Evgeny Pashukanis

A Critical Reappraisal

Michael Head

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135307875
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A thorough examination of Pashukanis' writings, this book is a significant contribution to a proper assessment of Pashukanis' work, the value of his theoretical legacy and the contemporary relevance of Marxist legal theory.

Interest in the best-known Soviet legal scholar, Evgeny Pashukanis, remains widespread and his work retains considerable relevance. His writings provide a rich source of material on the Marxist theory of law and the state, as well as the attempts to apply that doctrine in Soviet Russia. In this book, Michael Head considers Pashukanis' work both within its historical context and in relation to contemporary legal theory, answering a range of questions including:

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• How and why did Pashukanis emerge as the pre-eminent Soviet jurist from 1924 to 1930?
• Why did he come under only minor criticism from 1930 to 1936 and then be denounced and executed in 1937 as a 'Trotskyite saboteur'?
• Why have many Western scholars generally praised the quality and originality of Pashukanis' work, yet also drawn the conclusion that his fate illustrates the intrinsic impossibility of the entire communist project?

Serving as an introduction to Pashukanis and Marxist legal theory and a timely contribution in light of the universal assault on civil liberties in the indefinite 'War on Terror' and the constant escalation of 'law and order' measures in Western societies, this volume is an invaluable resource for those interested in jurisprudence and critical thought.

Chapter 1

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Why Pashukanis?

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[H]e claimed to go deeper into the nature of law than any Marxist hitherto.¹

Why is it that nearly a century on, interest in the best-known early Soviet legal scholar, Evgeny Pashukanis (1891–1937), remains considerable? Both his detractors and admirers agree that his writings provide a rich source of material on the Marxist theory of law and the state, as well as the successes and failures of the attempts to apply that doctrine in Soviet Russia.

As we shall see, many of the debates surrounding his work retain profound contemporary relevance. More broadly, for all the defeats, disappointments and betrayals produced by the Stalinist perversion of Marxism, the legacies of Marx’s analysis have proven enduring in the field of law, as in many others.

One reason for the lasting interest is that the Soviet Revolution of 1917 marked the first attempt internationally (apart from the short-lived and localised 1871 Paris Commune) to fundamentally reorganise economic, social and legal life along anti-capitalist, participatory and egalitarian lines. This record stands, notwithstanding the subsequent degeneration of the Soviet Union at the hands of Stalin’s bureaucrats after 1923, which has been taken by many as proof that the aspirations of the Russian Revolution were hopelessly, even dangerously, utopian.

Among Western legal scholars, one tragic expression of that supposed misguided Marxist utopianism is often said to be the plight of Pashukanis. In 1924, Pashukanis published the first attempt to produce a general theory of Marxism and law.² He sought to go deeper than his contemporaries into the very nature of law itself, which he argued was a peculiar form of social regulation that reached its apogee under capitalism and was destined to fade away under genuine communism. Pashukanis rapidly became the best-known early Soviet jurist, whose works were prescribed reading in university courses. Within a decade, however, one of the Kremlin’s favourite legal theorists of the second half of the 1920s became officially reviled as a ‘counter-revolutionary’ and ‘fascist agent’.

This book examines several enigmas thrown up by Pashukanis’ work and his treatment, both by the Kremlin authorities and Western scholars. One question that looms large in the early history of Soviet legal theory and practice is: how and why did Pashukanis emerge as a pre-eminent Soviet jurist from 1924 to 1930, while still quite young – only in his thirties – come under only minor criticism from 1930 to 1936 and then be denounced and executed in 1937 as a Trotskyite saboteur’?

Another apparent enigma exists. Pashukanis came to prominence in 1924, just as Stalin’s faction was opening its offensive against Trotsky’s Left Opposition. He clearly aligned himself against the Opposition. Yet, Pashukanis has been considered by many Western academics – both those sympathetic to his views and those who are not – as a leading anti-Stalinist, or at least an exponent of an alternative, arguably more pure, version of Marxism to that adopted by the Stalinist bureaucracy.

A third, related, puzzle is this: Why have many Western scholars generally praised the quality and originality of Pashukanis’ work, yet also drawn the conclusion that his fate illustrates the intrinsic impossibility of the entire communist project?

To answer these questions, Pashukanis’ role has to be thoroughly reappraised. His contribution needs to be reassessed in the light of a number of key factors. First and foremost, Pashukanis must be placed in the context of the October 1917 Revolution itself. In relation to legal theory and practice, it launched the boldest and most sweeping experiment of the twentieth century. The Soviet government led by Vladimir Lenin dispensed with the previous courts, legal system and legal profession and sought to fashion a radically new approach to the state, law and legal theory, with some striking results in many fields, including criminal and family law. Moreover, it attempted to create the conditions for the fading away (‘withering away’) of law and the state.

Never before had a mass revolution placed in power an administration whose avowed intent was to dissolve itself into a classless, stateless society. One chronicler of the Russian Revolution, Isaac Deutscher noted that in October 1917, Lenin’s Bolsheviks spoke of a ‘great vision’:

Theirs was to be a state without a standing army, without police, without bureaucracy. For the first time in history, the business of government was to cease to be the professional secret and privilege of small groups of people, elevated above society. It was to become the daily concern of the ordinary citizen…. To be sure, this was the ideal state of the future, not the Russian state of 1917. But the Soviet republic, as it emerged from the revolution, was to be directly related to the ideal (Deutscher, 1954: 318).

This programme of state disappearance was soon enshrined as a constitutional principle. In the words of the first Constitution of the Russian Republic, adopted in 1918:

The basic task of the Constitution … at the present transitional moment is the establishment of the dictatorship of the city and village proletariat and the poorest peasantry in the form of a powerful All-Russian state authority for the purpose of complete suppression of the bourgeois, the destruction of exploitation of man by man, and the installation of socialism, under which there will be neither division into classes nor state authority (cited in Berman, 1963: 30–31).

Such a heroic vision – the elimination of exploitation and the creation of a stateless society – should not be lightly dismissed as utopian. In many ways, it built upon, while necessarily taking far further, the epic aims of the great democratic revolutions of the seventeenth and eighteenth centuries in England, America and France. Each of these convulsions was influenced by the conceptions that emerged out of the Enlightenment, including the profoundly subversive idea that humanity’s thinking, and therefore moral character, was, in the final analysis, a reflexive product of the material and cultural environment. Therefore, as outlined by Locke’s 1689 Essay Concerning Human Understanding, the nature of humanity could be changed and improved upon by changing and improving the environment in which people lived.

These revolutions expressed the growing dissatisfaction of the emerging bourgeoisie with the suffocating political supremacy of the unproductive and parasitic monarchical and aristocratic layers. But they evoked universal themes of human solidarity and emancipation. The English Revolution, which began with the overthrow of Charles I in 1640 and culminated in the 1688 ‘Glorious Revolution’ was a deeply-rooted social and economic upheaval, in which the forces of parliament and the City of London, representing the emerging British capitalist class, mobilised popular forces to end the remnants of the feudal-based absolute monarchy.³ Some of the most fundamental democratic rights and civil liberties – such as freedom from arbitrary arrest and detention, and the right to silence – were won in a sweeping political and social revolution.⁴

By the time of the American Revolution of 1776, the advanced thinkers of the era proclaimed that all members of society were created equal, with ‘unalienable rights’, identified by Thomas Jefferson in the Declaration of Independence as ‘life, liberty and the pursuit of happiness’. One noted historian of the American Revolution has described it as ‘the greatest utopian movement in American history’:

The revolutionaries aimed at nothing less than a reconstitution of American society. They hoped to destroy the bonds holding together the old monarchical society – kinship, patriarchy, and patronage – and to put in their place new social bonds of love, respect, and consent. They sought to construct a society and government based on virtue and disinterested public leadership and to set in motion a moral movement that would eventually be felt around the globe (Wood, 1993: 229).

Just a decade later, the American Revolution helped inspire the French Revolution of 1789, which inscribed on its banners: ‘liberty, fraternity, equality’. Among its influences was Rousseau’s 1755 Discourse on the Origin and Foundation of Inequality Among Men, which insisted that the acquisition of private property, far from being a natural attribute of human existence, destroyed man’s natural humanity and enslaved him.

Well before the Russian Revolution of 1917, however, it had been obvious to the advanced thinkers of the nineteenth century – Marx and others – that the capitalist society that had arisen out of these history-making transformations had proved organically incapable of delivering the promise of genuine liberty, democracy, equality and universal solidarity. Instead, the polarisation of society, through the creation of a wealthy elite monopolising the productive resources, on the one side, and the proletarianisation of the bulk of the population as wage labourers on the other, had become an inherent and insufferable obstacle to human liberation. The creation of a classless, stateless society was hence essential for the realisation of the great emancipatory message of the Enlightenment.⁵

The challenge of early Soviet jurisprudence

The early years of the Soviet Revolution and its social and legal reforms presented a fundamental challenge to Western capitalism and law.

• Where Western jurisprudence asserted the sanctity of private property, freedom of contract and the ‘rule of law’ itself, as supposed guarantors of liberty and formal equality, the Bolsheviks argued that these doctrines inherently produced economic and social inequality.

• While Western law enforced the stability of the nuclear family as an economic unit, the Soviet government called for genuine freedom of choice in undertaking and leaving marriage, and gender equality in family and social relations.

• Whereas Western legal systems largely declared miscreants punishable because of their alleged sinfulness of personality defects, Soviet law questioned the concept of individual ‘guilt’. It treated ‘crime’ primarily as a product of social inequity and, accordingly, sought to replace ‘punishment’ with social improvement, education and other remedial measures.

• Western jurists insisted that law was an organic and indispensable method of governing society, essential to combat or curb the alleged deficiencies and aggressive tendencies of human nature. Early Soviet jurisprudence regarded humanity as capable of rising to a higher social and moral level, given the right conditions. It viewed the state and law as legacies of exploitative, class society and sought to create the social conditions for them to be supplanted by more participatory and democratic forms of administration.

Informed by this approach, Soviet law struck out in new directions, often setting benchmarks that Western governments later felt compelled to emulate. This was especially so concerning gender equality, domestic relations, labour protection and social welfare.⁶ For example, Soviet law was the first in the world to give women equal rights in marriage, divorce and economic status. The 1918 Russian Socialist Federated Soviet Republic (RSFSR) family code ...

Table of contents

• Cover
• Half Title
• Nomikoi: Critical Legal Thinkers
• Title Page
• Copyright Page
• Table of Contents
• Preface
• 1 Why Pashukanis?
• 2 The Marxist view of law: socialism and democracy
• 3 The Russian Marxists and law
• 4 The dynamics of the Russian Revolution
• 5 Bolshevik ‘law’ in practice
• 6 The passionate legal debates of early Soviet Russia: 1917–24
• 7 From debates to diatribes: 1924–37
• 8 Evgeny Pashukanis and Stalinism: the rise and fall of a Soviet jurist
• 9 Pashukanis’ theoretical achievements
• 10 Was there an alternative? Pashukanis and the Opposition
• 11 Pashukanis and Western theorists
• 12 Is Pashukanis still relevant?
• Bibliography
• Index