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feudal epochs. Hence the fundamental concepts of ethics lose their signifi-
cance if considered in isolation from commodity-producing society, and if
one attempts to apply them to any other social structure. The categorical
imperative is by no means a social instinct, for its most important deter-
minant is that it is effective where there is no possibility of organic, supra-
individual motivation of any kind.” In short, morality and law are both
“modes of intercourse utilised by commodity-producers,” who do not act


47 48
Ibid., 162“63. Ibid., 165.
Marxist theories 235
in order to fulfill their “individual historical destiny” or “social function,”
but to satisfy their private interests.49
The meaningfulness of the concept of justice is also acknowledged
by Pashukanis, though he says that it “does not contain anything sub-
stantively new, apart from the concept of the equal worth of all men” and
that it “lends itself admirably to interpreting inequality.” Nevertheless, he
maintains that justice is connected with the reality of the relations among
those exchanging products “ “the circulation of commodities, is predi-
cated on the mutual recognition of one another as owners by those
engaged in exchange.” This acknowledgment may take the shape of an
inner conviction, but it is “sufficient for commodity owners to act as if
they acknowledged one another mutually as proprietors.”50 The real
distinction between law and morality is that, for law, only performance
matters and motive is irrelevant. And it would seem to follow that justice
is to be equated with observing the law.
Despite his acknowledgment of the objectivity of the law and his
depreciation of the importance of coercion in connection with law, Pa-
shukanis remained a thorough-going Marxist because he did not take
human beings to be self-determining agents capable of accepting or
rejecting legal regulation. He insisted that legal relationships are imposed
by the productive process, and he did so in the classical Marxist fashion of
equating any denial of the Marxist creed, that a legal order is peculiar to
capitalism, with a belief that the legal order is a “universal and eternal
phenomenon.”
Pashukanis granted that there were approaches to law in other soci-
eties, but he insisted that they were necessarily rudimentary and partial. In
Rome, “the idea that all people are equal, possessing the same ˜soul™, that
they all have the capacity to be legal subjects, and so forth “ was forced on
the Romans by the practice of trade with foreigners. . .”51 But there was
no true law in Rome because the jus civile of ancient Rome was a public
law, and the distinction between public and private that is essential to a
legal system was absent since the jus civile “was founded on, and origin-
ated in membership of a gens-organization.”52 In the Middle Ages there
was only a rudimentary legal subject, for he was in fact only a bearer of
concrete privileges rather than “the universal abstract bearer of every
conceivable legal claim.”53 In both these societies power bore the traces
of patriarchal or feudal relations, since “Equality between subjects was
assumed only for relations which were confined to a particular, narrow


49 50 51
Ibid., 154“55. Ibid., 161“62. Ibid., 156.
52 53
Ibid., 136. Ibid., 120.
236 The idea of law repudiated

sphere,” and social relations generally had a theological rather than a
commercial character.54
The most remarkable feature of Pashukanis™s theory of law is his
insistence that what defines a legal regulation is its non-instrumental
character. By arguing that legal regulation is indifferent to the purposes
and projects of its subjects, and that in a society regulated by a legal
system the more powerful are just as subject as the least powerful to legal
rules and their sanctions, Pashukanis cast doubt on the fundamental
tenet of Marxist doctrine: that every human activity is instrumental, that
every institution is an instrument of production, and that in every non-
Communist society, political institutions are only instruments for main-
taining the power of the ruling class. Pashukanis himself did not doubt
any of these propositions. He therefore addressed himself to explaining
how a form of regulation which is divorced from the natural character of
production, and accordingly non-instrumental, could have arisen neces-
sarily out of the character of production and thus could be shown after all
to be instrumental (although in a more indirect and intricate fashion than
Marx had supposed). By disclosing “the logical structure of social rela-
tions which are concealed behind individuals and which transcend the
bounds of individual consciousness,” he had established, Pashukanis
claimed, that what Marx had said about the economic categories, that
they “express the forms of being,” was “directly applicable to juridical
categories as well.”55 Law understood as the reflection of commodity
exchange in no way detracted from the importance of the conflict between
classes and the struggle against capitalism. On the contrary, it clarified the
nature of that struggle: “the philosophy of law based on the category of
the subject with his capacity for self-determination. . . is actually, basic-
ally, the philosophy of an economy based on the commodity. . . This view
is the basis for the critique by communists of the bourgeois ideology of
freedom and equality and of bourgeois formal democracy “ that democ-
racy in which the ˜republic of the market™ masks the ˜despotism of the
factory.™ This view leads us to the conviction that defense of the so-called
abstract foundations of the legal system is the most general form of
defense of bourgeois class interests, and so forth.”56
Although Pashukanis did not treat law as an instrument of the power of
the ruling class, and so lent considerable credence to the belief that
the worker under capitalism can dispose of his labor as he chooses and
is therefore in an important sense free and independent, for some years his
theory dominated the Soviet juristic establishment. The criticism, when it
came and brought Pashukanis™s life as well as his career to an end in 1936,

54 55 56
Ibid., 119, 136. Ibid., 70. Ibid., 39.
Marxist theories 237
was directed not at his dissociation of law from power, but at the close-
ness of the links he had established between law and capitalism. Pashu-
kanis had insisted, at least until he came under attack, that there was no
place for law under communism because law is associated with
the exchange of “commodity values,” under the bourgeois organization
of society, which is constrained “to retain an equivalent relation between
expenditure and compensation of labor.”57 Under communism, there is
no exchange; people work spontaneously according to need. Since society
is organized as a single enterprise, and all activities are directed to achiev-
ing the success of this enterprise, there is no room for a distinction
between public and private or for any recognition of individuals as
pursuers of independent projects. Without these distinctions, a legal
system is impossible. There might still be some sort of regulation, but
Pashukanis insisted that it would necessarily have the character of tech-
nical regulation since it would be directed at achieving a single purpose,
and could not be, as legal regulation is, compatible with a variety of
purposes.
That something like “market exchange” persisted within the Soviet
economy, Pashukanis acknowledged, but he explained that as “under
proletarian dictatorship. . . conflicts of interest are abolished within
nationalised industry. . . the legal form as such does not contain
within itself those unlimited possibilities which lay before it at the birth
of bourgeois capitalist society.” Wherever there are isolated social elem-
ents, they will resort to law and exchange. Although the enterprises in the
Soviet State “actually fulfill a communal task,” they still had something
like separate interests and were therefore obliged to enter into legal
intercourse. But “The ultimate victory of a planned economy will trans-
form their relationship into an exclusively technical expedient, thereby
doing away with their ˜legal personality™.”58 For then economic life would
function as a “natural economy,” and the “social link between units of
production” would appear not in the artificial commodity form, but in “a
rational, undisguised form.” Their relations would be directed by “tech-
nically-determining prescriptions in the form of programmes, plans for
production and distribution, and so forth.” Such prescriptions are con-
crete and are continually being modified in accordance with changing
conditions. Consequently, they are totally distinct from legal regula-
tions.59
Nor would there be any need for law to deal with crime because crime,
in the bourgeois sense, would have become meaningless. Undesirable
behavior would be seen as a medical problem, to be dealt with by the

57 58 59
Ibid., 63“64. Ibid., 132“35. Ibid., 131.
238 The idea of law repudiated

appropriate technicians and not by jurists “with their ˜evidence™, their
codes, their concepts of ˜guilt™, and of ˜full or diminished responsibility™,
or their fine distinctions between complicity, aiding and abetting, instiga-
tion and so on. . . .”60 Pashukanis acknowledged that penal codes and
criminal law existed in Soviet Russia, but he attributed their existence to
the fact that “remnants” of bourgeois society still survived.
Pashukanis™s denial that law had any place under communism was in
keeping with the canonical texts of Marx and Engels. Marx™s Critique of
the Gotha Programme was directed against the “idealization” of the state.
Whatever form the state took, he said, it was an instrument of coercion;
communism rejected coercion; and it followed that neither the state nor
its law had any place under communism. Engels had said that under
communism, the social regulation would differ from law both in form
and content and would not ignore, as the law necessarily did, differences
in individual abilities and needs. This new kind of regulation would be
enforced not by “a special organism separated from society through
division of labor” but by public opinion.61 Nevertheless, the attack on
Pashukanis, both within and outside the USSR, took the line that he had
maligned communism.
In the West, an attack was formulated at the end of World War II
in Soviet Legal Theory (1945) by Rudolph Schlesinger, who attributed
Pashukanis™s deviation to the influence of pre-1917 “legal Marxism”: “In
a vulgarized economic interpretation of history under the title of ˜eco-
nomic materialism™ the Marxian conception of ˜relations of production™
was replaced by the Buecher-Bogdanovian conception of distribution of
products as being the really fundamental fact of social relations.” Schle-
singer went on to argue that law was essential to the Soviet State because
the unity of purpose that made law unnecessary was absent. Pashukanis™s
argument that legal regulation would be replaced by technical regulation
was essentially the same as Engels™s assertion that once classes were
abolished, the rule over men would be replaced by the administration of
things. But class conflict still had to be fought in the USSR since there
could be no “unity of purpose between the Soviet State. . . and the
speculator.” And Schlesinger boldly supported his assertion by the argu-
ment that “the very fact of the existence of a Penal Code proves the
existence of conflicting private interests.”62 Schlesinger went so far as to
denounce even the expectation that unity of purpose could be established
as a utopian vision. In Russia, the railway regulations, which Pashukanis
60
Ibid., 64.
61
Karl Marx, Critique of the Gotha Programme (London: Lawrence & Wishart, 1933), 30.
62
Rudolph Schlesinger, Soviet Legal Theory: Its Social Background and Development
(London: Kegan Paul, 1945), 153, 159.
Marxist theories 239
had described as “technical,” were legal regulations because, since there
was no unemployment in the USSR, “Non-compliance with technical
rules” was punished by penalties “more serious than those which the
management of the railway could inflict upon its employees” in capitalist
countries. And indeed, in Soviet Russia generally, because there were no
economic sanctions, “the scope accorded to Criminal Law is rather wider
than elsewhere. . .”63
Moreover, it was not true that Soviet enterprises were less independent
than capitalist enterprises. Although they had to conform to a plan,
whether “they will make this contract or another” still had to be decided.
The Soviet State had set up industrial enterprises “as separate legal
entities” in order to leave the management free to decide how it would
organize production. The only plausible meaning that one could attach to
Pashukanis™s argument that technical regulation would replace legal regu-
lation, Schlesinger concluded, was that under communism there would be
less need for compulsion than under capitalism or the transitional society
because “class-divisions” would have been abolished.64
In his eagerness to establish that law would not disappear under com-
munism, Schlesinger denied that law was a phenomenon peculiar to
capitalist society. There was, he affirmed, “a well-elaborated feudal law
in the medieval village, and its study makes a much larger contribution to
the understanding of contemporary Criminal Law than could an analysis
of the growth of commodity exchange in the towns.” He denied also that
law was necessarily an instrument of “subordination.” Even under “class-
rule,” he said, there is “a strong interest on the part of the ruling class in
the regular and predictable working of the judicial and legal machinery,
including its predictable working against individual members of the ruling
class who violate its common interests. In this sense, every legal system is
a system of co-ordination.” The role of law in the USSR was essentially
the same as in the US. Anti-trust law in the US played the same role as the
law against speculation in the USSR “ in both cases, law provided the
necessary “social machinery.”65
And so Schlesinger entreated Marxists to acknowledge the value of
maintaining “stable social relations.” Such stability could be preserved
only if judges did not legislate, but restricted themselves to establishing
“the recognised content of the legal order. . . for the Judge, qua Judge, the
social interest exists in so far as it is embodied in the legal order, and
nowhere else.” And unless a state recognized this, it could not “achieve
that normality and smoothness in the social machinery which may
be demanded of any political system, once it has outgrown the initial

63 64 65
Ibid., 161“62. Ibid., 160“61. Ibid., 157“59.
240 The idea of law repudiated

difficulties of its revolutionary origin.”66 The only possible defense for
supposing, as Pashukanis did, that communism could dispense with law
is a mistaken identification of law with the apparent revival of capital-
ism under the NEP programme in the early 1920s. Otherwise, Pashuka-
nis™s argument was no more than an apology for either capitalism or
lawlessness and an evil encouragement to “anarchy or arbitrary rule.”67
Schlesinger™s doctrine is a more sober and elaborate version of the
official denunciation in 1938, by Vyshinsky, who charged Pashukanis
with promoting a nihilist attitude to Soviet law. Vyshinsky™s insistence
on the importance of law under communism was coupled with an argu-
ment for the necessity of a strong state. This was the theme of Stalin™s
report in the following year to the 18th Party Congress, where he declared
that the “withering away of our socialist state” was not to be expected in
Soviet Russia because it could take place only when socialism had tri-
umphed in all countries. And he repeated with approval Lenin™s definition
of the dictatorship of the proletariat as “the legally unlimited dominance of
the proletariat over the bourgeoisie, resting on violence, and enjoying the
sympathy and support of the toiling and exploited masses.”68 Thus, a new
task was set for Soviet theorists of law. They had to show that law was
intrinsic to “the dictatorship of the proletariat” and compatible with
legally unlimited violence.
This feat was managed by S. A. Golunskii and M. S. Strogovich in The
Theory of the State and Law, which was published in 1940. They defined
law as a form of “guidance,” which had to be exercised by the Communist
Party alone, although it was always actively supported by the proletariat:
“In the socialist state, a new law extending the application of state
constraint to cases to which it was heretofore inapplicable is enacted only
when a majority of the toilers recognizes its propriety.” This meant that
the dictatorship of the proletariat was “dictatorial after a new fashion.”69
By quoting Lenin to the effect that, “Will, if it is the state™s will, must
be expressed as legislation established by authority “ otherwise ˜will™ is
an empty concussion of air by an empty sound,”70 they identified


66 67
Ibid., 231“33. Ibid., 164.
68
Joseph V. Stalin, “Report to the 18th Party Congress, March 10, 1939,” in Soviet Legal
Philosophy, trans. Hugh W. Babb, intro. John N. Hazard (Cambridge, MA: Harvard
University Press, 1951), 343; S. A. Golunskii and M. S. Strogovich, “The Theory of Law
and State,” in Soviet Legal Philosophy, trans. Hugh W. Babb, 359; A. Y. Vyshinsky, “The
Fundamental Tasks of the Science of Soviet Law,” in Soviet Legal Philosophy, trans.
Hugh W. Babb, 303“04.
69
Golunskii and Strogovich, “Theory of Law,” 361, 363.
70
V. I. Lenin, “Contradictory Positions,” quoted in Golunskii and Strogovich, “Theory of
Law,” 365.
Marxist theories 241
“dictatorship” with “authority.” And that identification was reenforced
with a quotation from the Communist Manifesto: “Your law is merely the
will of your class, erected into legislation “ a will whose content is defined
by the material conditions of the existence of your class.” This propos-
ition, they argued, established that law of any sort is merely “the will of
the dominant class elevated into legislation” by being “precisely formu-
lated and given universally binding force, becoming a rule of conduct
binding upon all.”71 It was still true that law expressed the will of the
dominant class, but in a socialist society it expressed the will of the ruling
working class, “and “ since exploiter classes have there been destroyed,
and the worker class (to which the state guidance of society belongs)
expresses the interests and aspirations of all the toiling people “ socialist
law is the will of the soviet people elevated into legislation. . .” It was a
mistake to think that law is distinct from the state or that one preceded
the other “ law and the state are two sides of the same phenomenon: “class
dominance, which is manifested (a) in the fact that the dominant class
creates its apparatus of constraint (the state), and (b) in the fact that it
expresses its will in the shape of rules of conduct which it formulates (law)
and which “ with the aid of its state apparatus “ it compels people to
observe.”72
The question that had concerned Pashukanis, How could the law be
objective?, is never raised by Golunskii and Strogovich. They treat law
simply as an instrument of power. Any other view of it was dismissed for
reflecting the typical bourgeois error of failing to “start from the founda-
tion of law “ which consists of social conditions, production relations, and
class conflict,” and so failing to “discern in law the will of the dominant
class erected into legislation.”73 The canonical Marxist conclusion that
followed from this understanding of law, that law like every social
arrangement belongs to a particular historical stage of capitalism and to
no other (which their book was dedicated to denying), was cavalierly
endorsed by describing law as a “historical phenomenon” that, like the
state, would disappear at the same time as the “causes which evoked it.”74
Once people had been taught by “the conscious discipline of the commun-
ist social order” to observe the “rules of life,” “voluntarily and uncon-
strainedly,” then there would be no need for law: “Communist morality
and communist customs will stand in the place of law. Governing things


71
Golunskii and Strogovich, “Theory of Law,” 365; Karl Marx and Frederick Engels,
Communist Manifesto, in Karl Marx and Frederick Engels: Selected Works (Russian ed.,
1933), quoted in Golunskii and Strogovich, “Theory of Law,” 365.
72
Golunskii and Strogovich, “Theory of Law,” 366.
73 74
Ibid., 401. Ibid., 366.
242 The idea of law repudiated

and production processes will take the place of governing people.” Or, in
other words, once the unity of tribal order was restored on a new indus-
trial basis, and human beings learned again to think of themselves as parts
of a productive enterprise, there would be no need for law. But this could
not happen, they warned, just as Stalin had, until there was no longer any
need to “struggle against hostile encroachments on the part of capitalist
encirclement.”75 They ignored the distinction that traditional jurists
insisted on between rules and orders by speaking of “legal norms,” in
which they included every sort of regulation. Whether a law took the
shape of “a rule, an order, a requirement” was declared irrelevant, and the
fact that all Soviet legislation was officially described as a decree went
unnoticed. The distinction between instrumental and non-instrumental
rules was similarly ignored. Law, Golunskii and Strogovich said, has “a
definite goal which the dominant class attains with its aid.”76 That coer-
cion is intrinsic to law followed necessarily from their definition of law as
“norms” established by the “coercive force of the state. . . to the end of
safe-guarding, making secure, and developing social relationships and
arrangements agreeable and advantageous to the dominant class.”77
Law is distinguished from morality by two traits. Moral norms are not
enforced by direct constraint on the part of the state, and they lack the
unity characteristic of law because law represents the will of the dominant
class, whereas moral norms within a single state might differ from class to
class. The example given of such differences in moral norms “ that strike-
breaking was considered moral by capitalists but immoral by the workers
“ made it clear that Golunskii and Strogovich made no distinction be-
tween private and public, such as Pashukanis had considered essential to a
legal system. Thus, Golunksii and Strogovich established that “Socialist
law is a completely unique type of law,” because it is the “first law in the
history of human society which is not exploiter law: it banishes exploit-
ation, and gives expression to the interests and will of all the toiling people
“ of the socialist worker-peasant state.” Both in form and substance it
differs from any law that has ever existed in any exploiter state because it
consists “of norms expressing the will and guaranteeing the interests of a
people freed from exploitation. . .” Such a condition can be found only
where exploiter classes have been destroyed. Therefore, socialist law is
founded upon “public socialist property (the indefeasible basis of the
socialist social order) and not upon private property; upon the principles
of the proletarian dictatorship which is carrying into effect the state
guidance of society.”78

75 76
Ibid., 399“400. Ibid., 368“69.
77 78
Ibid., 370. Ibid., 368, 384“85.
Marxist theories 243
Marx™s criticism of law for treating unequal people equally was lightly
disposed of as a criticism of the bourgeois law that prevailed in societies
where there is private property and consequently no true equality. More-
over, the formal equality of bourgeois law was described as a veil for “the
factual inequality created by capitalist exploitation,” the fact that the
workers could not make use of the rights that they had been granted.
Insofar as private property persisted under socialism, inequality persisted
and the law accordingly retained elements of “bourgeois law.” But social-
ist law, even though it may temporarily preserve a certain inequality, “is
itself a means of mitigating, and gradually eliminating, that inequality.”79
The absence of distinctions considered essential to law in bourgeois
societies was recognized but explained away as one of the virtues of
socialist law. For these distinctions were inspired by the bourgeois effort
to make it impossible for workers to use the law. Since a socialist state
wants the law to be known “to the widest possible strata of the toilers,”
socialist law is “incomparably simpler and more accessible in form “ as
well as far richer in content,” than is bourgeois law.80
That the Soviet State sometimes ignored the law was also acknow-
ledged. But such exceptions were shown to be entirely compatible with,
indeed intrinsic to, the idea of “socialist law.” For the socialist state had

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