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n the 1920'sthe only period of genuine "creative intellectual life. Pashukanis combines a genuine and
Marxism" that the Soviet Union has ever known scholarly involvement in jurisprudence and legal his-
Yevgeni Bronislavovich Pashukanis was the tory with an equally genuine feeling for Marx's
foremost and ablest expositor of Marxist jurispru- method and concerns. Not only is he sensitive to the
dence. His General Theory of Law and Marxism, first achievements of other scholarsof Laband, Jellinek,
published in Moscow in 1924, went through three Duguit, Maine and Maitlandbut he rejects the theo-
Russian edition in five years, and the German transla- retically crude simplifications of Engels and Lenin to
tion of the third edition, issued in Berlin and Vienna focus on the subtleties of a Marx that most of his
in 1929, attracted international attention. As critical contemporaries had not fully appreciated.
a non-Marxist jurist as Professor Lon Fuller of Har- Early in his career, Pashukanis reaped the rewards
vard, reassessing Pashukanis' chief work more than of combining intelligence with Bolshevik partiinost
twenty years later, wrote: (party-mindedness). Active in the Petersburg revo-
lutionary student movement, he joined the Russian
In this short book, Pashukanis expounds with clarity Social Democratic Workers' Party in 1908, at the age
and coherence an ingenious development of Marxist
theory that has been called the "Commodity Exchange of 17. Two year later he was arrested and sentenced
Theory of Law." His work is in the best tradition of to exile, choosing to continue his legal studies at the
Marxism. It is the product of thorough scholarship and University of Munich. In 1914 he had a part in
wide reading. It reaches conclusions that will seem to
most readers perverse and bizarre, yet in the process of drafting the declaration of the Bolshevik fraction in
reaching these conclusions it brings familiar facts of the Duma opposing the war in Europe, and in 1917
law and government into an unfamiliar and revealing he was briefly associated with the Menshevik Inter-
perspective. It is the kind of book that any open-minded
scholar can read with real profit,1 however little he may nationalists.
be convinced by its main thesis. After he joined the Communist Party in August
1918, he undertook party work in the Moscow Region,
Certainly, one finds in the book a freshness of style becoming first a People's Judge and then a member
and of thought that was soon to disappear from Soviet of the Presidium of the Moscow Soviet of People's
Judges and of the Appeals Tribunal attached to the All-
Dr. Kamenka and his wife, Dr. Tay, are both of the Union Central Executive Committee of the party. In
Australian National University in Canberra. Marxism
and Jurisprudence, a book they are writing jointly,
will soon be published in London and New York, as
1
will Dr. Kamenka s The Philosophy of Ludwig Feuer- L. Fuller, "Pashukanis and Vyshinsky: A Study in the
bach and Dr. Tay's Soviet Law and Legal Problems. Development of Marxian Legal Theory", Michigan Law Review
(Ann Arbor), Vol. 47, 1949, p. 1159.
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the influential Institute of Soviet Construction and fter nearly twenty years in disgrace and obliv-
Law. When, in 1936, he became Deputy Commissar of ion, the condemned jurists of the 1920's and
Justice of the USSR and was proposed for full mem- 1930'sP. I. Stuchka, N. V. Krylenko, A. G.
ship in the Soviet Academy of Sciences, he seemed to Goikhbarg, and Pashukaniswere accorded a general
be nearing the pinnacle of success. sort of rehabilitation following the 20th CPSU Con-
Yet within less than a year, this honored innovator gress. In the case of Pashukanis, however, renewed
in Marxist jurisprudence was being denounced as an recognition of his genuine intellectual stature has been
"unmasked traitor and wrecker," a propounder of remarkably slow in coming. Stuchka, who had been
"rotten theories," an ally of Trotskyism and Bukhar- vilified in terms no less abusive than those used against
inism, and a "liquidator" of socialist law and legality Pasukanis, and who had been commonly linked with
who, by submerging law in a flood of economic him, has been resurrected to the status of a major hero
categories, had betrayed his ignorance of Marxism and of the Latvian Communist movement.5 Also, a one-
Marxist philosophy. The new and barely literate volume selection of his legal works, including the pre-
champions of Soviet ideology, from the "philosopher" viously proscribed Introduction to the Theory of Civil
P. F. Yudin to the police prosecutor A. Ya. Vyshinsky, Law, was published in Riga in 1964 and has since
poured their venom on "the heinous activities and been freely available in the Soviet Union. The preface
"traitorous 'philosophy' " of the "band of our enemies to this book mentions Pashukanis as one of the tal-
headed by Pashukanis, Krylenko, Berman and ented legal thinkers of Stuchka's time, and Stuchka's
others." 3 Early in 1937, Pashukanis was arrested. text frequently cites Pashukanisthough usually with
Vyshinsky replaced him as Director of the Institute of reservations.
Soviet Construction and Law 4 (charging that huge The works of Pashukanis himself, however, have
amounts of money had been squandered, and no work to all appearances never been republished and re-
done), and Pashukanis' courses at the Moscow Juridi- main generally unavailable. In 1965-66, when the
cal Institute were taken over by A. K. Stalgevich, a present authors spent a year in the Soviet Union, it
long-time critic of Pashukanis' work, who was himself proved impossible to find any of these works in
dismissed in 1939. The main Soviet journal of legal second-hand bookshops in Moscow, Leningrad and
theory, Sovetskoe gosudarstvo, of which Pashukanis Riga, although the writings of other rehabilitated
had been editor, suspended publication from January Soviet scholars, such as A. M. Deborin, as well as of
until September of 1937, when it came out with an non-Marxist legal writers of the pre-revolutionary
issue devoted entirely to "unmasking" the "enemy of period, were available. Assistants in the bookshops
the people" Pashukanis and his "un-Marxist" theories. knew Stuchka's name but claimed never to have heard
One of the articles, written by S. Bratus, specifically of Pashukanis or to have seen any of his works.6
elaborated upon the harmful effects of Pashukanis' Current general texts on Soviet law and on its history
"diversionist," anti-Leninist theories in the field of do not mention Pashukanis, nor is he mentioned in
civil law. Though relatively literate in comparison the six-volume History of Philosophy, published in
with Vyshinsky's fulminations, Bratus' article made 1965, which does refer briefly to Stuchka. Only in
full use of the calumniatory language of the time.
5
Stuchka, who died in 1932 and was condemned posthu-
2 mously, left his post as People's Commissar of Justice in
Some of these details of Pashukanis' career are taken
from the published report {Sovetskoe gosudarstvo i pravo, No. Lenin's government in August 1918 to play a leading part in
8, 1968, pp. 150-51) of an address by L. I. Ratner on "The the Latvian revolution and became president of the short-lived
Life and Work of Ye. B. Pashukanis" delivered at a Moscow Latvian Soviet Republic. He subsequently served as Deputy
commemorative meeting in March 1968. More will be said Commissar of Justice and Chairman of the Supreme Court of
about this meeting later. the RSFSR. His relatively complete rehabilitation, symbolized
3 by a statue in one of Riga's main squares, was probably
A. Ya. Vyshinsky, "The Fundamental Tasks of the Science
of Soviet Socialist Law," an address to the First Congress on speeded by a desire to provide the Latvians with a suitable
Problems of the Sciences of Soviet State and Law, translated (Soviet)
6
national figure.
in Hugh W. Babb and John N. Hazard, Soviet Legal Philoso- The author's own copy of the first Russian edition of Pa-
phy, Cambridge, Mass., Harvard University Press, 1951, p. 315. shukanis' General Theory was a valued present from a Soviet
* The Institute had meanwhile been renamed the Institute citizen, who had kept it on his bookshelf (in a paper cover)
of State Law. as an exciting "condemned book."
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lthough Marx began his university career as a
of Pashukanis' General Theory of Law and Marxism law student, the classics of Marxism notori-
in the history of Soviet juridical science; and D. B. ously contain no comprehensive or systematic
Levin, also of the Institute of State and Law, who discussion of legal systems or jurisprudential theories.
stressed the innovative character of Pashukanis' con- That law, like the state, will "wither away" under com-
tributions in the field of international law and noted munism is clearly stated and has become (and officially
that some of his positions still had not lost their
still remains) an article of the Leninist faith. But
significance. Among the others present were Ye. V.
precisely how the materialist interpretation of history
Rubinin, a close friend and colleague of Pashukanis
explains past and existing legal systems is not clear.
in the Commissariat of Justice; the biologist N. S.
Marx, in his popular pamphleteering, and Engels, in
his work generally, tend to treat elements of the social
superstructure as expressions of class interests, and
law or the legal system as a system of normative rules
7
"In memory of Yevgeni Bronislavovich Pashukanis," No. 8 employing state and police power to impose the in-
(August) 1968, p. 150.
This fact was not mentioned in the report of the meeting. terests of the ruling class on society as a whole. In
Pashukanis and Gintsburg's joint work, Kurs sovetskovo kho- much of his more serious work, howevere.g., in
ziaistvennovo prava, was published in Moscow in 1935 and sub-
sequently condemned. The German Ideology and in Capital, as well as in
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ashukanis went farther and deeper in his analy-
represented the will of the ruling class backed by physi- sis. His General Theory of Law and Marxism
cal sanctions. After the 1917 Revolution and the is essentially a radical and thoroughgoing
creation of the dictatorship of the proletariat, the critique of any attempt to treat law as mere class
law became the will of the working class, to be used ideology or to speak of a proletarian system of law
both as an instrument of coercion against the enemies replacing a bourgeois system. The point on which any
of the working class and as a form of propaganda analysis of law must concentrate, he argues, is that not
within its own ranks denning the aims of the revolu- all rules or norms are legal rules or norms and not all
tionary movement. Once the proletariat had com- social relationships are legal relationships. Although
pletely triumphed and all men had become workers, most Marxists before him had taken the element of
law would disappear because there would be no state compulsion to be the characteristic or defining
particular class to impose its will on other classes. element of law, Pashukanis rejects this view. Army
Men would live as a cohesive community, settling regulations, rules binding the members of an order or
disputes informally and on the spot. This was the line priesthood, or the authoritarian prescriptions of a
followed in the more popular forms of Communist family head or elder, for example, do not constitute or
propaganda and ideological writing even in the 1920's. become law if or because they are sanctioned by
In sum, the law was seen as the instrument by which a authoritybe it even the authority of the state. They
section of society imposed its will on the rest, and the are not law and do not have the form of law because
law of each historical stage of society simply repre- they are based on relations of domination and submis-
sented the will of its ruling class. sion, because they involve obedience to rules rather
In line with this view, the People's Commissariat of than the determination of rights.
Justice in 1919 defined law as "a system (set of rules) What is characteristic of law and constitutes the
for social relationships which corresponds to the in-
10
0
Sobranie uzakonenii RSFSR (Collected Laws of the
Marx and Engels, Die deutsche Ideologie (The German RSFSR), 1019, No. 66, p. 590. Also cited in P.I. Stuchka,
Ideology), in Marx-Engels, Historisch-kritische Gesamtausgabe hbrannie proiz.edeniia po marksistsko-leninskoi teorii prava
(MEGA), Section I, Vol. 5, Moscow-Leningrad, Marx-Engels- (Selected Works on the Marxist-Leninist Theory of Law),
Lenin Institute, 1933, p. 192. Riga, Latvian State Publishing House, 1964, p. 58.
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direct connection between law and the economic struc- n the basis of this analysis, Pashukanis took
ture of society. The fundamental presupposition of the position that the Soviet codes of the 1920's
law, i.e., the principle of the juridical subject (involv- were in no sense "socialist law"in itself a
ing the formal principle of freedom and equality, contradiction in termsbut bourgeois law necessitated
autonomy of the person, etc.), is not, he argues, by the fact that exchange relations had not yet been
merely a hypocritical tool used by the bourgeoisie to eliminated in the Soviet Union. Even in criminal law,
enslave the proletariat; it is a real, active principle he argued, these codes were still bourgeois in that they
embodied in bourgeois society once it breaks free from were permeated through and through with the prin-
the feudal-patriarchal order. Further, the victory of ciple of equivalence of retribution. The systematic de-
law is not merely an ideological process, but a real, velopment of a genuine socialist principle based on
material onea "judicializing" of human relation- the protection of society, he declared,
ships which accompanies the development of a com-
modity and money economy (in Europe, of capital- would require not a tabulation of the separate constitu-
ism) , and which involves the overthrow of serfdom ents of crime (with which the measure of punishment
. . . is logically associated) but an exact description of
and the separation of political power from society as the symptoms characterizing a condition which is so-
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With the abolition of the new Economic Policy and The book dodges every real problem its thesis might
seem to suggest and substitutes for reasoned analysis the
the introduction of the first Five-Year Plan, Pashukanis scurrilous and abusive recriminations for which its
saw the elimination of the juridical element in human author-editor has become famous in international con-
affairs beginning in earnest. In line with his theories, ferences. . . . About 50 percent of it is taken up with
a tedious and unenlightening exposition of the details of
the institute he headed was named the Institute of the Soviet political and legal system. Another 20 per-
Socialist Construction and Lawsoon, he thought, the cent is devoted to refighting doctrinal battles within the
word "law" could be dropped. Courses in civil law, Marxist ranks and to nailing down more securely the
lids on the coffins of the "deviationists," "wreckers" and
under Pashukanis' influence, were replaced by courses "Trotskyists" who have been liquidated by the Stalin
in "economic-administrative policy and law" dealing regime. The remaining 30 percent is given over to dis-
with the regulation of relations between the state and closing the frauds of bourgeois political and legal
ideologies. In the course of this expose some remarkable
enterprises, which were seen as becoming increasingly misinformation is conveyed.12
non-juridical. Individual rights were relegated to a
few hours at the end of these courses, and their status As Vyshinsky's book shows all too clearly, the
was regarded as merely temporary and linked with condemnation of Pashukanis had little to do with
the hangovers of bourgeois relations. intellectual dispute or the values and requirements of
By the mid-1930's, Pashukanis had become the work in legal theoryeven Marxist legal theory. The
acknowledged leader of a school of jurists who were Stalin Constitution of 1936 proclaimed, as a matter
developing and applying his theories in various spe- of ideological doctrine, that the Soviet Union had
cific areas of law. (Pashukanis himself did a good deal achieved socialism, and that socialism would be ac-
of work in international law, where he began by deny- companied by formal social and legal stability, by
ing that there could be a concept of proletarian inter- the strengthening of the state, and by the reinforce-
national law to be distinguished from bourgeois inter- ment of legal guarantees for the life, interests and
national law.) Nevertheless, even in the 1920's there activities of citizens devoted to the socialist order.
were critics of his views. The subtlety of his analysis To many Soviet citizens, this last must have seemed
of bourgeois law did not much appeal to Communist a hideous joke in the context of the Great Purge of
propagandists, who preferred to see that law as simply 1937-38 and the era of police rule it inaugurated.
a hypocritical cloak for bourgeois interests; and his Nevertheless, "socialist legality"a concept flatly con-
insistence that the new Soviet codes, because they still tradictory to the whole of Pashukanis' view of law
embodied bourgeois attitudes and provisions, did not and of socialist societywas a Stalinist concept, and
constitute a creative "socialist" contribution to law it has remained one of the most vaunted (if still in
conflicted sharply with the growing Soviet penchant many respects only formal) principles of Soviet soci-
for vainglory. Many of his critics felt, more sincerely, ety ever since. Indeed, one of the main Soviet criti-
that he minimized the normative element in law and cisms of Stalin after 1956 has been that he did not
ignored the ideological interests enshrined in specific observe socialist legality, not that the concept itself
legislation, whichthey contendedwere precisely was wrong.
what distinguished socialist from bourgeois law.
Following the promulgation of the 1936 Stalin Con-
I
stitution and the proclamation that socialist law was n the Soviet atmosphere, especially during the
to be strengthened before law in general began to Stalinist period, it is hardly surprising that there
wither away, the attacks on Pashukanis suddenly took has been little in the way of a genuinely intel-
on an entirely different character. Totally devoid of lectual criticism of Pashukanis' ideas. Yet, in the West,
intellectual content, they became a mixture of gross too, his views have received far less attention and
political misrepresentation and vulgar abuse. A vol- study than they deserve. He has been dismissed, far
ume entitled The Law of the Soviet State, issued under too readily, as a legal nihilist or crude economic re-
Vyshinsky's name in 1938 (and partly written by ductionist. He would have been far better understood
if his work had been linked with one of the most im-
portant traditions in the sociology of law: the view of
11
Ye. Pashukanis, Obshchaia teoriia prava i Marksizm (The
General Theory oj Law and Marxism), Moscow, The Socialist
Academy, 1924, pp. 157-58; English translation by Hugh W.
2
Babb, in Babb and Hazard, op. cit., p. 223. Fuller, loc. cit., pp. 1157-58.
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between patriarchal and rational-legal justice. Writing he great theoretical about-face wrought by
of traditional China, he observes: the 1936 Stalin Constitution was the relega-
tion of the anarchist element in Marxism-
Chinese administration of justice constitutes a type of Leninism to a remote and highly uncertain future and
patriarchal obliteration of the line between justice and the ruthless excision of all anarchistic strains from
administration. Decrees of the Emperor, both educative
and commanding in content, intervene generally or in the Marxist present. Before it could wither away, the
concrete cases. The finding of the judgment is oriented state had to be strengthened; the forms of law, before
13 14
See Ferdinand Tonnies, Gemeinschaft und Gesellschaft Max Weber, Wirtschaft und Gesellschaft (2nd ed., 1925),
(1st ed., 1887, revised eds. to 1936), translated by Charles P. as translated in Max Rheinstein (ed.), Max Weber on Law in
Loomis as Community and Association, London, Routledge & Economy and Society, New York, Simon and Schuster, 1967,
Kegan Paul, 1955, passim, especially pp. 67-68, 74 and 90; and pp. 264-65. Cf. Alice Erh-Soon Tay, "Law in Communist China
Eugene Kamenka, "Gemeinschaft and Gesellschaft," in Politi- Part I," in the Sydney Law Review (Sydney, Australia), Vol.
cal Science (Wellington, New Zealand), Vol. 17, 1965, p. 3. VII, No. 1, 1969.
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