Bill Bowring

Chapter 4 in Law, Rights and Ideology in Russia: Landmarks in the Destiny of a Great Power (Routledge, 2013)

This chapter explores the brief flowering of a specifically Marxist understanding of law during the first decades of the Soviet Union, through the history of its most original exponent, Yevgeniy Pashukanis. Chris Arthur has described Pashukanis’ “important contribution to the materialist critique of legal forms” as “to this day the most significant Marxist work on the subject”.[4] I do not disagree.

However, a recently published textbook on The history of legal thought in Russia[5], has no section on Pashukanis as such, although it has a very short section (1 ½ pages) on G. V. Plekhanov (the ‘father of Russian Marxism’, 1857-1918)[6], as an example of “Russian radicalism of the XIX century”.  Its author, Professor Mikhail Antonov, introduces Pashukanis in the context of the contest in Russia between the Slavanophiles and Westernisers, and then in their respective intellectual traditions, the conservatives (whose head was Konstantin Pobedonostsev) and liberals (led by Boris Chichern).[7] According to Antonov, there was considerable continuity in legal theoretical debate following the 1917 revolution. The first ideologists of the new legal system, Yevgeniy Pashukanis and Mikhaik Reisner, continued the tradition of pre-revolutionary liberal legal discourse. The Slavophile, conservative tradition found its continuation in the Eurasianism developed by the White emigration (see Chapter One). Thus Chapter 14, the final chapter, of Antonov’s textbook is entitled “Alternatives to Russian authoritarianism: Eurasianism and Bolshevism”.[8]

Eurasianism started with the thought of Ivan Ilyin (1883-1954), whose neo-idealism crystallised in his conceptions of the state as “organised spiritual solidarity”, and law as “the foundation for reciprocal spiritual recognition of the order (in the sense of “law and order”) of human relations.”[9] Thus law for Ilyin has nothing to do with a contract, but is first and foremost a feeling of spiritual rightness, of justice. Ilyin is enormously popular in Russian law schools today, and he is cited by Putin amongst others.

Antonov prefers the word “Bolshevism” to “Marxism” since the latter is interpreted in various ways. In his view, Lenin’s weakness was his inability to find a scientific foundation for his position. The theory of law in the first years after 1917 were based on the ideas of the psychological school of law, finding support in Marx’ conception of class consciousness. Then in the 1930s, in Antonov’s view, statist positivism dominated.[10] Up to then, there was a wide variety of points of view, from the psychological (L. I. Petrazhitskiy), to Marxism as “god-seeking” (the Peoples’ Commissar for Enlightenment A. V. Lunacharskiy).[11] Pashukanis makes his appearance three pages before the end of the textbook, but as an example of “the most interesting and constructive attempt at an economic analysis of law from the position of Marxism”[12]. Pashukanis apparently held the view that “law is always connected with economic relations and is unthinkable absent these relations.” Public law as such did not exist.[13]

In this Chapter, I suggest that there is rather more of interest and substance in Pashukanis’ own work; and that the turbulent history of the ideological struggles over law in the early years of Soviet power are a further example of the close intermingling of law and ideology in Russia.

The life and times of Yevgeniy Pashukanis

Pashukanis’ career was as follows.[14] Yevgeniy Bronislavovich Pashukanis was born on 23 February 1891 in the town of Staritsa in Tver Guberniya (north of Moscow), in a family with revolutionary traditions. His mother, Sofiya Pavlovna, was a member of the Russian Social Democratic Workers Party (RSDRP) from 1903. His father, Bronislav Frantsevich, worked as a medical doctor. In 1906 the Pashukanis family moved to Peterburg, and there Yevgeniy spent much time with his uncle, the Bolshevik M. P. Lyadov, a Bolshevik from 1903, a leader of the December armed uprising in Moscow, and in the 1920s Rector of the Sverdlov Communist University.

In October 1917 Pashukanis worked actively in the Sushchevsko-Mariynskiy Military Revolutionary Committee in Moscow, and was later elected a member of the Cassation (Appeal) Tribunal attached to the All-Russian Central Executive Committee (VTsIK)[15], acting as a revolutionary judge.[16] Having been up to then a Menshevik-Internationalist[17], he joined the Russian Communist Party (Bolshevik) – RKP(B) – in 1918.

Pashukanis in Berlin – the writing of the General Theory

From 1920 to 1923 Pashukanis worked in the Peoples’ Commissariat for Foreign Affairs as the deputy head of the Economic Law Department, and then as an adviser in the Soviet Embassy in Berlin, where he took part in the preparation of the Rappalo Treaty with Germany. This was the agreement signed at the Hotel Imperiale in the Italian town of 60 on 16 April 1922 between Germany and Soviet Russia, under which each renounced all territorial and financial claims against the other following the Treaty of Brest-Litovsk. This treaty enabled the young Soviet state to break the blockade of the capitalist states, and to enter into full diplomatic relations with Germany.

Pashukanis prepared his General Theory in 1920-21 while in Berlin, as he later related.[18] This explains the large number of German authors cited; and the fact that Pashukanis’ text was in essence a response to “the extreme formalism of the normative school” of Hans Kelsen.[19]

In 1922, Pashukanis entered the Institute of Law in the Communist Academy.[20] The Institute’s Director was A. D. Goikhbarg. Pashukanis worked closely with the Latvian-born legal theorist Piotr I. Stuchka, his senior by 25 years – Pashukanis was 33 years old in 1917, Stuchka was 52. Stuchka lived from 1865 to 1932, when, unusually for those times, he died of natural causes; he was Chairman of the Supreme Court of the RSFSR from 1923[21].

The Academy existed from 1918 to 1936, and began life as the Socialist Academy of Social Sciences by way of a decree of 25 June 1918 of the VTsIK (All-Union Executive Committee) of the Russian Socialist Federation of Soviet Republics (RSFSR)[22] and opened on 1 October 1918. On 15 April 1919 it was renamed the Socialist Academy, and on 17 April 1924, the Communist Academy.

In 1922, Stuchka wrote the following about his first meetings with Pashukanis:

As for Comrade Pashukanis, in the legal field, we met for the first time in Moscow at a conference on the legal program of Sverdlov Communist University, and later at my lecture at the Communist Academy. Finding that our views coincided on basic questions, I invited Comrade Pashukanis to joint work on the theory of law at the Communist Academy, and he agreed. Even then I was aware of one disagreement between us: this was his underestimation of the role of the state for law, which later turned out not to be accidental. For me, in my very first work, the state played a central role for law.[23]

Pashukanis and the New Economic Policy

Pashukanis’ intellectual flourishing took place in the period of the New Economic Policy (NEP), which was Lenin’s response to the devastation caused by the civil war, from 1918 to 1921, and the interventions of Japan, Britain and the United States. According to Siegelbaum, in 1917 there were 3.5 million workers in factories employing more than 16 workers. In 1918 there were 2 million and just 1.5 million in 1921. In 1917 Petrograd had a population of 2.5 million, and only 722,000 in 1920, its population in 1870. Moscow’s population fell from 2 million to just over 1 million. The Moscow death rate rose from 23.7 per thousand to 45.4 per thousand from 1917 to 1919, the result of waves of epidemics.[24] By 1920, the area of cultivated land in Russia was 25% less than in 1913. Many died of starvation.

In these dire circumstances, on 15 March 1921 at the 10^th Congress of the Russian Communist Party (Bolsheviks)[25], Lenin launched a programme of material incentives to peasants, cooperatives and private manufacturers. In November 1922 Lenin proposed a notion of ‘state capitalism’ in which capitalist production and exchange would be permitted subject to the supervision of the Soviet state.[26] Very quickly small-scale production and retailing became dominated by capitalists, “NEP-men”, and sophisticated legal regulation of their activities and of their disputes was required. In 1922 and 1923 the RSFSR enacted a full set of legal codes: Judiciary Code, Civil and Civil Procedural Codes, Criminal and Criminal Procedural Codes, a Land Code and a Labour Code, primarily on German models. Lenin’s death in January 1924 did not mean the end of the NEP; but Stalin, increasingly powerful, began the process of systematic destruction of any opposition, and ordered sharp turns to “socialism in one country” in late 1924, and, from 1927 onwards ostensibly ‘left’ policies of elimination of the market, industrialisation, and forced collectivisation of agriculture.

This was the context of Pashukanis’ rise to theoretical prominence. 

Pashukanis’ early writings

The Selected Works of Pashukanis published in 1980[27] has a Bibliography[28] of the Fundamental Works of Pashukanis; but one work is missing. Pashukanis’ first published article appeared in 1921, and was entitled “Burzhuazniy yurist o prirode gosudarstvo (A bourgeois jurist on the nature of the state)”.[29] He wrote the article while working in the Soviet representation in Berlin. It appeared in the literary journal Krasnaya Nov (Red Virgin Soil), which was the first Soviet literary “thick” journal, published between 1921 and 1941. From 1921 to 1927 it was edited by Aleksandr Voronkov (1884-1937), who was close to Trotsky, agreed with Trotsky’s 1923 Literature and Revolution, did much to encourage new literary talent, and in 1937 was executed for Trotskyism.

The subject of the article was the University of Toulouse professor Maurice Hauriou (1856-1929)[30], whose textbook on Principles of Public Law was published in 1910. Pashukanis did not refer in his 4,000 word article to any other literature. This contrasts strongly with the General Theory, which has many references, including several to German authors. He referred to Marx, but without indicating his source. Most of the article consisted of often sarcastic references to Hauriou’s positivist doctrine. Pashukanis’ concluding paragraph was as follows.[31]

In one of his speeches Cde Lenin remarked that sincere defenders of capitalism may now be found only among our SRs (Social Revolutionaries) and Mensheviks. In the West they have become extinct. We can see the cause of this. Russia underwent an accelerated course of capitalism and therefore our intelligentsia may bona fide come out in defence of the sublime beginning of democracy and freedom, without sensing that it has been crucified by capitalism. But in order to be a sincere defender of capitalism in the West, where social relations have been able to mature and over-mature, one must sincerely, like Hauriou, assert that the principles of freedom, democracy, individual rights and so on, conceal behind themselves quite simply faire valoir de la propriété![32] And such courage is not given to everyone.

In 1923 he published two articles in the Bulletin of the Socialist Academy, “A survey of the literature on the general theory of law”[33], and “Kunov, as an interpreter of the Marxist theory of society and state”.[34]

In 1924 Pashukanis published his classic A General Theory of Law and Marxism[35], which brought him to prominence and the start of a spectacular career. A further publication in 1924 was “Ruhr and reparations: the observations of a diplomat, notes from January to September 1923”.[36] From 1925 to 1927 the Communist Academy began the work of publishing a three volume Encyclopedia of State and Law.  Its authors were Pashukanis, P. I. Stuchka and V. V. Adoratskiy (see below). This was the first Marxist encyclopedia of law, and played a significant role in the development of Soviet legal scholarship.  In 1927 Pashukanis became one of the editors of the newly published journal Revolution of Law, a full member (deistvitelniy chlen) of the Communist Academy, and within a few years a member of its Presidium and then its Vice-President. He also joined the editorial board of Soviet Law, as well as the Bulletin of the Communist Academy, and World Economy and World Politics, and later became the editor of the journal Soviet State and Revolution of Law which was in 1932 renamed Soviet State. In June 1928 Pashukanis took part in the “Week of Russian Historians” in Berlin and presented a paper on “Cromwell’s Soldier Soviets”. In 1929 at another conference in Berlin Pashukanis presented a paper on “Emergency Legislation in Capitalist Countries”. In 1935 at the VI International Conference on Unification of Criminal Law in Copenhagen, Pashukanis presented a paper on “The Struggle Against Terrorism”.

The triumph of Pashukanis

From 1927 to 1936, Pashukanis was the leading theorist of law in the USSR, recognised as such by Stuchka, who wrote in 1924 shortly after its publication that the General Theory was “to the highest degree a valuable contribution to our Marxist theoretical literature on law and directly supplements my work, which provides only an incomplete and greatly inadequate general doctrine of law.”[37]

In 1931, following a dramatic recantation of his previous views, Pashukanis became the Director of the Institute of Soviet Construction and Law of the Communist Academy. He was effectively the USSR’s director of legal research and legal education. The American scholar John Hazard (1909-1955)[38], who studied under Pashukanis from 1934 to 1937, summarised his effect on legal education, as follows:[39]

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

His influence was so marked that the courses in civil law in the law school were abolished, and to replace them there appeared a course called economic-administrative law, concerning itself with regulation of the relations between state enterprises.[40]

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

Hazard also wrote that the situation in the Institute where: “… [Pashukanis] projected a theory said to be infallible, and where those who strayed from Pashukanis’ line were castigated like Korovin[41] 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”[42]

On 16 November 1936 Pashukanis reached the high point of his career: the Presidium of the Central Executive Committee of the USSR appointed him Deputy Peoples Commissar for Justice of the USSR. In the same year he was deputy chairman of the Drafting Committee for the 1936 “Stalin Constitution”[43], and the Institute of State and Law proposed him as a candidate for membership of the Academy of Science of the USSR. Also in 1936 he became the chairman of the Academic Council attached to the Peoples Commissariat of Justice of the USSR.

Pashukanis was a staunch loyalist in relation to the regime – in my opinion, by conviction rather than any sort of pressure. Thus, by 1932, Pashukanis, by then editor in chief of the official law journal Soviet State, was able to write a “hallelujah” in response to Stalin’s letter “Some questions on the history of Bolshevism”.[44] Pashukanis’ major work on international law, Essays in International Law, appeared in 1935[45].

Most copies of the Essays were destroyed after he was denounced in 1937, but in this culminating work he declared that any attempt to define the “nature of international law” was scholastic.[46] In his view, such attempts were the result of the continuing influence of bourgeois legal methodology, which, he said, rested on the association of law with substance developing in accordance with its own internal principles. For him, in 1935, international law was a means of formulating and strengthening in custom and treaties various political and economic relationships between states; the USSR could use international law to further Soviet interests in the struggle with capitalist states. He saw no reason to believe that in using these principles of international law for its own purposes the USSR was compromising its principles, in a world in which most states were capitalist. For Pashukanis there was no point in seeking to determine whether international law was “bourgeois” or “socialist”; such a discussion would be “scholastic”.[47]

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

The legal journals of the 1920s

At this point I clarify the intellectual context into which Pashukanis exploded in 1924. In 1999 T. F. Yashuk published an important survey of law journals of the 1920s.[48] He analysed the work of three journals, Pravo i zhizn (Law and Life), Sovetskoye pravo (Soviet Law), and Revolyutsiya pravo (Revolution of Law). There were many other journals, central and regional, including bulletins of the work of the courts, administrative law and so on. Yashuk chose these three journals for their particular significance. He pointed out that the political situation of the early 1920s permitted a pluralism of scholarly publication, in which neither a precise class evaluation was required, nor a formal recognition of Marxist method.

In these conditions of relative intellectual freedom a privately published law journal, Law and Life, was published from 1922 to 1927, edited by the well-known professors A. M. Vinaver, M. N. Gernet and A. N. Trainin. The journal tackled issues of law and economic construction. So far as I know Pashukanis was not involved in this journal.

Also in 1922, the Institute of Soviet Law, part of the Socialist (later Communist) Academy, began publication of Soviet Law. Like all the work of the Institute it was produced under the general editorship of the Institute’s Director, A. G. Goikhbarg (1883-1962), who drafted the 1922 Civil Code of the RSFSR, on the specific instruction of Lenin, who considered that sucha code, based on the German model, was an essential component of the New Economic Policy.[49] The Institute of Soviet Law was the first Soviet scholarly institution, created to bring together Marxist lawyers. The journal did not have an editorial board or regular contributors, but between 1922 and 1925 its most active authors were D. I. Kurskiy, P. I. Stuchka, D. A. Magerovskiy, A. I. Yelistratov, M. M. Isaev, and P. I. Lyubinskiy. In 1928 its collaborators changed, and I. S. Voitinskiy, D. A. Magerovskiy, N. N. Ovsyannikov, S. I. Raevich and E. G. Shirvind became its regular contributors. The journal continued publication until 1929, when it was re-named Zapiski instituta sovetskovo prava (Bulletin of the Institute of Soviet Law). It can be seen that Pashukanis was not one of the journal’s authors. In 1922 in his introductory article for Soviet Law, “The immediate tasks of Soviet law”, the People’s Commissar of Justice D.I. Kurskiy asserted that the journal must attract scholars for the study of law from a Marxist position, so as to build a system of Soviet Law[50]. As will be seen, Pashukanis strongly believed that there could be no such thing as Soviet law.

In 1925 the Section of Law and State of the Communist Academy began publication of the provocatively entitled Revolution of Law. The publication of Soviet Law and Revolution of Law represented an important step in the consolidation of lawyers who took a Marxist position, and also reflected the substantial shift in legal scholarship, as well as exposing significant differences. These were highlighted by the introductory article, “Nashi Zadachi (Our tasks)” of Revolution of Law[51] evaluated the situation of legal scholarship quite differently from Soviet Law. The editorial board, comprising P. I. Stuchka, V. V. Adoratskiy, G. S. Gurvich, Ye. B. Pashukanis, I. P Razumovskiy, and A. Ya. Estrin, identified themselves as the Communist wing of lawyers and their articles “were not only theoretical weapons, but were intended for organisational intervention.”[52] This required taking the line of a “materialist, class, revolutionary dialectical approach to questions of the state and law.”[53] Such an approach was mandatory for contributors to the journal.

All three of the journals noted shared a common structure, and were composed of three sections. The first contained significant scholarly articles. The second reflected on experience of implementing law. Soviet Law entitled this section “Soviet legal construction”, while in Law and Life it was entitled “Questions of contemporary legislation” or “Legal chronicle”. The third section contained bibliographic surveys, abstracts of monographs, information on scholarly life. In the first years of Soviet Law most of the articles continued the pre-revolutionary tradition of the posing of questions, argumentation and analysis. An example was Goikhbarg’s 1924 “Some reflections on law”.

Revolution of Law published programmatic articles, for example in No.2 of 1927 Stuchka’s “State and law in the period of socialist construction”, in No.3 Pashukanis’ article “The Marxist theory of law and the construction of socialism”, and in No.4 the simultaneous publication of Stuchka’s “Three stages of Soviet Law” and Pashukanis’ “Ten years of Lenin’s ‘State and Revolution’”. According to Yashuk’s analysis, by the middle of the 1920s there were clear disagreements between Pashukanis, Stuchka and Goikhbarg. Goikhbarg, who edited Soviet Law, set its general line: the interpretation of law as a form of ideology, calling for opposition to law by analogy with anti-religious propaganda, with a sceptical attitude to the very concept of “law”, which should be replaced.[54]

In the second half of the 1920s Pashukanis and Stuchka became the official interpreters of the Marxist understanding of law, their views found wide support amongst lawyers, and they became the most cited scholars. There were still polemics in the journals, but these were less principled scholarly differences, and more the result of competition for scholarly supremacy. Often Stuchka and Pashukanis exaggerated each other’s positions. For example, Stuchka alleged that Pashukanis’ disagreement on the relation of state and law, and since there could be no law without the state, undermined the class character of any law, etc.[55]

At the end of the 1920s the content of the journals changed fundamentally, reflecting the evolution of the political regime.  Scholarly references were, according to Yashuk, replaced by references to Party decisions. In 1930 Revolution of Law changed its name to Soviet State and Revolution of Law, in 1931 Pashukanis became its Editor, in 1932 it changed its name to Soviet State, remaining under Pashukanis as editor until 1937, and in 1939 changed again to Soviet State and Law. It became to State and Law in 1992,and remains the journal of the Institute of State and Law of the Academy of Science of the Russian Federation, recently celebrating 85 years of publication.[56]

Pashukanis’ 1924 General Theory

There is in fact a connection between Pashukanis’ sole publication before the General Theory, his 1921 article, and the 1924 General Theory itself, although Pashukanis did not refer directly to his earlier work. In fact, Maurice Hauriou appears three times[57] in the General Theory, but this time with approbation – as “one of the most astute bourgeois theorists”[58] and “an astute jurist like Hauriou”.[59] And there are many references to the German legal scholars whom Pashukanis read for his doctoral dissertation in Munich and during his time in Berlin.

However, Pashukanis’ paramount reason for writing this book was not to renew or explain his relationship with Hauriou, but to identify “…law in its general definition, law as a form…”.[60].  That is, to tackle the question of the nature of law as a materially grounded abstraction. In the next part of this section I follow a clear thread right through the General Theory.

For Pashukanis, there had been two epochs when “…the general concepts of law reached their highest point of development: Rome, with its system of private law, and the seventeenth and eighteenth centuries in Europe…”. But only bourgeois society was destined to embody “the universal significance of the legal form.”[61] He posed his question in the following way, with italics: “Can law be conceived of as a social relation in the same sense in which Marx called capital a social relation?”.[62] Pashukanis insisted that only under capitalism does legal form appear: “… the possibility of taking up a legal standpoint is linked with the fact that, under commodity production, the most diverse relations approximate the prototype of commercial relation and hence assume legal form.”[63] Indeed, he asserted that “…the commodity form produces the legal form…”[64] In a further passage, Pashukanis left no room for doubt: “… we see how the economic relation in its actual workings is the source of the legal relation, which comes into being only at the moment of dispute. It is dispute, conflict of interest, which creates the legal form, the legal superstructure.”[65] Furthermore, “It is readily evident that the logic of juridical concepts corresponds to the logic of the social relations of a commodity-producing society.”[66]

The legal form was to be found only in private, civil law, while public, constitutional law, was full of confusion.

“Yet while civil law, which is concerned with the fundamental, primary level of law, makes use of the concept of subjective rights with complete assurance, application of this concept in public-law theory creates misunderstandings and contradictions at every step. For this reason, the system of civil law is distinguished by its simplicity, clarity and perfection, while theories of constitutional law teem with far-fetched constructs which are so one-sided as to become grotesque. The form of law with its aspect of subjective right is born in a society of isolated bearers of private egotistic interests…”[67]

Pashukanis was clear that “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. From the very first I had a clear idea of the goal…My aim was this: to present a sociological interpretation of the legal form and of the specific categories which express it.”[68]

And a few pages later: “I merely maintain that property becomes the basis of the legal form only when it becomes something which can be freely disposed of in the market.”[69] That is, under capitalism. This point is rammed home still further into the text: “Only in commodity production does the abstract legal form see the light: in other words, only there does the general capacity to possess a right become distinguished from concrete legal claims.”[70] And “Only when bourgeois relations are fully developed does law become abstract in character… At the same time, the norm takes on the logically perfected form of abstract universal law.”[71]

Pashukanis was quite conscious of writing in the context of the NEP. Commenting on Karl Marx’ comments in the Critique of the Gotha Programme on the “narrow horizon of bourgeois right” by which, for a time, social relations will continue to be constrained in the transition period to socialism. Pashukanis argued that “Marx presupposes a social order in which the means of production are socially owned and in which the producers do not exchange their products. Consequently, he assumes a higher stage of development than the ‘new economic policy’ which we are presently experiencing.”[72] And, many pages later, Marx’ “horizon” is once again to be seen:  “Hence, in our transition period, the legal form as such does not contain within itself those unlimited possibilities which lay before it at the birth of bourgeois capitalist society. On the contrary, the legal form only encompasses us within its narrow horizon for the time being.”[73]

Thus, Pashukanis risked becoming very repetitive indeed, but he made his point with absolute clarity. In his view, there was no law as such until capitalism, and law as such, the legal form, can be found only in private law. Introduced into “public law”, the law of the constitution, it is the source of endless confusion. More importantly, if the legal form is necessarily to be found only in capitalism, then as a matter of logic there can be no such thing as “Soviet law”. Once capitalism has gone, law, like morality, will evaporate.

However, the question is posed straight away: can the form of law to be found in commodity exchange really serve the same role as the commodity, with its dual nature of use value and exchange value, played for Marx in Capital? That is to place law at the same level as the capitalist economy.

Criticisms of the General Theory

The 1983 English edition of the General Theory ends with the 1930 evaluation of the General Theory by the German Marxist Karl Korsch. Korsch accused Pashukanis of “… deviating decisively, as he does in countless other instances which permeate his book as a homogenous thread, from the Marxist idea which regards the economic relation as the fundamental one, with the legal relation on the contrary, like the political relation, as derived from it.”[74]

From the standpoint of Marxist orthodoxy, Korsch was certainly right. And Pashukanis himself very soon abandoned his somewhat exotic stance.

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

It is clear that much which was written in the first years of NEP deserves criticism and suffers from obvious anachronisms and now and then simply mistakes… But the question is not only that of particular formulations. The question concerns some defects of a general character. This was the overestimation of the role and significance of market relations which was without doubt characteristic of my first work. It is impermissible to hide from view the fact that this book was written at a time when the collective of Marxist legal scholars had not come together. It was written when I was alone, and it could not be exposed to the process of critical re-working. It was written finally, before the publication of Lenin’s notebooks on dialectics and on the works of Marx which were published in the “Archive”. It appeared before the discussions with the “mechanists”, before the discussions in the fields of political economy, literature etc. Therefore it was completely natural, that the book, which was written in 1923, and prepared still earlier in 1920-1921, displays defects, when we look at it from our higher present day theoretical and methodological point of view.[75]

Bob Fine has criticised Pashukanis, pointing out that, “Whereas Marx derived law from relations of commodity production, Pashukanis derived it from commodity exchange.”[76] This, according to Fine, leads Pashukanis to a conclusion that was plainly wrong:

“Instead of seeing both the content and the forms of law as determined by and changing with the development of productive relations, Pashukanis isolated law from its content and reduced quite different forms of law, expressing quantitatively different social relations, to a single, static and illusory ‘legal form’.”[77]

And any ‘legal form’ must be bourgeois. As Fine explained, this led Pashukanis in 1924 to argue that the Soviet Union of the NEP was not yet ready for the abolition of law, and that, since law is in any event bourgeois, there can be no such thing as proletarian law. More to the point, Pashukanis was obliged by the logic of his own position to see the transition from capitalism to socialism simply as the replacement of commodity exchange by planned production, that is, the replacement of bourgeois (legal) forms by socialist (technical forms).[78] Thus, as Fine points out, in 1929 he accepted Stalin’s view that communism was being achieved through the first Five-Year Plan.[79]

Pashukanis and Revolution of Law: “Lenin on questions of law” – and self-determination

As noted above, the first issues of Revolution of Law appeared in 1925, with the sub-heading Sbornik, Anthology.[80]

Pashukanis’ article, “Lenin and Questions of Law”, has been translated into English.[81] Pashukanis did not refer to his General Theory, nor did he discuss the “legal form” at all, and certainly not in the sense which he so insistently explained in the General Theory. The style and tone of the article are quite different from the General Theory, published so recently. It is as if the article had been written by a different person altogether.

In the first sentence of Section IV of the article, Pashukanis declared: “Marxist theory relegates legal forms to a secondary and even tertiary place in social development.”, and the next paragraph started “However, the correct Marxist analysis of the legal form as a superstructure dependent upon the base may, in certain circumstances, be turned into a caricature of Marxism, into a lifeless and determinist view. Here, the superstructure emerges “by itself” upon a given base, and form appears “by itself” at a certain level of development of the given material content. Increasing emphasis upon the regularity of social development is imperceptibly transformed into the assertion of a certain social automatism, or, as expressed in our militant political jargon, into “tailism”.” This is a different world from the General Theory.

Counterposing Lenin and Goikhbarg on the question of private property, Pashukanis presented Lenin’s position as follows:

It is sufficient to observe in several specific cases the role that Lenin attributed to the legal form. He always did this by taking full account of the concrete historical situation, the relationship between the forces of the struggling classes etc. to realize that both the fetishism of the legal form and its complete opposite the failure to grasp the real significance that one or another legal form may have at a given stage were equally foreign to Vladimir Ilich.

Pashukanis presented a completely different view than that presented in the General Theory, as his and Lenin’s:

The revolutionary nature of Leninist tactics never degenerated into the fetishist denial of legality; this was never a revolutionary phrase. On the contrary, at given historical stages, he firmly appealed to use those “legal opportunities” which the enemy, who was merely broken but not fully defeated, was forced to provide. Lenin knew not only how mercilessly to expose tsarist, bourgeois etc. legality, but also how to use it, where it was necessary and when it was necessary.

And Pashukanis gave an example from Lenin’s brief period of practice as an advocate in the city of Samara, after he graduated from the Law Faculty of Kazan University.

The attack on Goikhbarg was followed by a sharp attack on Trotsky.[82] Pashukanis, referring back to Lenin’s 1904 One Step Forward, Two Steps Back, accused Trotsky, citing Lenin, of “opportunism” and “a complete absence of a dialectical approach”[83], continuing not only until 1914, but, by strong implication, into the present.

In Section V of the article, Pashukanis turned his attention to the issue of “the right to self-determination”. In his review[84] of my 2008 book[85], Robert Knox rightly reproached me for failing to refer to Pashukanis’ 1925 article. Knox wrote: “This is the main text in which Pashukanis attempts to outline a specifically Marxist approach to legal strategy. For this reason I have always found it rather odd that it is never mentioned in the contemporary debates.” In his Law and Disorder review, Knox concurred with Pashukanis’ account that, for Lenin, the demand for the right of nations to self-determination was an ‘“abstract”, “negative” demand of formal equal rights’, and that, in the context of Russian absolutism, this abstract formal equality of right was a revolutionary demand. Knox then turned to Pashukanis’s argument ‘that this right though is ultimately limited precisely because it remains within a legal, and therefore capitalist framework, therefore in a new concrete conjuncture’:

This was a new stage, a new situation, a new and higher level of struggle. And new priorities corresponded to it. The bourgeois-democratic stage had passed, and with it the formal legal demand for national self-determination – characteristic of this stage – lost its former significance. The slogan ‘overthrow the rule of the bourgeoisie on a world scale and set up the international dictatorship of the proletariat’ became the immediate practical slogan. Does this mean that national self-determination lost all significance; that it could be replaced with the ‘self-determination of the proletariat’? Certainly not. This would have been to ignore the presence of backward countries which had not passed through the stage of bourgeois-democratic national revolutions. The communist proletariat of advanced countries had to support these movements; with all its strength it had to struggle so that the accumulation of centuries of ill will and the distrust by backward people of the dominant nations – and of the proletariat of these nations – was overcome as quickly as possible. It was impossible to achieve this goal without proclaiming and conducting in practice the right of national self-determination. Moreover, even for a socialist society moving towards the elimination of classes the question of national self-determination still remains a real one, since  although based on economics, socialism by no means consists solely of economics.[86]

A few pages earlier, Pashukanis reported that Lenin’s opponents – especially Rosa Luxemburg – had argued against the ‘right to self-determination’ ‘under the pretext that “in essence” no “self-determination” could exist under capitalism, and that under socialism it was not necessary.’[87] Lenin’s position as stated in 1916, correctly reported by Pashukanis, was that ‘[t]he dispute is related to one of the forms of political oppression, namely, the forceful domination of one nation by the state of another nation. This is simply an attempt to avoid political questions.’[88] But Pashukanis went on to assert that no one apart from him (Pashukanis) had noted that Luxemburg’s position amounted to a “complete rejection of the legal form and the complete lack of understanding of its specific features”.[89]

Pashukanis then cited a longer passage from Lenin’s 1914 major work on The Right of Nations to Self-Determination.[90]

By the way, it is not difficult to see why, from a Social-Democratic point of view, the right to ‘self-determination’ means neither federation nor autonomy (although, speaking in the abstract, both come under the category of ‘self-determination’). The right to federation is simply meaningless, since federation implies a bilateral contract. It goes without saying that Marxists cannot include the defence of federalism in general in their programme. As far as autonomy is concerned, Marxists defend, not the ‘right’ to autonomy, but autonomy itself, as a general universal principle of a democratic state with a mixed national composition, and a great variety of geographical and other conditions. Consequently, the recognition of the ‘right of nations to autonomy’ is as absurd as that of the ‘right of nations to federation’.

It appears to me that Pashukanis took this passage completely out of context. It is actually one of Lenin’s footnotes to Chapter 8 of the work in question, ‘The Utopian Karl Marx and the Practical Rosa Luxemburg’. Lenin was attacking Luxemburg’s position that to call for Polish independence is ‘utopia’. She asked, ironically as she thought: why not raise the same demand for Ireland? This led Lenin straight to Marx’s highly principled stand on Ireland. At first, prior to the 1860s, Marx had thought that Ireland ‘would not be liberated by the national movement of the oppressed nation, but by the working-class movement of the oppressor nation.’ Lenin pointed out:

However, it so happened that the English working class fell under the influence of the liberals for a fairly long time, became an appendage to the liberals, and by adopting a liberal-labour policy left itself leaderless. The bourgeois liberation movement in Ireland grew stronger and assumed revolutionary forms. Marx reconsidered his view and corrected it.

Lenin cited the following passage. In his letter to Engels on 2 November 1867, Marx wrote:

The Fenian trial in Manchester was exactly as was to be expected. You will have seen what a scandal ‘our people’ have caused in the Reform League. I sought by every means at my disposal to incite the English workers to demonstrate in favour of Fenianism. . . . I once believed the separation of Ireland from England to be impossible. I now regard it as inevitable, although Federation may follow upon separation.[91]

The trial in question was that of the ‘Manchester martyrs’ – William Philip Allen, Michael Larkin, and Michael O’Brien – who were members of the Irish Republican Brotherhood. The men were executed after having been found guilty of the murder of a police-officer during an escape that took place close to Manchester city-centre in 1867.[92]

Once Pashukanis’s quotation is placed in context, it is plain that Pashukanis had, deliberately or otherwise, misunderstood both Lenin and Marx. The issue at stake between Lenin and Luxemburg was, as I point out in my book, whether the component-parts of the Russian Empire should have the right to self-determination and to break away to form new sovereign nations. Luxemburg was convinced that the Empire should be preserved, and was as opposed to Polish liberation as she was to Irish liberation.

Lenin on the other hand remained unconditionally committed to the right of nations to self-determination until his death, especially within the former Tsarist Empire. His “last struggle” with Stalin concerned independence for (Menshevik) Georgia – Lenin was for, Stalin against.

Pashukanis and international law

Earlier in 1925 in the Bulletin of the Communist Academy, Pashukanis published two articles “The bourgeois state and the problem of sovereignty”[93], and “Survey of the fundamental directions in the French literature of state law”.[94] He also contributed in 1925 and 1926 several entries to the Encyclopedia of State and Law, including “Leon Duguit”[95], “International Law”[96] and in 1927 “The Object of Law”.[97]

The entry on International Law was included in full as an Appendix in China Miéville’s Between Equal Rights, which is probably the most notable contemporary rehabilitation of Pashukanis.[98] However, Miéville noticed that in contrast to the General Theory, Pashukanis seemed “to accept the existence of antique international law, and to deny its historical particularity.”[99] That is, it would appear that there is no law as such until capitalism, and only private law; but there has been international law throughout recorded history. Pashukanis rejected the positivist arguments of Austin and others that without a sovereign there can be no international law. Even for the young USSR there could be international law:

The formalization of our relationship with bourgeois states, by way of treaties, is part of our foreign policy, and is its continuation in a special form. A treaty obligation is nothing other than a special form of the concretization of economic and political relationships. But once the appropriate degree of concretization is reached, it may then be taken into consideration and, within certain limits, studied as a special subject. The reality of this object is no less than the reality of any constitution – both may be overturned by the intrusion of a revolutionary squall.[100]

Pashukanis, unlike later Soviet jurists, did not oppose the existence of customary international law as a source of international law, which, he said, was “…the totality of norms regulating the relationships between states.”[101] He continued: “To the extent that states have no external authority above them which could establish their norms of conduct, then in the technical legal sense the sources of international law are custom and treaty.”[102]

This was noted in 1970 by G. I. Tunkin, the leading international legal scholar of the late Soviet period, who gave these passages of Pashukanis as evidence that Soviet international law had not rejected general (customary) international law.[103] Tunkin pointed out that when Pashukanis in 1935 stated that with the help of international law the bourgeois states “divide the loot”[104], this was the “old”, pre WWII international law.[105] Pashukanis, as an international legal practitioner, an author of the Rappalo Treaty, was comfortable with orthodox conceptions of international law.

The debate between Stuchka and Pashukanis in Revolution of Law

The second issue of Revolution of Law did not appear until 1927, and Pashukanis did not publish in it, save for a book review.[106]

Stuchka’s article has been translated into English.[107] Its focus was the result of the 14^th and 15^th Party Conferences, namely the principle of the construction of socialism in one country.[108] This led him straight to profound disagreements with Pashukanis, whom he accused of an incorrect evaluation of the process of the withering away of the state. Pashukanis, for Stuchka, had depicted this as “…a direct transition from bourgeois law to non-law.”[109] Turning to the Civil Code, Stuchka noted the fact that it was basically a reprint of bourgeois law, but

The fact that the relations of the Civil Code are protected by the class state and the class court of the proletariat already gives this code a Soviet character, not in words, but in fact: quantity is transformed into quality.

Pashukanis replied to Stuchka in the third issue of Revolution of Law in 1927.[110]

Pashukanis article has also been translated into English.[111] He answered Stuchka as follows:

Of course, I did not view the process of the withering away of law as a “direct transition from bourgeois law to non-law.” If one could get such an impression, then this was because I directed my main attention to commenting on the well-known place in Marx’s Critique of the Gotha programme”, which refers to the “narrow horizon of bourgeois law”… The class functionality of [bourgeois law] and not only of this, but also of our current Soviet law… is fundamentally different from genuine bourgeois law. [112]

Indeed, Pashukanis wrote that Stuchka’s work on “the law of the transitional period, or Soviet law” is “among his outstanding contributions to the theory of law”… I repeat that the great service of Comrade Stuchka is his continuous emphasis upon the particular nature of Soviet law which flows from its revolutionary origin…”[113]

It may clearly be seen that this was a very substantial shift from Pashukanis’ earlier position.

Issue 4 appeared in 1927.[114] Pashukanis’ article on “Economics and Legal Regulation” has also been translated into English.[115] For the most part it contained a close study of the English experience in regulation of the war-time economy in WWI; but in an extended footnote Pashukanis made a further retreat from the positions he advanced in the General Theory.[116]

Two more issues of Revolution of Law appeared, 1928 Mo.1, and 1929, No.1. The issue for 1928 included Pashukanis’ article “The dictatorship of the proletariat and the opposition”, which was a thoroughly engaged nine-page attack on Trotsky and “Trotskyism” (pp.5-14). The issue for 1929 contained “The latest discovery of Karl Kautsky” (pp.15-41).

The situation on the ideological theoretical front

Pashukanis’ next major article appeared in Issue 11-12 of Soviet State and Revolution of Law in 1930. The issue had impressive contents.[117]

The editorial, presumably by Pashukanis, was entitled “For an attack on the whole of the front”. This was a paraphrase of Stalin’s remarks at the XVI Party Congress, and the editorial started with the quotation from Stalin, that in contrast to previous stages, this was the period of an attack on the whole front, of strengthened construction of socialism in the field of industry and agriculture. In conditions of heightened class struggle, against an enemy within in the form of Trotskyism, the absence of open self-criticism was a grave threat. According to the editorial, the Institute of Soviet Construction and Law had sought to minimise the disagreements between Pashukanis and Stuchka, and had presented these disagreements in too abstract a manner. Both Stuchka and Pashukanis had made very grave errors, Pashukanis in particular in his General Theory.

Pashukanis’ article was entitled “The situation on the theoretical legal front.” This was a stenogramme of Pashukanis’ report to the widened meeting of the Bureau of the Institute of Soviet Construction and Law.[118]

On the first page Pashukanis cited Stalin at the XVI Congress to the effect that victory over capitalist elements in industry had been won comprehensively. Next was agriculture, collectivisation, and liquidation on that basis of kulaks as a class.[119] He insisted also on the need for a merciless fight against petty-bourgeois liberalism and against the Trotskyist denial of the possibility of building socialism in one country, leading to adventurism and to opportunism.[120] Turning to self-criticism, Pashukanis admitted that he had failed to see through Bukharin.[121] He turned to the criticism of the General Theory, and wrote that it was a shame that criticisms had not been directed to a more mature work.[122] He continued that he should have criticised this work much earlier; like many works written in the first years of the NEP it suffered from clear anachronisms and simple mistakes.  These included exaggerating the role and significance of market relations. He wrote it alone and did not have the benefit of criticism.  He started writing it in 1920 and 1921.[123] Among its general deficiencies was the far too abstract and one-sided approach to the problem of law.[124]

Pashukanis continued: “My fundamental mistake consisted in confusing the specific features of the bourgeois legal form with law as a whole; these are far from being one and the same.  This identification pushed me in the direction of an external, formal unification of quite different things.”[125] Stuchka followed with “The organisation of our work (Draft theses for a platform)”.[126] These had been prepared before Pashukanis’ report, and for technical reasons no changes had been made. As could be seen from the theses themselves, they had been prepared hastily, and were presented for the purpose of evaluation. They did not amount to the self-criticism required by the new Stalinist turn.

The process of self-criticism continued in the next issue of Soviet State and Revolution of Law.[127]  Stuchka published what amounted to an extended intellectual autobiography, “My Path and My Mistakes.”[128] In this essay he also recalled the whole of his collaboration, stating in 1922, with V.V.Adoratskiy (1878-1945)[129] and Pashukanis. While acknowledging the General Theory as “the most outstanding work of the period”, he added:

I nevertheless emphasised from the outset that Comrade Pashukanis’ conception encompasses only bourgeois law and, by declaring it to be law in general, he blurs the class nature of law i.e. he denies the existence of feudal law and now the law of the transition period, Soviet law, as well.[130]

In a footnote to this passage Stuchka was at pains to point out that he first used the term “proletarian law” in an article commissioned by the Central Committee of the Bolshevik Party in 1918, and reviewed by Lenin in flattering terms.[131] He insisted that when he was appointed, against his wishes, President of the Supreme Court of the RSFSR in 1923, he served for nine years and “did not ignore the class role… not for a minute, not for a single case.”[132] Indeed, he dismissed Pashukanis’ attacks on him as “malicious slander” and in effect sought to prove his own correctness on every issue in dispute, including a series of attacks by A.I. Angarov.

Pashukanis responded with a short “Necessitated Reply”.[133] The real work of attacking Stuchka was carried out in the following article[134], by a known hatchet-man, A. I. Angarov (Zykov) (1898-1937), known as an operative of the Central Committee in the field of culture and propaganda, arrested in 1937.[135] Pashukanis commented that Stuchka, rather than dealing with his own mistakes, had decided that the best form of defence is attack. He concluded: “If we reject the juridisation of the class struggle, reject turning law into a fetish, reject the attempt to see the whole policy of the proletariat through the prism of law, then this is very far from meaning that we demonstrate a dismissive attitude to law.”[136]

In any event, within the year, Stuchka was dead. And Pashukanis was just beginning a glorious career, abruptly halted six years later.

Annex 1

Revolyutsiya prava (Revolution of law) (1925) Sbornik (Anthology), 1, Communist Academy Section of Law and State; Press of the Communist Academy, Moscow

The contents were as follows.

Our Tasks: 3-4

I. Articles

N. N. Bukharin “Towards a theory of the imperialist state” 5-32; P.I Stuchka “Lenin and the revolutionary decree” 33-39; Ye. B. Pashukanis “Lenin and questions of law” 40-60; I.P. Razumovskiy “The rebirth of the philosophy of law in German legal literature” 61-86; G.S. Gurvich “With parliamentarians” 87-98; I.S. Voitinskiy “Methods of distributing labour power under capitalism” 99-118; S.I.Raevich “The experience of parliamentary law-creation in German social democracy”; P.I. Stuchka “The bourgeois revolution and civil legislation”

II. Critical Notes

P.I. Stuchka “Soviet law as the “Whites” see it”  140-147; P.I. Stuchka “The so-called Soviet law” 148-154; S.I. Raevich “Prof. M.M. Agarkov “One after another” 155-157;

III. Articles from “Encyclopedia of state and law”

A. Vyshinskiy “The Bar” 158-160; I.P.Razumovskiy “Aristotle” 161-163; N.N. Maksimovskiy “Bureaucracy” 164; E.B.Pashukanis “Intervention” 165-168; G.S.Gurvich “Popular representation” 169-171; N.N. Adoratskiy “Revolution” 172-174; P.I. Stuchka “Family law” 175

Annex 2

1927 Revolyutsiya Prava Zhurnal  2 (Revolution of Law Journal 2)

Articles

P. Stuchka “State and law in the period of socialist construction”  3-26; N. Chelyapov “Towards the question of the fundamental division of law” 27-39; A. Pavlov “The land belongs to no-one – or the land belongs to God”  40-51; S —–iy  “The bourgeois revolution and legal cretinism” 52-82

Work of Sections

Staroselskiy “Principles of construction of criminal repression in the proletarian state (co-report and comments) 83-105; A. Panfyorov “Common  law in the way of life of the peasant homestead” 106-114; C.B. “Overview of legislative activity” 115-120

Bibliography

P. Stuchka “Overview of literature on civil law” 121-127; F. Gurvich “The Soviet state and foreign academic literature” 128-135; S. Raevich “Soviet legislation in German academic literature” 136-140; I. Razumovsky “General questions of law in foreign periodical literature” 141-144

Reviews

I.R. – I. Iliynskiy “The crisis of bourgeois jurisprudence” A.P.  – Prof. B. Cherepakhin “Towards the question of public and private law”. A.S. – F. Kornilov “Legal dogmatism and dialectical materialism” E.P – G. Gurvich “The political system of contemporary states” A.S. M. Reikhel “The USSR. Essays on the constitutional inter-relatedness of Soviet republics” D.L. M. Tsimmerman “Essays on the new international law”

Annex 3

1927 Revolyutsiya Prava Zhurnal  3 (Revolution of Law Journal 3)

Articles

E. Pashukanis “The Marxist theory of law and the construction of socialism” 3-12; I Razumovskiy “The category of the subject in Soviet law” 13-39; A. Angarov “Towards the question of class struggle in the dictatorship of the proletariat” 40-47; A. Estrin “Agricultural  construction and criminal law” 48-65.;S —- iy  “The bourgeois revolution and legal cretinism” (conclusion) 66-98; D.L. “Revolution and consular immunity” 99-114

Work of the sections

Staroselskiy “The ideology of liberalism in collision with the revolution” (Report on the 10th anniversary of the February Revolution of 1917) – 115-154; Theses of the sections on the general foundations of the civil law of the USSR 155-159

Comments and communications

E. P. “On the institution of red professors” 160-161; A. Estrin “The defence of law and order under the sign of the dollar” 162-168; The Fascist charter of labour – 169-173

Bibliography

E.P. “Overview of the literature on administrative law” 174-177; l. Gintsburg “Overview of the literature on Soviet industrial law” 178-183; P. Stuchka “Overview of the literature on civil law (conclusion) 184-190

Reviews

M.K.  – Lenin on the state apparatus A.A. Marx on Bakunin. Journals of Marxism A.S. Prof. Malitskiy “Soviet state law” I.R. Friedrich Wieser – Das Gesez der Macht S.B. Die Juristische Literatur der Sowiet Union A.S. B.N. Khatuntsev “On the nature of power” G.R. – i. Boltinskiy “Mediative and arbitration procedure” S.B. – I. Krastin “Criminal procedure of the RSFSR G.A. – Fishman “The movement of the civil trial” S.B.  – V. Underich “Law and the function of the parties in the criminal procedural code of the RSFSR. – 191

Annex 4

1927 Revolyutsiya Prava Zhurnal  4 (Revolution of Law Journal 4)

Articles

Foreword “The Five Year Plan and the Soviet State” 3-11

E. B. Pashukanis “Economics and legal regulation” 12-32; L.Ya Gintsburg “On the division between state and private property” 33-51; A.A, Gertsenzon “Basic features of contemporary crime” 52-70; M.D. Rezunov “Ludwig Feuerbach and the psychological school of law” 71-88; A.I. Angarov “Constitutional drafts of independents and developers” 89-113

Our tribune

I.D.Markov “Registering a patent in the USSR” 114-128

Comments and Communications

S. Bulatov “The white terror and class justice in 1928” 129-132; A.G. “The rise in murders in the USA” 133; E. Gershelman “The customary basis for family relations in Altai-Kizhi” 134-140; S. Raevich “Questions of the present legislation in the field of civil law” 141-144; A. Angarov “Liberal every day life” 144

Bibliography

B.R. “Overview of the journal “Archive of the philosophy of law and economy” vol. XXI”

Reviews

M.R. – J. Wittmayer – Demokratie und Parliamentarismus; M.R. – E. Sorin and V. Iezuitov “Town and village Soviets”; M.M. A. Luzhin and M. Rezunov “The lower-level Soviet apparatus”; R.R. Grave and Eibushits “”Fundamentals of legislation on interior trade.” C.N. F.I. Volfson “Economic law (survey of lectures)” G.S. F.B. Dyakov “Law of inheritance of the Azerbaijan Soviet Republic”; B.M. Prof. V.N. Shiraev “N. S. Tagantsev and his significance for the science of criminal law”; B.M. Prof. S.V. Pozdnyshev “Criminals as a result of aliments (maintenance), their types and methods of struggle”. B.M. Prof. M.M. Isaev “Criminal law – system of the general part.”

Annex 5

1930 Sovyetskoye gosudarstvo i revolyutsiya prava `11-12  (Soviet State and Revolution of Law 11-12)

Editorial Board

Responsible editor : E. Pashukanis

A. Angarov, Ya. Berman, M. Klimov, P. Stuchka, I Suvarov and I. Chelyapov

Foreword “For an attack on the whole of the front” 3-15

Articles

General Theory of State and Law

Pashukanis E “The situation on the theoretical legal front” 16-49; Stuchka P – “The plan of our work” 50-57

Rezunov M “Down with the mask” 58-68

Soviet Construction

Vasiliev T “National (ethnic) policy in the light of the decisions of the XVI Party Congress” 69-78; Markov I “The next tasks of the Soviets and finance” 79-87; Shkolvskiy G “Questions of organisation of external and internal trade.” 88-105

Soviet Law and Revolutionary Legality

Ashrafyan Z, Lvov A, Kuzmin P “The programme of right opportunism and criminal policy” 106-129; Voitiynskiy I “Regulation of labour and lebaour law at a new stage” 130-145; Bratus S “The problem of economic-administrative law” 146-167; Z. G. “On inadequacies and opportunist damage to labour legislation” 168-175

Tribune

Stalgevich A “Our mistakes and disagreements” 176-188; Lutskiy M “The question of the interconnectedness of law and state” 189-193

Works of Marxist State Builders

Viss O “The actuality and appearance of bourgeois law”  194-199

Notes and communications

Kaptyug A “Facing the district and village” 200-205; Verlinskiy Vl “Liquidation of the district and the budget of the agricultural village” 206-209; Solovyov S – “The system of local administration of Fascist Italy” 210-213; Khaevskiy M “In the Society of Marxist State-Builders” 218-221

Critiques and Bibliography

Krylenko N “The next incorporation of Leninism in criminal law” 222-237; Grishin and Zin “One should not write this way about Soviet social insurance” 238-140; Prushitskiy S “The disgusting nature of privileged academicism”

Annex 6

Sovyetskoye gosudarstvo i revolyutsiya prava  5-6 (1931); (Soviet State and Revolution of Law 5-6)

Foreword “Concrete questions of Soviet work” 3-9

General section

K. Marx and F. Engels “From the “German Ideology”” 10-36

Soviet Construction

Grichmanov A “District and village cadres” 37-48; Krynskaya B “The united financial plan and the budget” 49-66

Soviet Law and Revolutionary Legality

Stuchka, P “My journey and my mistakes” 67-97; Pashukanis, E “Necessitated reply” 98-102; Angarov, A “Retreat from the struggle” 103-109; Grintsburg, L “On khosraschyot (balancing books)”110-134; Nyurina, F “The socialist self-education of the masses and the procedure of comrades’ courts” 135-150; Raevich, S “Opportunism and lack of perspective in the draft of the Housing Code” 151-161

National question

Velikovskiy, M “The Mensheviks and the national question in the USSR” 162-176

Bourgeois State and Law

Levin, D “Intervention under the mask of pacifism” 177-196; Bulatov, S “The fascisisation of political repression” 197-212

History

Boltinov, S “The role of local Soviets in the creation of Soviet power” 213-238

Works of the Institute

Stuchka, P “Tendencies of development and perspectives of Soviet Law” 239-247

Notes and communications

Levin, V  “Pan-Europe” 248-165; Komissarov, Vl “Chuvashiya on the road to socialism” 266-271

Reviews

G. Shostak “The school and Soviet elections”; S.B. Boryan, B.A. State control in the USSR and Western Europe” ; S Raevichb Shiyk, A “The race problem and Marxism” 272-276

Bibliography

Dragomirretskiy, K and Kuzyatina, A – “Literature on questions of Soviet construction and law to February-March 1931. 277

References

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Arthur, C.  (1983) ‘Introduction’ to Ye. B. Pashukanis, Law and Marxism: A General Theory. Towards a Critique of the Fundamental Juridical Concepts  (London, Pluto Press)

Bowring, B. (2008a)  The Degradation of the International Legal Order?: The Rehabilitation of Law and the Possibility of Politics, (Abingdon, Routledge-Cavendish)

Fine, B. (2002)  Democracy and the Rule of Law. Marx’s Critique of the Legal Form (Caldwell, NJ, The Blackburn Press)

Goikhbarg, A (1925) “Neskolko zamechaniy o prave (Some reflections on law)” (1925) No.1 Soviet Law pp.3-4

Hazard, J. (1938) “Housecleaning in Soviet Law” April No.1  American Quarterly on the Soviet Union pp.5-16, at http://www.unz.org/Pub/AmQSovietUnion-1938apr-00005?View=PDF (accessed on 27 July 2012)

Hazard, J. (1938a) “Cleansing Soviet International Law of Anti-Marxist Theories” vol. 32 no. 2 American Journal of International Law, pp. 244-252

Hazard, J. (1957) ‘Pashukanis is No Traitor’ (1957) vol. 51, n. 2 American Journal of International Law, 385-388

Hazard, J. (1971) ‘Renewed Emphasis Upon a Socialist International Law’ vol. 65, n. 1 American Journal of International Law, 142-148

Hazard, J (1980) ‘Memories of Pashukanis’, Foreword to Evgeny Pashukanis, Selected Writings on Marxism and Law (London: Academic Press,1980), pp. 273-301 at

http://www.marxists.org/archive/pashukanis/biog/memoir.htm (accessed on 25 July 2012)

Isaev, I, (1988) “U istokov khozaistvennovo prava: lyudi i kontseptsii (On the sources of economic law: people and concepts) No.11 (1988) Socialist Legality p.76

Knox, R.  (2008) “Review of Degradation of the International Legal Order?: The Rehabilitation of Law and the Possibility of Politics by Bill Bowring” Law and Disorder, 2 April 2008, available at:

http://pashukanis.blogspot.com/2008/04/book-review-degradation-of.html (accessed on 30 April 2012)

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Lenin, V. (1913) “Critical Remarks on the National Question” , part 6 “Centralisation and Autonomy”, at http://www.marxists.org/archive/lenin/works/1913/crnq/6.htm#v20pp72-045 (accessed on 28 March 2011)

Lenin,V. (1914, 1964) ‘The Right of Nations to Self-Determination’, (1914) Prosveshcheniye 4, 5, and 6, in Collected Works, Volume 20, (Moscow: Progress Publishers 1964).

Lenin, V.  (1916, 1964) ‘The Discussion on Self-Determination Summed Up’, (1916) Sbornik Sotsial-Demokrata, 1, in Collected Works, Volume 22, Moscow: Progress Publishers, 1964., p.321

Lenin, V. (1917, 1977) Lessons of the Revolution  written at the end of July 1917, published on September 12 and 13 (August 30 and 31), 1917, in the newspaper Rabochy Nos. 8 and 9, Lenin Collected Works, Progress Publishers, 1977, Moscow, Volume 25, 227-243, at http://www.marxists.org/archive/lenin/works/1917/sep/06.htm

Lenin, V. (1918, 1965) “Original version of the article “The immediate tasks of the Soviet Government”” in Collected Works v.27 (February-July 1918) Moscow: Progress Publishers, 1965

Lenin, V (1919, 1971) Draft Decision for the Council of Defence on Regulating Relations Between the Vecheka, the Railway Cheka and the Commissariat for Railways and a Letter to the Members of the Council of Defence” February 28, 1919, First published in 1933 in Lenin Miscellany XXIV., Lenin Collected Works, 2nd English Edition, Progress Publishers, 1971, Moscow, Volume 42, 127b-129a, at

http://www.marx.org/archive/lenin/works/1919/feb/28.htm

Lenin, V. (1922, 1964) “Speech at a Plenary Session of the Moscow Soviet” 20 November 1922, Collected Works (Moscow, Progress) Vol 45, p.302

Lenin, V. (1922a) “On the Establishment of the U.S.S.R.” at

http://www.marxists.org/archive/lenin/works/1922/sep/26.htm (accessed on 28 March 2011)

Lenin, V. (1922-3) “The Question of Nationalities or “Autonomisation”” at

http://www.marxists.org/archive/lenin/works/1922/dec/testamnt/autonomy.htm (accessed on 28 March 2011)

Lenin, V (1965) Report On The Work Of The All-Russia Central Executive Committee And The Council Of People’s Commissars Delivered At The First Session Of The All-Russia Central Executive Committee, Seventh Convocation, 2 February 1920,  Brief reports published on February 3, 1920 in Pravda No. 23 and in Izvestia No. 23; Lenin’s Collected Works, 4th English Edition, Progress Publishers, Moscow, 1965, Volume 30, 315-336, at http://www.marx.org/archive/lenin/works/1920/feb/02.htm

Lenin, V. (2010) O natsionalnoi gordosti velikorossov (On the national pride of the Great Russians) (St Petersburg, Azbuka-Klassika) – contains “1918 – Karl Marx – short biographical note)”; “1913 – Three sources and three component parts of Marxism”; 1905 – “Two tactics of Social-Democracy in the democratic revolution”; 1906 – “Lessons of the Moscow Uprising”; 1912 – “Memories of Herzen”; 1914 – “On  the national pride of the Great Russians”. Tirazh (print-run) – 5,000 copies.

Marx, K.  (1867, 1987) ‘Marx to Engels in Manchester’, 2 November 1867, Marx Engels Collected Works, Volume 42, (London: Lawrence and Wishart), 1987

McGee, O (2005) The IRB: The Irish Republican Brotherhood from the Land League to Sinn Féin, (Dublin: Four Courts Press. 2005)

Miéville, C (2005) Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill Academic Publishers)

Pashukanis, Ye. (1921) Буржуазный юрист о природе государства/ Красная новь. 1921, № 3. С. 223-232: “Burzhuazniy yurist o prirode gosudarstvo (A bourgeois jurist on the nature of the state)” Krasnaya Nov (Red Virgin Soil) No.3 1921 pp.223-232, at

http://www.ruthenia.ru/sovlit/j/106.html (accessed on 27 July 2012)

Pashukanis, Ye (1922) “Pervye mesiatsy sushchestvovanii moskovskogo narodnogo suda (The First Months of the Existence of the Moscow People’s Court)” 1922 Nos 44-45 Yezhenedelnik Sovetskoi Iustitsii (Soviet Justice Weekly)

Pashukanis, Ye (1923) “Obzor literatury po obshei teorii prava” (Review of the literature on the general theory of law)” no.5 Vestnik Sots. Akad (Bulletin of the Socialist Academy)

Pashukanis, Ye. (1923a) “Kunov, kak interpretator marksovoi teorii obshestva i gosudarstvo (Kunov as an interpreter of Marxian theory of society and state) no.6 Vestnik Sots. Akad.  (Bulletin of the Socialist Academy)

Pashukanis, Ye (1924) Общая теория права и марксизм. Опыт критики основных юридических понятий  (A general theory of law and Marxism. An attempt at a critique of fundamental juridical concepts) (Moscow, Communist Academy: 1924) (English translation, London: Pluto Press, 1983) 

Pashukanis, Ye (1924 a) “Rur i reparatsii: Obzor diplomat, perepiski za yanv. – sent. 1923 (The Ruhr and reparation: Survey of diplomatic records January to September 1923)” No.1 Mezdunarod. Letopis (International chronicle)

Pashukanis, Ye. (1925, 1980) “Lenin and Problems of Law” in  Beirne, Piers and Robert Sharlet (eds) Pashukanis: Selected Writings on Marxism and Law (London and New York, Academic Press: 1980), 132-164; and at

http://marxists.org/archive/pashukanis/1925/xx/lenin.htm (accessed on 30 July 2012)

Pashukanis, Ye. (1925)  “Burzhuaznoye gosudarstvo i problema suvereniteta (The bourgeois state and the problem of sovereignty) Bulletin (Vestnik) of the Communist Academy no.10 pp.300-312

Pashukanis, Ye (1925a) “Obzor osnovnikh napravlenii vo fransuskoi literature gosudarstvennovo prava” (Survey of the fundamental directions in the French literature of state law) Bulletin (Vestnik) of the Communist Academy no.12

Pashukanis, Ye (1927) “Recognition” 5 Encyclopedia of State and Law 503-504

Pashukanis, Ye (1930) “Polozheniye na teoreticheskom pravovom fronte (The situation on the theoretical legal front)” (1930) Nos.11-12 Sovetskoye gosudartsvo i revolutsiya prava (Soviet state and revolution of law) pp. 16-49

Pashukanis, Ye. (1931) “Vynuzhdenniy otvet (Necessitated reply)” Sovyetskoye gosudarstvo i revolyutsiya prava  5-6; (Soviet State and Revolution of Law 5-6) pp.98-102

Pashukanis, Ye. (1932) ‘Pismo tov. Stalina i zadachi teoreticheskovo fronta gosudarstvo i pravo (The letter of comrade Stalin and the tasks of the theoretical front of state and law)’ (1932) No. 1 Sovetskoe gosudarstvo (Soviet State) 4-48, cited in E. A. Skripilev,  ‘Nashemy zhurnalu – 70 let” (Our journal is 70 years old)’ (1997) no. 2, 17 Sovetsoye Gosudarstvo i Pravo (Soviet State and Law) 17.

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

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

Pashukanis, Ye. (1983) Law and Marxism: A General Theory. Towards a Critique of the Fundamental Juridical Concepts  (London, Pluto Press) 

Protopopov, E  (2007) Politiko-pravoviye vzglyady E. B. Pashukanisha (The Political and Legal Views of Ye. B. Pashukanis) Moscow State Legal Academy, Dissertation for the award of Kandidat of Legal Science, at http://www.lib.ua-ru.net/diss/cont/217484.html (accessed on 28 July 2012)

Siegelbaum, L (1992) Soviet State and Soviet Society Between Revolutions: 1918-1929 (Cambridge, Cambridge University Press)

Yashuk, T. (1999) “Yuridicheskiye zhurnaly 1920-x godov kak istochnik po istorii sovetskovo pravovedeniya (Law journals of the 1920s as a source for the history of Soviet legal scholarship) (1999) No.1 Vestnik Omskovo Universiteta (Bulletin of Omsk State University) pp.111-114, at 

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Stuchka, P. (1927) “Gosudarstvo i pravo v period sotsialisticheskovo stroitelstva (State and law in the period of socialist construction)” No.2 Revolution of Law pp.3-26

Stuchka, P (1931) “Moi put i moi oshibki (My path and my mistakes) (1931) Nos.5-6 Sovetskoye gosudartsvo i revolutsiya prava (Soviet state and revolution of law) pp. 67-97, in English at Stuchka (1988), p.223

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Tunkin, G (1974)  Theory of International Law (translated by W. B. Butler) (London, George Allen & Unwin)

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[1]  Lenin (1914, 1964)

[2] Marx (1867, 1987)  451

[3] McGee (2005) 36

[4] Arthur (1983)  9.

[5] Antonov (2012)

[6] Antonov (2012)  130-131

[7] Antonov (2012) 10

[8] Antonov (2012) 194-210

[9] Antonov (2012) 195

[10] Antonov (2012) 201

[11] Antonov (2012) 202

[12] Antonov (2012) 208

[13] Antonov (2012) 209

[14] I draw here from the thesis of Protopopov (2007)

[15] These courts were established by the Decree of November 22 (December 5) 1917 “On the Court”: Decree of the Council of People’s Commissars SU 1917-1918, No.4, item 50. English translation in  Zile (1992) 95-96

[16] Pashukanis (1922) 15-16; see also Stuchka (1918)

[17] The radical wing of the Menshevik party, opposed to any coalition with the propertied classes, yet unwilling to accept the Bolshevik concept of the dictatorship of the working-class. Trotsky was a member of this group, which also included Martov and Martinov. See http://www.marxists.org/glossary/orgs/m/e.htm (accessed on 31 July 2012)

[18] Pashukanis (1930) 26

[19] Pashukanis (1983) 70 – and see also p51, 58, 75 (where Kelsen is described as a “consistent neo-Kantian) and 86. Pashukanis engaged with Karl Renner at 86, and the French positivist Duguit on p96-99

[20] Isaev (1988) 76

[21] Stuchka (1988)  x-xi.

[22] SU RSFSR 1918 First Section No.49 573

[23] Stuchka (1931) 70; in English at Stuchka (1988), 223

[24] Siegelbaum (1992) p26-29

[25] V.I. Lenin (1921) Report to the 10^th Congress, p 144-152 in Zile (1992)

[26] V. I. Lenin (1922, 1964) 302

[27] Pashukanis (1980)

[28] Ibid, p261-267

[29] Pashukanis (1921)

[30] For biography see http://www.universalis.fr/encyclopedie/maurice-hauriou/ (accessed on 27 July 2012). He was a positivist, influenced by Aquinas, Comte and Bergson.

[31] Pashukanis (1921) p 231-232

[32] Enforce property!

[33] Pashukanis (1923) 

[34] Pashukanis (1923 a) 

[35] Pashukanis (1924) 

[36] Pashukanis (1924 a)

[37] Stuchka (1988)  xviy; preface to the third edition of Stuchka’s Revolutionary Role of Law and State, 1924

[38] Hazard was a founder of the field of Soviet legal studies in America who taught at Columbia for 48 years. Upon his graduation from Harvard Law School, he was sent by the Institute of Current World Affairs as the first American to study Soviet law at the Moscow Institute of Law. Only a handful of scholars were concerned with Russian diplomacy and business then, and scholarship on Russia was limited principally to historical studies. He approached the field of Soviet law as a pioneer and received the certificate of the Institute of Law in 1937. He was the author of widely used textbooks and studies of Soviet law and public administration, and served the U.S. government during World War II, helping to negotiate the Lend-Lease agreement with the Soviet Union.

[39] Hazard (1938) see also Hazard (1938a)

[40] Ibid, 13

[41] Yevgeniy Aleksandrovich Korovin (1892-1964), one year younger than Pashukanis, but outliving him by many years, was indeed Pashukanis’ chief enemy, at least in Pashukanis’ eyes. Also in 1924, the same year as Pashukanis’ General Theory, Korovin, already a Professor at Moscow State University from 1923, published his first major work, International Law of the Transitional Period.

[42] Hazard, J. (1980a)

[43] Hazard, J (1980a)

[44] Pashukanis (1932) 

[45] Pashukanis (1935)

[46] Cited (16) in Hazard (1957) ‘Pashukanis is No Traitor’ (1957) vol. 51, n. 2 American Journal of International Law, 385-388, 387.

[47] See Hazard (1957)  387.

[48] Yashuk (1999)

[49] See V. P. Gribanov “Osushchestvleniye i zashchita grazhdanskikh prav (The realisation and defence of civil law rights)” at http://civil.consultant.ru/elib/books/1/page_7.html (accessed on 18 November 2012)

[50] (1922) No.1 Soviet Law p3-4

[51] (1925) No.1 Revolution of Law p3-4. I made photocopies of key parts of this and later issues of Revolution of Law, at the SPARK Library in Moscow. Yashuk wrongly gives the year of publication as 1927.

[52] Ibid 4

[53] Ibid, 3

[54]  Goikhbarg (1925) p3-4

[55] Stuchka (1927)

[56] See “Eight-five years of the journal State and Law”  at http://www.igpran.ru/journal/85let/85letGiphp (accessed on 1 August 2012)

[57] Pashukanis (1983) , p 122, 123 and 134

[58] Ibid  123

[59] Ibid 134

[60] Ibid, 68

[61] Ibid, 71

[62] Ibid, 74

[63] Ibid, 82

[64] Ibid, 85

[65] Ibid, 93

[66] Ibid, 96

[67] Ibid, 103.

[68] Ibid, 107

[69] Ibid, 110

[70] Ibid, 118

[71] Ibid, 120-121

[72] Ibid, 61

[73] Ibid, 133

[74] Ibid, 195

[75] Pashukanis (1930) 26

[76] Fine (2002)  157.

[77] Ibid   159.

[78] Ibid.  167.

[79] Ibid.  168.

[80] See Annex 1

[81] Pashukanis (1925, 1980)

[82] Pashukanis (1925) 55-56

[83] Ibid, 56.

[84] Knox (2008)

[85]  Bowring (2008a)

[86] Pashukanis (1980),  162–3.

[87] Pashukanis (1980),  156–7.

[88] Lenin (1916, 1964)  321

[89] Pashukanis (1980),  158

[90]  Lenin (1914, 1964)

[91] Marx (1867, 1987)  451

[92] McGee (2005) 36

[93] Pashukanis (1925)

[94] Pashukanis (1925a)

[95] Entsiklopediya gosudarstva i prava Moscow: Communist Academy (1925-1926), Moscow, vol.1, p1064-1068, in English at Evgeny Pashukanis, Selected Writings on Marxism and Law (eds.  Beirne & R. Sharlet), London & New York 1980, p166-8, at http://www.marxists.org/archive/pashukanis/1925/xx/duguit.htm (accessed on 30 July 2012)

[96] Entsiklopediya gosudarstva i prava Moscow, Communist Academy (1925-1926), vol.2, p858-874; in English in Beirne and Sharlet, (1980) ibid,, p168-83, 184-5, at

http://www.marxists.org/archive/pashukanis/1925/xx/intlaw.htm (accessed on 30 July 2012)

[97] Entsiklopediya gosudarstva i prava Moscow, Communist Academy (1925-1926), vol.3, p183-4, in English at Beirne and Sharlet, (1980) ibid, p183-4, at http://www.marxists.org/archive/pashukanis/1925/xx/object.htm (accessed on 30 July 2012)

[98] Miéville (2005)  Appendix p321-336

[99] Miéville (2005) 160; and see Beirne and Sharlet, (1980) 175

[100] Beirne and Sharlet, (1980) 181

[101] Beirne and Sharlet, (1980) 168

[102] Beirne and Sharlet, (1980) 181

[103] Tunkin (1970)  34 and note. 35

[104] Pashukanis (1925) 9

[105]  Tunkin (1974) 246

[106] See Annex 2

[107] This is translated into English in Stuchka (1988) p 173-194

[108] Ibid, 173

[109] Ibid, 183

[110] See Annex 3

[111] “Marksistskaia teoriya prava i stroitel’stvo sotsializma,” Revoliutsiya prava (1927), no.3, p3-12. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. Beirne & R. Sharlet), London & New York 1980, p186-99.

[112] Ibid, 194

[113] Ibid, 194

[114] See Annex 4

[115] Ibid, p 237-272

[116] Ibid, 271, note 10

[117] See Annex 5 

[118] “Polozheniye na teoreticheskom pravovom fronte” (1930) Nos.11-12 Sovetskoye gosudartsvo i revolutsiya prava p 16-49

[119] Ibid, 16

[120] Ibid, 19

[121] Ibid, 20

[122] Ibid, 25

[123] Ibid, 26

[124] Ibid, 27

[125] Ibid, 34

[126] Postanovka nashei raboty (1930) Nos.11-12 Sovetskoye gosudartsvo i revolutsiya prava p 50-57

[127] See Annex 6

[128] Stuchka (1931)

[129]  V.V. Adoratskiy, a revolutionary from 1900, in exile in Berlin and Geneva, member of the RSDRP from 1904, in London in 1910-11 where he met the Webbs, returned to Russia in 1918, became a leading archivist, and edited the first collected works of Marx and Engels in Russian

[130] Stuchka (1988) 223

[131] Ibid, 249

[132] Ibid, 226

[133] Pashukanis (1931)

[134] A.I. Angarov “Otstupleniye s boem (Retreat from the fight)” (1931) Sovyetskoye gosudarstvo i revolyutsiya prava  5-6; (Soviet State and Revolution of Law 5-6) p103-109

[135]  See http://www.memo.ru/history/arkiv/op1003.htm, a list of persons executed in the Stalin repressions (accessed on 2 August 2012)

[136] Pashukanis (1931) 102