The Tasks of the General Theory of Law

The General Theory of Law and Marxism

Evgeny Pashukanis,

The general theory of law may be defined as the development of the basic, i.e. the most abstract juridic concepts. The latter include, for example, such definitions as “legal norm”, “legal relation”, “subject of law” etc. Because of their abstract nature, these concepts are equally applicable to any branch of law; their logical and systematic meaning remains the same irrespective of the specific content to which they are applied. No one would deny, for example, that the concepts of a subject of civil law and a subject of international law are subordinate to the more general concept of a subject of law as such and that, therefore, this category may be defined and developed independently of its specific concrete content. On the other hand, if we remain within the limits of any one branch of law, then we may say that these basic legal categories do not depend on the specific content of legal norms, in the sense that they retain their significance whatever the changes in the specific material content. [1]

We therefore conclude that developed juridic thought, whatever the material to which it is applied, cannot do without a certain number of highly abstract and general definitions.

Nor may our Soviet jurisprudence do without them if it is to remain jurisprudence, i.e. if it is to answer to its immediate practical tasks. The basic, i.e. formal, legal concepts continue to be in our codes and in the commentaries corresponding to them. The method of legal thought also remains in operation with its specific approaches.

But does this prove that the scientific theory of law must be occupied with the analysis of these abstractions? A rather widespread view assigns a purely artificial and technical significance to the basic and most general legal concepts. Dogmatic jurisprudence, we are informed, uses these designations for the purpose of convenience and only for convenience. They have no other theoretico-cognitive significance. However, the fact that dogmatic jurisprudence is a practical, and in a certain sense a technical discipline, still does not provide grounds for the conclusion that its concepts may not enter into the structure of the corresponding theoretical discipline. [2] Political economy itself began its development with practical questions primarily of monetary circulation – it originally intended to show “the methods by which governments and nations acquire wealth”. Nevertheless, in these technical suggestions we already find the bases of those concepts which, in deeper and in enriched form, entered the structure of a theoretical discipline political economy.

Is jurisprudence able to develop into a general theory of law without thereby transforming itself either into psychology or into sociology? Is it possible to analyse the basic definitions of the legal form in the way that political economy analyses the basic and most general definitions of the form of a commodity or of value? These are questions whose solution depends on the possibility of considering a general theory of law as an independent theoretical discipline.

Sociological and psychological theories (sic) of law are distinguished by the fact that they simply ignore this problem. From the very beginning, they operate with concepts of an extra-juridical nature, and if they also examine legal definitions, then it is only for the purpose of declaring them “fictions”, “ideological fantasies”, “projections” and so on. Upon first sight this naturalist or nihilist approach undoubtedly commands a certain sympathy, and particularly so if one contrasts it with the ideological theories of law which are saturated thoughout with teleology and moralizing. After lofty phrases on “the eternal idea of law” or “the absolute significance of the individual”, the reader seeking a materialist explanation of law turns with great interest to theories which treat law as the result of a struggle of interests, as a phenomenon of state coercion, or even as a process played out in the real human psyche. Many Marxist comrades have thought it sufficient to introduce the element of class struggle into these theories, to obtain a truly materialist Marxist theory of law. As a result, however, we obtain a history of economic forms with a more or less weak legal colouring, or a history of institutions, but by no means a general theory of law. [3] Moreover, on the one hand bourgeois jurists, Gumplowicz for example, in trying to present more or less materialist views, consider themselves obliged, so to speak, ex professio, to ponder the arsenal of basic legal concepts even if only to declare them artificial and conventional constructs. Marxist authors, on the other hand, as individuals with no responsibilities to jurisprudence, simply and silently have usually avoided formal definitions of the general theory of law, devoting all their attention to the concrete content of legal norms and the historical development of legal institutions. [4]

In refusing to analyse basic legal concepts, however, we obtain only a theory which explains the development of legal regulation by the material needs of society and, consequently, the correspondence of legal norms to the material interests of given social classes; but legal regulation itself, despite the wealth of historical content which we embed in it as a concept, remains analysed as a form. Instead of seeing the completeness of its internal parts and relationships, we will be forced to use poor and approximately observed characterizations of law – so approximate that the borders between the legal and other spheres are entirely erased. [5]

Such an approach can hardly be considered correct. The history of the economy may be described entirely without the finer points and details, say, of the theory of rent or wages. But what could we say about a history of economic forms in which the basic categories of economic theory – value, capital, profit, rent etc. – were diffused in a vague and undifferentiated concept of economy? We are not even speaking of how the attempt to present such history as a theory of political economy would be received. However, in the area of the Marxist theory of law, this is in fact the situation. It is of course possible to console oneself with the fact that even the jurists themselves are still seeking, and cannot find, definitions for their concept of law. However, if most of the textbooks on the general theory of law usually begin with a certain formula, well-defined and externally exact, in fact even this formula gives us merely a confused, approximate and undifferentiated concept of law in general. It may be affirmed as axiomatic that we understand law least of all from these definitions and that, on the contrary, the relevant scholar will allow us a better understanding of the form of law the less attention he devotes to its definition.

The cause of this is entirely clear: such a complex concept as law cannot be exhausted by defining it according to the rules of the school of logic per genus et differentia specifica.

Unfortunately, even those few Marxists who have dealt with the theory of law have not avoided the temptations of scholastic wisdom. Renner, for example, grounds his definition of law in the concept of an imperative addressed by society (as a person) to the individual. [6] This simple construct seems entirely sufficient for him to investigate the past, present and future of legal institutions.

The basic flaw in formulae of this type is their inability to embrace the concept of law in its actual movement, revealing the plenitude of its internal parts and relationships. Instead of displaying the concept of law in its most final and exact form, and thereby showing the significance of this concept for a specific historical period, they present us with purely verbal general propositions about “external authoritarian regulation” – which apply equally well to all periods and stages of development of human societies. A complete analogy to this is provided by those attempts to give a definition of the concept of economy (in political economy) which would include all historical periods. If economic theory consisted in such fruitless scholastic generalizations, it would hardly deserve the title of a science.

Marx, as is well known, begins his research with the analysis of commodities and value, and not with opinions about economy in general. This is because economy, as a particular sphere of relations, is differentiated with the appearance of exchange. So long as the relationships of exchange-value are absent, economic activity may only with difficulty be separated from the remaining totality of life functions with which it constitutes a single synthetic whole. A purely natural economy may not be the object of political economy as an independent science. Only commodity-capitalist relationships comprise, for the first time, the object of political economy as a distinct theoretical discipline which uses its own specific concepts. [7]

Our observations here may be transferred to the general theory of law. The basic juridic abstractions, which are produced by the development of juridic thought, and which are the closest definitions of the legal form, in general reflect specific and very complex social relationships. The attempt to find a definition of law which would correspond not only with these complex relationships, but also with “human nature” or “human relationships” in general, must inevitably lead to scholastic and purely verbal formulae.

When we have to move from these inanimate formulae to the analysis of the legal form – as we meet it in reality – we inevitably encounter a series of difficulties. These difficulties are only overcome by strategies which are obviously contrived. For example, having been given a general definition of law, we are usually taught that in fact there are two types of law: subjective and objective, ius agendi and norma agendi. Moreover, the possibility of such a dichotomy is not at all anticipated in the definition itself; it therefore becomes necessary either to deny one of the species, declaring it to be a fiction, a fantasy etc. or to establish a purely external link between the general concept of law and its two species. However, this duality in the nature of law – its dissolution into a norm and a power – has a significance no less essential than the dichotomy of a commodity into exchange-value and use-value.

Law as a form cannot be understood outside of its immediate definitions. It exists only in antitheses: objective law/subjective law, public law/private law etc. These basic limitations must, however, be attached mechanically to the basic formula if the latter is constructed with the intention of it embracing all periods and stages of social development, including those which did not even know such contrasts.

Only bourgeois-capitalist society creates all the conditions necessary for the legal element in social relationships to achieve its full realization. If one leaves aside the culture of primitive peoples where law can only with difficulty be segregated from the general mass of social phenomena of the normative order-then even in medieval Europe, legal forms were distinguished by their extreme underdevelopment. The aforementioned contrasts were combined into a single undifferentiated whole. There was no distinction between law as an objective norm and law as a power. A norm of a general nature was not distinguished from its specific applications; correspondingly, judicial and legislative activities were merged. The contrast between public and private law was entirely hidden both in the organization of the Mark and the organization of feudal power. There was no contradiction, so characteristic of the bourgeois period, between man as a private person and man as a member of a political union. A long process of development was necessary in order for the boundaries of the legal form to crystallize with full distinctiveness. The main arena of this was the city.

The dialectical development of basic juridic concepts therefore gives us not only the form of law, in its most overt and elemental nature, but also reflects the real historical process of development. This is nothing other than the process of the development of bourgeois society.

Objections may be raised that the general theory of law, as we understand it, is a discipline which deals only with formal and contrived definitions and artificial concepts. No one doubts that political economy studies something which really exists, although Marx warned that such objects as value, capital, profit, rent etc. “cannot be discovered with the aid of a microscope and chemical analysis”. The theory of law operates with abstractions which are no less “artificial”; the methods of research in the natural sciences cannot discover a “legal relation” or a “subject of law”; but very real social forces are hidden behind these abstractions.

From the perspective of a man living in a natural economic environment, the economics of value relationships would appear just as artificial a distortion of simple and natural objects as juridic reasoning appears to the good judgement of the “average” man.

To think that the basic concepts which express the meaning of the legal form are the product of arbitrary thought processes. is to fall into the same mistake which Marx noted among the teachers of the eighteenth century. As the latter, in Marx’s words, were unable to account for the origin and development of the puzzling forms assumed by social relationships, so they sought to denude them of their strange appearance by ascribing them to a conventional origin.

It is impossible to deny that a significant proportion of juridic concepts in fact have a very transient and artificial nature. Such, for example, are most of the concepts of public law. We shall try to explain the causes of this phenomenon below. But now we shall confine ourselves to the observation that the form of value, under conditions of a developed commodity economy, becomes universal; it assumes, along with its original expressions, a series of derivative and ephemeral expressions which emerge as the selling price of objects which are not products of labour (land), and which are completely unrelated to the process of production (e.g. military secrets bought from a spy). This does not prevent value, as an economic category, from being understood from the perspective of the socially necessary labour expenditures required for the production of one product or another. Likewise, the universality of the legal form must not prevent us from searching for the relationships which constitute its real foundation. We will show that those relations which are defined as public law are not this foundation.

Another objection to our conception of the tasks of the general theory of law consists in the argument that the abstractions which he at the basis. of the analysis are recognized as essential only to bourgeois law. Proletarian law, we are told, must find other generalizing concepts for itself, and indeed this search should constitute the task of the Marxist theory of law.

At first sight this appears as a serious objection; yet it rests on a misunderstanding. To demand its own new generalizing concepts for proletarian law appears to be a revolutionary direction par excellence. But this is to proclaim the immortality of the legal form since it tries to wrench this form away from those definite historical conditions which enable its full fruition, and to declare it capable of constant renewal. The withering away of the categories (but not the injunctions) of bourgeois law does not signify their replacement by new categories of proletarian law. Similarly, the withering away of the categories of value, capital, profit etc. during the transition to socialism, will not mean the appearance of new proletarian categories of value, capital, rent etc.

The withering away of the categories of bourgeois law will under these conditions signify the withering away of law in general, i.e. the gradual disappearance of the juridic element in human relationships.

As Marx pointed out in The Critique of the Gotha Programme, the transitional period is characterized by the fact that human relationships will for a time involuntarily be limited by the “narrow horizon of bourgeois law”. It is interesting to analyse what, in Marx’s opinion, constitutes this narrow horizon of bourgeois law. Marx assumes a social order in which the means of production belong to an society, and in which the producers do not exchange their products. He thus takes a stage which is higher than the New Economic Policy in which we live. The market relationship has already been completely replaced by an organizational relationship and, in accordance with this, “the labour expended in products is not reflected in the form of value essential to those products, since here, in contrast to capitalist society, individual labour no longer exists in an indirect way but directly as a component part of collective labour”. [8] But even with the elimination of the market and market exchange, the new communist society, in Marx’s words, must for some time bear “in every respect, economically, morally and intellectually, the clear imprint of the old society from whose womb it appeared”. This is reflected in the principle of distribution, whereby “the individual producer receives (after deductions have been made) from society exactly what he contributes to it”. Marx stresses that despite the radical changes in content and form, “the same principle prevails as that which regulates the exchange of commodities: a definite amount of labour in one form is exchanged for the same amount of labour in another form”. To the extent that the social relationships of the individual producer continue to preserve the form of equivalent exchange, so too they continue to preserve the form of law. “By its very nature, law is merely the application of an equal scale.” But this ignores inherent differences in individual ability, and therefore “by its content this law, like every law, is a law of inequality”. Marx says nothing about the necessity of state power which would forcefully ensure the fulfilment of these norms of “unequal” law preserving its “bourgeois limitations”, but this is necessarily understood. [9] Once the form of the equivalent relationship exists, this means that the form of law exists, that the form of public, i.e. state authority exists, which therefore remains for a period even when classes no longer exist. The complete withering away of state and law will be accomplished, in Marx’s opinion, only when “labour has ceased to be a means of life and has become life’s prime want”, when the productive forces have expanded with the all-round development of the individual, when everyone labours voluntarily in accordance with his own abilities, or, as Lenin says, “when the individual does not calculate with the heartlessness of a Shylock whether he has worked half an hour longer than anyone else”, in a word, when the form of equivalent relations will be finally overcome.

Marx therefore envisioned the transition to developed communism, not as a transition to new forms of law, but as the withering away of the legal form in general, as the liberation from this inheritance of the bourgeois age which the bourgeoisie was itself condemned to endure.

At the same time Marx indicates that the basic condition for the existence of the legal form is found in the economy, in the matrix of labour expenditures according to the principle of equivalent exchange, i.e. he revealed the innermost connection between the form of law and the form of commodities. Depending on the condition of its productive forces, a society which is compelled to preserve equivalent exchange between labour expenditure and compensation in a form even remotely resembling the exchange of commodity values, will be compelled also to preserve the form of law. Only proceeding on this basis is it possible to understand why a whole series of other social relationships assume a legal form. But therefore to conclude that courts or laws will always remain, or that even under maximum economic prosperity certain crimes against the person etc. will not disappear, is on the contrary to identify secondary and derivative elements as the main and basic. Indeed, even advanced bourgeois criminology has theoretically concluded that the struggle against crime may be seen as a medical-pedagogical task for whose solution the jurist-with his “categories of crime”, codes, concepts of guilt, “full or diminished responsibility”, with his fine distinctions between participation, abetting and inciting etc.-is perfectly unnecessary. And if this theoretical belief has not yet led to the elimination of criminal codes and judges, then this is because transcending the form of law is related not only to advancing beyond the horizons of bourgeois society, but also to the radical liberation from all remnants of the past.

In criticizing bourgeois jurisprudence, scientific socialism must model itself on the criticism of bourgeois political economy furnished by Marx. For this it must first repair to enemy territory. In other words it must not discard those generalizations and abstractions which were developed by bourgeois jurists who proceeded from the needs of their time and class, but must put them at the basis of its analysis to reveal their true significance, that is, the historical formation of the legal form.

Every ideology disappears with the social relations which produced it. But this final disappearance is preceded by a moment when an ideology, under the blows of criticism levelled at it, loses its ability to mask and surround the social relations from which it arose.

The expose of the roots of an ideology is a true sign of its imminent end. As Lassalle says, “the dawn of a new age always consists in the consciousness of what the previous reality actually was.” [10]

Methods of Constructing the Concrete in the Abstract Sciences

Notes

1. Of course these most general and simplest juridic concepts are the result of the logical treatment ofthe norms of positive law. They represent the latest and highest product of conscious creativity in comparison with the randomly formed legal relationships and the norms which express them.

2. One may agree with Karner [the pseudonym used by Karl Renner – eds.] that the science of law begins where jurisprudence ends. But it does not follow from this that the science of law must simply discard those basic abstractions which reflect the basic essence of the legal form.

3. Even Comrade Stuchka’s The Revolutionary Role of Law and State (1921 Moscow), which deals with a series of problems of the general theory of law, does not treat these concepts systematically. His discussion accentuates the class content of the historical development of legal regulation in comparison with the logical and dialectical development of the form itself

4. It should be noted that in discussing juridic concepts Marxist authors commonly and primarily refer to the concrete content of legal regulation inherent in a specific period, i.e. that which people at a specific stage of development consider to be law. However, it is undoubtedly true that Marxist theory must study not only the material content of legal regulation in various historical periods, but that it must also provide a materialist interpretation of legal regulation per se as a definite historical form.

5. An example of how richness of historical exposition can co-exist with the most incomplete outline of the legal form is found in M. Pokrovsky, Essays on the History of Russian Culture (1923), Moscow, 2nd edition, vol.1, p.16.

6. Law is also defined as coercive norms issued by state authority in Bukharin’s Historical Materialism ... All these definitions stress the connection between the concrete content of legal regulation and economics. At the same time, however, they attempt to exhaust the legal form by defining it as state-organized coercion. In essence, this goes no deeper than the crude empirical applications of the most pragmatic or dogmatic jurisprudence-whose defeat must constitute the task of Marxism.

7. “Political economy begins with commodities, begins from the moment when products are exchanged for one another – whether by individuals or by primitive communities.” F. Engels, Review of Marx’s Contribution to the Critique of Political Economy (1859), MESW, vol.1, p.514.

8. K. Marx, Critique of the Gotha Programme (1875), MESW, vol.3, p.19.

9. Lenin concludes in State and Revolution: “With respect to the distribution of products for consumption, bourgeois law of course inevitably presupposes a bourgeois state, because bourgeois law is nothing without a coercive apparatus capable of enforcing adherence to the norms of law. It follows that for a certain time bourgeois law is effective under communism, but that so also is the bourgeois state without the bourgeoisie!” V.I. Lenin, State and Revolution (1917), LCW, vol.25, p.471.

10. F. Lassalle, The System of Acquired Rights (1861), Leipzig.