1

1. The General Theory of Law and Marxism*

Introductory Note

Pashukanis' place in the history of legal philosophy and legal practice is secure primarily due to his treatise The General Theory of Law and Marxism. This small book, first published in 1924, has now been translated into several Western and Eastern languages, but the English translation of the first edition appears for the first time below.

When General Theory first appeared it is doubtful that anyone, least of an Pashukanis himself, could have foreseen its immediate success and the meteoric rise of its author within Marxist legal philosophy and the Soviet legal profession. Pashukanis was merely one of a dozen authors in the Soviet Union to publish on the Marxist theory of law and state during the years 1923 to 1925. In fact, he was one of the less well‑known authors whose works appeared during this early flowering of Soviet legal philosophy. It was a crowded and distinguished field which included the Marxist philosopher Adoratsky; the pupil of Petrazhitsky, M. A. Reisner; the jurist and civil war hero Nikolai Krylenko; and of course Piotr Stuchka, an Old Bolshevik and the Soviet Russian founder of Marxist legal philosophy. Nonetheless, Pashukanis' General Theory was feted by the reviewers and quickly came out in successive editions which included several printings. Few other authors in this period had their books reprinted, let alone issued in a new edition.

No one was more forthcoming in his praise of the young Pashukanis than

* Obshchaia teoriia prava i marksizm: Opyt kritiki osnovnykh iuridicheskikh poniatii (1924), sotsiahsticheskoi akademii, Moscow, 1st edition.

38 PASHUKANIS: SELECTED WRITINGS

Stuchka. Stuchka had pioneered the post‑Marxian critique of bourgeois jurisprudence, postulating that law is a class concept with an empirical basis in social material interrelationships. With the publication of Pashukanis' critique of bourgeoisjuris prudence, Pashukanis recognized him as a comrade‑in‑arms in the "revolution of the theory of law". Stuchka's praise thrust Pashukanis from academic obscurity to the forefront of the "revolution of the law". Stuchka readily conceded that Pashukanis' commodity exchange theory of law supplemented and generally superseded his own "incomplete and greatly inadequate general doctrine of law".

Nevertheless, in the first edition of General Theory, Pashukanis was critical of Stuchka's definition of law, arguing that the effect of Stuchka's perspective was that legal relationships were indistinguishable from social relationships in general. In the second edition of General Theory, published in 1926, Pashukanis reiterated this criticism, insisting that "the elements which chiefly provide the material for the development of the legal form can and should be segregated from the system of relationships which are responsive to the dominant class . . .".

Pashukanis had resolved the problem of Stuchka's definition by specifying that the fact of equivalence, based on commodity exchange, was the distinctive characteristic of the legal relationship and that it was this which distinguished law from all other social relationships. The second edition of General Theory was met by an equally positive reception. A reviewer in the newspaper Izvestiia, in particular, credited Pashukanis with the perfection of Stuchka's initial definition. Pravda's reviewer of the second edition essentially subscribed to Pashukanis' theory as well. These favourable reviews, among others, were particularly important, moreover, because they appeared in the political press and therefore implicitly signified formal and authoritative approval of Pashukanis' theory.

The second edition of General Theory appeared in a more attractive format reflecting the new prestige that the author and his book had acquired. This was a corrected and supplemented edition which entailed raising some material from footnotes to text, and which generally clarified certain parts of the text through brief emendations. For instance, on the state‑an underdeveloped topic in the first edition‑Pashukanis added:

Even if legal intercourse can be conceived in terms of pure theory as the reverse side of the exchange relationship, its practical realization nevertheless requires the presence of general patterns more or less firmly established, the elaborate formulation of rules as applied to particular cases, and finally a special organization [the state] which would apply these patterns to individual cases and guarantee that the carrying out of the decisions would be compelled.

GENERAL THEORY 39

Elsewhere in the second edition, Pashukanis refined and sharpened his statements on the relationship between law and feudalism declaring, for instance, "explanation of the contradiction between feudal property and bourgeois property must be sought in their different exchange relationships". The third edition of General Theory appeared in 1927. It entailed only marginal changes of the revised second edition, and served as the basis for the first translation into English of Pashukanis' General Theory. *

The third edition of General Theory subsequently encompassed several printings, and eventually foreign translations, whereby its author and his commodity exchange ~theory of law entered and acquired their place in the history of legal philosophy.

* See J. Hazard (ed.), Soviet Legal Philosophy (1951), Harvard University Press, Cambridge, translated by H. Babb, pp. 111‑225.

The General Theory of

Law and Marxism

INTRODUCTION

The Tasks of the General Theory of Law

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

GENERAL THEORY 41

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,

42 PASHUKANIS: SELECTED WRITINGS

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

GENERAL THEORY 43

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

44 PASHUKANIS: SELECTED WRITINGS

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 peopleswhere 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

GENERAL THEORY 45

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

46 PASHUKANIS: SELECTED WRITINGS

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

GENERAL THEORY 47

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

48 PASHUKANIS: SELECTED WRITINGS

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.

GENERAL THEORY 49

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

CHAPTER I

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

50 PASHUKANIS: SELECTED WRITINGS

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

GENERAL THEORY 51

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

52 PASHUKAINIS: SELECTED WRITINGS

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 ocial 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

GENERAL THEORY 53

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.

54 PASHUKANIS: SELECTED WRITINGS

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.

CHAPTER II

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.* 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

* This debate is found in M. A. Reisner's critical review of P. 1. Stuchka's The Revolutionary Role of Law and State (1921); Stuchka's reply appeared in Vestnik sotsialisticheskoi akademii, no. 3, 1923 [eds.]

GENERAL THEORY 55

"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 ideologi-

56 PASHUKANIS: SELECTED WRITINGS

cal 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.

GENERAL THEORY 57

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?

58 PASHUKANIS: SELECTED WRITINGS

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

GENERAL THEORY 59

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 formulaconstantly 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

60 PASHUKANIS SELECTED WRITINGS

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

GENERAL THEORY 61

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

62 PASHUKANIS: SELECTED WRITINGS

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.

CHAPTER III

Relationship and the Norm

As the wealth of capitalist society assumes the form of an enormous accumulation of commodities, society presents itself as an endless chain of legal relationships.

The exchange of commodities assumes an atomized economy. A connection is maintained between private and isolated economies from transaction to transaction. The legal relationship between subjects is only the other side of the relation between the products of labour which have become commodities. The legal relationship is the primary cell of the legal tissue through which law accomplishes its only real movement. In contrast, law as a totality of norms is no more than a lifeless abstraction.

Nonetheless, the standard view posits objective law or a norm as the base of the legal relationship both logically and in reality. According to this conception, a legal relationship is generated by an objective norm:

The norm of the right to demand repayment of a debt does not exist because creditors usually demand repayment, but on the contrary creditors demand repayment because the norm

GENERAL THEORY 63

exists; law is not established inductively from observed instances, but by deduction from a rule established by someone.²¹

The expression, "the norm generates the legal relationship", can be understood both in the real and logical sense.

Let us turn to the first of these. Above all it should be noted that the totality of norms, written and unwritten, belongs per se more to the sphere of literary creativity, a situation acknowledged frequently among the jurists themselves.

This aggregate of norms obtains real significance only because of those relationships which are conceived ‑of as having arisen and, in fact, have arisen according to these rules. Even the most consistent advocate of the pure normative method, Hans Kelsen, had to recognize that somehow a slice of real life, i.e. of the actual conduct of people, had to be harmonized with the ideal normative order. In this sense, to consider the statutes of tsarist Russia as law currently in effect is possible only in an insane asylum. The formal juridical method, which is concerned only with norms which are "considered as law", can assert its independence only within very narrow limits, only so long‑as the tension between fact and norm does not exceed a definite limit. In material reality a relationship has primacy over a norm. If not a single debtor repaid a debt, then the corresponding rule would have to be regarded as actually non‑existent and if we wanted nevertheless to affirm its existence we would have to fetishize this norm in some way. Indeed a great many theories of law are concerned with such fetishism, justifying the preoccupation on very slender methodological grounds.

Law as an objective social phenomenon cannot be exhausted by a norm or a rule, whether written or unwritten. A norm as such, i.e. in its logical content, either is directly derived from existing relationships already or, if it is published as statutory law, then it presents itself only as a symptom by which one may assess, with some degree of probability, the likely emergence of the corresponding relationships in the near future. It is not sufficient to know the normative content of law in order to confirm its objective existence. It is necessary to know if this normative content is realized in practice, that is in social relationships. A common source of confusion is the dogmatic jurist's method of thought according to which the concept of operative law and operative norm does not conform to what the sociologist or historian understands as objectively substantive law.

64 PASKUKANIS SELECTED WRITINGS

When a dogmatic jurist decides the question of whether a given norm of law is operative or not, he usually does not have in mind the question of the presence or absence of a particular objective social phenomenon. Instead, he is concerned only with the presence or absence of a logical connection between the given normative provision and a more general normative premise.²²

Thus, the norm is the only thing that exists for the dogmatic jurist who, confined to the narrow framework of his purely technical task, may serenely equate law and norm. In the case of customary law he must turn to reality regardless. But when statutory law is the jurist's only normative assumption (expressed in his technical language, the source of law), then the jurist's conclusions, and his dogma about "operative" law, are by no means obligatory for the historian who wants to study the law actually existing. Scientific, i.e. theoretical, study can deal only with facts. If certain relationships are actually formed this means that the corresponding law has been created. If a statute or decree was merely published, but the corresponding relationships did not in fact arise, this means there was an attempt to create law but the attempt failed.²³

It is possible moreover to modify this thesis and make its cornerstone the objective social regulatory forces or, as jurists express it, the objective legal order, instead of norms.²⁴ But even in this new formulation, the thesis can be subjected to further criticism. If social regulatory forces are understood to be the same relationships in their regularity and constancy, then we have a simple tautology. If instead they are understood as a special, consciously organized order ensuring and guaranteeing the given relationships, then the logical error will be entirely clear. It is impossible to say that the relationship between creditor and debtor is generated by a coercive order which exists in a given state for recovering debts. This objectively existing order ensures, but certainly does not generate the relationship. This is not mere scholasticism‑that is best shown by the fact that we can conceive of, as well as find, a tremendous variety of historical examples of the ideal functioning of this externally coercive and regulatory social apparatus, and consequently the most diverse degrees in which relationships are guaranteed. Moreover these relationships themselves do not undergo any structural changes. We can imagine so extreme a situation as when xcept for the two parties entering the relationship‑no other third force exists capable

GENERAL THEORY 65

of establishing a norm and guaranteeing its observance (for instance some contract between the Varangians and the Greeks): the relationship remains even here. But one merely needs to imagine the disappearance of a party, i.e. of the subject as the bearer of a distinct autonomous interest, and the very possibility of a relationship also disappears.

In this respect one may argue that if one departs from the objective norm, then the very concepts of legal relationship and legal subject are in abeyance, lacking definition. In general, this objection reveals the very practical and empirical spirit of modern jurisprudence. It knows but one truth; that any lawsuit is lost if the party cannot rely on an appropriate paragraph of some statute. However, the belief that a legal subject and a legal relationship do not exist and are not definable external to an objective norm, are just as theoretically mistaken as the belief that value does not exist and is not definable outside the framework of supply and demand (because empirically it is reflected precisely in price fluctuations).

The prevalent style of legal thought which initially posits the norm as the authoritatively established rule or conduct, is distinguished by that same incisive empiricism which‑also seen in economic theories‑goes hand in hand with extreme and lifeless formalism.

Supply and demand can exist for any objects including those which are by no means the product of labour. The conclusion can be drawn from this that value may be defined without any reference to the socially necessary labour time required for the production of a specific commodity. The empirical fact of an individualized value serves as the basis for a formal‑logical theory of marginal utility.

Similarly, norms issued by the state may deal with the most varied objects that have very different qualities. From this the inference can be made that the essence of law is exhausted by the form of command or order which proceeds from higher authority, and that the very substance of social relationships contains no elements which could generate the legal form. The empirical fact that relationships protected by the state are better secured is placed at the foundation of the formal‑logical theory of legal positivism.

Our question, expressed in the Marxist terms of historical materialism, is reduced to the problem of the relationship between the legal and political superstructures. If a norm is recognized as the