Editor’s Introduction to Pashukanis - Christopher J. Arthur

Evgeny Pashukanis

Evgeny Pashukanis wrote The General Theory of Law and Marxism in 1924. Just as Marx published a critical critique of political economy in Capital, Pashukanis presents a critical critique of law and the state. Pashukanis was eventually denounced as a "Trotskyite saboteur" and executed by Stalin in 1937.

Despite being a foundational text for a Marxian theory of the state, The General Theory was not available in English until 1978. This is Christopher J. Arthur's introduction to the English translation.

Submitted by UseValueNotExc… on November 1, 2023

Editor’s Introduction to Evgeny B. Pashukanus’ The General Theory of Law and Marxism (1924)
by Christopher J. Arthur (1978)


Evgeny Bronislavovich Pashukanis published his important contribution towards the materialist critique of legal forms in 1924. It remains to this day the most significant Marxist work on the subject. Indeed, such has been the paucity of original work this area that in Britain the standard reference work is even older: Karl Renner’s book on The Social Functions of Law – a product of the Marxism of the Second International. Needless to say, Pashukanis subjects Renner’s theories to severe criticism.

The present revival of interest in the theories of Pashukanis forms part of the current renaissance of Marxist debate. More particularly, it is part of a process of recovery of the heritage of Bolshevik thought repressed by the Stalinist bureaucracy and its international supporters; for example – in the field of political economy – the works of I. I. Rubin (whose approach has interesting points of contact with that of Pashukanis). The appearance of this English translation of Pashukanis provides a stimulus to the development of a far-reaching theoretical criticism of law, which is essential if a properly materialist approach is to distinguish itself from a radicalism that unconsciously remains imprisoned within a bourgeois frame of reference. The recent trenchant critique of The Politics of the Judiciary by J. A. G. Griffiths demonstrates the class-prejudices of judges; but the Times Literary Supplement (6.1.78) reviewer devotes a page to fending off even this level of criticism, maintaining that one must restrict oneself to the criticism of particular decisions in legal terms. Pashukanis’ bold perspective on the revolutionary development of post-capitalist society forces criticism to go beyond sniping at ‘abuses’, or denouncing the current content of legal norms. The revolutionary overthrow of capitalist forms of social organisation cannot be grasped in terms of a quantitative extension of existing rights; it forces us to project a qualitative supersession of the form of law itself.


Pashukanis was born on the 10th February 1891 of a Lithuanian family. In 1912 he became a Bolshevik.

He was one of the leading authorities Soviet legal science; a vice-commissar of Justice; author of a series of articles in the Encylopaedia of State and Law (Moscow 1925-27); author of The General Theory of Law and Marxism (his early master work which went into three editions and German and Italian translations in the twenties); editor for some years of the most important journals; and author of other books, and many articles, especially on international law. Criticism of Pashukanis began to mount in the late twenties and he found it desirable to publish an article correcting his errors in 1930. This did not prevent either writings from being burnt, or himself from being liquidated in 1937 as a member of ‘a band of wreckers’ and ‘Trotsky-Bukharin fascist agents’ (thus Vyshinsky).1 After his fall the usual band of time-serving philistines and eclectics took over the field. After the Twentieth Congress (1956) things developed to the point where there was a call for his rehabilitation;2 but, although it is now recognised that he and others were unjustly condemned for sabotage, Vyshinsky’s negative standpoint on his work is still endorsed.3


One Marxist approach to the critique of law consists in demonstrating the conformity of the content of laws and legal institutions with the material interests of the ruling class. However, what is required in the materialist interpretation of the legal sphere is not merely an investigation of the content of legal regulations but also a materialist account of the form of law itself.4 It is easy to point out that modern capitalism could not exist with strict prohibitions against usury. Similarly, it is perfectly obvious that social forces were involved in the struggle over legal limitations on the length of the working day – so graphically depicted by Marx in Capital. Pashukanis embarks on more subtle problems: he analyses such concepts as ‘legal norm’, ‘legal subject’, and so on, which, it seems, can be taken in abstraction on from any specific content.

In accordance with the principles of historical materialism, these forms must be grounded in the sub-structure but he emphasises that this does not mean that one can dismiss the purely juridical concepts as ‘ideological phantasms’. A materialist account of the specific character of legal regulation is required, which explicates it theoretically in terms of its real historical significance as a necessary expression of the economic content at a specific level of the social structure. The peculiar problematic of this form must be respected, however much the claims of the ideologists need to be demystified in the light of the material determination of legal forms by the sub structure. Until the existing mode of production is overthrown, these ideological forms express the nature of social relationships with a certain validity. The task of a Marxist critique of law is not to prove that juridical concepts are consciously manipulated by bourgeois publicists in order to browbeat the workers (which is indisputable), but to show that in them – these concepts – social reality takes on an ideological form which expresses certain objective relationships arising from the social relations of production and stands or falls with them. An ideological form cannot die out except with the social conditions which generated it. The struggle against ideology, however, helps to deprive it of the capacity to mystify the social relationships out of which it grew, and to make possible a scientific politics.

If law is not explored in terms of its internal structure, then its peculiar character will be dissolved away into some vaguer notion of social control. This is all most Marxists provide. Pashukanis complains that in place of providing a concept of law in its most complete and distinct form – and thus demonstrating its significance for a definite historical epoch – they offer a purely verbal commonplace about ‘external authoritarian regulation’ suitable to all epochs in the development of society. A form of social life which undergoes a process of development cannot be understood through the scholastic categories of genus and species. Like all social forms, the legal system has an historical dimension. Instead of ranging widely over the ages it is better to focus our attention where law attains its maximum degree of completeness and distinctness; that is to say, it must be analysed in the context of the appropriate social relations.

If we look at Marx’s great economic work we find that he sets out to analyse the law of motion of capitalist society. Thus he begins his investigation, not with ratiocination about production in general, but with an analysis of definite elements: the commodity-form and value. Political economy, as a theoretical discipline employing its own specific concepts, has as its object a distinct set of social relations – not some supra-historical method of maximising scarce resources or whatever. Naturally, insofar as economics concerns itself with production and distribution it is concerned with general features of social life; however. it is quite mistaken to subsume earlier and later modes of production under the same categories – nothing but trivial tautologies can be produced that way. Furthermore, so long as value relationships are absent, it is only with difficulty that economic activity is distinguishable from the aggregate of functions constituting social life as a unitary whole. With the gradual emergence of commodity relations – and especially with the advent of the capitalist mode of production – economic life becomes a separate structure without any admixture of kinship systems, political hierarchies or whatever, and its forms may be understood in terms of a set of categories pertaining to a specific form of production, one moreover, which has attained the highest degree of determinateness and differentiation from the rest of social life.

Pashukanis believes that similar considerations are wholly applicable to the general theory of law. The fundamental juridical abstractions reflect definite social relations; so the attempt to find a definition on of law which would answer to human nature or social life in general – as well as to the complex and specific modern forms – must inevitably lead to scholastic and purely verbal formulae.

Pashukanis argues that the juridical element in the regulation of human conduct enters where the isolation and opposition of interests begins. He goes on to tie this closely to the emergence of the commodity form in mediating material exchanges. His basic materialist strategy is to correlate commodity exchange with the time at which man becomes seen a legal personality – the bearer of rights (as opposed to customary privileges). Furthermore, this explicable in terms of the conceptual linkages which obtain between the sphere of commodity exchange and the form of law. The nature of the legal superstructure is a fitting one for this mode of production. For production to be carried on as production of commodities, suitable ways of conceiving social relations, and the relation of men to their products, have to be found, and are found the form of law. Pashukanis says that the material premises of legal relations were ascertained by Marx himself in Capital, and that the general intimations to be found there are far more fruitful for understanding legal relations than all the bulky treatises on law.

Hegel, like so many bourgeois theorists, presents economic activity as the outcome of intercourse between property owners; and property right is derived from the necessity of the concept, i.e. of the self-determination of freedom. Marx breaks with this idealism in his analysis:

‘This juridical relation, which . . . expresses itself a contract, whether such contract be part of a developed legal system or not, is a relation between two wills, and is but the reflex of the real economic relation between the two. It the economic relation that determines the subject matter comprised each such juridical act.'5

As the product of labour takes on the commodity form and becomes a bearer of value, people acquire the quality of legal subjects with rights. While things rule people through the ‘fetishism of commodities’, a person juridically dominant over things because, as an owner, he is posited as an abstract impersonal subject of rights in things. Social life in the present epoch has two distinctive and complementary features: on the one hand human relationships are mediated by the cash nexus in its forms, prices, profits, credit-worthiness and so on, in short all those relationships where people are related in terms of things; on the other hand we have relationships where a person is defined only by contrast to a thing – that is to say a subject freely disposing of what is his. The social bond appears simultaneously in two incoherent forms : as the abstract equivalence of commodity values, and a person’s capacity to be the abstract subject of rights.

The ideological understanding of the relation of law to the sub-structure gets things upside down insofar as perfected commodity exchange is subordinated conceptually to legal forms; from a legal point of view the capacity to engage in commodity exchange is merely one of the concrete manifestations of the general attribute of a legal capacity to act. Historically, however, it was precisely commodity exchange which furnished the idea of a subject as the abstract bearer of all possible legal claims. It is only in the conditions of commodity production that the abstract legal form is necessary – it is only there that the capacity to have a right general is distinguished from specific claims and privileges. It is only the constant transfer of property rights in the market that creates the idea of an immobile bearer of these rights. Indeed, the abstract capacity of everyone to a bearer of property rights makes it difficult for bourgeois thought to see anything else than subjects of rights: legal fetishism complements commodity fetishism.

The ‘commodity exchange school’ – as it was known – dominated Soviet legal science until the mid-thirties. Stuchka, leading representative of the moderate wing6 , interpreted civil law on the basis of commodity exchange relations; but Pashukanis, representing the radical wing, went further in claiming that law in general may be so related. He appeals here to the example provided by Marx who analyses exchange in terms of the labour theory of value, albeit that the price-form of commodities extends to cover things which do not contain labour or have no economic function at all. In much the same way, Pashukanis claims that public law relations, e.g. criminal law, are an extension of forms generated by relationships between commodity owners, albeit that the contents of such public law relations are less than adequate to this form.

For Pashukanis, legal forms regulate relationships between autonomous subjects – it is the subject that is the ‘cell-form’ of the legal system. In bringing out the specific character of such legal regulation of behaviour, he contrasts it with technical regulation by arguing that in the latter singleness of purpose can be assumed, whereas the basic element in legal regulation is contestation – two sides defending their rights. In deliberately paradoxical fashion he says that historically law starts from a law-suit.

Pashukanis illustrates the distinction between technical and legal regulation by assigning to the former such a thing as a railway timetable and to the latter a law concerning the responsibility of the railways to the consignors of freight. Those drawing up the timetable assume that all concerned are interested in the smooth running of the service whereas those parties to the freight contract have an eye to such things as who should suffer the consequences should something get lost. Rudolf Schlesinger has argued against Pashukanis that states commonly back ‘technical’ regulations by Criminal Codes and gives an interesting account of precisely the experience of the Railway Courts in the USSR to prove this.7 However, he misses the point – which is that the distinction between the two facets of the matter is not thereby abolished. Clearly Railway Courts, concerned with the culpability of a negligent engine-driver, or the Supreme Court, preventing drivers who have correctly refused to drive unsafe engines from being convicted for sabotage, have to master the relevant technical regulations their judgments are to be soundly based. Nonetheless. the technical regulations are designed to achieve the best possible railway service, while the codes governing the allocation of responsibility for negligence, for example, have to regulate various conflicting interests – of management, workers, and travellers. Schlesinger considers it Utopian to suppose that social organisation could ever be a purely technical matter – conflicts of interest would always occur. This may be so – but whether the legal apparatus we know it today would persist is another question.

Pashukanis’ view that law arises in order to cope certain competing interests, and that the cell-form of the legal system is the subject asserting a claim, may be questioned because it leaves out of account state coercion. It may be said to ignore the fact that his theory does not comprehend such earlier forms as ‘the King’s peace’. It does not focus on the relationships of dominance and subordination found in class societies based on various property relationships.

Pashukanis argues that property attains its highest development (in the shape of unimpeded possession and alienation) only in modern society, and that this freedom of disposition may be closely related to the category of legal subject or legal person. It is only by starting here that one can go on to explain precisely why class dominance in modern society is mediated by the rule of law and the modern state. (The procedure is no odder than that of Marx who starts his exposition in Capital with the commodity in order to arrive later at the concept of surplus value which is the specific form of appropriation of surplus labour in capitalism – albeit that exploitation existed in non-commodity-producing societies.)

Pashukanis thinks that the view of law as an external regulation imposed by command of authority does not bring out the specific character of legal regulation. This does not mean that the legal superstructure does not ensure the dominance of the ruling class. However, formally. the courts act as umpires in a law-suit. This form must be recognised for what it is if a materialist analysis is to expose its class character and effectively demolish its ideological function. In analysing the rule of law we need to explain why the mechanism of constraint is dissociated from the property-owners themselves, taking the form, instead, of an impersonal mechanism of judgment isolated from everyday life. In feudal times all relationships were mediated by personal dependence and authority. The obedience of the villein to the feudal lord was the direct and immediate result of the fact that the latter had an armed force at his disposal, and his authority was an inescapable God-given fact. The dependence of the wage-labourer on the capitalist is not enforced in such an immediate fashion. Firstly, the armed force of the state is a public power standing above each individual capitalist; secondly, this impersonal power does not enforce relationships of exploitation separately, for the reason that the wage-labourer is not compelled to work for a given entrepreneur but alienates his labour-power through a free contract. Since this alienation is established formally as a relationship between two autonomous commodity owners, therefore class authority must take the form of a public authority which guarantees contracts in general but does not normally constrain the independent legal subjects to accept any particular price. If the law does intervene in this way, as it is tending to do today, then law becomes much more clearly class law – except that the bourgeoisie screams the more loudly that it is not the capitalist class that rules but ‘the law’ (that is to say: the authority of an objective and impartial norm). However, even in the most liberal state, the rule of law is an ideological structure that endorses and enforces class rule. For, of course, the free subjects of the theory of contract are not equal except in the context of the juridical framework which recognises alienation only in its most abstract form. For basic material reasons, such as the danger of imminent starvation, the labouring class have no option but to sell their labour. They are thus dependent as a class on the capitalists as a class (albeit that each is free to choose his exploiter) and hence are justifiably characterisable as wage-slaves. There is, therefore, the coexistence of a legal form relating ‘independent and equal persons’ on the one hand, and, on the other, the material reality of the rule of one class over another in the bourgeois state – but mediated, as we have seen. through the rule of law.


The most striking of Pashukanis’ positions is his implacable opposition to any concept of ‘proletarian law’. Since he treats law as an historical form which achieves fullest expression in the bourgeois epoch, and which is tied closely to the commodity form, he opposes pseudo-radicalism that talks of the overthrow of bourgeois law and its replacement by proletarian law. For Pashukanis such a line is implicitly conservative since it accepts the form of law as supra-historical and capable of infinite renewal. The transition period, when the dictatorship of the proletariat oversees the revolutionary transformation of capitalism towards communism, cannot, in any case, be regarded as if it were a particular stable social formation with its own particular form of law. As for the future – a symmetrical array such as: feudal law; bourgeois law; socialist law – neglects the whole question of the withering away of the state and law in the higher stages of socialist development. For Pashukanis the end of the forms and categories of bourgeois law by no means signifies their replacement by new proletarian ones – just as the transition to communism does not mean that new proletarian categories of value, capital, and so on, appear as the bourgeois forms die out – rather the juridical element in social relations gradually disappears.

The objection may be made that, even if economic conditions change greatly, certain crimes against the person will always exist. Pashukanis believes that to reason that courts and statutes will always be necessary on this account is to mistake structures which are derived from elsewhere for essential forms in this context. As he points out, even advanced bourgeois criminology sees that anti-social behaviour is a social problem with which the jurist is ill-equipped to grapple, burdened as he is with his concepts of ‘guilt’ and ‘responsibility’ and subtle distinctions therein. If this conviction has not yet led to the abolition of the criminal courts, this is partly because transcendence of the form of law is associated with a radical deliverance from the entire framework of bourgeois society.

As a consequence of his opposition to the idea of a special proletarian form of law, Pashukanis is led to the view that throughout the transition period to socialism the legal forms retained are, in reality, bourgeois forms.

He is able to base himself on one of Marx’s texts, Critique of the Gotha Programme (1875), which constituted, in fact, Marx’s last important political intervention. Marx’s remarks illustrate the inner connection between the form of law and the commodity form. The occasion for Marx’s remarks was a reaction to the programme of the newly unified German Workers Party, which stated at ‘the proceeds of labour belong undiminished with equal right to all members of society’ and demanded ‘a fair distribution of the proceeds of labour’. Marx seizes straight away on the pious phrase ‘fair distribution’ in order to reassert briefly the principle of historical materialism:

Do not the bourgeoisie 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 from economic ones? Have not the socialist sectarians also the most varied notions about ‘fair distribution’?8

Historical materialism holds that disputes about what is fair in abstraction from the economic basis of society are meaningless and irresolvable. All one can do is to point out what form of distribution corresponds to a certain mode of production and study the conditions arising in the present making for a change in the mode of production. For Marxism the presentation of socialism does not turn principally on distribution but on production.

Marx next considers the concept of equal right embodied in such post-revolutionary arrangements as that in which the same amount of labour which the individual has given society in one form, he receives back another form.

Here obviously the same principle prevails as that which regulates the exchange of commodities, as far as this is the exchange of equal values. Content and form are changed, because under the altered circumstances no one can give anything except his labour, and because, on the other hand, nothing can pass to the ownership of individuals except individual means of consumption. But, as far as the distribution of the latter among the individual producers is concerned, the same principle prevails as in the exchange of commodity equivalents: a given amount of labour in one form is exchanged for an equal amount of labour in another form. Hence, equal right here is still principle – bourgeois right . . . this equal right is still constantly stigmatised by a bourgeois limitation. The right of the producers is proportional to the labour they supply; the equality consists in the fact that measurement is made with an equal standard, labour.

But one man is superior to another physically or mentally and so supplies more labour in the same time, or can labour for a longer time; and labour to serve as a measure, must be defined by its duration or intensity, otherwise it ceases to be a standard of measurement. This equal right . . . tacitly recognises unequal individual endowment and thus productive capacity as natural privileges. It is, therefore, a right of in equality, in its content, like every right. Right by its very nature can consist only in the application of an equal standard; but unequal individuals (and they would not be different individuals they were not unequal) are measurable only by an equal standard in so far as they are brought under an equal point of view, are taken from one definite side only, for instance, in the present case, are regarded only as workers and nothing more is seen in them, everything else being ignored. Further, one worker is married, another not; one has more children than another, and so on and so forth. Thus, with an equal performance of labour, and hence with an equal share in the social consumption fund, one will in fact receive more than another, one will be richer than another, and so on. To avoid all these defects, right instead of being equal would have to be unequal.

But these defects are inevitable in the first phase of communist society as it is when it has just emerged after prolonged birth pangs from capitalist society. Right can never be higher than the economic structure of society and its cultural development conditioned thereby.9

Pashukanis holds that Marx here characterises as a bourgeois limitation any external application of an equal standard which, necessarily, ignores the real differences between individuals: and that Marx is therefore stigmatising law as a bourgeois institution.

There is a subtle dialectic here; for it is not only allegedly ‘unequal’ law, but any law whatever, that gets caught up this problem, for by applying the same standard to individuals who differ from one another, it in effect treats them unequally.

Although Marx does not remark it, the application of the standards that guarantee ‘equal right’ involves also a centre of authority – even when ‘exploitation’ has been abolished. Lenin takes this up in his analysis of this passage in State and Revolution:

‘If we are not to indulge in utopianism,’ he says, ‘we must not think that having overthrown capitalism people will at once learn to work for society without any standard of right; and indeed the abolition of capitalism does not immediately create the economic conditions for such a change.

And there is no other standard than that of ‘bourgeois right’. To this extent therefore there still remains the need for a state, which while safeguarding the public ownership of the means of production, would safeguard equality in labour and equality in the distribution of products.’ 10

The eventual destiny of communist society is to pass beyond this whole complex of relationships: exchange of equivalents – equal rights – public authority. However, they are inevitable in the first phase of post-capitalist development, viz. ‘socialism’ as Lenin labels it, rather unhappily. Marx again:

‘In a higher phase of communist society, after the enslaving subordination of the individual to the division of labour, and therewith also the antithesis between mental and physical labour, has vanished; after labour has become not only a means of life but life’s prime want; after the productive forces have also increased with the all-round development of the individual, and all the springs of co-operative wealth flow more abundantly – only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs.11

This idea of a passage beyond the narrow horizon of bourgeois right needs careful scrutiny. For example, in his commentary Lenin talks, on the one hand, about this transition producing ‘justice and equality’ or advancing humanity from formal equality to actual equality; and on the other hand he stresses that it involves the replacement of abstract standards by direct voluntary participation in labour and the free satisfaction of needs.

‘It will become possible for the state to wither away completely when society adopts the rule: “From each according to his ability. to each according to his needs”, i.e. when people have become so accustomed to observing the fundamental rules of social intercourse and when their labour becomes so productive that they will voluntarily work according to their ability. The narrow horizon of bourgeois right, which compels one to calculate with the coldheartedness of a Shylock whether one has not worked half an hour more than someone else, whether one is not getting less pay than anyone else – this narrow horizon will then be crossed. There will then be no need for society to regulate the quantity of products to be received by each; each will take freely according to his needs.'12

Taking Marx’s discussion as a whole it is clear that the ‘rule’ (‘from each according to his ability, to each according to his need’) is not a prescription (not even one prescribed to the individual by himself) issued by an appropriate authority, assigning various rights and duties, but simply a description of the state of affairs obtaining when labour has become ‘not only a means of life but life’s prime want and the springs of co operative wealth ow more abundantly’.

Examples of principles which are applied equally to all members of society by an authority capable of enforcing them, are those cited by Lenin in his discussion of ‘socialism’: ‘He who does not work, neither shall he eat’; and ‘An equal amount of products for an equal amount of labour’.

The ‘rule’ of the higher phase is not such a principle enforced in order to realise ‘justice and equality’ even ‘actual equality’ – because it is not enforced at all. It is clear that both ‘ability’ and ‘need’ are to be determined by the possessor. Under the conditions of a ‘realm of freedom’ it is clearly absurd to suppose that anybody could be accused of slacking, or of being greedy; rather expressions of individuality will be just that – expressions of free subjectivity – not obedience to an objective norm.

In this context we are not only envisaging the disappearance of public authority but also of such ‘internalisations’ as ‘habit’ or ‘conscience’, because labour has become unalienated and free – ‘life’s prime want’ as Marx puts it in the Critique.

It is envisaged that the material basis of society in the higher phase of communism, characterised by the features mentioned by Marx, will make possible spontaneously produced forms of social behaviour and organisation, unmediated by prescriptions enjoining justice and equality, fairness, or whatever. It would therefore be mistaken to read the rule as a rule of equality which for the first time in history gets beyond treating people from one definite side only, and instead allows for individual differences by taking people as human beings with a varied range of abilities and needs. There is no way in which such an indeterminate principle could be adjudicated in the phase of its application. No one can tell me what my abilities and needs are: only I can be the final authority on that.

People can be ‘measurable by an equal standard only in so far as they are brought under an equal point of view’ and yet, Marx reminds us, ‘they would not be different individuals if they were not unequal’. In truth the demand for equality, or for equity in economic and legal arrangements, does not go beyond a radical bourgeois framework and does not grasp the qualitative break with previous forms that Marx looks forward to. Equality is the highest concept of bourgeois politics. It is not accidental that Marx never issued any programmatic declaration for it.13 It would be interesting to take Pashukanis further and to work out the connections between the equality of units of abstract labour in value exchanges; equality before the law of isolated subjects capable of (property) rights; equal voting power of abstract citizens 14 in bourgeois democracy; and the common humanity posited in bourgeois ethics as inhering in everyone in virtue of which all are equally worthy of respect.15

All this has nothing to do with Marx’s communist perspective16 based on the social individual. The materialist account of human nature as the product of the ensemble of social relations 17 knocks on the head our ‘common humanity’ as an abstract essence, hypostatised in us individually, whereby each claims equality with others. A mode of social life which overcomes the estrangement manifested in the present isolation and opposition of bourgeois individuals will have no place for a concept of equality. The possibility of an immanent critique of bourgeois conditions in terms of ‘equality’ no doubt exists because this ideal proclaimed by the French Revolution cannot be fully realised (especially in the context of the dynamics of bourgeois property relations); but this ‘political’ conception is beside the point in the positive elaboration of the production and reproduction of communal life under socialism. For Marx the presentation of socialism turns on the new mode of production rather than on questions of distributive justice, and he complains about the crime of ‘perverting the realistic outlook by means of ideological nonsense about rights and other trash so common among the democrats and French socialists’.18

In the USSR enormous differences in the standard of living of different strata of society were defended by Stalin who demagogicaly called criticism of it: ‘petit-bourgeois egalitarianism’. Naturally we do not defend such abuses ourselves but we would argue that the main point is not the question of the width of differentials so much as the nature of the political process which determines such questions. In the USSR the arrogation of power over these decisions by a bureaucratic elite naturally issued their awarding themselves a high income. But then the USSR is a far cry from the socialism Marx presumes in his discussion.

To return to Pashukanis: he sees two things – first of all that there is a close connection between the form of law and the equal standard implicit in commodity production and exchange – secondly that there is no proletarian stage between bourgeois right and the dying out of law altogether. For law will die out ‘when an end shall have been put to the form of the equivalent relationship’ – a relationship stigmatised by Marx as bourgeois – whereas a society which is constrained to preserve such a relationship of equivalency between labour expenditures, and compensation therefore, preserves also the form of bourgeois law.


Pashukanis argues that the rule of bourgeois law is preserved during the transition to socialism even when capitalist exploitation no longer exists; there is no such thing as proletarian law, eventually law dies out together with the state. The Stalinists attacked this thesis by claiming that the proletarian dictatorship must work through law of a new type – Soviet democratic law. In 1937, Pashukanis was anathematised in an article by one P. F. Yudin, and the notorious A. Y. Vyshinsky followed close behind. Their main argument was that ‘the state – an instrumentality in the hands of the dominant class – creates its law, safeguarding and protecting specifically the interests of that class. There is no law independent of the state “for the reason that law is nothing without a mechanism capable of enforcing observance of the norms of law” (Lenin)’.19 It follows that when the proletariat smashed the old bourgeois state machine and created a new revolutionary mechanism of state authority it ‘inflicted a death blow on bourgeois law’.20

It should be noticed that in quoting Lenin’s phrase about right being nothing without a mechanism capable of enforcing it, the Stalinists always fail to give the context of this remark – which context is a quite extraordinary by Lenin, leading in an entirely different direction from that taken by Yudin and Vyshinsky. In his comments on Marx’s point in the Critique of the Gotha Programme about the continued existence of bourgeois right in the transition period, Lenin goes much further than Marx:

In its first phase communism cannot as yet be fully developed economically and entirely free from traces of capitalism. Hence the interesting phenomenon that communism in its first phase retains the narrow horizon of bourgeois right. Of course, bourgeois right in regard to the distribution of articles of consumption inevitably presupposes the existence of the bourgeois state, for right is nothing without apparatus capable of enforcing the observance of the standards of right. It follows that under communism there remains for a time not only bourgeois right, but even the bourgeois state – without the bourgeoisie!21

As Lenin indicates in his last phrase, this is a paradoxical state of affairs. In view of the fact that Lenin is above all the theorist of ‘smashing the bourgeois state machine’ and of ‘proletarian dictatorship’, this claim that under communism there remains ‘the bourgeois state’ seems to throw his whole theory into intolerable confusion. Only a couple of pages before, when he demanded ‘the strictest control by society and by the state of the measure of labour and the measure of consumption’, this was to be ‘exercised not by a state of bureaucrats, but by a state of armed workers‘. He reverts to the same formula later; thus the phrase ‘there remains the bourgeois state’ remains an isolated reference which is never organically connected with the main drift of his argument. Furthermore, his conclusion does not follow anyway: there is no reason why the authority which regulates the distribution of consumption goods should be the bourgeois state.

However, if Lenin can argue ‘bourgeois right – hence bourgeois state’, why may not the Stalinists argue with more justice ‘proletarian dictatorship – hence proletarian law’? Yudin again:

The dictatorship of the proletariat is a state of a new type, the law created by that state is law of a new type; Soviet democratic law which protects the interests of each and everyone of the majority of the people: the toilers.22

The muddle the reasoning of the Stalinists consists in their sliding from Lenin’s formula that ‘law is nothing without an apparatus capable of enforcing it’ to the formula that ‘the state creates its law’. It is true that the proletarian dictatorship is crucial to the transformation of society from a capitalist basis to a socialist one, and that it uses the legal form to facilitate this; however, no amount of repetition of the platitude that law is nothing without a mechanism of compulsion can establish the larger claim that the state actually creates its law. This claim is, in reality, implicitly idealist: the materialist method would rather locate the conditions which ‘create’ laws in the economic basis of society, for, as Marx puts it, ‘right can never be higher than the economic structure of society and its cultural development conditioned thereby’.

Thus the fact that the proletarian dictatorship is the crucial ‘moment’ in the period of revolutionary transformation should not lead to adventurist and idealist conclusions about the omnipotence of state power. What it can accomplish at any time remains limited in extent. This is precisely because a more or less long period of transition is necessary. When Marx speaks of the persistence of a form of bourgeois right through the lower stages he is emphasising in the most dramatic way that ‘right can never be higher’ etc.; but it is equally important that this form under the administration of the proletariat organised as the ruling class if the direction of change is to be towards socialism. Lenin is wrong when he assumes that to enforce ‘bourgeois right’ a ‘bourgeois state’ is required. If it was a bourgeois state not only the form but the content of the law would be bourgeois through and through. The anti-capitalist content of the law of the transition period is indicated by such measures as the forbidding of markets in means of production and the abolition of exploitation by private capital. These measures have the negative effect of blocking a reversion to capitalist production. However, until the socialist mode of production is capable of a sufficiently abundant supply of goods, we have, perforce, to put up with a bourgeois mode of distribution of consumer goods and the associated legal forms.

Rudolf Schlesinger attaches some significance to the fact that the codificatiuon of Soviet law occurred at the outset of the New Economic Policy. He holds that the reversion to a free market involved in the NEP, taken together with the codification, encouraged Pashukanis and his school to identify law with bourgeoisification and to project a ‘Utopian’ disappearance of law when socialism finally arrived.23 This historical conjuncture does not of itself affect Pashukanis’ theoretical position, of course, but it serves to introduce the point that this position is some what double-edged as far as its practical implications are concerned. On the one hand, a conservative line might be taken if one holds that the economic foundations of socialism will take a long time to emerge; it would follow that such a bourgeois inheritance as the form of law could not be abolished just because it was bourgeois, if it was the necessary birthmark of the new society throughout the period of its emergence. On the other hand, if one took the view that episodes like NEP were purely ephemeral and the revolutionary process would soon overthrow such limitations one could take seriously more radical perspectives. It is a significant fact about the USSR that although NEP was succeeded by regular five-year plans the low level of development of the productive forces has meant that State ownership of the main means of production is still accompanied on the side of distribution by commodity forms (including black markets) and wage forms. It is only to be expected therefore that legal forms not dissimilar to those in bourgeois regimes figure in the modes of social control. Schlesinger totally misunderstands Pashukanis’ theses when he says that ‘it is hardly conceivable that the social machinery protecting honest trade in the USA against unfair competition should be described as Law, and the machinery protecting the socialist way of production in the USSR against speculation should not’.24 Naturally the persistence of the material conditions providing a continuing temptation to speculate makes necessary a legal apparatus to deal with it – but this is a bourgeois form to crush a bourgeois vice.

However, it could be argued that such problems would be less persistent after revolution in an advanced capitalist country which would involve a much shorter period of transition and make relevant Pashukanis’ more radical perspectives.

The importance of Pashukanis, as far as Marxist politics is concerned, is that he casts doubt on the view, common to Stalinists and Social-democrats alike, that the form of law is essentially neutral and can be filled with a given class content according to the will of the dominant class – a change in those issuing the laws is all that is necessary for progress – so the Stalinists can continue to operate law and the state ‘without the bourgeoisie’ into the socialist epoch, and there seems no reason why, as part of some historic compromise, ‘proletarian’ laws should not be established side by side with those favouring the bourgeoisie.


The most difficult point in Pashukanis’ argument is his handling of form and content. From a dialectical point of view a form is the form of its content, and one may be alarmed at the outset if one imagines that Pashukanis proposes to write a treatise on legal forms in abstraction from content. However this would be a misunderstanding. In characterising law as a bourgeois form he clearly is relating law to a definite material content – the social relations founded on commodity exchange. This is also the basis of his confidence in the possibility of its supersession under communist conditions.

A difficulty that arises from a Marxist point of view is that the bourgeois regime is one of generalised commodity production; that is, it treats labour-power as a commodity and pumps out surplus labour from the wage-workers. Yet Pashukanis makes reference to commodity exchange without taking account of the various forms of production that might involve production for a market – for example the sphere of simple commodity production by self-employed craftsmen, or the slave labour incorporated in many commodities traded in the ancient world, as well as modern capitalist production based on wage labour. The suspicion arises that he has failed to correlate the form of law with a definite system of relations of production because reference to the level of market exchange is insufficiently precise. He does not say anything about that essential indicator of bourgeois relations – the extraction of surplus value by the class owning the means of production. Marx himself, for that matter, might be said to be mistaken in arguing that bourgeois right persists under forms of equivalent exchange even where exploitation based on ownership of capital is absent (and hence, a fortiori, Lenin would not need his ‘bourgeois state without the bourgeoisie’).

In my view, complaints on this score are misplaced, for it is precisely one of the interesting features of bourgeois exploitation that it inheres in economic relations that do not achieve formal legal expression. Formally speaking, Pashukanis is correct to refer law only to social relationships based on commodity exchange. Commodity exchange relations did have some weight in the Roman world, hence the possibility of modern codifications utilising Roman law; yet it is historically the case that such relations have greatest social weight in the bourgeois epoch when generalised commodity production allows the constitution and reproduction of capitalist domination. Pashukanis should perhaps have laid greater stress on the need to criticise law not only on the basis of what it shows (the fetishisation of relationships of commodity exchangers) but on what it does not, and cannot, show, and, indeed, ideologically cloaks: the inner world of capitalism’s appropriation of labour-power once the latter has commodity-form.

The monopolisation of the means of production by the capitalist class is an extra-legal fact (quite unlike the political economic domination of the feudal lord). The bourgeois legal order contents itself with safeguarding the right of a property owner to do as he wishes with own property – whether it be the right of a worker to sell his labour power because that is all he owns, or that of the capitalist to purchase it and retain the product.

Marx says: ‘The sphere of circulation or commodity exchange. within whose boundaries the sale and purchase of labour-power goes on, is fact a very Eden of the innate rights of man.'25 It is this sphere, with its exchange of equivalents by free persons, that is expressed in juridical relations. What is not expressed therein is the character of the consumption of the use-value of the labour-power acquired; the utter subordination of the labourer to the power of capital during the labour process; the extraction of the surplus; capitalist exploitation. No amount of reformist factory legislation can overcome the basic presupposition of the law: that a property freely alienated belongs to the purchaser, and hence that the living labour of the worker becomes, through exchange, available for exploitation by capital. Although a consequence of generalised commodity exchange, the class domination arising is not immediately juridical in character, and is, in fact, disguised by the juridical symmetry of free exchanges between property owners. Just because of this, Marx had to move from the critique of law to the critique of political economy in order to expose the roots of capitalist domination. The task left is that of tracing on this basis both the relationships that are expressed in the legal superstructure and those that it ideologically spirits away. Pashukanis has given us the most exciting contribution since Marx to this critique of law.

C. J. Arthur

January 1978

Taken from A Contrary Little Quail

  • 1 Soviet Legal Philosophy, ed. Hazard, trans. Babb; Harvard University Press 1951; p. 315. See also Roy Medvedev. Let History Judge, London, Macmillanm 1972, p. 524.
  • 2See State and Law: Soviet and Yugoslav Theory, by Ivo Lapenna, London 1964, p. 55.
  • 3I. V. Pavlov writes in 1957 that ‘the concept of Soviet Law as dying bourgeois law, and everything that followed from that theory, and accompanied it, was finally and definitely destroyed.’ (Quoted by Lapenna p. 95n.)
  • 4‘We . . . laid . . . the . . . emphasis . . . on the derivation of political, juridical and other ideological notions . . . from basic economic facts. But in so doing we neglected the formal side – the ways and means by which these notions come about – for the sake of the content.’ F. Engels’ letter to Mehring, July 14, 1893 (Selected Correspondence of Marx and Engels – Moscow 1965 – p. 459).
  • 5Capital. vol. I, ch. 2, p. 178.
  • 6See R. Schlesinger, Soviet Legal Theory, p. 205.
  • 7Ibid., pp. 161-164.
  • 8K. Marx and F. Engels, Selected Works, Vol. III, Moscow 1970, p. 16.
  • 9Ibid., pp. 18-19.
  • 10V. I. Lenin, Selected Works, London 1969, p. 332.
  • 11‘Critique of the Gotha Programme’. Selected Works, Vol. 3, p. 19.
  • 12Lenin, op. cit., p. 333.
  • 13‘Equal rights’ in the Rules of the I.W.M.A. was imposed on Marx; he wrote to Engels (November 4, 1864): ‘Only I was obliged to insert two phrases about “duty” and “right” into the preamble to the Rules, ditto about “truth, morality and justice”, but these are placed in such a way that they can do no harm.’ (Selected Correspondence, Moscow 1965, p. 148.) Engels, in his comments on the Gotha Programme, condemns ‘the idea of socialism as a realm of equality’ as ‘a one-sided French idea’ which only causes confusion (Selected Correspondence, p. 294).
  • 14See Marx’s On the Jewish Question.
  • 15Cf., Kant’s ‘end in himself’; Mill’s ‘each to count for one’; and a modern article on ‘Equality’ by Bernard Williams in Philosophy, Politics and Society, second series, ed. P. Laslett and W. G. Runciman (Blackwell, Oxford 1962).
  • 16See Marx’s Economic and Philosophical Manuscripts (1844) – chapter on communism and private property.
  • 17Marx : Thesis 6 On Feuerbach.
  • 18Critique of the Gotha Programme in Selected Works, Vol. 3, p. 19.
  • 19Soviet Legal Philosophy, p. 286.
  • 20Ibid., p. 287.
  • 21‘State and Revolution’, Selected Works, p. 335.
  • 22Soviet Legal Philosophy, p. 290.
  • 23Soviet Legal Theory, p. 92 and p. 149.
  • 24Ibid., p. 159.
  • 25Capital Vol. 1, ch. 6, p. 280.