With a new introduction by Dragan Milovanovic Evgeny B. Pashukanis Law & Society Series Ancient Law Henry Sumner Maine with an introduction by Dante J Scala An Introduction to the Sociology of Law Nicholas S. Timascheff with an introduction by Trevino Critique of the Legal Order Richard Quinney with an introduction by Randall G. Shelder Fundamental Principles of the Sociology of Law Eugen Ehrlich with a new introduction by Klaus A. Ziegert Penal Philosophy Gabriel Tarde with a new introduction by Piers Beirne Sociology of Law Georges Gurvitch with a new introduction by Alan Hunt The General Theory of Law and Marxism Evgeny Bronislavovich Pashukanis with a new introduction by Dragan Milovanovic The Social Reality of Crime Richard Quinney with a new introduction by A. Javier Trevino The General Theory of Law & Marxism Evgeny Bronislavovich Pashukanis With a new introduction by Dragan Milovanovic • Transaction Publishers New Brunswick (U.SA.) and London (U.K.) Second printing 2003 New materialthis edition copyright © 2002 by Tr ansactionPublishers, New Brunswick, New Jersey.Originally published as Lawand Marxism: A General Theory, copyright © Ink Links 1978, 1983. 1983 edition under license to Pluto Press Ltd.Tr anslation by Barbara Einhorn [and Introductionand Editorial Notes by Chris Arthur]© Ink Links.This edition is published by arrangement withPluto Press Ltd. All rights reserved under In ternationaland Pan-American Copyright Conven tions.No part of this book may be reproducedor transmittedin any form or by any means, electronic or mechanical, including photocopy, recording,or any informationstorage and retrieval sys­ tem, without prior permission in writing from the publisher.All inquiries should be ad­ dressed to Transaction Publishers, Rutgers-The State University, 35 Berrue Circle, Piscataway, New Jersey 08854-8042. This book is printed on acid-free paper that meets the American National Standard for Per manence of Paper for Printed Library Materials. Library of Congress Ca talog Number: 2001 0 18910 ISB N: 0-7658-0744-0 Printedin theUn ited States of America Library of Congress Cataloging -in-Publica tion Da ta Pashukanis, EvgenyBronislavovich, 1891-1938? [Obshchaia teoriia prava i marksizm. English] The general theory oflaw & Marxism / Evgeny Bronislavovich Pashukanis; [translation by Barbara Einhorn ; and introduction and editorial notes by Chris Arthur]. p. cm. Tr anslationof: Allgemeine Rechtslehreund Marxismus, which was a tr anslation of original title: Obshchaiateoriia prava i marksizm. Originally published: Law and Marxism. London: Ink Links, 1978, 1989 printing. Wi th a new in troduction by Dragan Milovanovic. Includes bibliographical referencesand index. ISB N 0-7658-0744-0 (pbk : alk.paper ) I. Law and socialism. 2. Law-Philosophy. 3. Marx, Karl, 1818-1883. I. Title:Ge neralthe ory oflaw and Marxism. II. Pashukanis, Evgeny Bronislavovich, 1891-1938? Allgemeine Rechtslehre und Marxismus. III. Pashukanis, Evgeny Bronislavovich, 1891-1938? Law and Marxism. IV. Title. K357 .P3713 2001 340'.1-dc21 2001018910 Contents Introduction to the Transaction Edition vii Notes to This Edition 7 Editor's Introduction 9 Preface to the German Edition 33 Preface to the Third Russian Edition 36 Preface to the Second Russian Edition 37 Introduction: The Tasks of General Legal Theory 47 1. The Methods of Constructing the Concrete in the Abstract Sciences 65 2. Ideology and Law 73 3. Norm and Relation 85 4. Commodity and Subject 109 5. Law and the State 134 6. La w and Morality 151 7. Law and the Violation of the Law 166 Appendix: An Assessment by Karl Korsch 189 Index 197 Introduction to the Transaction Edition Introduction Evgeny Bronislavovich Pashukanis (1891-1937) was at cen­ ter stage in the development of Marxist law during the highly creative and challenging historical period of 1917-1937 in Rus­ sia. He was, perhaps, the most significant figure to develop a fresh, new Marxist perspective that was to have a dramatic impact in the sociology of law for many years. Although he was "withered" away by the Stalin purges in early 1937 and his writings were expunged from the law universities in the developing Stalinist state by Andrei la. Vyshinsky, Pashukanis, nevertheless, left a legacy which gained a new momentum in the late 1970s. Apart from Pashukanis's activist political interventions in molding the legal landscape in post-revolutionary Russia, his so-called commodity-exchange theory of law spearheaded a perspective that traced the form of law, not to class interests, but to capital logic itself, a logic to which both rich and poor were enslaved. His later critics-to which he gradually de­ ferred more and more-argued that he had omitted the nature of Soviet law during the "transitional period" of the dictator­ ship of the proletariat. But up until his death, Pashukanis con­ tinued to argue for the ideal of the withering away of the state, law and the juridic subject. He eventually arrived at a position contrary to Stalin, who was attempting to consolidate and strengthen the state apparatus under the name of the dictator­ ship of the proletariat. Needless to say, Pashukanis met his fate in January, 1937 when he was branded an enemy of the revolution. His works were subsequently taken off the shelves, viii and his ideas were subjected to a one-sided critique led by Vyshinsky. However, in 1954, he was "rehabilitated" by the Soviets and restored to an acceptable position in the historical development of Marxist law. In Europe and North America, it was not until the late 1970s that a number of legal theorists rediscovered his work, sub­ jected it to careful critical analysis, and realized that he of­ fered an alternative to the traditional Marxist interpretations that saw law simply and purely as tied to class interests of domination. By the mid- 1980s, the instrumental Marxist per­ spective which was in vogue in Marxist sociology, criminol­ ogy, politics, and economics was to give way-due to a sig­ nificant extent to Pashukanis's insights-to a more structural Marxist assessment of the relationship of law to economics and other social spheres. Biographical Sketch Little is known about Pashukanis prior to the 19 17 Revolu­ tion. We do know that he studied at the University of St. Pe­ tersburg before World War I and that he completed his legal training at the University of Munich. He subsequently returned to post-revolutionary Russia, became a Bolshevik, served as a judge in the Moscow area, and in the early 1920s he con­ ducted legal advice for the People's Commissariat of Foreign Affairs. In 1924 he wrote what is probably his most influential piece, The General Theory of Law and Marxism, and in the second edition, 1926, stated that this work was not to be seen as a final product but aimed, rather, at "self-clarification" in hopes of adding "stimulus and material for further discussion." A third edition was printed in 1927. Pashukanis's direct involvement in shaping the legal cul­ ture of post-revolutionary Russia, particularly from the 1920s through the mid- 1930s, was extensive and had a significant impact. From 1924 to 1930, he assumed a number of impor­ tant positions in the Soviet political and academic structure. These posts included membership in Piotr 1. Stuchka's Sec­ tion of Law and State and the Institute of Soviet Construction, as well as his tenure as head of the Subsection of the Institute of Soviet Construction on the General Theory of Law and TRANSACTION INTRODUCTION ix State. Under the auspices of the Section of Law and State, Pashukanis, in 1925, co-edited Revolution of the Law, a col­ lection of papers on Lenin's understanding of Marxism and law. That same year he joined the law faculty at Moscow State University and the Institute of Red Professors. Pashukanis was to become a prolific writer on various aspects of law and Marx­ ism. As such, he was involved with various editorial responsi­ bilities of scholarly journals, including his position as found­ ing editor of Revolution and Culture which dealt with the cul­ tural aspects of the October Revolution. By 1930, Pashukanis's influence was pronounced in legal circles, and his commodity-exchange theory of law was domi­ nant in the law curriculum. Within the Communist Academy, two wings of the commodity-exchange perspective were to emerge by the late 1920s: the more moderate wing, initiated by Stuchka, and the more radical wing, represented by Pashukanis. This tension between the two factions led to a great deal of discussion about the function of law in the tran­ sitional period. Stuchka was Pashukanis's main rival in this analysis, but outside of the Communist Academy, A.A. Piontkovsky-a member of the competing Institute of Soviet Law-was also a critic. From 1927 to the early 1930s, the exchange between Stuchka and Pashukanis was to persuade the latter that some of his early statements made in The Gen­ eral Theory of Law and Marxism should be qualified to in­ clude class dimensions in the overall analysis. In June, 1930, the Sixteenth Party Congress saw some of the disagreements between Pashukanis and his critics come to a head. Already, in 1929 Stalin, as General Secretariat, had warned that the class struggle had reached a critical level and that the dictatorship of the proletariat needed consolidation and strengthening. Furthermore, this was the time of the first Five Year Plan, and forced collectivization and massive in­ dustrialization were occurring. The Sixteenth Congress, ipso facto, rejected the idea of the gradual withering away of state and law. At this Congress, Stalin was poignant: "We are for the withering away of the state, while at the same time we stand for strengthening the dictatorship of the proletariat which represents th� most potent and mighty authority of all the state x authorities that have existed down to this time" (cited in Beirne and Sharlet, 1990: 34).