#pashukanis

[yngwrthr]

The key to a Marxist theory of law is that the legal superstructure reflects the specific form of production relations of each particular historical stage. As a legal expression of historically determined production relations, the legal sphere corresponds to the particular economic process. Legislation sanctions prevailing production relations by conferring “rights” on relations of effective control and ownership of property. Law is established from production relations to regulate social intercourse — e.g. resolves conflicts and disputes over property, which are part and parcel of class society — in a manner to hold the economy together. A full fledged legal system obtains in capitalist society and mediates interaction which emerges from that web of ownership relations.

Moreover, to understand the emergence of a fully fledged and coherent legal system, where all social interaction is regulated by a legislative bureaucracy etc., legal institutions hold the force of an external authority whose acceptance is achieved through repression. By “singling out” those social elements which do not comply with the current form of production relations, ruling class influence of legal affairs is promoted even further. This aids to hold back the explosion of contradictions and antagonisms of capitalist society.

[edwad]

One must [...] bear in mind that morality, law and the state are forms of bourgeois property. The proletariat may well have to utilise these forms, but that in no way implies that they could be developed further or be permeated by a socialist content. These forms are incapable of absorbing this content and must wither away in an inverse ratio with the extent to which this content becomes reality. Nevertheless, in the present transition period the proletariat will of necessity exploit this form inherited from bourgeois society in its own interest. To do this, however, the proletariat must above all have an absolutely clear idea — freed from all ideological haziness — of the historical origin of these forms. The proletariat must take a soberly critical attitude, not only towards the bourgeois state and bourgeois morality, but also towards their own state and their own morality. Phrased differently, they must be aware that both the existence and the disappearance of these forms are historically necessary.

Evgeny B. Pashukanis, Law & Marxism: A General Theory (1924)

[yngwrthr]

Michael O. Head, “Marxism, Revolution, and Law: The Experience of Early Soviet Russia”, 2004.

[yngwrthr]

Seizure of political power by the proletariat is the fundamental prerequisite of socialism. Nevertheless, experience has shown that planned production and distribution cannot replace market exchange and the market as the link between individual economic units overnight. Were this possible, then the legal form of property would be historically absolutely done for. It would have completed the cycle of its development and returned to its point of origin, to objects of direct, individual use; that is, it would in practice once more have become a primitive relation. And as a consequence of this the legal form as such would also be condemned to death. So long as the task of building a unified planned economy has not been completed, so long as the market-dominated relationship between individual enterprises and groups of enterprises remains in existence, the legal form too will remain in force.

Evgeny Pashukanis, “Law and Marxism: A General Theory: Towards a Critique of the Fundamental Juridicial Concepts”, 1924, ed. by Chris Arthur, London: Pluto Press, 1983, pp. 130-131.

[edwad]

[T]he serf’s subjugation by a feudal lord was the direct and unmediated result of the feudal lord being a landlord with an armed force at his disposal. This direct dependence, this seigneurial relation, increasingly assumed an ideological veneer, with the feudal lord’s power being increasingly deduced from a divine, supra-human authority: ‘No power if not God-given’. The wage-labourer’s subjection to, and dependence on, the capitalist has a similar immediacy: congealed, dead labour here dominates living labour. Yet this worker’s subjugation by the capitalist state is not a mere ideological duplication of his dependence on the individual capitalist. It is not the same, firstly because we have here a special apparatus, separate from the representatives of the ruling class, which stands above every individual capitalist and functions as an impersonal force. Secondly, it is not the same because this impersonal force does not mediate every individual exploitative relation; the wage worker is not actually politically and legally compelled to work for a particular employer; rather, he formally sells that entrepreneur his labour power on the basis of a free contract. In so far as the exploitative relation exists formally as a relationship between two ‘autonomous’ and ‘equal’ owners of commodities, one of whom, the proletarian, sells his labour power, and the other, the capitalist, buys it, political class power can take on the form of public authority. As we have already said, the principle of competition prevailing in the bourgeois-capitalist world does not allow any possibility of linking political power to the individual economic enterprise (in the way in which this power was linked to landed property under feudalism).

Evgeny B. Pashukanis, Law & Marxism: A General Theory (1924)

[edwad]

An act which is the real, and only true, embodiment of the ethical principle simultaneously also contains its negation. The large capitalist destroys the small capitalist ‘in good faith’, without thereby violating the absolute worth of his personality in any way. The proletarian’s personality is ‘equal in principle’ to that of the capitalist; this circumstance is expressed by the fact of the ‘free’ contract of employment. But all that comes out of this ‘materialised freedom’ for proletarians is the freedom to die of starvation — without any interference.

Evgeny B. Pashukanis, Law & Marxism: A General Theory (1924)

[edwad]

So long as the commodity form and the resultant legal form continue to make their mark on society, so in judicial practice too the essentially absurd idea (absurd, that is, from the non-judicial viewpoint) that the gravity of each crime can be weighed on some scale and expressed in months or years of prison detention will retain its force and its meaning in real terms.

Evgeny B. Pashukanis, Law & Marxism: A General Theory (1924)

[edwad]

Class rule, in both its organised and its unorganised forms, is much more far-reaching than the sphere which can be designated as the state authority’s official sphere of jurisdiction. The dominance of the bourgeoisie is expressed in the dependence of governments on banks and capitalist associations, and in the dependence of every individual worker on his employer, as well as in the fact that the personnel of the civil service is closely interlinked with the ruling class. All these facts — and there are any number of them — have no kind of official legal expression at all, yet in their consequences they coincide with the facts that do indeed find official legal expression in the subordination, for instance, of those very workers, to the laws of the bourgeois state, to the orders and decrees of its organs, to the sentences of its courts, and so on. Thus there arises, besides direct, unmediated class rule, indirect, reflected rule in the shape of official state power as a distinct authority, detached from society.

Evgeny B. Pashukanis, Law & Marxism: A General Theory (1924)