Estranged Bedfellows: Why Pashukanis Still Charms Legal Formalists — Igor Shoikhedbrod

The title of this post betrays an ironic if not altogether improbable thesis–that the legal thought of Evgeny Pashukanis shares important assumptions of the bourgeois legal philosophy that it was intended to refute. More specifically, I submit that Pashukanis shares more in common with the neo-Kantian school of legal formalism than he and his contemporary advocates have cared to acknowledge. In what follows, I maintain that the peculiar attraction of Evgeny Pashukanis among contemporary formalists can be explained by his misguided valorization of private law in general and property law in particular. While at first glance the renewed fascination with Pashukanis’ theory presents a promising road for rapprochement between liberals and Marxists, this road proves illusory and dangerous in the famous last instance. Contemporary Marxists should be wary of endorsing Pashukanis’ theory, while liberals should reconsider what is at stake when they commend Pashukanis’ original analysis but reject his forceful conclusion concerning the “withering away” of law and rights under communism.

Among the various ill-fated representatives of Soviet legal philosophy, there is one theorist whose name has not only been rehabilitated but consistently revalued in the West: Evgeny Bronislaovich Pashukanis. How does one account for Pashukanis’ continuing charm so many years after he was denounced as a “Trotskyist saboteur” and summarily executed? [1] I wrestled with this very question in the early phases of my doctoral thesis at the University of Toronto. By that time, I had read the General Theory of Law and Marxism together with Pashukanis’ defenders and detractors in the Marxist tradition. Unbeknownst to me, Pashukanis had earned an equally impressive reputation among liberal legal theorists. The most positive assessment of Pashukanis’ work came from Lon Fuller, who became the token critic of legal positivism in the twentieth century.

It is worth noting that Fuller reviewed Pashukanis’ oeuvre alongside his merciless critic and successor, Andrey Vyshinsky. In hindsight, any jurist would probably fare better than Vyshinsky on both the scholarly and ethical fronts. After all, Vyshinsky was the architect of the forced confession innovation in Soviet law, which was instrumental in establishing the guilt of Stalin’s political rivals. Under Vyshinsky’s tenure as General Procurator of the USSR, the law became at once an instrument of state terror and a basis on which such terror was legitimized. Needless to say, Fuller’s positive reappraisal of Pashukanis extended beyond a superficial comparison of Pashukanis’ merits with Vyshinsky’s demerits. Fuller went further than his predecessors in praising Pashukanis as follows:

Pashukanis expounds with clarity and coherence an ingenious development of Marxist theory that has been called the “Commodity Exchange Theory of Law”. His work is in the best tradition of Marxism. It is the product of thorough scholarship and wide reading … it is the kind of book that any open-minded scholar can read with real profit, however little he may be convinced by its main thesis. [2]

What was it about Pashukanis’ theory that garnered such praise from Fuller? For one thing, it should be noted that Pashukanis was among the few members of the Soviet Commissariat of Justice who possessed legal training. Pashukanis studied law and political economy at the University of Munich before returning to Russia as a committed Bolshevik. [3] In Munich Pashukanis would have cultivated knowledge of Roman law and grasped the rich tradition of private law that dominated German jurisprudence. In addition to his academic credentials, Pashukanis was an original thinker who revived Marxist jurisprudence from its stagnate and dogmatic slumber, and he did so in the midst of revolutionary upheaval and terror. Unfortunately, Pashukanis’ principled adherence to his theory also cost him his life, more about which in the conclusion.

In The General Theory of Law and Marxism, Pashukanis sought to unearth the historically specific form of law while also bringing to bear its relation to the impersonal nature of domination under capitalism. In the process, Pashukanis crafted thoughtful criticisms of what were then two opposing traditions in legal theory: neo-Kantian formalism and Marxian class instrumentalism. Pashukanis was unyielding in his critique of the neo-Kantian formalists, particularly of Hans Kelsen. One could say that Pashukanis’ critique of Kelsen and the formalists was that they never get around to explaining the form of law because they abstract from history and treat legal phenomena as timeless and pristine conceptual facts. [4] Although Kelsen was a legal positivist, he nonetheless shared the contemporary formalist emphasis on treating law on its own terms, that is, unadulterated by the influences of history, politics, and the economy.

Notwithstanding his distaste for formalism, Pashukanis was also opposed to Marxian theories that reduced law to the instrument of the ruling capitalist class. Although theories of this sort can find rhetorical support in The Communist Manifesto, they encounter difficulties when it comes to explaining why the ruling class does not actually rule, as say in some pre-capitalist social formations. To class instrumentalists Pashukanis posed a seemingly straightforward question: “why does class rule not remain what it is: the factual subjugation of one section of the population by the other?” [5] Pashukanis was convinced that neither the formalists nor the class instrumentalists possessed theoretical resources for grasping the distinctiveness of what he called the “legal form”. While formalist theories abstract from existing social relations and succumb to a version of legal fetishism, class instrumentalists emphasize the class content of law without ever explaining its origins and nuanced form. [6]

What was needed, above all, was a Marxist theory of law that could explain the specificity of the legal form and account for why the law assumes an impersonal character that is distinct from class rule. Pashukanis was clear about his theoretical aims: “As a Marxist, I did not set myself the task of constructing a theory of pure jurisprudence, nor could I set myself such a task …. My aim was this: to present a sociological interpretation of the legal form and of the specific categories which express it.” [7] From the outset, Pashukanis rejected the generic definition of law as a system of authoritative rules. For Pashukanis, such a definition is riddled with conceptual ambiguity and imprecision because it does not distinguish legal phenomena from other forms of social organization, including the military unit and the ecclesial order, both of which are administered in an authoritarian manner. [8] As a result, the law loses its distinctiveness and becomes submerged in the broader milieu of social relations. In place of the generic formulation of law, Pashukanis offers an account of the legal form that fuses positive law and legal norms with the concept of juridical personhood.

The distinguishing feature of law, for Pashukanis, is the presence of atomized legal subjects who press rights against each other–and not just any rights, but the property rights of commodity owners. [9] As Marx demonstrated in Capital, commodities cannot bring themselves to the market, because they require juridical subjects who are not only actively engaged in commodity exchange but are recognized and respected in status as rights-bearers. Formal or juridical equality is a basic precondition for entering into and exiting contracts, and this includes the contract between labour and capital. The idea of juridical personhood is central to liberal jurisprudence, although the concept traces its origins back to Roman law, where it was often in contradiction with the empirical reality of the Servus.

Pashukanis’ critique of the neo-Kantian formalists was aimed at unmasking relations of domination that are concealed beneath the juridical equality of commodity exchange. However, at no point did Pashukanis conclude from his critique that the categories of liberal jurisprudence are illusory constructs that only exist in the minds of legal formalists. [10] Instead, Pashukanis argued that the legal form derives not only logically but also historically from the commodity form. This bold thesis led Pashukanis to put forward a series of foundational claims about the nature, function, and fate of law. Two of these claims had the unintentional consequence of bringing Pashukanis into bed with the formalists with whom he would have no truck.

The first of Pashukanis’ central claims is that a legal system is incomprehensible in the absence of generalized commodity exchange. Put simply, where there is commodity exchange there must be law, and where such exchange is absent there can be no law. Another of Pashukanis’ foundational claims was that the building blocks of law are to be found strictly within the bounds of private law, and that public law is at best a defective extension of private law. [11] Pashukanis wrote that “no matter how ingeniously devised and unreal any one of the juridical constructs may appear, it is on firm ground so long as it remains within the domain of private law, and of property law in particular”. [12] Pashukanis’ third and most controversial claim (especially for liberals) concerned the “withering away” of the legal form with the abolition of commodity exchange relations and the consolidation of planned production. Pashukanis maintained that “[t]he problem of the withering away of law is the cornerstone by which we measure the degree of a proximity of a jurist to Marxism …. one who does not admit that the planned organizational base eradicates the formal legal basis is, essentially speaking, convinced that the relationships of commodity-capitalist economy are eternal”. [13]

Pashukanis’s third claim brings us back full circle to Fuller’s reappraisal. After revaluing Pashukanis and excoriating Vyshinsky, Fuller reaches a conclusion that is now routinely rehearsed by liberal critics of Marxism, namely that “the despised bourgeois virtues [legality and its seemingly inseparable connection with private property] turn out, in the end, not to be mere copybook maxims, but indispensable ways of getting things done, rooted in the very nature of the human animal”. [14] Although the premises of Pashukanis’ theory (claims one and two) are sound, he erred in thinking that the legal form was bound for the dustbin of history (claim three). Furthermore, the moral of the Soviet experiment and of Pashukanis’ tragic demise, for Fuller, is that legal regulation and commodity exchange are eternal features of human nature. So much for Pashukanis’ daring “venture into enemy [bourgeois] territory” with the aim of demonstrating “the historically limited nature of the legal form”. [15]

Fuller’s qualified defence of Pashukanis’ theory set an interesting precedent among subsequent legal theorists, particularly among the neo-Kantian formalists that Pashukanis railed against. Over time, it became clear to me that Pashukanis still enjoys a respected place among leading legal theorists at the University of Toronto’s Faculty of Law, many of whom are steeped in the natural law tradition. [16] The “Toronto School”, as it has come to be called, is led by Ernest Weinrib, the preeminent representative of legal formalism in the English-speaking world. In The Idea of Private Law, Weinrib refers to Pashukanis (admittedly in a footnote) as the token representative of Marxist legal theory who recognized that “the relationship of law to economics should be understood not as the instrumentalism of the contemporary economic analysis of law, but as the congruence of juridical and economic form”. [17]

Pashukanis would have been aghast had he heard such praise from Weinrib the formalist, whose goal is to justify private law as a self-contained instantiation of corrective justice. The irony is that Pashukanis would have few resources for countering Weinrib’s accurate depiction of his theory. Through a peculiar dialectical inversion, Pashukanis the Marxist has been turned into the model formalist. How is this dialectical inversion to be explained, and why is the alliance between Marxist advocates of Pashukanis and his formalist bedfellows illusory and dangerous in the last instance?

As far as the Marxists are concerned, Pashukanis made the mistake of deriving legal relations, not from historically specific relations of production, but from commodity exchange relations. [18] Pashukanis’ derivation of the legal form from the commodity form barred the possibility of grappling with pre-capitalist and even post-capitalist varieties of law and right. The unintended consequence of Pashukanis’ theory was that it absolutizes bourgeois private law while claiming to show its historically limited character. For Pashukanis, as for many of his neo-Kantian counterparts, private law exhausts the concept of law because there can be no independent understanding of public law without commodity exchange and a regime of private property in the means of production. This myopic line reasoning led Pashukanis to resist any attempts at theorizing socialist conceptions of law under alternative regimes of property. [19] Worse, Pashukanis theorized that “technical regulation” would replace “legal regulation” under full communism, and in so doing, projected onto communism a collectivist “unity of social purpose” devoid of ethical and juridical considerations. [20] The trouble is that Pashukanis assigned the crucial task of determining technical means to specialized agencies and bureaus while depriving the associated producers of elementary formal rights that were afforded to them by bourgeois private law. [21] In short, Marxists stand to lose when allying with contemporary formalists in that they too become mesmerized by the eternal character of the commodity form and its corollary legal form. It does not help that Pashukanis’ alternative to the legal form vested unrestrained power in the hands of technocrats, leaving Marxists with the ill-fated choice between embracing formalist fetishism or succumbing to Stalinist totalitarianism.

On the opposite side of the bed, the neo-Kantian formalists also stand to lose from their budding alliance with Pashukanis. The neo-formalist fascination with Pashukanis makes sense given that the commodity exchange theory of law provides a mirror reflection of formalism’s uncritical justification of private law. It is worth noting that both Pashukanis and his neo-Kantian counterparts cite Hegel’s discussion of the abstract right of persons as a model rendition of the private law of exchange. [22] However, both neglect Hegel’s astute observation that abstract right is ultimately a defective and incomplete conception of right. [23] The difference between Pashukanis and the formalists is that Pashukanis’ theory was aimed at discrediting rather than justifying private law and the regime of private property that it upholds. Pashukanis’ enduring challenge to contemporary formalists is that their theories cannot help but reflect the arbitrary “needs of their class and of their times”. [24] Private law, at least as it has been theorized by contemporary formalists, lacks internal theoretical resources for addressing the domination of labour by capital, which takes hold firmly within the domain of private law. In the final analysis, the formalists cannot have it both ways: either private law does not honour corrective justice or it must condemn private ownership in the means of production as unjust on the basis of corrective justice. Neither of these alternatives seems appealing to contemporary formalists.

In place of a conclusion, it pays to restate Marx’s quip that the “tradition of all the dead generations weights like a nightmare on the minds of living”. [25] Evidently, Pashukanis’ theory still weights heavily on the minds of contemporary Marxists and neo-Kantian formalists, though for different reasons. Notwithstanding his personal and theoretical flaws, Pashukanis did not shy away from the radical teachings of his theory. We will never know for certain whether Pashukanis changed his mind before he was summarily executed. However, the benefit of historical hindsight should be accompanied by the critical insight that Marxists cannot afford to let history repeat itself, whether as tragedy or comedy. Present-day Marxists should learn from Pashukanis’ mistakes without giving up on his rigorous quest to unearth the historically limited character of the bourgeois legal form. Part of this quest involves saving Pashukanis from his bedfellows and from himself.

[1] Michael Head, Pashukanis: A Critical Reappraisal (New York: Routledge, 2008), 15.

[2] Lon Fuller, “Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal Theory”, Michigan Law Review 47 (1949): 1159.

[3] Head, Pashukanis, 158.

[4] Evgeny Pashukanis, General Theory of Law and Marxism, trans. Barbara Einhorn (London: InkLinks, 1978 [1924]), 52.

[5] Ibid., 139.

[6] Ibid., 84.

[7] Ibid., 107.

[8] Ibid., 101.

[9] Ibid., 100–1.

[10] Ibid., 43–44.

[11] Ibid., 106.

[12] Ibid., 82.

[13] Evgeny Pashukanis, “Economics and Legal Regulation” [1929] in Evgeny Pashukanis, Evgeny Pashukanis: Selected Writings, ed. Piers Beirne and Robert Sharlet (London: Academic Press, 1980), 268–69.

[14] Fuller, “Pashukanis and Vyshinsky”, 1165.

[15] Pashukanis, General Theory, 64.

[16] See, e.g., Arthur Ripstein, “Beyond Corrective and Retributive Justice? Marx and Pashukanis on the ‘Narrow Horizons of Bourgeois Right'” in Arthur Ripstein, Equality, Moral Responsibility and the Law (New York: Cambridge University Press, 1999), 252.

[17] Ernest Weinrib, The Idea of Private Law (Oxford: Oxford University Press, 2002), 139.

[18] For a helpful analysis of this point see Robert Fine, Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (London: Pluto Press, 1984), 157.

[19] Pashukanis, General Theory, 61, 63.

[20] Ibid., 81.

[21] Ibid. For an engaging critique of Pashukanis on this point, see Peter Ramsay, “Pashukanis and Public Protection” in Markus Dubber (ed), Foundational Texts in Modern Criminal Law (New York: Oxford University Press, 2004), 216–17.

[22] Pashukanis, General Theory, 110–11; Weinrib, Idea of Private Law, 81, 201.

[23] Hegel’s reservations against an uncritical formalism are worth quoting: “To have no interest except for one’s formal right may be pure obstinacy, often a fitting accompaniment of a cold heart and restricted sympathies; for it is uncultured people who insist most on their rights, while noble minds look to other aspects of the thing.” G. W. F. Hegel, Outlines of the Philosophy of Right, ed. Stephen Houlgate, trans. T. M. Knox (Oxford: Oxford University Press, 2008 [1820]), addition to ¶37.

[24] Pashukanis, General Theory, 64.

[25] Karl Marx, “The Eighteenth Brumaire of Louis Bonaparte” [1852] in Robert Tucker (ed), The Marx-Engels Reader (New York: Norton, 1978), 595.

Igor Shoikhedbrod recently completed a PhD in political science at the University of Toronto. He is currently Adjunct Instructor in the Ethics, Society, & Law Programme at Trinity College in the University of Toronto.