The General Theory of Law and Marxism

Evgeny Pashukanis

Methods of Constructing the Concrete in the Abstract Sciences

Every generalizing science, in studying its subject matter, turns to one and the same reality. One observation, for example the observation of the movement of heavenly bodies across the meridian, may provide conclusions for both astronomy and pyschology. And one fact, ground rent for example, may be the object of political economy or law. The difference between various sciences depends, therefore, essentially on their respective methodological and ontological approaches. Every science has its particular method, and by this method it seeks to reproduce reality. Moreover, each science constructs a concrete reality with all its wealth of forms, relations and dependencies, as the result of the combination of the most simple elements and abstractions. Psychology seeks to reduce consciousness to its simplest elements. Chemistry solves the same task with respect to substances. When in fact we cannot reduce reality into simpler elements, abstractions come to our aid. The role of abstractions is extremely important in the social sciences. The greater or lesser the perfection of abstraction is determined by the maturity of a given social science. Marx brilliantly explains this with the example of economic science.

It would seem entirely natural, says Marx, to begin research with the concrete totality, with the population living and producing in specific geographical conditions; but this population is but an empty abstraction without the classes which constitute it; in their turn, the latter are nothing without the conditions of their existence, conditions which are wages, profit and rent. The analysis of these assumes the simplest categories of price, value and, finally, commodities. Proceeding from these simplest definitions, the political economist reconstructs the concrete totality not as a chaotic, diffused whole, but as a unity replete with internal dependencies and relationships. Marx adds, moreover, that the historical development of science regressed; the seventeenth-century economists began with the concrete – with the nation, state and population – in order to arrive at rent, profit, wages, price and value. However, that which was historically inevitable is by no means methodologically correct. [11]

These observations are most applicable to the general theory of law. In this case, too, the concrete totality of society, population and the state, must be the result and the final stage of our conclusions, but not their starting point. For in moving from the simple to the more complex, from a process in pure form to its more concrete forms, we can follow a methodologically well-defined – and therefore more correct – path, than when we hesitantly move with only the diffused and undissected form of the concrete whole before us.

The second methodological observation, which must be made here, concerns one peculiarity of the social sciences. More correctly, it concerns their concepts. If we take some natural science concepts, for example the concept of energy, then we may of course establish precisely the chronological moment when it appeared. However, this date is significant only for the history of science and culture. In natural science research, as such, the application of this concept is not associated with temporal limits. The law of the transformation of energy was in effect before the appearance of Man and will continue after the cessation of all life on earth. It is extra-temporal; it is an eternal law. It is possible to ask when was the law of the transformation of energy discovered, but it is futile to concern oneself with the question of establishing the moment when these relations were reflected in that law.

Let us now turn to the social sciences, or only to political economy, and take one of its basic concepts, such as value. The real history of value is at once glaringly obvious – historically, both in the concept as a component of our thought, and also of the history of the concept as it constitutes part of the history of economic theory. The development of social relationships, therefore, gradually transforms this concept into historical reality. We know exactly what material relationships were necessary in order for the “Ideal”, “imaginary” quality of the object to assume “real” and therefore decisive significance. In comparison with the natural qualities which transform the product of labour from a natural phenomenon into a social phenomenon, we thus know the real historical substratum of our cognitive abstractions. At the same time we are convinced that the limits within which the application of this abstraction makes sense, correspond with the limits of the real development of history and are determined by it. Another example, adduced by Marx, shows this most clearly. Labour, as the simplest relationship of man to nature, is encountered at all stages of development, but as an economic abstraction it appears relatively late (compare the succession of schools: mercantilist, physiocrat, classical). But the development of the concept corresponded to the real development of economic relationships, obfuscating the distinction between different types of human labour and substituting labour in general for it. So, conceptual development corresponds to the real dialectic of the historical process. [12] Let us take another example, external to political economy-the state. Here we can observe both how the concept of the state gradually obtains definitional rigour and finality, developing the full scope of its definitions, and also how in reality the state develops and how it is “abstracted” from patrimony and feudalism, and how it is converted into a self-sufficient force which “penetrates all social interstices”.

Thus even law, most generally defined, exists as a form not just in the minds and theories of learned jurists. It parallels a real history which unfolds itself not as a system of thought, but as a special system of social relationships. People enter these relationships not because they have consciously chosen to do so, but because the conditions of production necessitate it. Man is transformed into a legal subject in the same way that a natural product is transformed into a commodity with its mysterious quality of value.

This is a natural necessity which is confined to the framework of bourgeois conditions of existence. Therefore, natural law doctrine consciously or unconsciously lies at the basis of bourgeois theories of law. The natural law school was not only the clearest expression of bourgeois ideology in the period when the bourgeoisie, acting as a revolutionary class, formulated its demands openly and consistently; it also provided a model for the most profound and distinct understanding of the legal form. It is no accident that the flourishing influence of the doctrine of natural law closely coincided with the appearance of the great classical writings of bourgeois political economy. Both schools set themselves the task of formulating, in the most general and therefore in the most abstract form, the basic conditions of existence of bourgeois society. Bourgeois society appeared to them as the natural condition of existence of all societies.

Rather than dwelling in more detail on the changing schools of legal philosophy, we may note some evolutionary parallels between legal and economic thought. Thus, their historical direction may in both cases be regarded as a phenomenon of the feudal aristocracy, and partly also of the petit bourgeois reaction. When their revolutionary ardour was finally dissipated in the second half of the nineteenth century, the bourgeoisie ceased to be attracted by the purity and clarity of classical doctrines. Bourgeois society now sought stability and strong authority. The central focus of legal theory became not the analysis of the legal form, but the problem of justifying the coercive power of legal rules. A unique blend of historicism and legal positivism was created which led to the denial of all law other than law emanating from the state.

The psychological school of law may be categorized alongside the psychological school of political economy. Both try to transfer the object of analysis to the realm of the subjective conditions of consciousness (“evaluations”, “imperative-attributive emotion”), failing to see that the corresponding abstract categories express social relationships in the regularity of their logical structure, social relationships which are hidden from individuals and which extend beyond the limits of their consciousness.

Finally, the extreme formalism of the normative school (Kelsen) undoubtedly expresses the most recent general decadence of bourgeois scientific thought. This is accomplished by its exhaustion in the fruitless subtleties of method and formal logic, and the tendency to divorce itself from reality. In economic theory a similar position is occupied by representatives of the mathematical school.

The legal relationship is, in Marx’s phrase, an abstract and one-sided relationship; but in this it appears not as the result of the product of the mind of a conscious subject, but as the product of social development.

“In any historical and social science, and also in the development of economic categories, it is always necessary to remember that in reality, and therefore in the mind, the subject is already given-here, bourgeois society. Categories therefore express only the forms of being and the characteristics of existence – often only of individual aspects of this specific society, this subject.” [13]

What Marx says here about economic categories is fully applicable to legal categories. The latter, in their false universality, in fact express particular aspects of a specific historical subject – of bourgeois commodity production.

In the same Introduction, which we have repeatedly cited, we find still another profound methodological observation by Marx. This concerns the possibility of clarifying the meaning of preceding formations in terms of the analysis of subsequent and more developed formations. Marx explains that only having understood rent can we understand tribute, the tithe and the feudal corvée. The more developed form explains the previous stages in which it existed only embryonically. Evolution, as it were, reveals those intimations which were hidden in the distant past.

Bourgeois society is the most developed and perfected historical organization of production. The categories which reflect its relationships and its organizations, simultaneously enable comprehension of the structure of the production relationships of all obsolete social forms-from whose fragments and elements this society is erected, partly continuing to bear its legacy, which it has not succeeded in overcoming, and partly articulating, that which formally was there only by implication. [14]

Applying the above mentioned methodological consideration to the theory of law, we must begin with the analysis of the legal form in its most abstract and simple aspect, moving gradually by way of complexity to the historically concrete. In so doing we must not forget that the dialectical development of concepts corresponds to the dialectical development of the historical process itself Historical evolution produces not only successive changes in the content of norms and legal institutions, but also the development of the legal form itself The legal form appeared at a certain cultural level in a long embryonic stage, internally unstructured and barely distinguishable from neighbouring spheres, e.g. mores, religion. Then, gradually developing, it achieves maximum maturity, differentiation and precision. This higher stage of development corresponds to specific economic and social relationships. At the same time this stage is characterized by the appearance of a system of general concepts theoretically reflecting the legal system as a distinct whole.

Accordingly, we can achieve a clear and exhaustive definition only if we base our analysis on the fully developed legal form of law which interprets its antecedent forms as its embryos.

Only then can we perceive law, not as a characteristic of abstract human society, but as an historical category which responds to specific social environs and which is constructed on the contradictions of private interests.

Notes

11. See K. Marx, Introduction to the Critique of Political Economy (1857), in The Grundrisse (1973), translation and foreword by M. Nicolaus, Random House, New York, p.100.

12. ibid., pp.104-105.

13. ibid., p.106.

14. ibid., p.105.