chairman of the constitutional drafting committee and had been
gathering comparative material from the constitutions of the states of the
world to aid the experts. Harper's experience with Russia dated from the turn
of the century when he had been a student in St. Petersburg. He had been
brought close to death on the great square in front of the Winter Palace on
"Bloody Sunday" in 1905 when the Cossacks charged the crowd, swinging
their sabres from their lofty saddle seats. He was now trying to understand
Stalin's Russia.
I have forgotten the substance of
the interview, although I recall that it seemed to me but to repeat what I had
already read in the numerous pamphlets being published about the new
Constitution. I do, however, remember the dominating figure of Pashukanis in
his large office, his desk like the top of a "T" across the end of a
long green‑covered table where we were invited to sit. He showed
politeness to his foreign guest, but he spoke with supreme authority. Little
did he know, or appear to know, that within a few months, his name would be
branded as that of the enemy, and his theories expunged from the textbooks.
Pashukanis was rehabilitated
posthumously after Stalin's death, as the Introduction following this Foreword
chronicles. He was said to have been punished unjustly, like so many others
rehabilitated at the
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FOREWORD
time. Memorial minutes were
printed in what was the successor to the law review he had once edited, and
finally his portrait was hung with those of other past Directors of the
Institute. His ideas were not reinstated as acceptable, even for discussion,
but the reading of them is no longer forbidden, and his books have been
restored to the open shelves of the Lenin Library a few doors away towards the
Kremlin.
For Westerners, Pashukanis' works
have a fascination, not only because of their imaginative character, but
because they trace the evolution of his thought as he tried to bring to bear
his sense of what was needed pragmatically upon the doctrines as he understood
them. He had to create a new legal system that would provide order, but at the
same time prepare the way for a classless society in which he fervently
believed. He worked for a difficult master, Joseph Stalin, whose word was law
for most people. Pashukanis showed that he could modify his behaviour to
survive but he was not prepared to be wholly subservient. He tried to save
something of his theory. The essays in this volume indicate the tacks he took
to make headway, and they will prove stimulating reading if they are approached
not only as a progression of ideas like those of any other great thinker, but
as the efforts of a man to remain true to what he thought Marxism meant while
trimming himself enough to survive. It is an exercise in political juggling;
unsuccessful in the end as he was snatched from the stage by his unappreciative
master, but fascinating nevertheless.
The team assembled to produce
this volume is unusually well equipped to select, translate and interpret
Pashukanis' writings. Piers Beirne is an English sociologist currently
Assistant Professor of Sociology at the University of Connecticut‑Storrs.
He has written broadly in the field of sociology of law with special attention
to Marxist theory and legal philosophy. Together with Professor Sharlet, he has
restyled and edited Professor Maggs' translations against the legal vocabulary
and idiom of Marxism and Soviet jurisprudence during the formative period of
Soviet history.
Robert Sharlet is a political
scientist with long experience in Soviet law, having focused upon Pashukanis as
a graduate student at Indiana University and having attended the Law Faculty of
Moscow University on his way to chairmanship of the Department of Political
Science in Union College, Schenectady, New York. His writings on Soviet law are
numerous and widely read for their perceptive analysis of the politics of
Soviet Law.
FOREWORD
xvii
Peter Maggs, who assumed the
primary responsibility for translation of Pashukanis' texts, began his study of
Soviet law while a student at the Harvard Law School with Professor Harold J.
Berman. He continued with a year as an exchange student in Leningrad
University's Law Faculty, and returned to the U.S.S.R. only a short while ago
as a Fulbright Lecturer on the law of the United States. He too has written
extensively on Soviet law, and translated materials for use in teaching it in
law schools of the United States. He is currently Professor of Law in the
College of Law of the University of Illinois at Champaign.
As one who trudged through pages
of Pashukanis in the original Russian and listened to his disciples on the
Moscow lecture platform, I am prepared to testify that the English rendition of
his works and their selection from an extensive bibliography do his ideas justice.
As he tended to take pride in the attention he received from bourgeois jurists
whom he despised as enemies in the class struggle, he would probably have
relished the attention given him in this volume, although he would probably not
have admitted that his vanity was titillated.
September 1979 John N.
Hazard