The General Theory of Law and Marxism

Evgeny Pashukanis

Law and Morality
People must relate to each other as independent and equal personalities in order for the products of human labour to be related to each other as values.

If one person is under the domination of another, i.e. is a slave, his labour ceases to be the creator and substance of value. The labour power of a slave, like the labour power of a domestic animal, merely transforms a definite part of the cost of its production, and reproduction, into a product.

On this basis Tugan-Baranovsky concludes that political economy can be understood by starting from the guiding ethical idea of absolute value and, therefore, of equivalence between human personalities. Marx, of course, arrives at the opposite conclusion, in that he connects the ethical idea of the equal value of human personalities with the form of a commodity, i.e. he derives it from the practical equivalence of all forms of human labour.

In fact, man as a moral subject, i.e. as an equal personality, is nothing more than a prerequisite of exchange according to the law of value. Man as the subject of rights is such a prerequisite, i.e. as a property owner. Finally, both these definitions are closely connected with a third man as an egoistic economic subject.

All three definitions are not reducible to each other, and are even contradictory as it were. They reflect the totality of conditions necessary for the realization of the value relationship, i.e. a relationship in which the bonds between people in the labour process appear as the material nature of the products being exchanged.

If one abstracts these definitions from the real social relationships which they reflect, and attempts to develop them as independent categories, i.e. by pure reason, then as a result one obtains a tangle of contradictions and propositions which are mutually exclusive. But in the real relationship of exchange these contradictions are dialectically united in a totality.

The party to the exchange must be an egoist, i.e. be guided by naked economic calculation, otherwise the value relationship cannot appear as a socially necessary relationship. The exchanging party must be the bearer of a right, i.e. have the possibility of making an autonomous decision, for his will must “be embedded in objects”. Finally, the exchanging party must embody the basic principle of the equality of all human personalities, because in exchange all types of labour are equalized and are reduced to abstract human labour.

Thus, these three elements (or, as it was earlier preferable to term them, three bases): egoism, freedom and the supreme value of the personality, are inextricably bound up with each other, appearing as a totality to be the rational expression of one and the same social relationship. The egoistic subject, the subject of a right and the moral personality are the three basic masks under which man appears in commodity production. The key to the understanding of legal and moral structures is provided by the economics of value relationships, not only in the sense of their real content but also in the sense of their form itself The idea of the principle of value and the equality of the human personality has a long history: through Stoic philosophy it entered into the use of Roman jurists and into the teaching of the Christian Church, and then into the doctrine of natural law. But whatever clothed this idea one could discover nothing in it other than an expression of the fact that the different concrete types of socially useful labour were reduced to labour in general, insofar as the products of labour began to be exchanged as commodities. In all other relationships, social inequality (sexual, class etc.) is so conspicuous in history that one must wonder not at the abundance of arguments against the doctrine of the natural law of social equality, but that until Marx no one posed the question of the historical origins of this prejudice against natural law. If in the course of centuries human thought returned with such emphasis to the thesis of social equality, and developed it in a thousand ways, then it is clear that some objective relationship must be hidden behind this thesis. There is no doubt that the concept of the moral or equal personality is an ideological formation, and as such does not adequately describe reality. The egoistic, economic subject is no less an ideological distortion of reality. Nevertheless, both these definitions are adequate for only one specific social relationship, and reflect it only abstractly and therefore one-sidedly. We have already had occasion to declare that the concept or word “ideology” must not restrain us from further analysis. To be satisfied with the fact that one man is equal to another is the offspring of an ideology intended to oversimplify the problem. “Down” and “up” are nothing more than concepts expressing our “earthly” ideology. However, the earth’s gravity is their factual basis. When man understood the real reason which made him distinguish “down from up” – i.e. the force of gravity directed toward the centre of the earth – then he reached the limits of these definitions, and their inadequacy as applied to all cosmic reality. Thus, the discovery that these concepts were ideological was another aspect of the process of discovering that they were true.

If moral personality is nothing other than the subject of commodity production, then moral law must reveal itself as the rule of exchange between commodity owners. This inevitably produces a duality. On the one hand, this law must have a social character and, as such, stand above the individual personality. On the other hand, the commodity owner is inherently the bearer of freedom (freedom to appropriate and alienate), therefore the rule governing exchange between commodity owners must be stated in the spirit of each of them, and each must internalize this law. The Kantian categorical imperative synthesizes these contradictory requirements. It is above the individual because it has nothing in common with any natural desires – fear, sympathy, pity, feeling of solidarity etc. In Kant’s terms, it does not frighten, does not convince, does not flatter. It is generally external to all empirical, i.e. purely human motives. At the same time it seems to be independent of all external pressures in the direct and crude sense of the word. It acts exclusively by virtue of realizing its universality. Kantian ethics are the typical ethics of a commodity-producing society, but at the same time they are a pure and perfected form of ethics in general. Kant gave a logically complete tenor to the form which atomized bourgeois society tried to embody in practice, liberating personality from the organic ties of the patriarchal and feudal periods.

The basic concepts of morality are meaningless if we abstract them from commodity production and try to apply them to some other social structure. The categorical imperative is not a social instinct. The basic purpose of the imperative is to act where no natural or organic supra-individual motivation is possible. When individuals have close emotional ties which erase the boundary of the I, then the phenomenon of moral obligation may not occur. To understand this latter category it is necessary to proceed not from the organic connection which exists, for instance, between the cow and the calf, or between the tribe and each of its members, but from the condition of alienation. Moral existence is a necessary supplement to juridic life – both are methods of exchange between commodity producers. All the pathos of the Kantian categorical imperatives is reduced to the fact that man “freely”, i.e. by voluntary persuasion, acts under the coercion of law. The very examples which Kant adduces for the illustration of his thoughts are typical. They are reduced entirely to the manifestation of bourgeois respectability. Heroism and exploits have no place within the Kantian categorical imperative. Personal sacrifice is not required because one demands no sacrifice from others. “Mindless” acts of penance and oblivion, in the name of fulfilling one’s historical calling, or one’s social functions, actions in which the most intense social instinct appear, lie outside ethics in the strict sense of the word.

Schopenhauer, and Vladimir Solov’ev after him, define law as an ethical minimum. It would be more accurate to define ethics as a certain social minimum. Intensified social enthusiasm is external to ethics and is inherited by modern man from the earlier periods of organic, and particularly tribal, existence.

Nevertheless, for a commodity-producing society, ethical reason is the highest possible achievement, and a higher cultural good of which one must speak only in the most exalted tone. It is necessary to remember Kant’s well-known words:

two things fill the spirit with ever new and increasing amazement and satisfaction the more often and deeply we think of them: the starry sky above my head and the moral law within me. [51]

And moreover, when discussion turns to examples of the “voluntary” fulfilment of moral duty, upon the stage appears just the same immutable alms or a refusal to lie when it would have been possible to lie with impunity. Uniquely, ethical reason universally triumphs over powerful and irrational social instincts. It breaks with all the organic and inherently narrow limits (kin-group, tribe, nation) and strives for universality. In this sense it reflects definite social material achievements, and transforms exchange into world exchange. “There is no Hellas, no Judaea” – this reflected the historical reality of the peoples united under the power of Rome. On the other hand, Kautsky apparently correctly notes that the rule “consider another as an end in himself”, makes sense only when in practice one man may be subjected to another. Moral pathos is indissolubly bound to, and nurtured by, the immorality of social practice. Ethical doctrines pretended to change and correct the world when in fact they were but a distorted reflection of one aspect of it: namely, that in which human relationships were subordinated to the law of value. It must not be forgotten that moral personality is but one of the hypostatic forms of a triad. Man as an end in himself is only another aspect of the egoistic economic subject. An act which is the unique and real embodiment of the ethical principle in itself includes the latter’s negation. The large-scale capitalist bona fide ruins the small capitalist, without for a moment encroaching upon the absolute value of his personality. The personality of a proletarian is “in principle equal” to the personality of a capitalist; this finds its expression in the fact of the “free” contract of employment. But for the proletarian this very “material freedom” means the possibility of quietly dying of starvation.

This ambiguity of the ethical form is not accidental, nor is it some external defect caused by the specific inadequacies of capitalism. On the contrary, this is an essential characteristic of the ethical form itself To eliminate the ambiguity of the ethical form would mean to effect the transition to a planned social economy, and this would mean to realize a system in which people can think and construct their relationships using simple and clear concepts such as harm and benefit. To eliminate the ambiguity of the ethical form in the most essential area (in the area of material social existence) means to destroy this form altogether.

Pure utilitarianism, striving to disperse the metaphysical haze which surrounds ethical doctrines, leads to conceptualizing good and evil from the perspective of harm and benefit. Thereby, of course, it simply destroys ethics, or rather tries to destroy and transcend them. The transcendence of ethical fetishism in fact may be achieved only simultaneously with the transcendence of commodity and legal fetishism. People who are guided in their actions by clear and simple concepts of harm and benefit will require that their social relationships be expressed either in terms of value or of law. Until this level of historical development is attained by mankind, i.e. until the legacy of the capitalist period is transcended, theoretical effort can merely proclaim this pending liberation but not implement it in practice. We must remember Marx’s words on commodity fetishism:

The most recent scientific discovery that the products of labour, to the extent that they contain value, are merely a material reflection of the labour expended in their production, and that this constitutes a period in the historical development of mankind, by no means eliminates the material objectivity of the social nature of labour.

But it is objected that the class morality of the proletariat is already liberated from all fetishes. The morally necessary is that which is beneficial to the class. In such a form, morality includes nothing absolute because what is useful today may not be so tomorrow. It also includes nothing mystical or supernatural because the utilitarian principle is simple and rational.

There is no doubt that proletarian morality (or more accurately, that of its advanced strata) loses its particularly fetishist character, being liberated from religious elements. But morality, even entirely devoid of the mixture of religious elements, nevertheless remains moral, i.e. it is a form of social relationship in which not everything is yet reduced to man himself. If the conscious link to a class is in fact so powerful that the borders of the “I” are, so to speak, erased, and the advantage of the class actually merges with personal advantage, then there is no sense in speaking of the fulfilment of moral duty. In general, the phenomenon of morality is then absent. When such a merger has not occurred, then inevitably the abstract relationship of moral duty arises with all its attendant consequences. The rule: “act for the greatest advantage of one’s class” sounds identical to Kant’s formula: “act so that your conduct may serve the principle of universal legislation”. The difference is that in the first case we introduce a concrete limitation, and erect class boundaries on ethical logic. [52] But within these boundaries it remains in full force. The class content of ethics by itself does not eliminate its forms. We have in mind not only the logical form, but also the form of the real phenomenon. Embedded in the proletariat (in the class collectivity) we observe formally the same methods of realizing the moral duty, which are comprised of two opposing elements. On the one hand, the collective does not fail to use all possible means of putting pressure upon its fellow members to motivate them in their moral duty. On the other hand, the same collective qualifies conduct as moral only in the absence of externally motivating pressure. Therefore to study morality means, to a certain degree, to study falsehood. Morality, like law and state, is a form of bourgeois society. If the proletariat is compelled to use them, this by no means signifies the possibility of the further development of those forms in the direction of filling them with a socialist content. They are incapable of retaining this content, and must wither away in the course of their realization. Nevertheless, until the end of the present transitional period, the proletariat necessarily must use these forms inherited from bourgeois society in its class interest, and then exhaust them. For this, it must above all have a very dear understanding, free from ideology, of the historical origin of these forms. The proletariat must critically and soberly relate not only to the bourgeois state and to bourgeois morality, but even to its own state and to its own proletarian morality, i.e. it must recognize the historical necessity of their existence as well as of their disappearance.

In his criticism of Proudhon, Marx among other things notes that the abstract concept of justice is by no means an absolute and eternal criterion by which we might construct an ideal, i.e. a just exchange relationship. This would signify the attempt to measure an object by its own reflection. But the very concept of justice is drawn from the exchange relationship, and expresses nothing outside of it. Essentially speaking, the very concept of justice does not include anything new in comparison with the concept of social equality which we analysed above. Therefore, it is ridiculous to see any independent and absolute criteria in the idea of justice. It is true that in its artful usage it provides greater possibilities for interpreting inequality as equality, and therefore is particularly useful for obscuring the equivocal ethical form. On the other hand, justice is the step by which ethics descend to law. Moral conduct must be “free”; justice must be compelled. Compulsory moral conduct tends to deny its own existence; justice is openly “applied” to man; it allows external realization and an active egoistic interest in demanding justice. Here are found the main points of contiguity and divergence between the ethical and the legal forms.

Exchange, i.e. the circulation of commodities, assumes that the exchanging parties recognize one another as property owners. This recognition, assuming the form of inner conviction or the categorical imperative, represents the conceivable maximum which a society of commodity producers may achieve. But besides this maximum there exists a certain minimum through which the circulation of commodities can nevertheless flow without hindrance. For the realization of this minimum, it is sufficient that the commodity owners conduct themselves as if they recognized each other as property owners. Moral conduct is opposed to legal conduct which is characterized as such irrespective of the motives which produce it. Whether a debt is repaid because “in any event I will be forced to pay it”, or because the debtor considers it his moral obligation to do so, makes no difference from the juridic perspective. It is obvious that the idea of external coercion, both in its idea and organization, constitutes an essential aspect of the legal form. When no coercive mechanism has been organized, and it is not found within the jurisdiction of a special apparatus which stands above the parties, it appears in the form of so-called “inter-dependence”. The principle of inter-dependence, under the conditions of balance of power, represents the single, and it can be said, the most unstable basis of international law.

On the other hand, a legal claim as distinct from a moral claim appears not in the form of an “inner voice”, but as an external demand proceeding from a concrete subject who, as a rule, is at-the same time the bearer of a corresponding material interest. Therefore-, the fulfilment of a legal obligation takes on an external and almost material form of satisfaction of demand and is finally divorced from all subjective elements on the part of the obligee. The very concept of legal obligation therefore becomes most problematic. If we are fully consistent, it is necessary to say, as Binder does, that an obligation which corresponds to a right has nothing in common with “duty” (Pflicht), but exists juridically only as responsibility (Haftung); “obliged” means no more than “answers with his property (or in criminal law also with his person) by means of the judicial process and the compulsory execution of the verdict”. Binder’s conclusions are paradoxical for the majority of jurists, and are expressed in the short formula: Das Recht verpflichtet rechtlich zu nichts (law legally does not impose any duty). In fact this represents only the consequence of following the conceptual dichotomy already established by Kant. But it is precisely this clarity in the demarcation of the moral and legal spheres, which provides the source of the most insoluble contradictions for the bourgeois philosophy of law. If legal obligation has nothing in common with an “inner” moral duty, then subordination to law cannot be distinguished from subordination to force per se. If, on the other hand, one accepts that an essential characteristic of law is the element of obligation, of even the weakest subjective kind, then the meaning of law as a socially necessary minimum slowly loses its meaning. Bourgeois philosophy of law exhausts itself in this basic contradiction, in this endless struggle with its own assumptions.

Moreover, it is interesting that one and the same contradiction essentially appears in two different forms, depending on whether one speaks of the relationship between law and morality or the relationship between the state and law. In the former case, when the independence of law was affirmed with respect to morality, law is merged with the state because of the increased emphasis upon the element of external authoritative coercion. In the latter case, when law is contrasted with the state, the element of obligation (in the sense of the German gelten, not müssen) – actual domination – inevitably appears on the scene, and we have before us, so to speak, a united front of morality and law.

Here, as always, the contradiction of the system reflects the contradiction of real life, i.e. that social environment which created within itself the forms of morality and law. The contradiction between the individual and the social, between the part and the whole can never be reconciled by the bourgeois philosophy of law. This contradiction constitutes the conscious basis of bourgeois society as a society of commodity producers. This is embodied in the real relationships of human subjects who can regard their own private struggles as social struggles only in the incongruous and mystifying form of the value of commodities.

Notes

51. I. Kant, Kritik der practischen Vernunft (1914), German edition, p.96.

52. It goes without saying that in a society torn by class struggle, classless ethics may exist only in the imagination, but by no means in practice. A worker, having decided to take part in a strike – despite those deprivations with which this participation is associated for him – may formulate this decision as a moral duty to subordinate his personal interests to the general interests. But it is dear that this concept of general interests may not also include the interests of the capitalist against whom the struggle is waged.