No.15 Summer 2018

Commodity exchange is nine-tenths of the law: the life and work of a Bolshevik jurist

In November 1918, a young man named Evgeny Pashukanis made the journey across the frontier into the infant Soviet Russian republic.[1] He was in his late twenties, had been a committed revolutionary socialist his entire adult life and was well-versed in the classics of Marxism. Born in Russia but banished for his involvement in seditious activities, he had spent the last eight years in exile in Western Europe, studying law and earning a doctorate. He would spend the next 20 years working within the Soviet state apparatus in a number of different roles, from criminal justice to diplomacy to education. But everything came to a tragic end in early 1937 when he was arrested, indicted and executed as part of the Stalinist Great Purges.

Pashukanis’ credentials as a theoretician were established in 1924 when he published his major work, The General Theory of Law and Marxism: An Experiment in the Criticism of Basic Juridical Concepts, today known as Law and Marxism: A General Theory. In it he provides a detailed theoretical and historical explanation of law as a social phenomenon. Pashukanis, while flagging his eventual intention of locating a “general theory” of law using Marxism, never gave a name to this theory. However, it has since become popularly known as the commodity exchange theory of law (discussed in detail later in this article).

Lon Fuller, a bourgeois legal scholar with no sympathy for Marxism, wrote glowingly about Law and Marxism:

In this short book, Pashukanis expounds with clarity and coherence an ingenious development of Marxist theory that has been called the “Commodity Exchange Theory of Law”. His work is in the best tradition of Marxism. It is the product of thorough scholarship and wide reading. It reaches conclusions that will seem to most readers perverse and bizarre, yet in the process of reaching these conclusions it brings familiar facts of law and government into an unfamiliar but revealing perspective. It is the kind of book that any open-minded scholar can read with real profit, however little he may be convinced by its main thesis.[2]

In the 80 years since his death, Pashukanis’ legacy, reputation and prominence within the Marxist tradition have gone through a journey of wild fluctuations, filled with digressions and revisions, advances and retreats. Today, with the roulette wheel more or less stopped spinning, he has come to occupy a rather odd and ambiguous position.

He is without doubt the best known Marxist to have written extensively on jurisprudential matters, to the point where his name has become almost synonymous with the notion of a “Marxist theory of law”. Within the rather narrow and esoteric confines of Marxist legal study, he is always cited as the most respected and admired authority. Anyone wishing to conduct their own theoretical investigation into the subject must necessarily consult Pashukanis as their starting point. Yet he remains little known across the wider socialist terrain. One doesn’t, for example, find quotes and references to Pashukanis littered throughout the mainstream socialist press.[3]

However for some ten years, from circa 1926 to 1937, Pashukanis was Soviet Russia’s leading legal theorist and scholar. By the end of his career, he had accumulated an impressive record of professional service to Societ Russia and a sizeable library of legal theoretical writings. He had earned the admiration and respect of many influential milieus of the time, including the Bolshevik Party, the Soviet state administration, Russian legal academia, and – extraordinarily rare for a revolutionary socialist – sections of the international juridical collegium.

John Hazard, recalling his time as a student at the Moscow Institute of Soviet Law in the 1930s, stated that

Pashukanis’ influence was profound within the USSR… While he came to the Institute only rarely to lecture, its teachers were largely his disciples, devoted to his commodity exchange theory of law. His textbook was the key to the study of legal philosophy, and his attitude toward law’s future shaped the curriculum.[4]

It is something of an enigma that Evgeny Pashukanis, such a contentious, thought-provoking and engaging theoretician, remains a minor character within the international socialist community at large. With a little digging, however, it becomes obvious that the main reason is the disappointingly substandard condition of present day Pashukanisian scholarship.

First of all, most of Pashukanis’ own writings are totally inaccessible to potential readers. By the end of his life, he had authored between one and two hundred scholarly publications, an undoubtedly impressive body of work. But the vast majority of these materials have never been republished or translated.[5]

There is also little secondary literature based on detailed scholarly research into Pashukanis’ life, works and ideas. In recent years, with some notable exceptions (like China Miéville and Michael Head[6]), few academics of a Marxist or radical outlook have taken any notice of Pashukanis.[7]

As a result, a revival of interest in Pashukanis is not on the horizon; the international socialist community’s understanding of law will therefore remain limited for the time being. As Raymond Koen observes, “contemporary Marxist jurisprudence is the poorer for its shabby treatment of Pashukanis”.[8]

Standing on the shoulders of Marx and Stuchka

Pashukanis did not create his commodity exchange theory of law from nothing. Most if not all of the theory’s major propositions, assumptions and themes were borrowed from previous sources, mainly the classics of the Marxist canon (Marx, Engels, Lenin, Kautsky and others) and mainstream works by bourgeois jurists and legal philosophers. He took their conclusions as his starting point, built upon them, filled in the gaps, and then described in detail where this journey had led him.

For starters, the theory’s keystone concept – that the legal form is dialectically determined by the commodity form, with the former being primarily the legalised reflection of the latter – can be explicitly found in the works of Marx and Engels. Pashukanis admits this, writing, “I consider it necessary to emphasize…that I invented nothing original here, but merely set forth…more or less systematically the views…of Marx, Engels, and Lenin…”[9]

In fact, this quote from Marx in Capital could almost be considered the abstract for Law and Marxism:

It is plain that commodities cannot go to market and make exchanges of their own account. We must, therefore, have recourse to their guardians, who are also their owners… In order that these objects may enter into relation with each other as commodities, their guardians must place themselves in relation to one another, as persons whose will resides in these objects, and must behave in such a way that each does not appropriate the commodity of the other, and part with his own, except by means of an act done by mutual consent. They must therefore recognise in each other the rights of private proprietors. This juridical relation, which thus expresses itself in 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 is this economic relation that determines the subject-matter comprised in each such juridical act.[10] [Emphasis added]

Pashukanis was not the first revolutionary socialist to theorise seriously about law. In fact, by the time he wrote Law and Marxism, most of the heavy theoretical lifting to establish the foundations for a comprehensive Marxist analysis had been completed. Responsible for this work was Piotr Stuchka, an old Bolshevik and senior colleague of Pashukanis, who during the early 1920s was “recognized as the undisputed leader of the Marxist school of jurisprudence”.[11] Stuchka launched a fierce polemic against mainstream conceptions of the law, the courts, criminal justice and the state; slashing away at the totems of conservative juridical ideology, then countering it with a Marxist understanding of legal concepts, forms and institutions, and of law as a whole. It was the publication of his book, The Revolutionary Role of Law and State: A General Doctrine of Law in 1921 which effectively established Marxist legal theory as a legitimate field of study in Soviet Russia.

[Stuchka’s] contribution to legal theory lay less in the realm of erudite abstraction than that of pedagogy, of polemics, and of the practical dictates of the building of socialism…

He wrote [The Revolutionary Role of Law and State] largely to serve a pedagogical function in the law schools that were then in the process of being reopened… It was widely read in jurisprudential circles and was used in law schools as an introduction to Marxist criticism of law. It was from this book that serious Marxist debate about law began, and it is to it that the apparent rupture with much of the earlier jurisprudence can be traced.[12]

To a substantial degree, Pashukanis’ Law and Marxism is a response to Stuchka’s benchmark work.[13]

The historical context: the October Revolution and its defeat

The 1917 October Revolution unleashed the creative energies of the Russian people. Every field of human culture – the social and natural sciences, visual and performing arts, literature and education, philosophy and religion – underwent incredible developmental upsurges, pioneering and discoveries.

The literature of this period – produced by political and legal theorists, economists, philosophers, historians, and ideologists – is diverse, original, and full of cognitive content; and the range of both theoretical and practical problems discussed is indeed impressive. Soviet social thinkers in the twenties took these problems seriously, much more so than did their Western counterparts, for they were engaged in a new type of social engineering. They considered themselves to be the builders of a new, “rational” social order founded on principles presumably never before applied.[14]

This mighty scientific and cultural revolution triggered massive transformations and creative developments in the fields of jurisprudence, legal administration and criminal justice, affecting both theory and practice. But all these fascinating initiatives and experiments were soon followed by defeat and retreat. The revolution’s accomplishments and transformations were wound back, culminating in a regression back to an ultra-conservative legal regime that was uncomfortably similar to tsarism.

Practice

In the early stage of its existence, the Soviet republic issued an array of decrees pertaining to every important matter of state, from democratic governance to industrial economics to foreign policy to the land question, as the first stages in the Bolsheviks’ socialist transitional agenda.[15]

A judicial decree of November 1917 abolished the tsarist legal system, disbanding the courts, academies, the procuracy,[16] the bar and all other institutions and organisations; judges, lawyers and all other high-ranking legal officials were removed from their privileged positions. And, most importantly, laws from the tsarist era considered contrary to the goals and spirit of the revolution were regarded as null and void.[17]

The first major figure in the Soviet government to take up this theme of revolutionary transformation of law was Anatoly Lunacharsky, who in December 1917 wrote an article entitled “Revolution and the Court”: “The revolution itself is a fact of counterposing a new law to the old one, an act of a popular mass trial over the hated system of privilege… Since under capitalism the proletariat was deprived of the opportunity to develop its legal creativity, it has no choice now but to learn how to adjudicate pragmatically and create its own customary law, deducing it from the sources of the same spiritual movement that led the proletariat to the victorious revolution and that reflects its class characters, its growth, and its significance in the social life”.[18]

A new legal system was established:

[The November 1917 decree] set up local courts, elected or nominated by local Soviets (workers’ councils), with two rotating lay assessors to sit with each judge. It removed the legal profession’s monopoly on representation, enabling any citizen of good character to appear as a prosecutor or defence counsel. …

[T]he first regulation governing the tribunals contained democratic safeguards, including public hearings, the right to defence counsel and the restriction of punishments to imprisonment and banishment. …

A further decree of November 1918 established a central People’s Court within the Russian Socialist Federated Soviet Republic (RSFSR) and another decree of October 1920 specified qualifications for people’s judges and defence counsel… [A] judge was required to either have experience in the political work of the party, trade unions, cooperatives, factory committees or soviets, or have theoretical or practical preparation for the duties of a judge.[19]

These were all unprecedented experiments, implemented with the best of revolutionary intentions. The Bolsheviks did not have a pre-existing program on law, legal administration and criminal justice that could simply be implemented upon taking power. Rather, by taking action, learning from the results and then making corrections, they were honestly but somewhat blindly attempting to establish a new kind of legal system appropriate for the dictatorship of the proletariat.

The Bolsheviks’ objective was that [the] remnants [of law] would ultimately become superfluous and wither away or disappear. Their vision was of a new social formation in which people would be able to settle their disputes “with simplicity, without elaborately organized tribunals, without legal representation, without complicated laws, and without a labyrinth of rules of procedures and evidence”.[20]

Unfortunately, this heroic adventure of trial and error had by 1921 come to an anti-climactic ending.

Faced with the desperate circumstances of post-civil war Russia, the Bolsheviks were forced into a considerable retreat and concessions to the peasantry. This took the form of the New Economic Policy (NEP), according to which Russia was to abandon War Communism and move towards a “mixed economy”, with private commercial trading permitted and even encouraged. The peasantry were able to grow surpluses of grain and sell them to urban customers, the profits from which were to be taxed, and keep the remainder for themselves.

The NEP had immediate and direct legal implications. The Russian peasant, like any self-interested capitalist, would be unwilling to go to the trouble of producing a surplus and taking it to market unless there was an overwhelming likelihood of a successful exchange, without unduly high risk. But that could only happen if the newly created commercial markets were stable and predictable; and if the peasants had codified and respected rights as property-owners.

For the NEP to function properly, the Bolsheviks needed a comprehensive legal regime that facilitated free market trade. In 1922 and 1923 they enacted a set of legal and administration codes, covering land, the judiciary, labour and criminal and civil procedures.

Basically Romanist in orientation, the NEP legal culture rested on the premises of stability, formality, and professionalism. For the Continental jurists and their Soviet Russian counterparts, this meant that a legal system should be stable and predictable, its laws formalized in written codes, and its personnel professionally trained in the law. On the basis of these ideals, a fully articulated legal order was constructed during the first years of NEP. The procuracy was restored, the bar re-established, a hierarchical judiciary re-institutionalized, and professional legal education resumed. Legal roles were once again clearly differentiated and to a great extent filled by former tsarist legal personnel and pre-revolutionary law professors. Codification was undertaken, and the new codes, based heavily on European models, were soon in force…[21]

By the middle of the 1920s, the self-proclaimed dictatorship of the proletariat had a legal system that was indistinguishable, in content and form, from that of any capitalist country.

These retreats – the “restoration of capitalism” and the subsequent “restoration of law” – did not remain, as intended, a temporary setback for the Bolsheviks’ plans. Within a decade this orthodox, conservative legal system became under Stalin the main vehicle for a horrifying crusade of police-juridical terror known as the Great Purges.

The jurisprudence of terror flourished rapidly along the interface of the strengthened prerogative and the weakened normative state. The fruit of this development was an especially grotesque species of political justice. Legal forms were co-opted for extra-legal purposes, judicial process was subordinated to political ends, and law itself was used to legitimize and rationalize terror. The jurisprudence of terror institutionalized and routinized political terror within the context of formal legalism. In effect, terror was “legalized” and the criminal process “politicized”.[22]

Theory

The first seven or so years after the October Revolution witnessed a free-ranging, open and lively scholarly discussion of legal theory, history and philosophy. Soviet Russia had found itself (unwittingly, but not unhappily) playing host to a gigantic public symposium on law: searching for the essential meaning, function, purpose and future of law as a social, political and historical phenomenon.

Stuchka and a small group of like-minded Marxist jurists were the vanguard of this movement, “set[ting] for themselves the task of constructing a Marxist general theory of law which would explain theoretically the origin, emergence, and development of law, and account for its postponed but still anticipated ‘withering away’ in the Soviet Union”.[23]

The early legal debates between 1917 and 1924 were substantially democratic, uninhibited and rigorous, providing a glimpse of what may be possible in a future socialist society. It was a period of wide-ranging discussion and intellectual output possibly unmatched in the history of legal theory.[24]

This deep and broad groundswell of juridical theoretical dialogues – ranging from a casual tête-à-tête among friends in a café to a fierce public debate between rivals in a packed lecture hall – was consciously carried out in the best spirit of revolutionary socialism. The conversations were rich, robust and lively. The detail, nuance and sophistication of the contributions was remarkable. Every conceivable topic under the umbrella of “legal theory” was open for consideration: from the practical ethics of criminal justice to the historicity of law, from understanding the relationship between the state and the legal system to uncovering the class nature of the court system and judges. In order to facilitate these discussions, dozens of new research institutes, academies and publications were founded.

The Bolsheviks actively encouraged this festival of ideas, requesting that it continue and go further: participants should ask questions, be innovative and experimental and unorthodox, and allow for the cross-pollination of different research fields. This support was disinterested and dispassionate, with the national Soviet government always keeping itself at arm’s length from the discussions. At no point did it directly intervene. For leading Bolsheviks like Lenin and Trotsky, “any conception of seeking to dictate or suppress differences on such profound and intellectually rich issues was anathema”.[25] It seemed almost inevitable that a swathe of history-rewriting legal theories would forever change the way we understood and thought about law.

But once the Stalinist counter-revolution was underway, the flourishing theoretical discussion and debate was on borrowed time. The bureaucratised Soviet government couldn’t tolerate any element of professional or civil society independent of its control. So over the next few years most of the research institutes, academies and publications were either dissolved entirely or amalgamated, heavily reducing the symposium’s overall size and capacity. Those that remained open were declawed and harnessed: firstly by being brought under the direct management and supervision of the government; and secondly by having their output restricted and censored.[26]

When the brain doesn’t get enough oxygen supply from the blood vessels, cells will rapidly begin to die, and then the whole organ will degrade before the body eventually falls into a coma. The legal theory symposium, having been rendered passive and tame, stripped of any agency, power or purpose, went into an irresistible decline and quickly faded from Russian society.

The life of Pashukanis

Evgeny Bronislavovich Pashukanis was born in 1891 in the town of Staritsa to the north of Moscow. His maternal family was actively involved in revolutionary politics: his mother (Sofiya Pavlovna) was a member of the Russian Social Democratic Labour Party (RSDLP) and an uncle (M.P. Lyadov) was a Bolshevik cadre who was a leader of the armed uprising in Moscow in December 1905 and was said to have been close to Lenin.[27] His paternal family was part of the intelligentsia, with his father (Bronislav Frantsevich) a doctor and later professor of medicine, and among his uncles were a mathematician and a Catholic priest.[28]

At the age of 17 Pashukanis joined the RSDLP, before becoming a student at the University of St. Petersburg; he divided his time on campus between studying law and involvement in anti-tsarist activity. But within two years the Okhrana had caught up with him, arresting him and forcing him into exile. On the plus side, by going abroad he was able to complete his studies at the University of Munich, where he specialised in law and political economy, eventually receiving a doctorate for his thesis, “A Statistical Study of Infringements of Labour Legislation”.[29] He also played a part in writing the Bolsheviks’ Duma statement against Russia’s involvement in World War I.

Returning to Russia in 1918, Pashukanis joined both the Bolsheviks and the newly formed Soviet Republic government. For the next several years he worked in the legal system as a low-level official: first as a circuit judge in Moscow, then as a governmental legal adviser, before joining the Communist Academy as assistant organiser of its legal section. While working at the Academy he gave a series of well-received lectures on Marxism and law, the notes for which he was to eventually compile together to create his book.

Law and Marxism was not meant to be some grand work of detailed research and innovative theory, nor a polemical intervention into an existing debate, nor even a popularisation of established scholarship aimed at a wider public audience. Rather, it was intended as “only an introduction to the problems of constructing a Marxist general theory of law and by no means as the definitive statement on the subject”.[30] Certainly the book reads in large parts like a self-clarifying manuscript not intended for publication: a lot of its prose is uneven; some ideas are not properly explored or explained, while others go off on rather unimportant tangents; jargon and technical words are used liberally without great consideration for the reader; and there is sometimes little overarching connection between the various ideas, themes and theses.

In one of the book’s prefaces, Pashukanis explains that in Russia “there is very little Marxist literature on the general theory of law”. This was becoming a problem for the Soviet government, which was trying to recruit and train up a new generation of legal officials, lawyers and administrators free from the conservative, dogmatic mindset and tyrannical prejudices of tsarism. Law and Marxism, Pashukanis continues, “which was meant to provide at best a stimulus and material for further discussion, was put to a use which the author had not envisaged at all, that is as teaching material”. For the next decade, the book was the key educational text used in Russian legal academies. “Be that as it may,” Pashukanis explains, “the work to hand lays no claims whatsoever to the honorary title of a Marxist text-book on the general theory of law… My work, which raises some questions of the general theory of law for discussion, serves principally to prepare the ground in this way”. Upon the publication of the third Russian edition, after noting that he had chosen not to make any changes to the manuscript, Pashukanis explains that “it is preferable that this sketch remain what it was – a first draft of a Marxist critique of the fundamental juridical concepts”.[31]

In a tone that mixes modesty with pride and optimism, Pashukanis continues:

Obviously, I could only sketch the basic traits of the historical and dialectical development of the legal form in my short outline. In the process, I made use, in the main, of ideas I found in Marx. It was not my task to solve all, or even only a few, of the problems of the theory of law. I merely wished to show how one could approach them, and how the questions should be put. I am gratified by the fact alone that some Marxists found my approach to questions of law interesting and not without prospects. This further strengthens my desire to extend my work in the same direction.[32]

With his book only intended as a rough draft, Pashukanis said that he hoped one day to produce a proper magnum opus, a grand comprehensive study. Unfortunately, by the end of his life he had published no such work; either he had never got around to writing it, or he had done so but it was destroyed during the Purges.[33]

Law and Marxism was widely and warmly appreciated, “receiv[ing] an extraordinarily positive critical reception in Soviet Marxist circles… [It] was reviewed ten times, and seven of these reviews were almost completely favourable.” “For ‘unmasking the fetish of bourgeois law,’ his General Theory of Law and Marxism was unanimously acclaimed…”[34] Over the next few years the book was translated into many languages and republished multiple times.[35] Stuchka declared shortly after its publication that it was “to the highest degree a valuable contribution to our Marxist theoretical literature on law”.[36]

The book’s publication and its positive reception launched Pashukanis from relative obscurity to prominence, marking him out as a unique, unorthodox and innovative thinker, and providing him with a decade-long professional tenure in the higher tiers of legal academia and administration.

He was elected a full member of the [Communist] Academy in 1927, subsequently becoming its Vice-President, and after 1931 served as Director of the influential Institute of Soviet Construction and Law. When, in 1936, he became Deputy Commissar of Justice of the USSR and was proposed for full membership in the Soviet Academy of Sciences, he seemed to be nearing the pinnacle of success.[37]

By the second half of the 1920s, Pashukanis’ ascension into the higher circles of Soviet Russian officialdom had placed him effectively on a par with Stuchka, so that the two shared the honours as the “official interpreters of the Marxist understanding of law, their views found wide support among lawyers, and they became the most cited scholars”.[38] As time went by, a gradual and almost seamless generational shift came about: “as a result of his scholarly reputation, Pashukanis had become the doyen of Soviet Marxist jurisprudence, eclipsing even his juridical mentor Piotr Stuchka”.[39]

The Commodity Exchange School of Law, comprised of Pashukanis and his adherents, was by 1930 “bringing all Soviet legal scholarship and education under its control, and Pashukanis, as the pre-eminent Marxist theorist of law, was soon being acknowledged as the leader of the Soviet legal profession”.[40] In 1931 Pashukanis became the Director of the Institute of Soviet Construction and Law of the Communist Academy, at which point “[h]e was effectively the USSR’s director of legal research and legal education”.[41] The awards, promotions and honours kept coming:

[In] 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”, 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 People’s Commissariat of Justice of the USSR.[42]

But as Pashukanis climbed higher up the mountain, the ground beneath his feet was becoming ever more slippery. It was only a matter of time before he slipped and fell to the rocky floor below.

By the late 1920s, conservative bureaucratic forces had infiltrated every department of the Soviet state apparatus, taking on coherent social form, gaining a level of self-awareness and gravitating towards Stalin’s leadership. At that point, Pashukanis’ professional career, intellectual reputation, and even his life had become enmeshed with the fate of the revolution overall; with the retardation, decay and violent collapse of the latter came the isolation, discrediting and eventual death of the former.

But there’s a strange detour to this story. For a period of time, up to the early 1930s, it looked as if Pashukanis was going to be lured into the Stalinist orbit, to be used as an agent for furthering the counter-revolution, rather than being destroyed by it.

Ever the loathers of democracy, the Stalinised bureaucracy wanted to rid Soviet Russia of the vibrant legal theory debates that were taking place across the country. This agenda had primarily involved various forms of bureaucratic manipulation and coercion, so that while on the surface appearing to be simply supervising the dialogues, the bureaucracy was in actual fact trying to undermine and suffocate them.

Now there was a new strategy: to unilaterally declare that the legal theory symposium had already completed its mission. That being the case, there was no need for any more research or debate. The Stalinist leaders would complete this move by having one specific legal theory among the contenders declared as the one and only true Marxist theory of law.

In what appears in hindsight to be a moment of farcical perversity, it was Pashukanis’ commodity exchange theory of law that was chosen for this role. After all, his theory was the most recognisable and acclaimed across the country, and was already considered by many to be the Marxist theory of law, which would make sanctifying it a relatively easy task. So the Stalinists chose it out of circumstantial laziness, not because they found its theoretical content to be the best fit for their particular worldview.

Once the crown had been placed upon Pashukanis’ head, all his opponents from the left and right were mercilessly quashed by the bureaucracy. They were endlessly harassed for their insubordination to the newly established orthodoxy, and found it difficult to maintain their professional standing within the tightening and increasingly unaccommodating system; in fact, it was not uncommon for some to be arrested on fallacious charges and locked up.

Pashukanis’ reaction to these events was not to recoil, but rather to accept and welcome them. He didn’t question the fairness of the duel, nor refuse the trophy he was handed; far from asking where his opponents had gone, he seemed to take delight in them having been removed from the arena. As the Stalinist machine did its work – glorifying the commodity exchange theory of law as the one and only Marxist theory of law, while isolating its opponents through a mixture of crude propaganda, bureaucratic stonewalling and police harassment – Pashukanis actually helped it along.

John Hazard, a first-hand witness, writes, “On looking back to those turbulent times of 1934 to 1937 while I attended classes in Moscow, I have to admit that I came to dislike Pashukanis”.

To find myself in a Soviet law school where the teachers projected a theory said to be infallible, and where those who strayed from Pashukanis’ line were castigated…or denied faculty appointments, promotions and salary raises was novel to me. I saw teachers compelled to conform not only to ideas of Marx but also to those of Pashukanis as his infallible interpreter. This was unsettling to my sense of justice.[43]

But this state of affairs was manifestly unstable and couldn’t last long. For Stalinism to achieve full theoretical hegemony and become the new national ideology of Russia, it needed to have some level of internal doctrinal consistency. But Pashukanis’ commodity exchange theory of law was fundamentally based upon the revolutionary and dialectical Marxism of the Bolsheviks, the logic of which went against the goals and ideals of Stalin’s counter-revolution. Ultimately, therefore, Pashukanis’ theory could not be properly assimilated into Stalinism. It was only a matter of time before this contradiction would resolve itself one way or another.

At a certain point in the mid-1930s, the Stalinists reached the conclusion that Pashukanis couldn’t be tolerated any longer. He needed to be removed so that work could begin on the construction of a new general theory of law which would fit neatly with the interests of the ruling bureaucracy.

To this end, they launched a belligerent and merciless hate campaign against both the man and his theory. Pashukanis was an enemy of the people, a traitor, a counter-revolutionary, a spy, secretly trying to wreck the Soviet state, “an ally of Trotskyism and Bukharinism”, “ignoran[t] of Marxism and Marxist philosophy”; he “mouthed socialist phrases while espousing bourgeois ideas”. The commodity exchange theory of law was rotten, unMarxist, anti-Leninist, diversionist, erroneous, heretical, a form of legal nihilism or legal anarchism; it was a “provocateur theory” that “concern[ed] Soviet law as bourgeois law, as law withering away” and “concealed the class nature of law”; it was “a philosophy of law which, had it been followed to its conclusions, would have undermined the foundations of the Soviet state”.[44]

The subtlety of his analysis of bourgeois law did not much appeal to Communist propagandists…; and his insistence that the new Soviet codes, because they still embodied bourgeois attitudes and provisions, did not constitute a creative “socialist” contribution to law conflicted sharply with the growing Soviet penchant for vainglory.[45]

Pashukanis was completely unprepared for this nasty fight. Despite having been an active revolutionary socialist his entire adult life, he had never involved himself in inner party activities; so he had no experience in dealing with factional contestations or political slander. Further, ever since returning to Russia he had kept away from matters relating to national policy; throughout the 1920s he had never formally taken a position on the various debates inside the Communist Party. It was clear that he wasn’t an Oppositionist of any kind; he had no sympathy for Trotsky, Bukharin or Zinoviev and considered himself loyal to the Soviet Republic and the Party.

During the early to mid-1930s, in a tactical retreat to keep the wolves at bay, Pashukanis wrote a series of articles which conceded much ground to the hate campaign waged against him; with a tone of repentant self-criticism, he admitted that the commodity exchange theory of law was problematic and imbalanced and that Law and Marxism was flawed and incomplete. He tried every trick he could to placate the Stalinists, in order to ensure his safety. These self-criticism pieces involved fulsome praise for Stalin and his policies. At one point Pashukanis wrote in celebration of Stalin’s leadership:

He expanded the Marxist-Leninist doctrine on the dictatorship of the proletariat into a grandiose doctrine of the building of socialism in one country. This occurred under conditions of the delay of the world revolution and of intensified internal class struggle against the capitalist classes and their ideological arms-bearers – bourgeois restorationist theorists, right and left opportunists, and counter-revolutionary Trotskyites.[46]

But these concessions could only delay the Stalinist terror machine. In early 1937, shortly after he had finished work drafting the new Russian constitution, Pashukanis became a victim of the Great Purges. He was disappeared by the secret police, never to be seen in public again. He was placed on trial, with the indictment, proceedings and evidence kept in camera. “No public trial was held…so that no outsider could tell what, if any, the actual charges were and what, if any, proof other than Pashukanis’ own writings had been introduced against him.”[47] He was found guilty, sentenced to death and executed.

Now that the leading voice of a genuinely Marxist perspective on jurisprudence had been removed, the forces of conservatism could commandeer the field. Soviet legal scholarship was sanitised of all tendencies, schools and publications not in line with the bureaucracy’s views. The Commodity Exchange School of Law was declared anathema; “the very name Pashukanis had been so besmirched as to blacken also the reputation of any Soviet lawyer who had been closely associated with him or who had expressed ideas identifiable as similar to his.”[48] All of Pashukanis’ supporters were removed from their posts one way or another, from losing their jobs to losing their lives.

Replacing Pashukanis as Soviet Russia’s leading jurist was Andrei Vyshinsky, a loyal Stalinist, author of The Law of the Soviet State, and the chief organiser and prosecutor of the Great Purges.[49] In 1938 Vyshinsky made the inflammatory pronouncement that Soviet legal scholarship to that point had been governed by the enemies of socialism, so it was necessary to wipe the slate clean and start over: “Over the course of years an almost monopolistic position in legal science has been enjoyed by a group of persons who have turned out to be provocateurs and traitors – people who actually knew how to contrive the work of betraying our science, our state and our fatherland under the mask of defending Marxism-Leninism”.[50]

Soviet legal academia, already deteriorating in quality, strength and size since the beginning of the bureaucratic counter-revolution, suffered a dramatic setback with the loss of Pashukanis. With him gone, “the usual band of time-serving philistines and eclectics took over the field”,[51] dragging it down into a rotten ditch of dogmatism, ad hominem attacks and obfuscation. “Increasing[ly], the passionate, intelligent debates of the early years degenerated into stifled, turgid, repetitious and vacuous diatribes. Even though cloaked in formal references to Marxism, contributions no longer bore any resemblance to genuine Marxist theory.”[52]

Soviet law was never to regain its image as a prestigious professional field of study. From this point onwards, it would only be the subject of mockery and condescension.

The commodity exchange theory of law: a brief introduction

As a starting point to his investigation, Pashukanis takes for granted the factual existence of law as a social phenomenon, rather than as an artificial, alien, metaphysical, psychological or spiritual entity. Law emerges out of the natural processes and structures of our society, and then takes up permanent residency within a variety of institutions and relations. Its presence in our lives, and consequently our relationship to it, is a stable and constant state of affairs, not something that routinely transmutes in and out of tangible reality. Insisting on the concrete materiality of law, Pashukanis writes:

As a Marxist, I did not set myself the task of constructing a theory of pure jurisprudence, nor could I set myself such a task… My aim was this: to present a sociological interpretation of the legal form and of the specific categories which express it… Indeed my task would have been quite pointless, were I to deny the existence of the legal form itself and to discard the categories which express this form as idle fantasies.[53]

This would mean that law, like other social phenomena, can be scientifically observed, surveyed and documented, and that a generalised paradigmatic model can be constructed. A research mission based on general legal theory would aim, therefore, at locating the fons et origo – the source and origin point – of law, from which it emerges in the first place and then institutes itself as a feature of the societal organism. As Pashukanis explains: “The task of the Marxist critique…consisted of analysing the legal form itself, exposing its sociological roots, and demonstrating the relative and historically limited nature of the fundamental juridical concepts”.[54]

This focus on the social roots and function of law has important theoretical consequences. Pashukanis’ investigation can “devote…undivided attention to the concrete content of the legal norms and the historical development of legal institutions”; the goal being to construct a “concept of law in its most distinct and consummate form, thereby demonstrating its relevance to a particular historical epoch”.[55] So studying law should be about identifying and locating the real life inner workings of the legal form, and making sense of the social materiality which underpins the way that law manifests itself in human actions and relations. And Pashukanis insists we always keep in mind that “[t]hose basic juridical abstractions representing the closest approximations to the legal form as such, which are generated in the course of the development of juridical thought, reflect quite specific, very complex social relations.”[56]

Pashukanis explains that “Marxists…have no responsibility towards jurisprudence” and so will “usually pass over the formal definitions of general legal theory in silence”.[57] This scepticism towards legal categories as autonomous abstractions ensures that they are only analysed and explored insofar as they have real, social meaning. The alternative position assumes that the legal form and legal categories have an existence in the realm of pure abstraction, beyond or outside of human activity. Pashukanis has no patience with this, arguing that “[t]he fundamental shortcoming of such formulae is their inability to comprehend the concept of law in its actual workings”; and that it “must inevitably result in empty scholastic verbal formulae”.[58] Furthermore: “This ‘theory’ makes not the slightest attempt to analyse law, the legal form, as a historical form, for it has absolutely no intention of fathoming reality. For this reason it is, to put it bluntly, a waste of time”.[59]

Norms and relations

One of the most longstanding and contentious issues within general legal theory concerns the relationship between norms (the written law created by the state: drafted by civil servants, passed by governments, interpreted and enforced by the courts and police); and legal relations (the ways in which citizens and civil institutions behave legally within society, including acting upon their rights, fulfilling obligations, not breaking criminal laws, respecting others’ rights, proposing and entering into contracts, etc.).

Of especially high concern, which of them is the primary dominant partner in determining the nature, structure and fundamental characteristics of law? Does the written law impose upon civil society and the citizenry a set of normative directions that must be adhered to, acting as strict parameters that regulate and control human behaviour? Or does the essence of law arise out of the legal relations which are based around concrete human affairs and activities, a path down which the corresponding norms are compelled to follow as a kind of mimicry?

Pashukanis argues forcefully in favour of the latter: “The legal relation is the cell-form of the legal fabric; only there does law accomplish its real movement”.[60] The core components, mechanisms and conditions of law are to be primarily found in the legal relations that exist and operate between legally-behaving humans (i.e. legal subjects). Once a particular legal relation has come into being, the appropriate norm will arrive soon thereafter. “If certain relations have actually come into being, this signifies that a corresponding law has arisen.”[61] And it’s from here that more sophisticated, detailed and broader forms of jurisprudence can emerge, which in their entirety make up the whole legal superstructure.

Arguing against the alternative normative-centric position, Pashukanis writes:

Compared to this, law as the aggregate of norms is merely a lifeless abstraction… [T]o assert the objective existence of law, it is not enough to know its normative content, rather one must know too whether this normative content materialises in life, that is in social relations.[62]

Legal norms are overwhelmingly determined by material socialised reality, not the other way around. A norm cannot be a meaningful force in society unless there is a basis for it to take physical form. By themselves they are totally powerless to alter human affairs. Further, norms as an independent abstraction of human legal ideas can only be used to retroactively generalise the facts as they already materially exist: each norm must be so arranged, aligned and ordered so that as to correspond to the legal relations as experienced in civil society. Pashukanis offers an example to help explain this:

Of course one cannot assert that the relation between creditor and debtor is generated by the system of compulsory debt collection operating in the state in question. The objective existence of this system certainly guarantees and safeguards the relation, but it in no way creates it.[63]

To demonstrate this point further, consider a hypothetical situation where a particular legal relation and norm contradict one another. Under such a circumstance, it is always the relation that determines the type of legal reality that will eventually play out in society. As legal relations push and pull in certain directions and reach a particular state of equilibrium according to the society in which they are located, the written law will then come to take coherent and formal shape. Meanwhile the norm that doesn’t shift and transform in order to bring itself appropriately in line with the predominant legal relation will be rendered false, defunct and banished to the sidelines. “[I]f a law or decree has merely been promulgated without any corresponding relation having arisen in practice, then an attempt to create a law has indeed been made, but without success.”[64] As a general rule, all written laws that are either totally immaterial or practically unenforceable are a dead letter and are therefore not actually “laws” by the proper definition of the word.

Pashukanis’ commodity exchange theory of law argues that “the legal form in its developed state corresponds to bourgeois-capitalist social relations.”[65] Legal relations – which form the genetic makeup of law as a social phenomenon – are shaped, positioned and controlled by the overarching economic and social characteristics of the society at hand. And since under capitalism the key social relation which facilitates economic activity is commodity exchange, it follows that the legal form will have its existence, structure and character dialectically determined by the commodity form.

In the introduction to Law and Marxism, he writes:

Marx reveals that the fundamental condition of existence of the legal form is rooted in the very economic organisation of society. In other words, the existence of the legal form is contingent upon the integration of the different products of labour according to the principle of equivalent exchange. In so doing, he exposes the deep interconnection between the legal form and the commodity form. Any society which is constrained, by the level of development of its productive forces, to retain an equivalent relation between expenditure and compensation of labour, in a form which even remotely suggests the exchange of commodity values, will be compelled to retain the legal form as well.[66]

Elsewhere he adds:

Marx himself emphasises the fact that the property relations, this most fundamental and lowest layer of the legal superstructure, stands in such close contact “with the existing relations of production” that it “is but a legal expression of the same thing”. The state, that is, the organisation of political class dominance, stems from the given relations of production or property relations. The production relations and their legal expression form that which Marx, following in Hegel’s footsteps, called civil society. The political superstructure, particularly official statedom, is a secondary, derived element.[67]

By linking law with commodity exchange so firmly, Pashukanis is effectively claiming that the former can only exist in those situations where the latter already does. Since the commodity is a social form that can only exist under specific circumstances, and was only able to fully flourish in the era of capitalism, this means that law is historically confined to that period of history where commodity exchange is the dominant form of social life.

It is only with the advent of bourgeois-capitalist society that all the necessary conditions are created for the juridical factor to attain complete distinctness in social relations. …

Therefore the dialectical development of the fundamental juridical concepts not only provides us with the legal form as a fully developed and articulated structure, but also reflects the actual process of historical development, a process which is synonymous with the process of development of bourgeois society itself.[68]

Bourgeois jurisprudence is the legal framework designed to protect, reinforce, legitimise and codify the economic activities of the capitalist system. It is not the creator of worlds, bringer of life or catalyst for human actions, but rather a secondary social phenomenon and lexicon of abstracted, reified categories that arises out of capitalist relations. Without the economic realm upon which it bases itself and within which it resides, law would not exist as either a social form or conceptual framework.

[T]he existence of a commodity and money economy is the basic precondition, without which all these concrete norms would have no meaning. Only under this condition does the legal subject have its material base in the person of the subject operating egoistically, whom the law does not create, but finds its existence. Without this base, the corresponding legal relation is a priori inconceivable. …

It is readily evident that the logic of juridical concepts corresponds to the logic of the social relations of a commodity-producing society. It is precisely in these relations – and not in the permission of authority – that the roots of the system of private law should be sought. Yet the logic of the relations of dominance and subservience can only be partially accommodated within the system of juridical concepts. That is why the juridical conception of the state can never become a theory, but remains always an ideological distortion of the facts.[69]

This is why “Engels call[ed] the juridical way of looking at things the classical world view of the bourgeoisie”,[70] because law embodies and expresses, in the grandest and purest of forms, the ideals and principles and goals of the capitalist system. Legal property relations are primarily the attempt to rationalise, normalise and systematise the inherent characteristics, forms and categories of private property, which have come to exist and operate according to the commodity form. This means that law exists primarily as a reified realm through which the dominant social relations of production are given (seemingly) independent legalised expression and constitution, thereby making them appear as a natural and organic part of human society.

Conclusion

Among Marxist jurists, academics and philosophers, there has never been a consensus regarding the intellectual quality, practical value or political progressiveness of Pashukanis’ theory: whether it’s an undialectical, disjointed mess based on a grossly simplistic misreading of Marx, which logically leads towards reactionary conclusions; or an outstanding and far-reaching scientific model, rich with dialectical critique, nuance and insight, which deserves canonisation into the classical Marxist tradition.

The Marxist academic C.J. Arthur proclaimed: “As far as I know, the only man who has made a real contribution towards a materialist philosophy of law is a little-known Russian: EB Pashukanis… Pashukanis represents the high point in the development of Soviet legal philosophy.”[71] He also said that “Pashukanis has given us the most exciting contribution since Marx to this critique of law”; Law and Marxism was an “important contribution towards the materialist critique of legal forms” and “remains to this day the most significant Marxist work on the subject”.[72]

Ronnie Warrington was equally enthralled, pronouncing that “Pashukanis is essential reading for those concerned with the nature of legal control in capitalist society, with the problems of moving to socialism, and above all with the potential for a classless society, a non-legal social order”.[73] Eugene Kamenka and Alice Erh-soon Tay are balanced yet very positive: “Certainly, one finds in the book a freshness of style and of thought that was soon to disappear from Soviet intellectual life. Pashukanis combines a genuine and scholarly involvement in jurisprudence and legal history with an equally genuine feeling for Marx’s method and concerns.”[74]

Even those writers who are mostly critical and negative, or even hostile towards Pashukanis, have been forced to concede the tremendous analysis and meaningful consequences of his work.[75] But the queue of those wishing to pay homage to Pashukanis is matched by those seeking to censure or malign him.

Peter Binns asserts that Pashukanis did not make use of the full, intricate totality of Marx’s economic analysis of capitalism when constructing his theory:

The problem with Pashukanis…is that he is obsessed by the commodity form and by commodity fetishism. He never goes beyond it in his development of the notion of law. This is a colossal impediment. It leaves him with an understanding of capitalist law that is at best embryonic, at worst static and erroneous. …

[T]o restrict the analysis of law under capitalism to a set of categories appropriate for simple commodity production – as does Pashukanis – must be mistaken… So any “theory” such as Pashukanis’s that fails to go beyond the logical category of the commodity is really no theory at all for explaining capitalist phenomena. It is at most a preamble for the genuine concrete theory itself.[76]

Bob Fine takes a similar position, critical of Pashukanis because he “diverged significantly from that of Marx and in my view signified a regression from Marx and not an advance over him. This divergence was both theoretical and political”. Pashukanis was unable to “mov[e] from a juridic form to its social content”, but instead was simply “moving from one juridic form to another. In other words, Pashukanis never escaped the realm of juridic forms”.[77]

The German Marxist philosopher Karl Korsch censures “the ‘orthodox’ Marxist Pashukanis” because “his critically revolutionary ‘theory’ lags behind the theoretical ideas expressed by Marx and Engels themselves in an earlier historical period”. The problem with Law and Marxism is that “despite the ‘orthodoxy’ to which the author aspires, [the book] has not…restored all the consequences of Marxist theory for the sphere of law with absolute consistency; indeed he has not even re-stated all those already clearly expressed by Marx himself. Rather, despite his forceful beginning, he still evades in the end some of the most far-reaching and bold consequences”.[78]

Standing somewhere in between, and trying to acknowledge both merits and flaws, Steve Redhead offers “a note of caution” that we should “read Pashukanis slightly more critically than other commentators to date”. He concludes that:

Pashukanis’ work…remains valuable for historical materialist theory of law. It erected signposts for future Marxist analysis of legal relations without submitting to the stranglehold of the base/superstructure metaphor and, despite immense pressure, resisted to the end the reactionary positions of arguing for “proletarian law”.[79]

 

References

Arthur, Chris John 1977, “Towards a Materialist Theory of Law”, Critique: Journal of Socialist Theory, 7 (1).

Behrman, Simon 2011, “Police Killings and the Law”, International Socialism, series 2, 129, Winter.

Binns, Peter 1980, “Law and Marxism”, Capital and Class, 4 (1), Spring.

Bowring, Bill 2013, Law, Rights and Ideology in Russia: Landmarks in the Destiny of a Great Power, Routledge.

Fine, Bob 1984, Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques, Pluto Press.

Fuller, Lon Luvois 1949, “Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal Theory”, Michigan Law Review, 47 (8), June.

Hazard, John Newbold 1938, “Cleansing Soviet International Law of Anti-Marxist Theories”, The American Journal of International Law, 32 (2), April.

Hazard, John Newbold 1957, “Pashukanis is No Traitor”, The American Journal of International Law, 51 (2), April.

Head, Michael 2001, “The Passionate Legal Debates of the Early Years of the Russian Revolution”, Canadian Journal of Law and Jurisprudence, 14 (1), January.

Head, Michael 2004, “The Rise and Fall of a Soviet Jurist: Evgeny Pashukanis and Stalinism”, Canadian Journal of Law and Jurisprudence, 17 (2), July.

Jaworskyj, Michael (ed.) 1967, Soviet Political Thought: An Anthology, John Hopkins Press.

Jeffrey, William 1983, “Marxist Theory and Law: An Essay Review of Three Books”, Review of Socialist Law, 9 (1).

Kamenka, Eugene and Alice Erh-Soon Tay 1970, “The Life and Afterlife of a Bolshevik Jurist”, Problems of Communism, 19 (1), January-February.

Koen, Raymond 2011, “In Defence of Pashukanism”, Potchefstroom Electronic Law Journal, 14 (4), July.

Loeber, Dietrich Andre 1979, “The Rehabilitation of Pashukanis”, The Soviet and Post-Soviet Review, 6 (1).

Marx, Karl 1972 [1867], Capital: A Critique of Political Economy, vol. 1, Frederick Engels (ed.), International Publishers.

Miéville, China 2004, “The Commodity-Form Theory of International Law: an Introduction”, Leiden Journal of International Law, 17 (2), June.

Pashukanis, Evgeny B. 1980, Selected Writings on Marxism and Law, Piers Beirne and Robert Sharlet (eds), Peter Maggs (trans.), Academic Press.

Pashukanis, Evgeny B. 1983 [1924], Law and Marxism: A General Theory, C.J. Arthur (ed.), Barbara Einhorn (trans.), Pluto Press.

Patterson, Dennis (ed.) 1999, A Companion to Philosophy of Law and Legal Theory, Blackwell Publishers.

Redhead, Steve 1978, “The Discrete Charm of Bourgeois Law: A Note on Pashukanis”, Critique: Journal of Socialist Theory, 9 (1).

Sharlet, Robert 1974, “Pashukanis and the Rise of Soviet Marxist Jurisprudence, 1924-1930”, The Soviet and Post-Soviet Review, 1 (1-2).

Stuchka, Piotr I. 1988, Stuchka: Selected Writings on Soviet Law and Marxism, Robert Sharlet, Peter B. Maggs and Piers Beirne (eds), M.E. Sharpe.

Tucker, Robert C. (ed.) 1977, Stalinism: Essays in Historical Interpretation, W.W. Norton & Company.

Warrington, Ronnie 1980, “Standing Pashukanis on his Head”, Capital and Class, 4 (3), Winter.

 

Notes

 

[1] A great, warm thank you to Tom O’Lincoln who provided extensive comments and advice on an earlier draft of this article. Some thanks also belong to Mick Armstrong.

[2] Fuller 1949, p1159. Also quoted in Kamenka and Tay 1970, p72; Head 2004, p271.

[3] As far as I am aware, there has only ever been one article in a popular socialist publication that substantively discusses Pashukanis’ works and ideas. See Behrman 2011.

[4] John Newbold Hazard, “Memories of Pashukanis”, Pashukanis 1980, pXI.

[5] The only exceptions are, firstly, the book Law and Marxism itself, which has been translated and republished multiple times; secondly, the ten articles collected to create Pashukanis: Selected Writings on Marxism and Law (edited by Piers Beirne and Robert Sharlet, published in 1980), physical copies of which are difficult to come by; and, thirdly, the three short pieces included in the voluminous, multi-disciplinary anthology Soviet Political Thought (edited by Michael Jaworskyj, published in 1967). See Loeber 1979, p212; Jeffrey 1983, p38; Kamenka and Tay 1970, pp73-4; Head 2004, p275.

[6] See Miéville 2004; Head 2004.

[7] As far as I am aware, there presently exist only three English-language, book-length critical studies on Pashukanis, none of which are easily accessible. They are: Robert Sharlet’s Pashukanis and The Commodity Exchange Theory of Law (doctoral thesis); Susan von Arx’s An Examination of E.B. Pashukanis’s General Theory of Law and Marxism (doctoral thesis); and Michael Head’s Evgeny Pashukanis: A Critical Appraisal (published by an academic publishing house).

[8] Koen 2011, p110.

[9] Quoted in Sharlet 1974, p111; ellipses in original.

[10] Marx 1972, p84. Also quoted in Pashukanis 1983, p114; Koen 2011, p116.

[11] Sharlet 1974, p107.

[12] Robert Sharlet, Peter B. Maggs and Piers Beirne, “Editors’ Introduction”, Stuchka 1988, ppXI, XIV.

[13] For details on Stuchka’s life, career and ideas, see Sharlet et al, “Editors’ Introduction”, Stuchka 1988. See also Sharlet 1974, p107.

[14] Michael Jaworskyj, “Preface”, Jaworskyj 1967, pV. Also quoted in Head 2001, p19.

[15] See Sharlet et al, “Editors’ Introduction”, Stuchka 1988, pXIII.

[16] A watchdog agency which oversaw governmental compliance with administrative law.

[17] See Head 2001, pp12-3; also Piers Beirne and Robert Sharlet, “Introduction”, Pashukanis 1980, p12.

[18] Quoted in Head 2001, p20.

[19] Head 2001, pp12-13.

[20] Beirne and Sharlet, “Introduction”, Pashukanis 1980, p12; the internal quote is from a book by John Hazard.

[21] Robert Sharlet, “Stalinism and Soviet Legal Culture”, Tucker 1977, p160.

[22] ibid., p164.

[23] Sharlet 1974, p103.

[24] Head 2004, p294.

[25] Head 2001, p5.

[26] See Sharlet 1974.

[27] Loeber 1979, p212.

[28] See also Bowring 2013, p49; Head 2004, p274.

[29] Head 2004, p274.

[30] Sharlet 1974, p105.

[31] Pashukanis 1983, pp36, 38, 37. (There is a printing error in my edition of Law and Marxism, with pages 36 and 37 in the wrong order.) See also Sharlet 1974, p106.

[32] Pashukanis 1983, p45.

[33] See Head 2004, p275. See also Pashukanis 1983, p37.

[34] Sharlet 1974, pp106, 108.

[35] See Loeber 1979, p212. “By 1927, three editions of his book had been published in Moscow and it had been translated into French, German, Japanese, Serbo-Croatian and English”; Head 2004, p275.

[36] Quoted in Bowring 2013, p53; Sharlet 1974, p107.

[37] Kamenka and Tay 1970, p73.

[38] Bowring 2013, p57.

[39] Beirne and Sharlet, “Introduction”, Pashukanis 1980, p4; emphasis in original. See also Kamenka and Tay 1970, p77. For his part, Stuchka hadn’t done anything of merit to stop Pashukanis from usurping his title. In the decade since the publication of The Revolutionary Role of Law and State, he hadn’t made any new breakthroughs; what research he did do was mostly a continuation of his earlier works. His overall output was on the decline, and it looked as if his career was approaching its end. By contrast, Pashukanis’ career prospects and workload were accelerating: “His annual intellectual output in books, articles, essays, doklady [papers], reviews and reports was prodigious. Along with Stuchka, Pashukanis dominated the scholarly activity of the Section [of Law and State]. As an indication of his growing impact on Soviet legal development, he was assigned the task of preparing a textbook on the general theory of law and state, and was chosen to represent the Communist Academy on the commission for drafting the fundamental principles of civil legislation, created by the USSR Council of People’s Commissars”; Beirne and Sharlet, “Introduction”, Pashukanis 1980, p16; Sharlet 1974, p113.

[40] Sharlet 1974, p115.

[41] Bowring 2013, p54.

[42] Bowring 2013, pp54-5.

[43] Hazard, “Memories of Pashukanis”, Pashukanis 1980, ppXIII, XIV.

[44] Kamenka and Tay 1970, p73. Hazard 1938, p251; Andrei Vyshinsky quoted in Head 2001, p27; Hazard 1938, p247; Hazard 1957, pp385-6.

[45] Kamenka and Tay 1970, p77.

[46] Quoted in Head 2004, p271.

[47] Hazard 1957, p386. See also Loeber 1979, p213.

[48] Hazard 1957, p385.

[49] See Head 2001, pp26-7; Beirne and Sharlet, “Introduction”, Pashukanis 1980, pp5, 32.

[50] Quoted in Head 2001, p26.

[51] Arthur 1977, p31.

[52] Head 2004, p294.

[53] Pashukanis 1983, p107. Also quoted in Bowring 2013, p59.

[54] Pashukanis 1983, p34.

[55] ibid., pp54, 56.

[56] ibid., p57.

[57] ibid., p54.

[58] ibid., pp56, 57.

[59] ibid., p53.

[60] ibid., p85.

[61] ibid., p88.

[62] ibid., pp85, 87.

[63] ibid., p89; emphases in original.

[64] ibid., p88.

[65] ibid., p109.

[66] ibid., pp63-4.

[67] ibid., pp90-1; the internal quote is from Karl Marx’s “Preface to a Contribution to the Critique of Political Economy”.

[68] ibid., pp58, 59.

[69] ibid., pp93, 96.

[70] ibid., p33.

[71] Arthur 1977, p31.

[72] C.J. Arthur, “Editor’s Introduction”, Pashukanis 1983, pp31, 9.

[73] Warrington 1980, p102.

[74] Kamenka and Tay 1970, p72.

[75] For starters, we have Peter Binns who wrote, “[H]e has been virtually the only revolutionary socialist to give us a Marxist analysis of the phenomenon of law”; Binns 1980, p100. In a similar vein Alan Hunt wrote: “[He] produced what still remains the most comprehensive Marxist theorization of law”; Alan Hunt, “Marxist Theory of Law”, Patterson 1999, p360. And finally there are the words of Bob Fine: “The particular strength of Pashukanis’s work was that he sought to derive a Marxist theory of law not merely from this or that occasion on which Marx happened to comment about the law, but from the method which Marx developed in his critique of political economy”; Fine 1984, p155.

[76] Binns 1980, pp105, 107; emphasis in original.

[77] Fine 1984, pp157, 160.

[78] Karl Korsch, Appendix, Pashukanis 1983, pp191-2, 190.

[79] Redhead 1978, p120.