What was Pashukanis seeking to do with his concept of ‘legal form’, and does it have continuing relevance?

Working paper for the Legal Form Workshop, Krakow, 14-15 April 2023. Not for citation.

Introduction

In this working paper, I start with the concept of the “legal form” as proposed by Przemysław Tacik and Cosmin Cercel in their substantial introductory paper “Towards the Generalised Concept of the Legal Form”. Next, I ask whether there has in fact been a serious debate as to “legal form” prior to the work in 2021-4 of Yevgeny Pashukanis. Third, I distinguish between “natural laws” and “human laws” as analysed by Baruch Spinoza, This distinction was maintained by his disciples Karl Marx and Friedrich Engels. For them a key natural law was the ”law of value”, which, like the law of gravity, determines the activity of capitalists whether they like it or not. Fourth, I maintain that “legal form” refers to human laws only, and that neither Marx nor Engels referred to or analysed the “legal form” or any cognate concept, nor did they feel they needed to. While Marx intended a volume on The State he did not proposed to write on The Law. Fifth, I turn to Pashukanis himself, starting with the history of his General Theory, and the context in which it was written, identifying startling problems with the translations into English. Sixth, what was his intention in concentrating on “legal form”, and why does it continue to exert such a powerful influence today?

The proposal by Tacik and Cercel

After introducing their reader to “modern dialectics” (as found in Lukács and Žižek[1]), the authors propose a working concept of the legal form. “Legal form is the transposition of an arbitrary political will onto the self-sufficient normative level which produces a surplus of discriminatory symbolic power that exceeds the power directly contained in the command of the law-giver.”  As the authors make clear, this language is “Lacanian parlance”. Indeed, as Peter Čuroš has noted in his review of Cercel’s monograph[2], accurately, I think: “The methodology that Cercel follows in the book and his approach to the jurisprudence of state communism is inspired by four primary ideas – Giorgio Agamben’s concept of the state of exception, Walter Benjamin’s historicism, Jacques Lacan’s psychoanalysis and perception of the law as the “Other” in the symbolic stage and Slavoj Zizek’s spectre of the ideology.” They take us through Kant, for whom law is a self-sufficient normative world; and Hegel, for whom, they claim, “the “legitimacy of the law can lie only in its universal form”.  Though, I add, neither had anything to say about the “legal form”. Finally, they present “Marx’s critique of the legal form”, which, they say “can be found mainly in his early writings”. It is certainly nowhere to be found in Capital, as I will explain.

Finally we come to “the properly Marxist concept of the legal form”: The legal form is a tool of political violence in the class struggle that consists in defining the threshold between social visibility and invisibility

They concede a page later as to “the scarcity of Marx’s considerations on the law itself – and the lack of general theory of the legal form in his writings”. And we are brought back, for a second time, to “Lacanian parlance”, and to Agamben’s “bare life” [3]

Legal form apart from Pashukanis – and with him?

Pashukanis’s Law and Marxism. A General Theory, first published in Soviet Russia in 1924, first appeared in English, in the translation by Barbara Einhorn, and edited and introduced by Chris Arthur, in 1978[4]. This was a translation of Allgemeine Rechtslehre und Marxismus, which was itself a translation into German of Общая теория права и марксизм (Obshchaia teoriia prava i marksizm).[5] In 1980 a translation from the Russian by the eminent US scholar of Soviet law, Peter B Maggs, appeared.[6] This is the version which appears on the Marxists.org website.[7] As this website points out, the complete footnotes to the General Theory, which do not appear in either translation appeared in J. Hazard (ed.), Soviet Legal Philosophy (1951), Harvard University Press, Cambridge, translated by H. Babb, pp.111-225.[8] In fact both the Einhorn and the Maggs translations omitted many important footnotes. I will return to the significance of this.

These appearances of Pashukanis in English, after so many years, elicited serious reviews, in 1980, from Roger Cotterrell, of the Maggs translation[9]; and in 1981 by Ronnie Warrington[10] of the Einhorn translation, with a reply by Alan Norrie in 1982[11]. The most recent serious exposition of Pashukanis’s theory, by Matthew Dimick, appeared in the 2021 Research Handbook on Law and Marxism.[12]

Neither Kant nor Hegel investigated the “legal form”.

However, in 1977 the Chicago professor Isaac Balbus published “Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law”[13]. He argued that “the logic of the legal form and the logic commodity form are one and the same.”:

,,, the relative autonomy of the legal form from the will of social actors entails at the same time an essential identity or homology between the legal form and the very “cell” of capitalist society, the commodity form.

The legal form … defines distinctions of interest and origin out of political existence, just as the commodity form defines distinctions of use and labor out of economic existence. And, just as the commodity form “replaces” use-value and concrete labor with the abstractions of exchange-value and undifferentiated labor-power, the legal form “replaces” the multiplicity of concrete needs and interests with the abstractions of “will” and “rights,” and the socially differentiated individual with the abstraction of the juridical subject or the legal person

And in a footnote

…Only after “working out” the homology between the commodity form and the legal form did I discover that Pashukanis had developed essentially the same analysis roughly fifty years ago! Almost all subsequent Marxist work on the law is, unfortunately, a regression from the standard established by Pashukanis’s pioneering efforts.

But analysis of the “legal form” is not only to be found in the scholarship inspired by Pashukanis’s appearance in English. In 2005 the Cornell scholar Robert B. Summers published “On Giving Legal Form Its Due. A Study in Legal Theory”[14] – without mentioning Pashukanis, let alone Marx. His position?

Here, I use the word “form” to mean the purposive systematic arrangement of the parts and the whole of a legal phenomenon. I use the phrase “legal phenomenon” to mean any type or sub-type of functional legal unit in a system of law, including an institution such as a legislature or court, a species of law such as a rule, principle, contract or property interest, a methodology such as one for the interpretation of statutes or for the application of case law, and a sanction or a remedy such as imprisonment, or money damages…

Few legal theorists have taken interest in developing a general theory that gives legal form its due in a frontal and systematic fashion. Such a theory must, among other things, differentiate types of legal phenomena, and must differentiate between the formal and the non-formal in legal phenomena.[15]

His main source was the German realist scholar Rudolf von Jhering, who had a profound influence on the American Legal Realist School, especially Karl Llewellyn (1893- 962), and thus on American Critical Legal Studies.[16] Duncan Kennedy, in an article on Lon Fuller, published in 2000 in the Columbia Law Review[17], placing Fuller’s analysis of contract questions in the context of the critique of the 19th century will theory of contracts, and the rise of sociological jurisprudence and legal realism, wrote, in a footnote

“Between 1972 and 1975, I read Rudolf von Jhering’s The Spirit of Roman Law (in French translation) because Fuller had cited it. Jhering’s seemed to me a much better, indeed an unutterably brilliant, take on the issues Fuller discussed, and this greatly reduced my admiration for Fuller. My article downgrades him for this reason.”

So there is discussion concerning “legal form” without reference to Pashukanis.

However, as I show below, Pashukanis referred several times to Von Jhering.

Natural Laws and Human Laws: Marx on Natural Laws

This section draws on my contribution to the Research Handbook on Political Economy and Law.[18]

Marx referred many times to ‘the law of value’, and as has been pointed out, practically never to a ‘labour theory of value’. What kind of a law is the ‘law of value’? In Volume 3 of Capital Marx wrote explicitly that:

Since these latter [individual capitalists] confront one another only as commodity-owners, and everyone seeks to sell his commodity as dearly as possible (apparently even guided in the regulation of production itself solely by his own free will), the inner law enforces itself only through their competition, their mutual pressure upon each other, whereby the deviations are mutually cancelled. Only as an inner law, vis-à-vis the individual agents, as a blind law of Nature, does the law of value exert its influence here and maintain the social equilibrium of production against its accidental fluctuations.^[19]

That is, for Marx the law of value is an ‘inner law’, a law of nature. Individual capitalists believe that they are acting of their own free will, but in reality their activity is subject to the Law of Value, as inexorable and impossible to avoid as the law of gravity or the  laws of motion. The Law of Value expresses the innermost laws of motion of Capital, as what is new and unprecedented in human history. This is one of the points at which Marx demonstrates his debt to Spinoza. Yirmiyahu Yovel, in his Spinoza and Other Heretics,^[20] asserted that

Marx used Spinoza’s thought far more than he admitted. Spinoza was above all a counterbalance and corrective to Hegel, restoring the concept of nature and man as a concrete, natural being from what seemed to Marx his immersion in the lofty and semireligious heights of the Hegelian Geist… Marx’s new philosophy of immanence, though strongly influenced by Hegel and his milieu, goes back to Spinoza in more ways than one. Indeed, Spinoza is almost always present in Marx’s thought. But, we may add, the actual presence of Spinoza in Marx far surpasses his direct mention by name.

Indeed, one of the passages Marx transcribed from Spinoza in 1841, from Chapter IV of the Theological-Political Treatise (TTP), ‘Of the Divine Law’,was as follows:

The word law (lex) in an absolute sense signifies that, in accordance with which, each individual thing, or all things, or all things of the same kind, behave in one and the same fixed and determinate way, depending upon either [vel] natural necessity or [vel] a human decision.^[21]

This paragraph continues (though the continuation was not transcribed by Marx) and explains the first sentence:

A law that depends upon natural necessity is one that necessarily follows from the very nature or definition of a thing. A law that depends on a human decision, which is more properly called a decree (jus), is one that men prescribe to themselves and to others in order to achieve a better and safer life, or for other reasons.

Does this mean that a law of nature, an expression of natural necessity, is equivalent, for Spinoza, to a human decree? Not at all. Marx next transcribed the following passage, two paragraphs lower on the page:

Firstly, in so far as man is a part of nature, he is also part of nature’s power. Hence whatever follows from the necessity of human nature (that is, from nature itself in so far as we understand it to be expressly determined by human nature) results also, albeit necessarily, from the capacity of men. Hence the decreeing of these laws may quite correctly be said to follow from human will, because this depends especially on the power of the human mind in the sense that our mind, so far as it perceives what is true or false, can very clearly be conceived without those decrees, but not without the necessary law of nature as we have just defined it.^[22]

That is, a human decree, and the enforcement of it, are themselves  the expression of the power of nature, and subject to the same iron necessity as everything else in nature. In pronouncing a decree and enforcing it, humans may believe that they are acting of their own free will, but in fact are, as humans, expressing determined and inevitable natural forces.

In Spinoza’s Revolution in Natural Law, Andre Santos Campos^[23] explains that

The fact remains that natural laws for Spinoza are neither mere descriptions of what a thing is in itself nor propositional inferences referring to a priori given data. They are mostly that which is so distinctive to each individual thing that it allows the thing to posit itself as a real individual being.^[24]

Campos continues that

The laws of nature of each individual thing are hence the inscription of a thing’s essence and of everything that follows from it because the thing is. They are the inscription of the thing’s power – and that is the very nature of law (jus), that is, the thing’s natural ‘right-law’.^[25]

Thus Spinoza’s (and, I argue, Marx’s) laws of nature are not explained by any kind of normatively moral natural law theory, but rather a necessitarian deterministic natural law theory. Moreover, these laws cannot be confused with the laws of natural science, which are descriptive of actions and experiences. Campos explains that Spinoza’s laws are inscriptive rather than descriptive.

… inscriptive natural laws are the intrinsically original characteristics that an individual has – and the actions he performs as a follow-up to those characteristics – in order to express self-productive immanent Nature.^[26]

The Law of Value for Marx had, I propose, precisely these characteristics of a Spinozan natural law. It is possible to trace the development but also the consistency of Marx’s understanding of the operation of this Law over the years. In 1859 in the Critique of Political Economy Marx wrote:

David Ricardo, unlike Adam Smith, neatly sets forth the determination of the value of commodities by labour-time, and demonstrates that this law governs even those bourgeois relations of production which apparently contradict it most decisively. Ricardo’s investigations are concerned exclusively with the magnitude of value, and regarding this he is at least aware that the operation of the law depends on definite historical pre-conditions. He says that the determination of value by labour-time applies to “such commodities only as can be increased in quantity by the exertion of human industry, and on the production of which competition operates without restraint.”^[27]

This in fact means that the full development of the law of value presupposes a society in which large-scale industrial production and free competition obtain, in other words modern bourgeois society. For the rest, the bourgeois form of labour is regarded by Ricardo as the eternal natural form of social labour.^[28]

Thus, the Law of Value, which finds expression in the whole of human recorded history most certainly since the agricultural revolution 10,000 years ago, only finds its full development under the rule of Capital. In his 1867 Preface to the first German edition of Capital Volume I, Marx wrote of the ‘value-form, whose fully developed shape is the money-form’. He also wrote of the ‘natural laws of capitalist production… these tendencies working with iron necessity towards inevitable results.’^[29] In 1867, in Chapter 1 of Capital, ‘The Commodity’, Marx wrote that

The general value-form, in which all the products of labour are presented as mere congealed quantities of undifferentiated human labour, shows by its very structure that it is the social expression of the world of commodities. In this way it is made plain that within this world the general human character of labour forms its specific social character.^[30]… in the midst of the accidental and ever-fluctuating exchange relations between the products, the labour-time socially necessary to produce them asserts itself as a regulative law of nature.^[31]

In Chapter 11 of Capital, ‘The Rate and Mass of Surplus-Value’, Marx refers to three laws, all of which are necessary consequences of the Law of Value. First, there is the law that ‘… the supply of labour exploitable by capital is independent of the supply of workers’, to which he added in a foot note

This elementary law appears to be unknown to the vulgar economist, who imagines, like an inverted Archimedes, that in the determination of the market price of labour by supply and demand he has found the fulcrum by means of which he cannot so much move the world, as bring it to a standstill.^[32]

The second law is,

The absolute limit of the average working day – this being by nature always less than 24 hours – sets an absolute limit to the compensation for a reduction of variable capital by a higher rate of surplus-value, or for the decrease of the number of workers exploited by a higher degree of exploitation of labour-power.^[33]

 The third law is as follows:

… the masses of value and of surplus-value produced by different capitals – the value of labour-power being given and its degree of exploitation being equal – vary directly as the amounts of the variable components of these capitals, i.e. the parts which have been turned into living labour-power.^[34]

Marx continues that

This law clearly contradicts all experience based on immediate appearances…. Classical economics holds instinctively to this law, although it has never formulated it, because it is a necessary consequence of the law of value.^[35]

I repeat that this Law, which is at the heart of the operation of Capital, is a thoroughly Spinozist law, the result of which is that humans, believing that they are acting of their own free will, are in fact expressing a determinate necessity.

Marx on Human Laws

Marx had very little to say about law constructed by humans as such.^[36] His attitude to (man-made) law remained consistent throughout his life. In the 1857 Introduction to the Grundrisse, he wrote:

Quite apart from this crude tearing-apart of production and distribution and of their real relationship, it must be apparent from the outset that, no matter how differently distribution may have been arranged in different stages of social development, it must be possible here also, just as with production, to single out common characteristics, and just as possible to confound or to extinguish all historic differences under general human laws. For example, the slave, the serf and the wage labourer all receive a quantity of food which makes it possible for them to exist as slaves, as serfs, as wage labourers. The conqueror who lives from tribute, or the official who lives from taxes… all receive a quota of social production, which is determined by other laws than that of the slave’s, etc.

The two main points which all economists cite under this rubric are: (1) property; (2) its protection by courts, police, etc. To this a very short answer may be given:

…

to 2. Protection of acquisitions etc. When these trivialities are reduced to their real content, they tell more than their preachers know. Namely that every form of production creates its own legal relations, form of government, etc… All the bourgeois economists are aware of is that production can be carried on better under the modern police than e.g. on the principle of might makes right. They forget only that this principle is also a legal relation, and that the right of the stronger prevails in their ‘constitutional republics’ as well, only in another form.^[37]

In the Preface to his A Contribution to the Critique of Political Economy (Zur Kritik der Politischen Oekonomie), published in Berlin in 1859, the text in which his ideas concerning Capital achieved their explicit shape, Marx wrote;

My inquiry led me to the conclusion that neither legal relations nor political forms could be comprehended whether by themselves or on the basis of a so-called general development of the human mind, but that on the contrary they originate in the material conditions of life, the totality of which Hegel, following the example of English and French thinkers of the eighteenth century, embraces within the term “civil society”; that the anatomy of this civil society, however, has to be sought in political economy.^[38]

Much later, in his 1875 Critique of the Gotha Programme, Marx elaborated on this, writing:

Do not the bourgeois assert that the present-day distribution is “fair”? And is it not, in fact, the only “fair” distribution on the basis of the present-day mode of production? Are economic relations regulated by legal conceptions, or do not, on the contrary, legal relations arise out of economic ones? Have not also the socialist sectarians the most varied notions about “fair” distribution?^[39]

Are ”Socialist Law” or “Socialist Legal Theory” desirable or even possible?

In their 1887 polemic Juridical Socialism^[40] (the German title, Juristen-Socialismus, would be better translated as “Lawyers’ Socialism”) Friedrich Engels and Karl Kautsky^[41] explained – and Marx, who died four years earlier, would not have disagreed – how the main battle cry of the bourgeoisie became “equality before the law”, because their struggle had to be based around legalistic demands. “This solidified a world view based on legal rights… at first the proletariat had embraced the world view of legal rights, and sought weapons in it for use against the bourgeoisie.”^[42]

Engels and Kautsky insisted that “Marx… presents no legalistic demands at all in his theoretical work… Legal rights, which always reflect the economic conditions of a specific society, are treated only in a very secondary manner in Marx’s theoretical studies, as opposed to the primary historical topic of situating particular circumstances, means of acquisition, and social classes in specific periods.^[43]”

But they also insisted that socialists would not fail to present certain legalistic demands: “Every struggling class must therefore formulate its demands as legalistic demands within a program… however, no existing socialist party has thought of making a new legal philosophy of its program, and this will not happen in the future.”

Peter Schöttler explained their position as follows:

“… there is indeed no proletarian or socialist legal ideology (just as there can be no socialist philosophy of law), but there are proletarian, or socialist, legal demands, and these are necessary, nay indispensable, if the proletariat wishes to articulate its interests politically in opposition to the bourgeoisie and the bourgeois state. The political class struggle includes making legal demands.”^[44]

In precisely the same sense, Marx and Engels would have had no difficulty in associating themselves with 20^th and 21^st century demands framed within the international law right of peoples to self-determination^[45].

Chapter 10 of Volume 1 of Capital was devoted to “The Working Day”.[46] Three of its 7 sections start with the phrase “the Struggle for a Normal Working Day”. Marx is clear that

… these highly detailed specifications [in the additional Factory Act of 7 June 1844] , which regulate, with military uniformity, the times, the limits and the pauses of work by the stroke of the clock, were by no means a product of the fantasy of Members of parliament. They developed gradually out of circumstances as natural laws of the modern mode of production. Their formulation, official recognition and proclamation by the state were the result of a long class struggle.[47]

The Chapter concludes as follows:

For ‘protection’ against the serpent of their agonies, the workers have to put their heads together and, as a class, compel the passing of a law, and all-powerful social barrier by which they can be prevented from setting themselves and their families into slavery and death by voluntary contract with capital. In the pace of the pompous catalogue of the ‘inalienable rights of man’ there steps the modest Magna Carta of the legally limited working day, which at last makes it clear ‘when the time which the worker sells is ended , and when his own begins. Quantum mutatus ab illo![48]

Marx is not writing about “legal form”, but about the class struggle, in which workers take up legal demands.

Law and legislation  reappear in Part Eight, “So-Called Primitive Accumulation”,  Chapter 27 “The Expropriation of the Agricultural Population from the Land” .[49] Marx describes how between the fifteenth and the sixteenth centuries, “the English working class was precipitated without any transitional stages from it golden age to its iron age.”[50]

And after the restoration of the monarchy in 1660

…the landed proprietors carried out, by legal means, and act of usurpation which was effected everywhere on the Continent without any legal formality. They abolished the feudal tenure of land, i.e. they got rid of all its obligations to the state, ‘indemnified’ the state by imposing taxes on the peasantry and the rest of the people, established for themselves the rights of modern private property in estates to which they had only a feudal title, and finally, passed those laws of settlement which had the same effect on the English labourer, mutatis mutandis, as the edict of the Tartar Boris Godunov had on the Russian peasantry.[51]

 So, Marx explains, “the legal form” is what distinguishes the English usurpation of the peasantry which elsewhere was carried out without such niceties, by force.

What did Pashukanis want to achieve? His intellectual history.

Pashukanis was born in 1891. In 1909 he started to study law in Petersburg, but left Russia for Germany in 1910. He continued his studies at the Ludwig-Maximilians-Universität in Munich, where he specialized in the contemporary philosophy of law, and in political economy. His doctoral dissertation was entitled Statistik der Gesetzwidrigkeit im Arbeitsschutz (Statistics of legal infractions in labour protection). This was not at all, therefore, a work of legal theory, but an indication of his interest in the workers’ movement in Germany.^[52] During World War I, he returned to Russia.

In October 1917, following the Bolshevik seizure of power, Pashukanis worked in the Sushchevsko-Mariynskiy Military Revolutionary Committee in Moscow, and was later elected a member of the Cassation (Appeal) Tribunal attached to the All-Russian Central Executive Committee (VTsIK)^[53], acting as a revolutionary judge.^[54]

From 1920 to 1923 Pashukanis served in the Peoples’ Commissariat for Foreign Affairs as the deputy head of the Economic Law Department. As a legal adviser, he was involved in one of first and most important actions of the young Soviet Union in the field of international law. During this time he worked in the Soviet Russian representation in Berlin, where in due course he took part in the preparation of the Rappalo Treaty with Germany.[55]

It may well be that Pashukanis’s experience as a responsible working diplomatic legal expert, engaged in international negotiation at the highest level, informed his later writing to a much greater extent than did his German-centred theoretical scholarship.

However, as he disclosed rather later, in 1930, it was while in the Berlin in 1921-22, that Pashukanis prepared his General Theory, which was completed in 1923 and was published in 1924. He also published his first scholarly article in 1921.

The Selected Works of Pashukanis published in Russia in 1980^[56] has a Bibliography^[57] of the “Fundamental Works of Pashukanis”; but one work is missing. This was Pashukanis’ first published article, which appeared in 1921, and was entitled “Burzhuazniy yurist o prirode gosudarstvo (A bourgeois jurist on the nature of the state)”.^[58] It appeared in the literary journal Krasnaya Nov (Red Virgin Soil), which was the first Soviet literary “thick” journal, and was published between 1921 and 1941. From 1921 to 1927 it was edited by Aleksandr Voronkov (1884-1937), who was close to Trotsky, agreed with Trotsky’s 1923 Literature and Revolution, did much to encourage new literary talent, and in 1937 was executed for Trotskyism.

The subject of the article was the scholarship of Professor Maurice Hauriou of the University of Toulouse (1856-1929)^[59], whose textbook on Principles of Public Law was published in 1910. Pashukanis did not refer in his 4,000 word article to any other literature. Not least in this regard, the article contrasts strongly with the General Theory, which has many references, including several to German authors. He referred to Marx, but without indicating his source. Most of the article consisted of often sarcastic references to Hauriou’s positivist doctrine. Pashukanis’ concluding paragraph was as follows.^[60]

In one of his speeches Cde Lenin remarked that sincere defenders of capitalism may now be found only among our SRs (Social Revolutionaries) and Mensheviks. In the West they have become extinct. We can see the cause of this. Russia underwent an accelerated course of capitalism and therefore our intelligentsia may bona fide come out in defence of the sublime beginning of democracy and freedom, without sensing that it has been crucified by capitalism. But in order to be a sincere defender of capitalism in the West, where social relations have been able to mature and over-mature, one must sincerely, like Hauriou, assert that the principles of freedom, democracy, individual rights and so on, conceal behind themselves quite simply faire valoir de la propriété!^[61] And such courage is not given to everyone.

There is in fact a connection between Pashukanis’s sole publication before the General Theory, his 1921 article, and the 1924 General Theory itself, although Pashukanis did not refer directly to his earlier work. In fact, Maurice Hauriou was cited three times^[62] in the General Theory, but this time with approbation and the epithet “astute” as in “one of the most astute bourgeois theorists”^[63] and “an astute jurist like Hauriou”.^[64] And there were many references to the German legal scholars whom Pashukanis read in Munich and during his time in Berlin.

However, Pashukanis’ paramount reason for writing the General Theory was not to renew or explain his relationship with Hauriou, but to identify “…law in its general definition, law as a form…”.^[65]  That is, to tackle the question of the nature of law as a materially grounded abstraction. Pashukanis is now best known for his “commodity-form” theory of law, more recently extended to a “commodity-form theory of international law”.^[66]

In the first of several recantations of his work in 1921, published in 1930, Pashukanis wrote the following about the genesis of the General Theory:

It is clear that much which was written in the first years of NEP^[67] deserves criticism and suffers from obvious anachronisms and now and then simply mistakes… But the question is not only that of particular formulations. The question concerns some defects of a general character. This was the overestimation of the role and significance of market relations which was without doubt characteristic of my first work. It is impermissible to hide from view the fact that this book was written at a time when the collective of Marxist legal scholars had not come together. It was written when I was alone, and it could not be exposed to the process of critical re-working. It was written finally, before the publication of Lenin’s notebooks on dialectics and on the works of Marx which were published in the “Archive”. It appeared before the discussions with the “mechanists”, before the discussions in the fields of political economy, literature etc. Therefore it was completely natural, that the book, which was written in 1923, and prepared still earlier in 1920-1921, displays defects, when we look at it from our higher present day theoretical and methodological point of view.^[68]

This concerned Pashukanis’ theoretical work from 1920 to 1923.

Pashukanis became in the next ten years a staunch loyalist of the regime – in my opinion, by conviction rather than any sort of pressure.

In 1931, following the dramatic recantation of his previous views noted above, Pashukanis became the Director of the Institute of Soviet Construction and Law of the Communist Academy. He was effectively the USSR’s director of legal research and legal education. The American scholar John Hazard^[69], who studied under Pashukanis from 1934 to 1937, summarised his effect on legal education, as follows:^[70]

Believing that the state was slowly withering away as socialism came nearer to achievement, Pashukanis advocated the cessation of courses in civil law. He understood civil law to be the regulation of the relations of men under the trading conditions of capitalism, and, as such, no longer of importance, as the remnants of capitalism disappeared.

His influence was so marked that the courses in civil law in the law school were abolished, and to replace them there appeared a course called economic-administrative law, concerning itself with regulation of the relations between state enterprises.^[71]

Following Pashukanis’ fall in 1937, courses on (Soviet) civil law were reintroduced to the syllabus.

By 1932, Pashukanis, who had become editor in chief of the official law journal Soviet State, was able to write a “hallelujah” in response to Stalin’s letter “Some questions on the history of Bolshevism”.^[72] Pashukanis’ major work on international law, Essays in International Law, appeared in 1935^[73].

On 16 November 1936 Pashukanis reached the high point of his career: the Presidium of the Central Executive Committee of the USSR appointed him Deputy Peoples Commissar for Justice of the USSR. In the same year he was deputy chairman of the Drafting Committee for the 1936 “Stalin Constitution”^[74], and the Institute of State and Law proposed him as a candidate for membership of the Academy of Science of the USSR. Also in 1936 he became the chairman of the Academic Council attached to the Peoples Commissariat of Justice of the USSR.

But within a year he was dead, following Pravda’s announcement on 20 January 1937 that he had been found to be an enemy of the people – just two months after he had been named by the regime to supervise the revision of the whole system of Soviet codes of law. On the same day he was arrested. On 4 September 1937 a Military Collegium sentenced him to death.  He was condemned as a member of a ‘band of wreckers’ and “Trotsky-Bukharin fascist agents”. He was posthumously rehabilitated in 1956.

What did Pashukanis want to achieve? The General Theory

As noted above, Pashukanis wrote his General Theory while working as the Soviet government legal adviser in Berlin, in 1921-2.

It is clear to me that he wished to prove that with the proletarian revolution law would cease to exist, and would be replaced by technical administration. That was why he worked out in detail his thesis that developed capitalism required and generated a “legal form”, unique to developed capitalism. While he did not specify a homology between the “commodity form” and the “legal form”, as advocated by Balbus, his conception of the “legal form” was noy a possibility before Marx’s work in the 18^th century.

Furthermore, as Pashukanis himself made clear, he was working in Berlin until 1923, and was not familiar with the theoretical debates and developments within Bolshevism. For this reason, very little Soviet Russian scholarship is cited in the General Theory.

Instead, even in the 3^rd Edition, published in 1929, there are voluminous footnotes, most of which do not appear in the Einhorn (from a German translation) or the Maggs translations into English. Indeed, the great majority of citations are to German scholars, no fewer than 19 footnotes, mostly to German language sources, mostly from the late 19^th and early 20^th century[75], many of them textbooks, the most recent reference being to Kelsen’s 1922  Der soziologische und der juristische Staatsbegriff (The sociological and legal concept of the state).[76]

The English language reception of Pashukanis in the 1970s and 80s was therefore based on incomplete translations.

Pashukanis’s tragedy was that in 1921, while he was still in Berlin, Lenin, conscious of the impossibility of constructing socialism in one country in one beleaguered country, launched the New Economic Policy (NEP), which required laws, in particular civil laws, and courts. Pashukanis maintained his position as to the necessary disappearance of law, the “legal form” of developed capitalism, for as long as he could. Stalin brought the NEP to an end with his Great Break, a few years after Lenin’s death on 21 January 1924. The new Soviet system of Socialism in One Country required more law than ever before. In  his 2014 masterpiece Law and the Making of the Soviet World. The Red Demiurge [77] Scott Newton argued that the Soviet order was a work of law. He drew on Russian-language Soviet statues and regulations, jurisprudence, legal theory, and English-language ‘legal Kremlinology’. On this basis he analysed the central significance of law in the design and operation of Soviet economic, political, and social institutions. He therefore concluded that the USSR was an exemplary, rather than aberrant, case of the uses to which law was put in twentieth-century industrialised societies. No wonder Pashukanis was shot, despite his best efforts at conforming to Stalin’s regime. The continuing relevance of his work in 1921-22 is that it is the only thoroughly serious attempt to formulate a socialist theory of the law, or the “legal form”, despite Marx and Engels having insisted that no such thing was possible or desirable..

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[1] Slavoj Žižek, Sex and the Failed Absolute, Bloomsbury, 2020, p. 212

[2] Peter Cercel “One Hundred Years of Solitude and the Eternal Recurrence of the Legal Form”, review of Cosmin Cercel: Towards A Jurisprudence of State Communism – Law and the Failure of Revolution. (London: Routledge, 2019), Vol 13, No 1 (2023): The Lawyer Quarterly. 96-104, at

https://tlq.ilaw.cas.cz/index.php/tlq/article/viewFile/544/544

[3] Giorgio Agamben Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998)

[4] London, Ink Links, 1978; Pluto Press 1989

[5] Third edition, 1929 Пашуканис Е. Б. Общая теория права и марксизм. Издание 3-е. — М.: Изд-во Коммунистической Академии, 1929 (Communist Academy Publisher), in Russian at https://kritikaprava.org/library/31/obschaya_teoriya_prava_i_marksizm

[6] Pashukanis: Selected Writings on Marxism and Law by Piers Beirne, Robert Sharlet, Peter B. Maggs, Academic Press, London, 1980.

[7] Obshchaia teoriia prava i marksizm: Opyt kritiki osnovnykh iuridicheskikh poniatii (1924), sotsiahsticheskoi akademii, Moscow, 1st edition. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.32-131. Translated by Peter B. Maggs. At https://www.marxists.org/archive/pashukanis/1924/law/index.htm

[8] The complete footnotes to the General Theory have been translated in J. Hazard (ed.), Soviet Legal Philosophy (1951), Harvard University Press, Cambridge, translated by H. Babb, pp.111-225.

[9] British Journal of Law and Society. Vol. 7, No. 2 (Winter, 1980), pp. 317-321

[10] “Pashukanis and the commodity form theory” (1981) 9 International Journal of the Sociology of Law, 1-22

[11] “Pashukanis and the ‘Commodity Form Theory’: A Reply to Warrington”, (1982) 10 International Journal of the Sociology of Law 419-437

[12] Matthew Dimick “Pashukanis’ commodity-form theory of law” in Research Handbook on Law and Marxism

Paul O’Connell and Umut Özsu (eds) Edward Elgar 2021, 115-138

[13] Isaac D. Balbus “Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law” Law & Society Review , Winter, 1977, Vol. 11, No. 3 (Winter, 1977), pp. 571-588

[14] Ratio Juris. Vol. 18 No. 2 June 2005, 129–143

[15] Ibid, pages 129-130

[16] Jhering, Rudolf, von. (1915/1997) 1933. Geist des Römischen Rechts: Auf den Verschiedenen Stufen

Seiner Entwicklung. (The Spirit of Roman Law: At the Different Stages of its Development) Aalen: Scientia. Jhering is best known in English for The Struggle for Law, trans Lalor, J. J.. Union, NJ: Lawbook Exchange reprint, and see Roger Cotterrell “The struggle for law: some dilemmas of cultural legality”, (2008). International Journal of Law in Context, 4(4), 373-384.n  and Bill Bowring “The reception or the lack of it, of the concepts of Rudolf von Jhering in the English speaking world”, at https://bbowring.com/2021/03/20/the-reception-or-the-lack-of-it-of-the-concepts-of-rudolf-von-jhering-in-the-english-speaking-world/

[17] Duncan Kennedy “From the Will Theory to the Principle of Private Autonomy: Lon Fuller’s “Consideration and Form”” (2000) 100(1) Columbia Law Review 94

[18] Bill Bowring “The law of value and the law” in Ugo Mattei and John Haskell (eds) Research Handbook on Political Economy and Law (Cheltenham: Edward Elgar, 2015), 158-176

[19] Karl Marx, Capital: A Critique of Political Economy (first published 1867, Lawrence & Wishart 1984) 880

^[20] Yirmiyahu Yovel, Spinoza and other Heretics: The adventures of Immanence, vol 2 (Princeton UP 1992) 78-103, 78-79

[21]  Karl Marx and Friedrich Engels, Marx-Engels Gesamtausgabe MEGA IV I  (Dietz Verlag, 1976) 248; Benedict de Spinoza, Theological-Political Treatise (Michael Silverthorne tr, Jonathan Israel ed, CUP 2007) 57

[22] cf Marx and Engels (n 56) 248; Spinoza (n 56) 57.

[23] Andre Santos Campos, Spinoza’s Revolution in Natural Law ( Palgrave MacMillan 2012)

[24]ibid.

[25] ibid 75.

[26] ibid.

[27] David Ricardo, On the Principles of Political Economy, and Taxation (3rd edn, John Murray 1821) 3

[28] Karl Marx, ‘Historical Notes on the Analysis of Commodities’ (Marx Engels Archive) available < https://www.marxists.org/archive/marx/works/1859/critique-pol-economy/ch01a.htm> accessed 1 January 2015

[29] Karl Marx, ‘1867 Preface to the first German edition’ in Capital Vol. I  (Marxist Archive) available at   <http://www.marxists.org/archive/marx/works/1867-c1/p1.htm>  accessed on 1 January 2015

[30] Karl Marx, Capital:A Critic of Political Economy, vol 1 (Ben Fowkes tr, Penguin Books 1976) 160.

[31] Marx (n 65) 168.

[32] ibid 419.

[33] ibid 420.

[34] ibid.

[35] ibid.

[36] For a characteristic Soviet presentation of Marx’s ‘theory of law’ see L S Mamut, ‘Theory of Law’ Sovetskoye Gosudarstvo i Pravo (1967) in Csaba Varga (ed) Marxian Legal Theory (New York UP 1993) 3-10.

[37] Karl Marx, Grundrisse (first publish 1800, Martin Nicolaus ed, Penguin Books 1993) 87-88

[38] Karl Marx, ‘Preface to the Critique of Political Economy’ in  (n 37) 262.

[39] Karl Marx, ‘Critique of the Gotha Programme’ The Marxist Archive available at <http://www.marxists.org/archive/marx/works/1875/gotha/ch01.htm  > accessed 29 October 2013.

[40] Friedrich Engels and Karl Kautsky Juridical Socialism 7:2 (1977)  Politics and Society pp.203-220; “Juristen-Socialismus” Die Neue Zeit, 1887, no.2 (Stuttgart), translated by Piers Byrne

[41] The translator, Piers Byrne, explained that this was one of a series of articles confronting reformist tendencies in German Social Democracy, in this case the legalistic demands for social reform made by the Austrian jurist Anton Menger. The original manuscript was prepares by Engels in October 1886, but when he became ill he suggested that the article be completed by the editor of Die Neue Zeit, Karl Kautsky.    See Piers Beirne, “Introduction to ‘Juridical Socialism’” 7:2 (1977) Politics & Society 199-201

[42] Ibid p.204

[43] Ibid p.212

[44] Peter Schöttler “Friedrich Engels and Karl Kautsky as Critics of “Legal Socialism” in Csaba Varga (ed) Marxian Legal Theory (New York: New York University Press, 1993), pp.11-42, at p.28-29

[45] See also Bill Bowring “The Soviets and the Right to Self-Determination of the Colonized: Contradictions of Soviet Diplomacy and Foreign Policy in the Era of Decolonization” in Jochen von Bernstorff and Philipp Dann (eds) The Battle for International Law: South-North Perspectives on the Decolonization Era (Oxford University Press 2019), pp.404-425;  Bill Bowring “Marx, Engels, and Lenin on the Right of Nations (Peoples) to Self-Determination, and Its Impact on International Law” in Paul O’Connell and Umut Özsu (eds) Elgar Handbook on Law and Marxism (Edward Elgar, 2021); and Bil Bowring “Marxist international law methodology?” in Rossana Deplano and Nicholas Tsagourias (eds) Research Methods in International Law A Handbook (Edward Elgar, 2021), pp.162-180

[46] Karl Marx Chapter 10 in Capital. A Critique of Political Economy. Voume 1 Translated by Ben Fowkes. 1990, Penguin Classics, pages 340-416.

[47] Ibid p.394-395

[48] Ibid p.416

[49] Ibid p.877

[50] Ibid p.879

[51] Ibid p. 883-884. The reference is to the Edict  of 1597, by which peasants who had fled from their lords could be pursued for five years and forcibly returned to them when caught.

[52]  Andreas Diers ‘Opfer des ‘Grossen Terrors’: Eine biographische werknotiz zum 75. Todestag von Eugen Paschukanis’ (Victim of the ‘Great Terror’: a biographical note for the 75^th anniversary of the death of Yevgeny Pasukanis), 3 September 2012, at 

https://www.rosalux.de/fileadmin/rls_uploads/pdfs/sonst_publikationen/Paschukanis_Sept_2012.pdf; see also Andreas Harms Warenform und Rechtsform. Zur Rechtstheorie von Eugen Paschukanis  (Commodity form and legal form. On the legal theory of Yevgeny Pashukanis) Freiburg: ça ira Verlag, Neuauflage 2009

[53] These courts were established by the Decree of November 22 (December 5) 1917 “On the Court”: Decree of the Council of People’s Commissars SU 1917-1918, No.4, item 50. English translation in Zigurds L. Zile (ed) Ideas and Forces in Soviet Legal History: A Reader on the Soviet State and Law (Oxford: Oxford University Press, 1992), 95-96

[54] Yevgeniy Pashukanis (1922) “Pervye mesiatsy sushchestvovanii moskovskogo narodnogo suda (The First Months of the Existence of the Moscow People’s Court)” 1922 Nos 44-45 Yezhenedelnik Sovetskoi Iustitsii (Soviet Justice Weekly)15-16; see also Pyotr Stuchka (1918) “Stariy i noviy sud (The Old and New Court)”, English translation at Zile Ibid, 96-98

[55] This section draws from Bill Bowring “Yevgeniy Pashukanis, His Law and Marxism: A General Theory, and the 1922 Treaty of Rapallo between Soviet Russia and Germany” v.19 (2017) Journal of the History of International Law pp.274-295

[56] Yevgeniy Pashukanis Izbranniye proizvedeniya po obshei teorii prava i gosudarstvo (Selected works on the general theory of law and state) (Moscow: “Nauka” Publisher, 1980) – Academy of Science, Institute of State and Law

[57] Ibid, 261-267

[58] Yevgeniy Pashukanis  ‘Burzhuazniy yurist o prirode gosudarstvo (A bourgeois jurist on the nature of the state)’ 3 (1921) Krasnaya Nov (Red Virgin Soil) 223-232, available at http://www.ruthenia.ru/sovlit/j/106.html

[59] For biography see http://www.universalis.fr/encyclopedie/maurice-hauriou/  He was a positivist, influenced by Aquinas, Comte and Bergson.

[60] Pashukanis Bourgeois Jurist 1921 (n.44), 231-232

[61] Enforce property!

[62] Pashukanis General Theory 1983 (n.1), 122, 123, 134

[63] Ibid 123

[64] Ibid 134

[65] Ibid, 68

[66] For a recent exposition and defence of this theory, see China Miéville ‘The Commodity-Form Theory of International Law: An Introduction”’ 17(2) (2004) Leiden Journal of International Law, 271-302, and China Miéville Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill Academic Publishers, 2005)

[67] The New Economic Policy, a partial restoration of capitalist market relations, under state control, was introduced by Lenin in 1921. Despite Lenin’s death in 1924 the success of the policy meant that it continued until sharply reversed by Stalin in 1928. 

[68] Yevgeniy Pashukanis (1930) “Polozheniye na teoreticheskom pravovom fronte (The situation on the theoretical legal front)” 11-12 (1930) Sovetskoye gosudartsvo i revolutsiya prava (Soviet state and revolution of law), 16-49, 26

[69] 1909-1955

[70] John Hazard ‘Housecleaning in Soviet Law’ 1 (1938)  American Quarterly on the Soviet Union pp.5-16, at http://www.unz.org/Pub/AmQSovietUnion-1938apr-00005?View=PDF; and John Hazard ‘Cleansing Soviet International Law of Anti-Marxist Theories’ 32(2) (1938) American Journal of International Law, 244-252

[71] Hazard Housecleaning 1938 (n.70) 13

[72] Ye Pashukanis ‘Pismo tov. Stalina i zadachi teoreticheskovo fronta gosudarstvo i pravo (The letter of comrade Stalin and the tasks of the theoretical front of state and law)’ 1 (1932) Sovetskoe gosudarstvo (Soviet State) 4-48, cited in E. A. Skripilev, ‘Nashemy zhurnalu – 70 let” (Our journal is 70 years old)’ no. 2 (1987)Sovetskoye Gosudarstvo i Pravo (Soviet State and Law) 17.

[73] Ye. Pashukanis, Ocherki po Mezhdunarodnomu Pravu (Essays in International Law) (Moscow: Soviet Legislation, 1935)

[74] John Hazard ‘Memories of Pashukanis’, Foreword to Evgeny Pashukanis, Selected Writings on Marxism and Law (London: Academic Press,1980), 273-301 available at

http://www.marxists.org/archive/pashukanis/biog/memoir.htm 

[75] Some of the  authors concerned are См. Карнер — «Социальные функции права», русск. пер., 1923, стр. 11.; Wundt — «Ethik», S. 1.; Сравн. Simmel — «Einleitung in die Moralwissenschaft».; J. Offner — «Das soziale Rechtsdenken», 1923, стр. 54; A. Ferneck — «Die Rechtswidrigkei», 1903, стр. 11; H. Kelsen — «Der soziologische und der juristische Staatsbegriff», 1922, стр. 96;;Bierling, «Juristische Prinzipienlehr», т. I, стр. 145.; Jellinek, «System der subjektiven öffentlichen Rechte», стр. 13).; Fichte — «Rechtslehre» vom 1812, Leipzig, стр. 10.; О. Gierke — «Geschichte des deutschen Körperschaftsbegriff, Berlin, 1873, стр. 30.; Гирке, цит. соч., стр. 648; Пухта — «Курс римского гражданского права», русск. перев. 1874 г; Гумплович — «Rechtsstaat und Sozialismus»; Гумпловича (см. его Rechtsstaat u. Sozialismus и Geschichte der Staatstheorien); Мэн, «Древнее право». Русск. пер. 1873 г., стр. 40 и 47; Binder «Rechtsnorm und Rechtspflicht», 1912.; Г. С. Мен, Древнее право, перев. Н. Белозерской, 1872., стр. 283. Э. Ферри, Уголовная социология, том II, пер. с пред. Дриля, стр. 37; Иеринг, «Дух римского права», I, стр. 118, русск. перев.’ Г. С. Мен, «Древнее право», 1873 г., стр. 269.; Иеринг — «Дух римского права», I, стр. 259 и след., русск. пер., 1875.; Wilda — «Strafrecht der Germanen», 1842, стр. 219, Спенсер, «Принципы социологии», 1883, стр. 659.;  F v. Listz – «Lehrbuch d. deut. Strafrechts», 1905, § 15.; Kraepelin — «Die Abschaffung des Strafmasses. Stuttgart, 1880, стр. 13); Aschaffenburg — «Das Verbrechen und seine Bekämpfung», 1905 г., стр. 200.;

English translation from German. Some German sources were translated into Russian. :

См. Карнер — «Социальные функции права», русск. per., 1923, str. 11th; Wundt — «Ethik», p. 1.; Сравн. Simmel — «Introduction to Moral Science».; J. Offner — «Social legal thinking», 1923, str. 54; A. Ferneck — «Unlawfulness», 1903, str. 11; H. Kelsen — «The sociological and legal concept of the state», 1922, str. 96; Bierling, «Legal Principles Teaching», т. I, str. 145th; Jellinek, «System of Subjective Public Rights», str. 13); Fichte — «Rechtslehre» from 1812, Leipzig, str. 10th; O. Gierke — «History of the German concept of corporate body”, Berlin, 1873, str. 30th; Гирке, цит. соч., стр. 648; Пухта — «Курс римского гражданского права», русск. perev. 1874 g; Гумплович — “The rule of law and socialism”; Гумпловича (см. его rule of law and socialism и history of state theories); Man, «Drevnee Pravo». Русск. per. 1873 g., str. 40 and 47; Binder «Legal norm and legal obligation», 1912.; G. C. Мен, Древнее право, перев. N. Belozerskoye, 1872., str. 283. E. Ферри, Уголовная социология, том II, пер. с пред. Дриля, стр. 37; Иеринг, «Duh rimskogo prava», I, str. 118, russian. перев.’ Г. C. Мен, «Dревнее право», 1873 g., str. 269th; Иеринг — «Дух римского права», I, str. 259 and след., русск. per., 1875.; Wilda — «Criminal law of the Germans», 1842, str. 219, Спенсер, «Principal sociology», 1883, str. 659.; f v Listz – «Textbook d. german Criminal Law», 1905, § 15.; Kraepelin — «The Abolition of Punishment. Stuttgart, 1880, str. 13); Aschaffenburg — «Crime and its fight», 1905 г., стр. 200th;

[76] H. Kelsen — «Der soziologische und der juristische Staatsbegriff», 1922, стр. 96

[77] See https://www.routledge.com/Law-and-the-Making-of-the-Soviet-World-The-Red-Demiurge/Newton/p/book/9781138211247#