Commodity Exchange Theory of Law

What was law to become after the revolution?

The 1917 revolution swept away the law of the old empire, but contracts and property, crime and trials remained in the new society. Bolshevik jurists faced an awkward question: how does the law of a workers' state differ from bourgeois law? Marx left no systematic theory of law. The common answer was that law expresses the will and interests of the ruling class. In that case, once workers take power, it is enough to change the content of law and create "proletarian law".

Evgeny Pashukanis (1891–1937) changed the question. He studied law at St Petersburg University, left for Germany because of his revolutionary activity, took a doctorate in law at Munich in 1914, served as a judge in Moscow in 1918 after the revolution, and in 1922 founded the law section of the Communist Academy together with Pēteris Stučka. In his view, saying that law contains class interests was true but explained nothing. The real question was: "why does class rule not remain what it is, that is, the factual subjugation of one part of the population by another, but take the form of official state authority?" Why does the ruling class's apparatus of coercion take the shape not of a private apparatus of that class but of an impersonal public power separated from society?

почему господство класса не остается тем, что оно есть, т. е. фактическим подчинением одной части населения другой, но принимает форму официального государственного властвования

This has the same shape as the question Marx asked in Capital. Just as Marx asked why labour takes the form of value (see the entry on the value-form), Pashukanis asked why social relations take the form of "law".

What did Pashukanis argue?

Pashukanis's starting point is the legal subject. "Every legal relation is a relation between subjects. The subject is the atom of legal theory, the simplest element, incapable of further decomposition." Just as Marx began Capital with its simplest element, the commodity, he began his theory of law with the subject.

The next link is the commodity. "Capitalist society is above all a society of commodity owners." People's relations of production take the material form of the value of products of labour. But, as Marx said in chapter 2 of Capital, commodities cannot go to market and exchange themselves; as things they are defenceless against people. For exchange to happen, their guardians must recognise each other as persons whose will resides in those things, each able to take the other's goods only with the other's consent. Hence Pashukanis's central thesis: "simultaneously with the product of labour acquiring the property of a commodity and becoming a bearer of value, the human being acquires the property of a legal subject and becomes a bearer of rights."

Поэтому одновременно с тем, как продукт труда приобретает свойство товара и становится носителем стоимости, человек приобретает свойство юридического субъекта и становится носителем права

The symmetry contains a paradox. "Economically the thing dominates the human being, for as a commodity it reifies within itself a social relation not subject to people; legally, however, the human being dominates the thing." The legal subject counts as a being of free and equal will, but that freedom is bought at the price of economic bondage to the law of value working behind people's backs. Pashukanis saw this as continuing commodity fetishism: "commodity fetishism is supplemented by legal fetishism." In his best-known formula, "the legal subject is the abstract commodity owner raised to the heavens".

Итак, юридический субъект — это вознесенный в небеса абстрактный товаровладелец.

He applied the analysis to criminal law. Revenge becomes regulated by custom into the talion, "an eye for an eye", only as a system of money compensation grows up alongside it. "The idea of equivalence, this first purely legal idea, has its source in that same form of the commodity." Crime is treated as a special kind of transaction in which the contractual relation is established after the fact, punishment as a price paid in proportion to the offence. The state too, he held, appears as an impersonal "general will" or "rule of law" because society is a market.

For the same reason Pashukanis criticised Hans Kelsen's pure theory of law, then leading European jurisprudence. Kelsen strictly separated legal norms from the social relations they regulate; Pashukanis held that "the relation has primacy over the norm". In a society where no debtor ever repaid a debt, the norm requiring repayment would in reality not exist.

Why was there to be no "proletarian law"?

The theory's political conclusion was bold. Pashukanis wrote the book during the New Economic Policy, which had readmitted market trade. He seized on Marx's statement in the Critique of the Gotha Programme that even the first phase of communism remains confined within "the narrow horizon of bourgeois right". Marx assumed a society in which the means of production belong to society as a whole and producers do not exchange their products, "a stage higher than the NEP we are living through", and yet even there bourgeois right persists because of the principle of equivalent exchange in distribution according to labour.

Demanding a new legal form for the new class therefore looks revolutionary but in fact "proclaims the immortality of the legal form". Since the legal form arose with commodity exchange, it must disappear when exchange disappears. "The withering away of the categories of bourgeois law will in these conditions mean the withering away of law altogether, that is, the gradual disappearance of the juridical element in human relations." Marx, Pashukanis concluded, pictured the transition to communism "not as a transition to new forms of law but as the withering away of the legal form altogether" (see the entry on the withering away of the state).

Отмирание категорий буржуазного права в этих условиях будет означать отмирание права вообще, т. е. постепенное исчезновение юридического момента в отношениях людей.

In the Soviet Union of the 1920s the theory was mainstream. Pashukanis's school, known in the United States as the "commodity exchange school", shaped Soviet legal theory until the late 1920s. From 1925 to 1927 he and Stučka compiled an Encyclopedia of State and Law and published the journal Revolution of Law. There were objections too. The jurist I. P. Razumovsky disagreed with basing the analysis of legal form on the concept of the subject: the subject is a category of developed bourgeois society, too complex and not characteristic of earlier epochs, so the basis should be the relation that develops from factual possession into legal property. In the preface to the third edition (1929) Pashukanis still left the book essentially unchanged, as "a first attempt at a Marxist critique of the basic juridical concepts".

How did the theory collapse in the 1930s?

As the Stalinist order consolidated, a theory in which law disappears lost its footing. In 1930 Pashukanis was attacked for insisting on the impossibility of "proletarian law" or "socialist rights", and he began to revise his theory of the state. He had to retract his theses on the withering away of the state under communism and on the impossibility of proletarian or socialist law. In return he became director of the Institute of Soviet Construction and Law in 1931 and in 1936 deputy People's Commissar of Justice of the USSR, also working on the commission that drafted the 1936 constitution.

On 20 January 1937, however, he was arrested, and his post at the institute went to Andrey Vyshinsky. On 4 September 1937 the Military Collegium of the Supreme Court sentenced Pashukanis to death for membership of a counter-revolutionary terrorist organisation, and he was shot the same day. He was rehabilitated on 31 March 1956.

In July 1938 Vyshinsky's report to the first all-Union conference of legal scholars, "The Basic Tasks of the Science of Soviet Socialist Law", summed up the rout of "non-Marxist" legal science and set out the direction of a "Marxist-Leninist-Stalinist" understanding of law: the line, discussed in this glossary's entry on socialist legality, that stressed law enacted by the state as an instrument of socialist construction. Ten years later, in a 1948 report, he looked back:

Около 15-20 лет назад мы пережили болезнь правового нигилизма, когда советское право объявлялось "юридическим барахлом".

"Some fifteen to twenty years ago we went through the disease of legal nihilism, when Soviet law was declared 'juridical junk'." He denounced those who claimed that Soviet law was "nothing but bourgeois law turned inside out in a certain way", and mocked Stučka by name for those who, putting "economic law" in place of civil law, had cried: "We have red Speranskys who make laws; when will the red Voltaires appear who burn them?"

Assessments differ. Vyshinsky himself branded the 1920s denial of Soviet law a "disease" and upheld the authority of law enacted by the state, and his understanding became the orthodoxy of Soviet jurisprudence. The Russian legal historian Sergei Kodan sees the legislation of Vyshinsky's era as the chief means of transmitting the political and ideological directives of the party and of Stalin to society as norms. The Russian legal philosopher Vladik Nersesyants criticised Vyshinsky's definition of law, arguing that its real purpose was "creating the appearance of law where there is none and can be none". The American legal philosopher Lon Fuller, in his 1949 article "Pashukanis and Vyshinsky", analysed their opposition as a fork in the development of Marxist legal theory.

How was it read outside the Soviet Union?

Pashukanis's book appeared in German in Vienna in 1929, and Karl Korsch reviewed it. It was reissued in West Germany in 1966 with Korsch's review and drew new attention in the German-language "state derivation debate" of the 1970s. That debate, which sought to understand the state not as a mere instrument of the ruling class but as a form structurally necessary to capitalism and relatively separate from the classes, took over Pashukanis's question of why class rule takes the form of an impersonal public power. The West German New Reading of Marx also names the Pashukanis and Rubin of the 1920s as its starting point (see the entry on the value-form).

The theory is still read as a classic of Marxist legal thought; Antonio Negri published "Rereading Pashukanis" in 2017. A Korean translation by Park Dae-won appeared in 2008.

Why read it today?

The commodity exchange theory of law sees law neither as a neutral tool nor merely as the command of the ruling class. The worker and the employer who sign a contract are equally free and equal subjects before the law, but that equality is the equality of an exchange in which labour-power is bought and sold. Pashukanis asked where this formal equality comes from, and the question recurs in today's debates on rights and the rule of law. That his conclusion that law would wither away collided with the reality of Soviet state-building and cost him his life also remains a case for thinking about the relation between theory and state power.