<< . .

( 38)

. . >>

therefore tried to render the law less mysterious by describing it as an
arbitrary dream that appeared out of the blue. In reality, law, like reli-
gion, is a category brought into being by historically given conditions.14
Law arose together with private property as a result of the disinte-
gration of “the natural community” of the tribe. This development began
with the Romans but was accelerated once the “feudal community was
disintegrated by industry and trade.” When the development of industry
and trade made private property more important, Europe took over the
“highly developed Roman civil law.” But then law expressed only a
spurious “nominal” will, not a real “dominant will.” The genuine devel-
opment of law began only in the sixteenth century, and as new forms of
intercourse arose, so “the law has always been compelled to admit them
among the modes of acquiring property.” Until the development of the
productive process makes competition superfluous, law cannot be abol-
ished, for whatever men may try to do, competition would reassert itself
and, with it, the institutions belonging to that form of production. To
suppose that men can impose what they choose “before relations have
developed far enough to make the emergence of such a will possible,” is
“only in the imagination of the ideologist.”15
What constitutes an obligation to observe the law is nowhere discussed
by Marx. Instead, he points out that violations of the law are as much an
expression of the underlying productive relations as the making of law.
Whether the law is observed has nothing to do with a recognition of
authority, but depends entirely on whether the conditions of production
promote or impede the domination of the ruling class. Just as the “right”
defined by law is not a product of will, so crime does not depend on
how individuals regard the law. Although he defines crime as “the
struggle of the isolated individual against the predominant relations,”

Marx, “Moralising Criticism and Critical Morality,” in Karl Marx, Frederick Engels:
Collected Works, VI:319; cf. Marx, Ideology, 348.
Karl Marx, “Preface to First Edition,” in Capital, trans. Ben Fowkes (London: Penguin
Books, 1976), 89“93.
Marx, Ideology, 99“100, 349, 101, 349.
Marxist theories 227
Marx emphasizes that crime is “not the result of pure arbitrariness,” but is
determined by the same productive conditions that produce the domin-
ation of the ruling class: “The same visionaries who see in right and law
the domination of some independently existing general will can see in
crime the mere violation of right and law.”16
Engels said even less about the law as such and treated it entirely as a
phenomenon of the bourgeois state. But in his account of how the state
developed, Engels lays more stress on the conflict among classes. Once the
organization of production gave rise to classes with conflicting interests,
he explains, it became necessary to have a power that seemed to stand
above society in order to restrict the conflict and keep the antagonisms
from consuming society in an endless struggle.17 Elsewhere, Engels de-
scribes the veneration for law as “the classical world view of the bour-
geoisie,” a kind of “secularization of the theological,” in which “human
justice takes the place of dogma and divine right, and the state takes the
place of the church.”18 In Anti-Duhring (1885), he explains that once “the
struggle for individual existence based on the former anarchy of produc-
tion, the collisions and excesses arising from these have been abolished,
there is nothing more to be repressed which would make a special repres-
sive force, a state, necessary. . . The interference of the State power in
social relations becomes superfluous in one sphere after another. . . The
government of persons is replaced by the administration of things and the
direction of the processes of production. The state is not ˜abolished™; it
withers away,”19 and the law disappears with it, since law is merely the
machinery by which the ruling class under capitalism coerces the ruled
into obeying its commands.
From the contradictions in their remarks about law, it is clear that
Marx and Engels found it difficult to account for a phenomenon that they
felt obliged to acknowledge but could not fit into their scheme of things.
In his Critique of the Gotha Programme (1875), Marx condemns the law
for being unjust because it treats everyone equally. The right of each
worker to equal payment for equal work done, he said, “is therefore right
of inequality in its content, like every right. Right by its very nature can
only consist in the application of an equal standard; but unequal individ-
uals (and they would not be different individuals if they were not unequal)
are only measurable by an equal standard in so far as they are brought

Ibid., 349.
Cf. Frederick Engels, The Origin of the Family, Private Property, and the State, in the
light of the researches of Lewis H. Morgan (New York: International Publishers, 1942).
Frederick Engels, “Juristensozialismus,” Der Neuen Zeit, 2 (1887).
Frederick Engels, Herr Eugen Duehring™s Revolution in Science (Anti-Duehring), trans.
Emile Burns, ed. C. P. Dutt (New York: International Publishers, 1939), 306“07.
228 The idea of law repudiated

under an equal point of view, are taken from one definite side only. . .
everything else being ignored.”20 In the German Ideology, however, he
insists that “differences of brain and of intellectual ability do not imply
any differences whatsoever in the nature of the stomach and of physical
needs,” and different forms of activity therefore do not justify any form of
inequality.21 But Marx never attempted to reconcile his condemnation of
inequality with his condemnation of law for regarding individuals as
Engels explicitly acknowledged that the existing legal institutions did
not perfectly conform with what Marx™s doctrine seemed to require. But
he attributed this discrepancy to the fact that the law could not be a
“blunt, unmitigated, unaltered expression of the domination of a class,”
because this would readily destroy the illusion that the law is a means to
justice. Besides, the law was required to be consistent within itself: “In a
modern state, law must not only correspond to the general economic
position and be its expression. . . which is consistent in itself. . . And in
order to achieve this, the faithful reflection of economic conditions is
more and more infringed upon.” The development of law had conse-
quently been complicated by the effort “to do away with the contradic-
tions arising from the direct translation of economic relations into legal
principles, and to establish a harmonious system of law,” and by
“repeated breaches made in this system by the influence and pressure of
further economic development, which involves it in further contradic-
tions.” All this happens, however, without the awareness of those who
are operating the legal system “ “the jurist imagines he is operating with
a priori principles,” but they are “really only economic reflexes.” Never-
theless, Engels went on to conclude that although law is in reality an
“ideological conception,” it nevertheless in turn reacts upon its economic
basis and may even, to a limited degree, modify it.22 But just what that
modification might be Engels never explained.
It took a Soviet Russian jurist to produce a more adequate Marxist
account of law. In Law and Marxism: A General Theory, published in
1929, Evgeny Bronislavovich Pashukanis attacked Engels™s thesis that the
state and law emerged to prevent the struggle between the classes from
destroying society. He recognizes that the idea of law presupposed an

Karl Marx, Critique of the Gotha Programme, ed. C. P. Dutt, trans. Martin Lawrence
(London: Lawrence and Wishart, 1933), 12“13.
Marx, Ideology, 566.
Frederick Engels, “Letter to Conrad Schmidt of October 27, 1890,” in Soviet Legal
Theory: Its Social Background and Development, ed. Rudolf Schlesinger (London: Kegan
Paul, Trench, Trubner, 1945), 21.
Marxist theories 229
understanding of human nature and history that is anathema to the
Marxist. In his explanation of why this is so, he revealed more than have
many defenders of the traditional idea of law, what view of the human
world necessarily makes it impossible even to understand the rule of law.
Pashukanis charged Engels™s explanation with being self-contradictory.
For if it meant that the state “perpetuates the relationship of equilibrium
and is therefore a force standing above the classes,” it followed that the
state is not an instrument of the ruling class as Engels maintained. Or else,
it meant that the state emerges as a result of the victory of one class or
another, in which case it follows that the state is not needed to prevent the
struggle between the classes. In any case, this sort of explanation was
unacceptable, Pashukanis maintained, because it evaded the real ques-
tion: “Why does class rule not remain what it is, the factual subjugation of
one section of the population by the other?” Marxists were obliged to
explain why class rule should have detached itself from the mere exercise
of power and acquired the form of the state and the legal system, which is
“an impersonal apparatus of public power, separate from society.” Al-
though it was undoubtedly true that the legal apparatus provided the
ruling class with an “ideological smokescreen,” which enabled it to “con-
ceal its hegemony,” that did not explain how such an ideology arose
“independently of people™s will.” A proper Marxist account of the ideol-
ogy of law had to disclose what connects the existence of law with the
distinctive “material relations which it expresses.”23 Those few Marxists
who did concern themselves with legal questions regarded the coercion
associated with law as its distinctive trait because they supposed that this
provided an alternative to the “ideological, purely speculative systems of
legal philosophy based on the concept of the subject with its capacity for
self-determination.”24 But these Marxists have provided nothing more
than a “history of economic systems with a fairly faint juridical tinge, or
a history of institutions, but by no means a history of law.”25
Pashukanis was even more disdainful of “The so-called sociological and
psychological theories of law” because, unlike idealistic theories of law,
they seemed to promise a genuinely materialistic account of law. But
in fact they did not even recognize the problem posed by law because
they disregarded the legal form as such or, when they did consider it,
simply dismissed juridical definitions as “fictions,” “ideological illusions,”
“projections,” and so on.26

Evgeny B. Pashukanis, Law and Marxism: A General Theory, trans. Barbara Einhorn, ed.
and intro. Chris Arthur (London: Ink Links, 1978), 139“40.
24 25 26
Ibid., 39. Ibid., 53. Ibid., 53.
230 The idea of law repudiated

A satisfactory explanation of law must recognize, Pashukanis insisted,
that in formally granting freedom and equality and the autonomy of
the personality, law is something more than “an instrument of deceit
and a product of the hypocrisy of the bourgeoisie” or distinguished only
by the fact that “it is maintained by the organised violence of one class.”27
The establishment of a legal order has real and distinctive effects on
human relations and has produced “profound, universal changes of an
objective kind.” The transformation of human relations into legal rela-
tions has liberated the land from “relations of dominance and subservi-
ence” and has converted political authority into a separate power.28 When
power is used to guarantee market exchange, it “not only employs the
language of law, but becomes one with the abstract objective norm.” It
becomes a “social and public. . . authority representing the impersonal
interest of the system.”29
Every legal action, Pashukanis insisted, “is an objective fact which has
its place outside the consciousness of the parties to it in just the same way
as the economic phenomenon which it mediates.” And he emphasized
that the peculiar impersonality of this form of regulation is what enables
the law to accommodate a great variety of relationships and to be indiffer-
ent to their character. While from the “historical point of view,” every
parliamentary resolution is a decision reached by a group with “class-
orientated motives,” from the legal standpoint, there is only, on the one
hand, an impersonal, abstract, legal subject and, on the other hand, “the
impersonal abstraction of state power functioning with ideal stability and
continuity in time and space.” The existence of the state is identical with
the “organisation of the bureaucratic machine, the standing army, the
treasury, the means of communication. . .”30 Although the relationship of
dependence between retailer and wholesaler, peasant and landowner,
debtor and creditor, proletariat and capitalist is the “real basis” of the
state, the legal system functions as “an autonomous force, set apart from
all other individual and social forces.” It “belongs to no one in particular,
and stands above everyone, and addresses itself to everyone.”31
Throughout, Pashukanis draws attention to the oddity of the legal
subject, and he attributes this oddity to the complete divorce of the
legal subject from the natural man, from “the organic bond which exists,
for example, between the mother animal and its young, or between the
clan and each of its members.”32 He also points out that every legal
subject is independent of other legal subjects, each of whom has his own,
differentiated, private interests. And this, he argues, is what distinguishes

27 28 29
Ibid., 40, 83, n.16. Ibid., 40. Ibid., 137.
30 31 32
Ibid., 44, 119. Ibid., 146“47. Ibid., 155.
Marxist theories 231
legal regulation from “technical regulation,” which presupposes a “unity
of purpose.”33
This distinction is central to Pashukanis™s account of law and enables
him to explain the fundamental difference between the Marxist and the
traditional view of human relationship. Technical regulations are like
the “norms” of rail traffic. They are “technical,” Pashukanis explains,
because they presuppose a common aim, such as maximum efficiency, of
the enterprise. But the norms that govern the railways™ liability are “legal”
because “they are predicated on. . . differentiated interests.” In legal
regulation, the coercion that enforces it is “no longer considered under
the rubric of expediency, but from the point of view of formal, that is of
legal, admissibility.” The mere form of statutes or decrees, Pashukanis
warns, does not signify the existence of law. Train timetables, a plan for
mobilization, or a brief for investigating crime are all regulations, but of a
kind distinct from legal regulation such as appears in the law concerning
the liability of the railways, a law covering universal conscription, or
criminal proceedings in a court.34 Technical regulations are concrete
and continually modified in accordance with changing conditions,
whereas legal regulations consist of “more or less fixed and unchanging
formal limitations on, and regulations for, legal intercourse between
autonomous subjects. . . and of organs which help to sort out tangles in
such transactions by means of judgments in lawsuits (courts, arbitration
committees, and so on).”35 And because the distinctive character of law
consists in its being a regulation governing social relations among people
who are self-determining and pursuing their own, different objectives, a
sharp distinction between private and public rights is intrinsic to a legal
To account for the law, Pashukanis pointed out, one had to explain
how the concept of a self-determining subject came into being. Idealist
theories of law tried to arrive at the concept by “purely speculative
means,” but as a Marxist, Pashukanis claimed, he could demonstrate
how the legal subject arose historically from the organization of the
productive process. And the crucial fact for that demonstration is the
exchange of commodities, which is the distinctive feature of capitalism:
In Marx, the analysis of the form of the subject follows directly from the analysis
of the commodity form. Capitalism is a society of commodity-owners first and
foremost. This means that social relations in the production process assume a
reified form in that the products of labor are related to each other as values. The
commodity is a thing in which the concrete multiplicity of use-values becomes
simply the material shell of the abstract property of value, which manifests

33 34 35
Ibid., 79, 81“82. Ibid., 79“82. Ibid., 131“32.
232 The idea of law repudiated

itself as the capacity to be exchanged with other commodities in a specific
relation. . . as Marx says: “Commodities cannot themselves go to market and
perform exchanges in their own right. We must, therefore, have recourse to their
guardians, who are the possessors of commodities.”. . . At the same time,
therefore, that the product of labor becomes a commodity and a bearer of value,
man acquires the capacity to be a legal subject and a bearer of rights. “The person
whose will is declared as decisive is the legal subject.”36

This transformation of productive relationships into the exchange of
commodities is traced by Pashukanis through different aspects of the
productive system. When property can be freely disposed of in the
market, it becomes the basis of the legal form. That is why, he argues,
Marx said in Capital that the significance of legal ownership of land and
soil is that “the landowner can do with his land what every owner of
commodities can do with his commodities.”37 Similarly, when the worker
“enters the market as a free vendor of his labor power” and disposes of his
labor as a commodity, his relationship with the capitalist becomes the
subject of legal contract.38 Thus, when the development of the productive
process reaches the stage of an economy based on commodity and money,
human relations are “constructed as relations between subjects,” and the
conditions are present for a legal form with a “superstructure” of formal
statutes, courts, trials, lawyers, and an antithesis between “the subjective
and the objective, between the private and the public.” Once the condi-
tions are given, a legal order emerges “with absolute inevitability.”39 And
the “capacity to be a legal subject is definitively separated from the living
concrete personality, ceasing to be a function of its effective conscious will
and becoming a purely social function. The capacity to act is itself
abstracted from the capacity to possess rights. . . As a result bourgeois-
capitalist property ceases to be unstable, precarious, purely factual prop-
erty which may at any moment be contested and have to be defended,
weapon in hand. It is transformed into an absolute, fixed right which
follows the object wherever chance may take it, and which. . . has been
protected the world over by laws, police and law courts.”40
The prototype of relationships within bourgeois society is the contract
because it is essential to the commercial relations that arise under com-
modity production. Because a commercial relationship is compatible with

Ibid., 110“13; Marx, Capital, 178; cf. Bernhard Windscheid, Lehrbuch des Pandekten-
rechts, 9th ed. (Frankfurt: Rutte & Loening, 1906), vol. I, section 49; quoted in
Pashukanis, Law and Marxism, 110.
Karl Marx, Capital, vol. III, trans. Samuel Moore, Edward Aveling, ed. Frederick Engels
(Moscow: Foreign Languages Publishing House, 1961“62), 602; quoted in Pashukanis,
Law and Marxism, 110.
38 39 40
Pashukanis, Law and Marxism, 110. Ibid., 41“42. Ibid., 115.
Marxist theories 233
a great variety of diverse relationships of another character, the com-
mercial relationship is impersonal, and that is why the exchange of
commodities gives rise to the “legal standpoint.”41 For the exchange
of commodities presupposes an atomized economy, where the link be-
tween isolated private units is maintained by successfully concluded busi-
ness deals. As such deals would not be possible without a legal system,
“The legal relation between subjects is simply the reverse side of the
relation between products of labor which have become commodities.”42
In effect, the legal subject is the abstract owner of commodities “raised to
the heavens.” The real basis of his legal character is his desire “to alienate
through acquisition and to profit through alienating. . . Hence the con-
tract is a concept central to law. . . Historically speaking, and in real
terms, the concept of the legal transaction arose. . . from the contract; . . .
the legal form, too, in its purest and simplest form, acquires a material
basis in the act of exchange.”43 Once this development is identified, it
becomes evident that “law as a form, does not exist in the heads and
theories of learned jurists,” and does not come into existence by “con-
scious choice,” but is produced “by virtue of the same necessity which
transforms the product of nature into a commodity. . .”44 Legal inter-
course is merely the reflection of the exchange relation, which “presup-
poses the existence of more or less fixed general patterns, an elaborate
casuistry and, finally, a particular organisation which applies these
patterns to individual cases and sees to the compulsory execution of
Although Pashukanis took great trouble to support his arguments
with quotations from Marx, in fact his view of the connection between
law and coercion departs radically from Marx™s doctrine that the monop-
oly of coercion by the dominant class is the essence of law. Instead,
Pashukanis maintains that the use of coercion merely enables the state
to operate legal regulation more effectively, and he explicitly acknow-
ledges that “legal intercourse often manages even without its support,
using the law of custom, voluntary arbitration, self-help, and so on.”46
Pashukanis went so far as to consider a question about law that has
generally been dismissed as meaningless by Marxist theoreticians “ the
obligation to observe the law. It is properly understood, Pashukanis
argues, as a “liability” rather than as a “duty” because the legal claim
appears in the form of “an external claim emanating from a concrete
subject who is also, as a rule, simultaneously the bearer of a correspond-
ing material interest.” Bourgeois legal theory, however, has refused to

41 42 43
Ibid., 82. Ibid., 85. Ibid., 121.
44 45 46
Ibid., 68. Ibid., 162. Ibid., 162.
234 The idea of law repudiated

recognize this and has accordingly become hopelessly entangled in the
difficulty of distinguishing between legal and moral obligation. If bour-
geois theorists maintain that law is independent of morality, then the
coercion associated with law becomes its defining feature, in which case
law becomes one with the state and its moral quality disappears. But if
law is regarded as distinct from the state, then the significance of law “as
a socially necessary minimum is immediately lost,”47 and law becomes
indistinguishable from morality.
As a result, bourgeois legal philosophy has wavered between two
contradictory views, between assimilating legal obligation to subjection,
to external coercion and assimilating it to “free” moral duty. And this
contradiction is not surprising because it reflects the contradiction in the
real life of bourgeois society “between the individual and the social,
between the private and the universal,” which is the basis of a society of
commodity producers because it “is embodied in the actual interrela-
tions of people who cannot regard their private endeavours as social
aspirations except in the absurd and mystified form of the value of
Unlike bourgeois theories, Pashukanis explains, Marxism regards both
law and morality as reflections of a pathological social order in which
individuals are not related by an “organic bond,” but are treated as
independent subjects. The concepts of law and morality are meaningful
only in a “commodity-producing society” because they are designed to
provide a relationship between individuals whose natural social ties have
been destroyed by a system of production that reduces them to autono-
mous beings. The phenomenon of moral obligation is peculiar to bour-
geois society because it cannot occur where “the limits of the individual
self” are blurred by an emotional or productive tie, any more than the
legal relation can occur where individuals are not pursuing egoistic inter-
ests. Kant recognized this and “gave a logically perfected shape to the
form which atomised bourgeois society sought to embody in reality, by
liberating the personality from the organic fetters of the patriarchal and

<< . .

( 38)

. . >>

Copyright Design by: Sunlight webdesign