The General Theory of Law and Marxism

Evgeny Pashukanis

Ideology and Law

In the recent polemic between Comrade Stuchka and Professor Reisner, an important role was played by the question of the ideological nature of law. [1*] Relying upon a handsome collection of citations, Reisner tried to show that Marx and Engels considered law as one of the “ideological forms”, and that the same view was held by many other Marxist theorists. Of course it is not necessary to dispute these statements and citations. Likewise, it is impossible to deny the fact that law is experienced by people pyschologically, in particular in the form of general principles of rules or norms. However, the task is by no means to recognize or deny the existence of legal ideology (or psychology), but rather to show that legal categories have no other significance than the ideological. Only in the latter case do we recognize Reisner’s conclusion as “necessary”, namely, “that a Marxist may study law only as one of the subtypes of the general type ideology”. In this little word “only” lies the whole essence of the matter. We will explain this with an example from political economy. The categories of commodity, value and exchange-value are undoubtedly ideologically produced distortions, mystifying (in Marx’s expression) forms of ideas, in which exchange society imagines a labour bond between individual producers.

The ideological nature of these forms is proved by the fact that if one goes to other economic structures, the categories (of commodity, value etc.) lose all significance. Therefore, with complete justification we may speak of a commodity ideology, or as Marx called it, a “commodity fetishism” and categorize it in the list of psychological phenomena. This by no means signifies that the categories of political economy have exclusively psychological significance, that they relate only to experiences, impressions and other subjective processes. We know very Well that, for instance, the category of commodity, despite its clear ideological nature, reflects an objective social relationship. We know that whatever degree this relationship has developed, its greater or lesser universality, are material factors subject to inquiry as such, and that it exists not merely in the form of ideological-psychological processes. Thus, the general concepts of political economy are not only an element of ideology, but they are also a type of abstraction, from which we may scientifically, i.e. theoretically, construct objective economic reality. In Marx’s words: “These are socially significant, and thus objective, forms of thought within the limits of the productive relationships of a specific, historically determined, social form of production – commodity production.” [15]

We must, therefore, demonstrate both that general juridic concepts may enter and actually do enter into the structure of ideological processes and ideological systems-this is not subject to any dispute-and that in them, in these concepts, it is possible to discover social reality which has, in a certain way, become mystified. In other words, we must determine whether or not legal categories are such objective forms of thought (objective for an historically specific society) which correspond to objective social relationships. Consequently, our question is: is it possible to understand law as a social relationship in the same sense in which Marx termed capital a social relationship?

Such a statement of the question pre-empts reference to the ideological nature of law, and all our consideration is transferred to an entirely different level.

Recognition of the ideological nature of concepts by no means frees us from the work of searching for objectively existing reality, i.e. in the reality of the external world, and not simply in consciousness. In the opposite case we would be compelled to erase any boundary between the world beyond the grave-which also exists in the conceptions of some people-and, say, the state. Professor Reisner, incidentally, does just this. Relying on the well-known quotation from Engels concerning the state as the “primary ideological force”, dominating people, Reisner quickly equates the state with state ideology. “The psychological nature of the phenomena of authority is so obvious, and state authority itself – existing only in the psyche of people (our italics, E.P.) – is so deprived of material features, that it would seem no one considers state authority in any way other than as an idea. It is real only to the extent that people make it a principle of their action.” [16] This means that finances, the military, and administration, are all entirely “deprived of material features”, that all this exists “only in the psyche of the people”. And what can be done, in the words of Professor Reisner himself with that “huge” mass of the population which lives “outside state consciousness”? It must obviously be excluded. These masses have no significance for “the real” existing state.

And what about the state from the perspective of economic unity? Or customs or the boundaries of custom, are these also ideological and psychological processes? Many such questions can be posed, but all with the same meaning. The state is an ideological form , but simultaneously it is a form of social existence. The ideological nature of a concept does not eliminate the reality and materiality which the concept reflects.

The formal completeness of the concepts of state, territory, population and authority, reflect not only a specific ideology but also the objective fact of the formation of a real sphere of domination, bound to one centre, and, accordingly, even more important, they reflect the creation of real administrative, financial and military organizations with corresponding human and material apparatuses. The state is nothing without methods of communication, without the possibility of giving orders and decrees, of moving armed forces etc. Does Professor Reisner think that the Roman military roads, or modern methods of communications, relate to phenomena of the human psyche? Or does he suppose that these material elements must be entirely ignored as a factor in the formation of the state? Then of course nothing else will remain for us but to equate the reality of the state with the reality of “literature, philosophy, and other spiritual productions of man”. It is regrettable that the practice of political struggle, of the struggle for authority, radically contradicts this psychological concept of the state, for at each step we are confronted by objective and material factors.

However, one cannot but note that an inevitable result of the psychological perspective (on which Professor Reisner depends) is subjectivism and solipsism. “As the creation of as many psychologies as there are individuals, and of as many different types as there are groups and social classes, state authority will appear inherently different in the consciousness and conduct of a cabinet minister and that of a peasant who has not yet contemplated the idea of a state; in the psyche of a political activist and in the principles of an anarchist – in one word in the consciousness of people with very different social positions, professional activity, upbringing etc.” [17] From this it is clearly obvious that if we remain on a psychological level we quite simply lose every basis to speak of the state as some objective unity. Only by considering the state as a real organization of class authority, i.e. taking into account all (including not only psychological but material) elements, and the latter first of all, do we obtain firm ground under our feet, i.e. we may study the state itself as it is in reality, and not just the innumerable and varied subjective forms in which it is reflected and experienced.

But if abstract definitions of the legal form indicate not simply certain psychological or ideological processes, but if they are concepts which express the very essence of an objective social relation, then in what sense do we say that law- regulates social relationships? Do we not want to say by this that social relationships therefore regulate themselves? Or when we say that a social relationship assumes a legal form, then does this not imply a simple tautology: law adopts the form of law? [18]

At first glance this objection is most convincing, and would seem to leave no other alternative than to recognize law as ideology and only ideology. However, let us try to disentangle these difficulties. In order to lighten our task let us again resort to comparison. Marxist political economy teaches, of course, that capital is a social relationship. It may not as Marx says, be discovered under a microscope, but nevertheless it by no means is exhausted by experiences, ideologies and other subjective processes which occur in the human psyche. It is an objective social relationship. Further, when we observe, for example, in the sphere of small-scale production, the gradual transition from working for a customer to labouring for a monopolist, we postulate that the corresponding relations have assumed a capitalist form. Does this mean that we have fallen into a tautology?

By no means; we have merely said that the social relation which is called capital began to colour or gave its form to another social relation. Thus we may consider all that occurred purely objectively, as a material process, entirely eliminating the psychology or ideology of its participants. Cannot this be done in exactly the same way with law? Being itself a social relationship, it is capable to a greater or a lesser extent, of colouring or giving its form to other social relationships. Of course, we may never approach a problem from this perspective if we are guided by a confused impression of law as a form in general-similar to the way in which vulgar political economy cannot glean the essence of capitalist relationships by beginning with the concept of capital as “accumulated labour in general”.

Thus, we can escape from this apparent contradiction, if by way of analysis of the basic definitions of law, we succeed in showing that it is a mystified form of some specific social relationship. In this case it will not be meaningless to say that this relationship in one or another instance gives its form to another social relationship, or even to the totality of social relationships.

The situation is no different with the second apparent tautology: law regulates social relationships. For if we exclude a certain anthropomorphism inherent in this formula, then it is reduced to the following proposition: under certain conditions the regulation of social relationships assumes a legal character. Such a formulation is undoubtedly more correct and, most importantly, more historical. We may not deny that collective life exists even among animals, nor that life there is regulated in one way of another. But it never occurs to us to affirm that the relationships of bees or ants is regulated by law. If we turn to primitive tribes, then although we may observe the origins of law, nevertheless a significant part of the relationships are regulated by a means external to law, e.g. by the prescriptions of religion. Finally, even in bourgeois society such things as the organization of postal and railroad services, military affairs etc. may be assigned entirely to legal regulation only upon a very superficial view which allows itself to be deceived by the external form of laws, charters and decrees. A railroad schedule regulates the movement of trains in a very different sense than, say, the law on the liability of railroads regulates the relationship of the latter with freight shippers. Regulation of the first type is primarily technical; the second primarily legal. The same relationship exists between the mobilization plan and the law on compulsory military service, between the instructions on the investigation of criminals and the Code of Criminal Procedure.

We will return to the difference between legal and technical norms later. For the moment we merely note that the regulation of social relationships assumes a legal nature correlative with the development of the specific and basic legal relationship.

The regulation of norms, or the creation of norms for social relationships are in principle homogeneous and thoroughly legal only upon a very superficial or purely formal view of the matter. Actually, there is an obvious difference in this regard between the various fields of human relationships. Gumplowicz sharply distinguishes between private law and state norms, and only agreed to recognize the former as the domain of jurisprudence. In fact the most consolidated nucleus of legal obscurity (if it is permissible to use such a phrase) lies precisely in this area of the relations of private law. It is here that the legal subject, “persona”, finds a fully adequate embodiment in the concrete individuality of the subject engaged in egoistic economic activity, as an owner and bearer of private interests. It is in private law that legal thought moves most freely and confidently; its constructs assume the most finished and structured form. It is here that the classical shades of Aulus Agerius and Numerius Negidius – those personages of the Roman procedural formula – constantly soar above the jurists, and it is from them that the latter draw their inspiration. In private law the a priori assumptions of legal thought are clothed in the flesh and blood of two disputing parties, defending “their own rights”, with vindicta in their hands. Here, the jurist’s role as a theorist is directly merged with his practical social function. The dogma of private law is nothing more than an endless chain of arguments pro and contra imaginary claims and potential suits. Behind each paragraph of this systematic guide stands an unseen abstract client ready to use the relevant propositions as advice. The scholarly legal arguments on the significance of a mistake, or on the distribution of the burden of proof, do not differ from the same disputes before a judge. The difference here is no greater than that between knightly tournaments and feudal wars. The first, as is well known, were conducted sometimes with even greater fierceness, and demanded no less expenditure of energy and sacrifice, than real skirmishes. Only the replacement of individual enterprise with planned social production and distribution will end this unproductive expenditure of the forces of the human mind.

The basic assumption of legal regulation is thus the opposition of private interests. At the same time the latter is the logical premise of the legal form and the real cause of the development of the legal superstructure. The conduct of people may be regulated by the most complex rules but the legal element in this regulation begins where the individualization and opposition of interests begins. “Controversy”, says Gumplowicz, “is the basic element of everything legal”. Unity of purpose is, on the contrary, the premise of technical regulation. Therefore the legal norms concerning the liability of railroads presume private claims, private individualized interests; the technical norms of railroad movement suppose a single purpose, e.g. the achievement of maximum freight capacity. Let us take another example: the curing of a sick person presupposes a series of rules both for the sick person himself and for the medical personnel; but to the extent that these rules are established from the perspective of a single purpose, the restoration of the patient’s health, they are of a technical nature. The application of these rules may be accompanied by coercion with respect to the patient. But so long as this coercion is considered from the perspective of the same single purpose (both for the rulers and the ruled), it remains solely a technically expedient act. Within these limits the content of the rules is established by medical science and is altered with its progress. There is nothing here for the lawyer to do. His role begins where we leave the basis of unity of purpose and move to the consideration of the perspective of individualized and antagonistic subjects, each of whom is the bearer of his own private interest. The physician and the patient are now transformed into subjects of rights and duties, and the rules which connect them are legal rules. At the same time, coercion is now considered not just from the perspective of expediency, but from the perspective of formal, i.e. legal, permissibility.

It is not difficult to see that the possibility of taking a legal perspective derives from the fact that the most diverse relationships in commodity-producing societies are organized on the model of relationships of commercial circulation, and inscribed in the form of law. Likewise, it is natural for bourgeois jurists to deduce the universality of the legal form from the external and absolute qualities of human nature, or from the fact that the orders of the authorities may extend to any subject. It is not necessary to provide any particular proof of this. An article in Volume Ten obliged a husband “to love his wife as his very own body”. However, even the most daring jurists would hardly try to construct a corresponding legal relationship involving the possibility of libidinization etc.

On the contrary, however artificial and unreal a specific juridic construct may seem, nevertheless, so long as it remains within the bounds of private law, and primarily property law, it has a firm basis. Otherwise, it would have been impossible to explain the fact that the basic lines of thought of Roman jurists retained their significance up to the present time as the ratio scripta of every type of commodity-producing society.

We have to a certain extent now anticipated the answer to the question posed at the outset: where shall we look for that unique social relationship whose inevitable expression is the form of law? We will try to show in more detail that this relationship is the relationship of possessors of commodities. [19] The usual analysis, which we find in any philosophy of law, identifies the legal relationship as a will relationship, as a voluntary relationship between people in general. The reasoning here proceeds from the “existing results of the process of development”, from the “ongoing forms of thought”, but it ignores their historical origin; whereas in reality, in proportion to the development of a commodity economy, the natural premises of exchange become the natural premises of every form of human relationship and stamp their imprint upon them; in the heads of philosophers, on the contrary, the circulation of commodities is represented as merely a partial instance of a general form which for them assumes an eternal nature. [20]

Comrade Stuchka, from our point of view, correctly identified the problem of law as a problem of a social relationship. But instead of beginning to search for the specific social objectivity of the relationship, he returned to the usual and formal definition-although a definition now influenced by class characteristics. In the general formula given by Stuchka, law figures not as a specific social relationship but, as with all relationships in general, as a system of relations which corresponds to the interests of the ruling class and which protects it with organized force. Accordingly, within these class boundaries, law as a relationship is indistinguishable from social relations in general, and Comrade Stuchka is therefore not in a position to answer Professor Reisner’s venomous question: how do social relationships become legal institutions, or how is law converted into itself?.

Stuchka’s definition, perhaps because it emerged from the depths of the People’s Commissariat of justice, was tuned to the needs of the practising lawyer. It shows the empirical limit which history always places upon legal logic, but it does not reveal the deep roots of this logic itself. This definition reveals the class content included in legal forms, but it does not explain to us why this content adopts such a form.

For the bourgeois philosophy of law, which considers relationships as an eternal and natural form of all human relationships, such a question does not arise in general. For Marxist theory, which tries to penetrate the secrets of social forms and to reduce “all social relationships to man himself”, this task must occupy the first place.

Notes

15. K. Marx, Capital (1867), International Publishers, New York, 1967, vol.1, p.76.

16. M. Reisner, The State (1911), Moscow, 2nd edition, vol.1, p.xxxv.

17. ibid.

18. See the review of Stuchka’s The Revolutionary Role of Law and State (1921), by Professor Reisner, Herald of the Socialist Academy, no.1, p.176.

19. cf. V.V. Adoratsky, On the State (1923), Moscow, p.41: “The tremendous influence of legal ideology on the entire system of thinking of law-abiding members of bourgeois society is explained by the significant role of ideology in the life of this society ... A person living in bourgeois society is constantly regarded as a subject of rights and obligations. Every day he effects an endless number of legal actions involving the most diverse legal consequences. No society has such a need, therefore, of the idea of law (in its practical, everyday use), nor develops this idea in such detail, nor transforms it into such an essential instrument of daily exchange, as does bourgeois society.”

20. K. Marx, Capital (1867), op. cit., vol.1, p.81.