Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal Theory Author(s): Lon L.

Fuller Source: Michigan Law Review, Vol. 47, No. 8 (Jun., 1949), pp. 1157-1166 Published by: The Michigan Law Review Association Stable URL: http://www.jstor.org/stable/1284239 . Accessed: 28/02/2014 10:28
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PASHUKANIS ANDVYSHINSKY: A STUDY IN THE DEVELOPMENT OFMARXIAN LEGAL THEORY LonL.FullerS Reading Andrei Y. Vyshinsky's The Lawof the Soviet Unionl ought tobea stimulating andrewarding experience. It is anexpositionof Soviet legalphilosophy andof the theory andpractice of Soviet public or"state" law. Throughout it purports to compare e premises thatunderlie Soviet lawwiththose on which "bourgeois" legalsystems arebased. Vyshinsky, a famous world figure andthe present minister forforeign affairs of theU.S.S.R., wrote part of the book andsupervised compiliation of theremainder. Thedecision of theAmerican Council of Learned Societies tosponsor a translation of thework attests theCouncil's conception of itsimportance to Americans seeking to understand modern Russia.According to theintroduction byProfessor Hazard, thebook presents in authoritative form thedoctrine nowtaught in Soviet lawschools.More thanthat,it exemplifies "Soviet pedagogical methods" generally, andthehabits of thought thathavebecome characteristic of Soviet citizens.These methods andhabits in turn helpto explain, Professor Hazard assures us, "much of the determination of Soviet soldiers in the warjust ended." Here, in other words, is what makes theSoviet system tick. Withthese auspices andthisintroduction, thereader approaches thebook withhighhopes.He expects to gain from it a newunderstanding of theintellectual andemotional forces operative behind the Iron Curtain. He hopes further that a real saturation in thepremises ofa legal system radically different from that familiar tohim willbring a fresh insight intothemeaning of hisownsystem, justaseconomists whoreject Marxism have enriched their understanding of economics bystudying Marx. These hopes are, however, doomed todisappointment. Thebook dodges every real problem its thesis might seem to suggest andsuS stitutes forreasoned analysis thescurrilous andabusive recriminations forwhich itsauthor-editor hasbecome famous in intemational conferences. Asforitscontents, thebook is made up of themost miscellaneous ingredients, compounded in thegreatest disorder. About fifty percent ofit is taken upwith a tedious and unenlightening exposition of thedetails of theSoviet political and legal system. Another twenty percentis devoted to refighting doctrinal battles within theMarxist
* CarterProfessor of GeneralJurispmdence, Harvard Law School-Ed. 1Vyshinsky, general editor.Translated by Hugh Babb. New York: The Macmillan Co. 1948. Pp. xvii, 749. $15.

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ranks andtonailing down more securely thelidsonthecoffins of the "deviationists," "wreckers" and "Trotskyists" whohave been liquidated bytheStalin regime. Theremaining thirty percentis given over to disclosing thefrauds of bourgeois political andlegal ideologies. In the course of thisexpose some remarkable misinformation is conveyed. President Truman, forexample, would be surprised to learn thatin thiscountry theseparation of powers is a fraudulent cover for"the hegemony of theexecutive power over thelegislative," andthatthe President hasthe unlimited power to prevent anystatute from becoming law. Thebook contains no genuine comparison of Russian andbourgeoislegalandpolitical institutions. Throughout, the object is to establish theproposition thatthings which look alike in thecapitalist andRussian systems, andthatmay evenbear thesame names-law, government, thebicameral system, elections, courts, prosecutors, property, legal rights-are in theory andin fact"radically different." In most cases thedifference involved rests more on table-pounding affirmation than on demonstration. Themode in which these questions aretreated is wellillustrated in theshort section on statutory interpretation. Sprinkled among theusual platitudes on thissubject, of thetype onewould encounter in anysimilar American discussion, we findtheassertion that withtheSoviet courts statutory interpretation "merely reveals the meaning andcontent of the statute," whilein capitalist countries "the class essence of juridical chicanery" distorts interpretation from its true purpose. Theymerely draw outof the statute what it means; weputintoit ourexploitative biases.Soit is withevery other legal device andinstitution. Ontheoneside, there is vigor, purity, honesty; on theother, decadence, fraud, cynical exploitation and"putrid vapors." Incredibly enough, thisposition is maintained even with respect tocivil liberties. According toVyshinsky it is only in Russia that there exists "true" freedom of thepress, "true" freedom from illegal searches and seizures, etc.,etc. In studying those parts of thebook devoted toquarrels withother Marxists, particularly thefirst chapter, thereader whoattempts any close analysis of thethought willexperience a considerable malaise. Inthisfield, it seems, labels are more important than ideas. Thebook opens by rejecting the opportunistic perversion of Marxism which teaches that theproletariat should "take over" thebourgeois state. On theother hand, Stalin himself hasunmasked "Bukharin's anti-Marxist, counterrevolutionary theory of 'blowing up'thestate." Thetrue doctrine is thatthestate must notbe "taken over" or "blown up," but instead mustbe "shattered" and"demolished." This tumsout tO

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mean, about sixty pages later, thattheexisting bourgeois machine of thestate must be "utilized" and, over a period of years, purged of its bourgeois elements. When onehasstruggled through demonstrations ofthissort, trying vainly to seejustrhatit is that is being rejected andwhat accepted, one recalls withbewilderment Professor Hazard's introduction, in which it is asserted thatthe Soviet student "who reasons his way through theponderous passages ofthis and similar works" has prepared himself to dealwithWestern thought. I submit thatanyone who seriously attempted "to reason hisway" through this first chapter would have prepared himself fornothing so much asa nervous breakdown. These,then,arethe disappointments andfrustrations thatthe book brings foronewhoattempts to derive something of intellectual substance from itscontents. Butforallitsvacuity, itsabusiveness, and itsplatitudes, thebook remains a significant milestone in thedevelopment ofattitudes toward lawand government within theSoviet system. What meaning orlesson canweextract from it? I think thebest way to approach this question is tobegin bycomparing thebook with what it superseded. Before theascendancy of Vyshinsky, theleading jurist ofRussia was Eugene Pashukanis, whoen joyed a decade of glory prior to hismysterious disappearance in theearly months of 1937. Pashukanis' principal work is called GeneralLegal Theoryand Marxism.2 In thisshort book, Pashukanis expounds withclarity and coherence aningenious development of Marxist theory thathasbeen called the"Commodity Exchange Theory of Law." Hiswork is in thebesttradition of Marxism. It is theproduct of thorough scholarship andwidereading. It reaches conclusions that willseem to most readers perverse andbizarre, yetin theprocess of reaching these conclusions it brings familiar facts of lawandgovernment intoan unfamiliar butrevealing perspective. It is thekindof book thatany open-minded scholar canread withreal profit, however littlehe may beconvinced byitsmain thesis. Pashukanis' legaltheory is founded on twoprinciples well-established in thewritings of theSoviet founding fathers: (1) lawand the state area superstructure relRecting thebasic economic organization of society, and(2) in thesocialist economy of thefuture, both lawand thestate will"wither away." Proceeding fromthesepremises, Pashukanis thenexpounds his own theory, which isbriefly asfollows: thebasic institution of capital2Being unableto read Russian,I am familiar with this book throughthe German translation of the third Russianedition,which appeared in 1929 under the title ALLGEMEINE RECHTSLBHRB UNDMAR=SMUS. An Englishtranslation by Professor Babb is now awaiting publication.

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ismis exchange; allgoods (including labor) areviewed as"commodities," that is,asdestined forexchange onthemarket. Inkeeping with WIarxist theory, therefore, we should expect bourgeois lawto bepermeated withtheconcept of exchange, andto takeits origin in the actof trading orbartering. Thisexpectation is confirmed byhistory andsociology. Thefirst appearance of the criminal lawin its rudest form is in connection with bartering, that is,in thebuying offof theblood feud.3 Throughouthistory thedevelopment of lawhasgone hand in hand withthe development of trade. Most definitions of lawmistakenly tryto make it equivalent to anauthoritative ordering of social relations, butthisdoes notexpose itsreal essence. Theideal type of anauthoritative ordering would be a military company marching in perfect step,ready to follow every command of itscaptain. Yetsuch a phenomenon is notonly notlegal in nature, butactually stands at theopposite polefrom law. Thisis true generally of mere relationships of power. Slavery, forexample, requires no legal form.If therelation of master andslave is in any sense legal, it is onlybecause themaster canexchange theslave for other goods, orbecause thelawrecognizes some semblance of a right in theslave against themaster. Law appears asa distinct social phenomenon notwhen wehave oneman standing over another, butonly whenwe havemenstanding toward one another withrights and duties. Thebasic concept of lawis, then, thelegal subject, thepossessor of rights andduties. Thelegalsubject is, however, merely theeconomic trader seenin hisjuristic aspect.Take from thelegal subject thepower to settle orcompromise hisdiflTerences withhisfellows by a process of barter andhe ceases to be a legalsubject. Legal rights wholly removed from thearea oftrade are notlegal rights atall. Every legal subject is therefore a potential trader, andhiscapacity topossess rights andduties andtoenter legal relations withothers derives from thisfact.The economic institution of exchange is accordingly presupposed in theconception of a legal right.Thewhole legalorder, in turn, hasits reason forbeing in thevindication of rights. The modern notion that theindividual derives hisrights from thelawor from thestate is thesymptom of a decadent capitalism. When capitalism wasitself a revolutionary force it wasuniversally thought that lawexists tO protect rights, that rights precede law.
8 lfihetheory of a greatanthropologist concerning ihe originof law in primitive society presents a surprising parallel to Pashukanis' conception. Malinowski in effectsees law becominga distinctsocialphenomenon when recirocity becomesexplicitand formalized:
CRIME AND CUSTOM IN SAVAGE SOCIET1r 58 (1926).

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In modern criminal law,a firstcousin of economic exchange appears in thenotion of retribution. Thecriminal codeis a kind of schedule of compositions, setting theprice (in terms of punishment) appropriate foreach crime. According to theprinciple of nulla poena sine lege the criminal must begiven a chance toknow in advance vvZhat theprice of each kind ofmiscondllct is. Advanced bollrgeois criminolQgiStS havelongcondemned theseconceptions as irrational. They continue, however, tobeentertained bythebulk of society andto be applied bythecourts. When thepublic follows a criminal trial in the newspapers it is notinterested in learning whether thecriminal can be rehabilitated, or whether he is maladjusted to social life, but whether he actually didwhat he is accused of doing andwhether he is going to getwhat is coming to him.Theattitudes engendered by aneconomy founded onexchange are toodeeply rooted tobedestroyed bylearned treatises. Though in bourgeois society, lawis aninstrument of domination bytheruling classes, it is so onlyin an indirect sense. To savthat lawis a means of domination orexploitation fails toreveal itsessence. Thedomination of oneclass byanother canexist without law,where, forexample, it is founded onreligious superstition ormilitary power. The exploitation of theproletariat by the capitalist takes a special andpeculiar form. Onitseconomic side, it is primarily through the market; onthelegal side, it is through thenotion that theworker sets hislegal relations with hisemployer through contract. It is anexploitation through exchange, and, in keeping withtheMarxian theory of theprimacy of theeconomic form, itsessential nature isdetermined by thisfact. Thisanalysis oflawis notsimply ananalysis of bourgeois law,but of lawgenerally. In truth, theonlylawis bourgeois law.To besure, legal institutions in embryo canbefound in a feudal orslave society, wheretheyare intertwined withreligious andmilitary elements. Modern scholars arelikelyto misinterpret theserudimentary legal elements in pre-capitalistic society as theequivalent of modern law. Actually, these embryonic andundifferentiated legal elements arelike thefirst tentative gropings toward a capitalistic organization thatcan bedetected in eventhemost primitive societies. Thefullinner logic of theconception of lawcanassert itself only under capitalism. The ideal of lawis realized at thesame timeas theideal of themarket; both present manas thetrader, as an autonomous agent setting his relations withhisfellows. Notonly islawfounded ontheconcept of exchange, butthesame thing may be saidof morality. Morality hasto do withconfiicts of interests between individuals who are conceived tohave it within their

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power tO determine whattheyshalldo ornotdo toward oneanother. Such individuals are simplyeconomic traders seen in the light of ethics. Moraltreatises lay downa kindof minimum standard of conduct designed to maintain the principle of reciprocity. Theydo not answer suchquestions as whether a manshould volunteer on a suicide mission; actsof heroism or of extraordinary devotion to the group falloutside the competence of ethical philosophy. Kant's conception thatevery manshould be treated as an end in himself, as a SelDstzweck, implies a trading economy. Onlyin suchan economy can a manwho is conceived to be an end in himself be brought, through self-interest, to servethe endsof othersa result essential if anycollective activity is to be achieved. From these premises it follows thatlawandmorality willdisappear when,andonlywhen,the lastvestiges of theeconomic institution of exchange havebeenrooted out of society.The Sovietsystem still contains important elements of exchange. Theseexistnotonlyin the areaset aside forprivate trading, but in the relations of government corporations to oneanother, andin the payment of workers, whoare compensated on the basis of work performed, in violation of the formulaof mature communism, "From eachaccording to his capacities, to eachaccording to hisneeds." On the otherhand,whenthe notion of economic exchange has beencompletely eliminated in every form, then withsomeallowance for a lag in time the superstructure of law, the state,andmorality willdissolve anddisappear. Manwillhave become a "group-creature," no longer thinking of hisowninterest assomething distinct from that of his fellows.The concept of justice andthe notion of demanding measure formeasure willhave become asinapplicable to thissituation as theynonv are,say,to a mother andchildbetween whomthereis a complete identity of interest. Thisis, then,in summary, thelegalphilosophy of Eugene Pashukanis.It is ostensibly because he heldthisphilosophy thatPashukanis wasfirst forced tomake anineffective recantation andwaslater erased from theSoviet scene, to make wayforAndrei Vyshinski, whobegan publishing thematerials of The Lawof theSoviet State shortly thereafter."Reasoning theirwaythrough" thiswork, Soviet students now learnthatPashukanis was"awrecker," "aspy," "atraitor," andthe propounder of a "rotten theory." With all this vituperation one asksnaturally, just whatis the difference between thetheories of thediscredited andliquidated Pashukanis andthose of thenowtriumphant Vyshinsky) Thisquestion is muchharder to answer thanmightbe supposed. Indeed, whenone

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first putsVyshinsky's bookdown,one is apt to believe it cannot be answered. We seemto havebefore us, not a development fromone system of thought to another, but a deterioration of Marxist doctrine thathasbrought it to sucha levelof s7acuity thatcomparisons cease to be possible. Yet,on reflection, certain crucial points of distinction do emerge between the twowriters. Theirprincipal differences seem to be thefollowing: First.Bothwriters in formaccept the orthodox communist view thatlawandthestate vtlill ultimately "wither away." EvenforVyshinsky, although the presentSovietorderis "perfect and complete socialism," it is a steptoward aneventual communism. Judged by the standards of thatfinalgoal,present Soviet methods of wagepayment are,Vyshinsky concedes, "unjust," sincetheycompensate a manfor whathe doesinstead of givinghimwhathe needs. (It maybe remarked thatevenif Vyshinsky did not agreewith this conception, it wouldhavebeenimposed on him,not onlyby a longtradition of Marxist thought, butby the StalinConstitution itself,the glories of which hisbook celebrates.) Though Pashukanis wassomewhat vague as to justhownearat handthe withering process was,he wasfairly clear as to theconditions under whichit would occur.In accordance with the Marxian theory of the primacy of economic factors, the withering would occur when,andonlywhen,theelement of exchange or reciprocity of performances wasrooted outof the Soviet economic system. ForVyshinsky, on theother hand,thedisappearance of state andlawcannot occur untilmenhave beenso trained andconditioned thattheywillfollow, without theneedforcoercion, therules necessary to social order.He implies thatthistransformation of man's nature is a longwayoff;the withering will be a veryslowprocess.Some uneasiness about the consistency of thisviewwiththe inherited doctrinemaybe betrayed in the emphasis Vyshinsky givesto Stalin's dictum thatRussia mustembrace "creative Marxism," not "dogmatic Marxism." Second.Pashukanis wasclearandemphatic in asserting thatas longasyouhave exchange youwillhavelaw,andaslongasyouhave lawit willbe bourgeois law. Thereis no usepretending thatsocialist lawis something of a higher nature, or different fromcapitalist law; to thinkotherwise is to engage in self-deception. This is, however, exactly the self-deception whichtakes up a large partof Vyshinsky's book.Thelawof the Soviet Unionis in evevy waybigger, better and purer thanbourgeois law. Strangely, the effort is repeatedly made to demonstrate thatSoviet lawis superior in terms of thepremises underlyingbourgeois law;it really doesthe things bourgeois law pretends

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theimplications with outof tune completely note, todo.Thisisa new theory. of Pashukanis' morality, that book in Vyshinsky's is nosuggestion Third.There to man, man of therelation regulating standard of some in thesense alongwith law andthe state. On the disappear will ultimately willobey men that sostrong hasbecome morality when only contrary, away. wither law can constraint without itsrules makes of Pashukanis, forall hisexcoriation Fogrth.Vyshinsky, book: of Pashukanis' thesis thecentral around detour careful a very recipor exchange of concept economic of lawandthe therelation paywage of matter the is,in that case, In oneall-toeobvious rocity. the hasnotachieved system thepresent that hehastoconcede ments, of the however, mention, little He makes of Marxism. goal ultimate governamong on goes that in thetrading involved elements exchange (as didPashukanis) no program andlaysdown corporations, ment he even onepoint At 'market." socialistic this of fore elimination ecocentral to supplement as a needed discipline" "contract praises
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to this It waswithrespect class. of thewillof theruling expression acfrom deviation his in bold most was thatPashukanis conception kind a only was law of thatthisview He insisted doctrine. cepted phenomena, of legal essence thereal reveal to failed which truism, of could "law" called something how explaining of incapable it was since orthodox The thebrutefact of domination. orsanctify reinforce where book, in Vyshinsky's reinstated in form, is, at least conception silence. in over passed simply are Pashukanis by raised thedifficulties totality is "the lawof today asit is, theSoviet fineandnoble Pure, and class" thewillof thedominant expressing of conduct of therules thatare"advantageous relationships those to promote it is designed nothimself does Vyshinsky Yet class." to thedominant andagreeable tentatives andhe makes withthisdefinition, atease much very seem withthe comclass" "thedominant of identifying in the direction society Soviet that admitted is it eventhough as a whole, munity claims extravagant the At anyrate, classless. hasnotas yetbecome Pashukanis anything than go further lawreally forSoviet he makes thenotion doctrine discarded of attic the to relegating toward wrote of instrument an simply is economy thatlaw,evenin a socialist Vyshinto according in addition If it is this,it is so much power. lostitS meaning. really has conception old the that professions sky's outlined doctrine in shifts the produced have that The causes

law as the regards conception communist Fifth. The orthodox

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above arenot,I think, obscure. In theprocess of attempting to operatea great governmental machine, theSoviet leaders have rediscovered some ancient truths. Theyhave learned that thestate without justice is impossible, oratleast that it is impossible unless people believe that thestate is attempting in some degree torender toeach hisdue. They have also seenthat some respect must bepaid, sooner orlater, to the principal of legality; men must know, orthink they know, where they stand under thelawandbefore thecourts. The despised bourgeois virtues turnout,in theend,notto be mere copybook maxims, but indispensable ways of getting things done, rooted in thevery nature of thehuman animal. Thiswasa discovery forwhich theSoviet leaders were poorly prepared by Marxist doctrine. Thatdoctrine gives no explicit guidance in conducting thetransition from revolutionary terror to stability and legality, andsuchimplicit guidance as canbe deduced fromit is fantastically wrong. Themolders of theSoviet state found themselves caught withan untenable andunworkable theory. Instead of being able topurge their system gradually of allbourgeois conceptions, they foundthemselves under a compulsion to employ progressively the same procedures andinstitutions thathadbeenfound essential to social stability in bourgeois society. It wasnecessary to cover a major intellectual retreat; the timehadcomewhensomebeclouding of doctrine wasnecessary asa face-saving operation. Thiswasnoassignmentfora studious theoretician likePashukanis. It demanded the thundering obfuscations ofanoldcourt-room performer like Vyshinsky. On thisbasis we mayexplain notonlythe erasure of a whole chapter of Soviet legal philosophy, butalsowhyit wasnecessary to finda newman to expound theparty linein matters jurisprudential. Asmycolleague Harold Berman hassuggested,4 wemay in thesame wayalsoexplain some of themost offensive features of Vyshinsky's style.When youarecaught in a position where youdare notargue, billingsgate hasits uses.In a country ostensibly ruled by a dogma, silence is notonly embarrassing; it canbepositively dangerous. Onthisreading,The Law of theSoviet StGlte, which at first visits on its reader onlyan acute intellectual nausea, turns outto contain an important message of hope. Thehard lineof Marxism canbend before thecompulsions oflife.If itcan bend totheextent ofpermitting theSoviet system itselfto live,it may perhaps bend enough to save humanity from anArmageddon. If thetheory that alllawis capitalist
4 97 UNIV.PA. L. REV.593 (1949).

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[ Vol. 47 law can findits way to the ashheap,the samethingcan happen to the theory of an inevitable conRict between capitalism and communismno matterhow many times this theory mayhavebeen affirmed in the writings of the prophets. I believethatone of the greatest dangers now confronting us is thatsvewill become moreMarxist thanthe Marxists themselves in interpreting themotives andfuture conduct of Russia. Oneof the sadnecessities imposed by modern government is thatmany diflTerent organizations mustbe controlled by a single"policy" dictated from above.Our occupying forcesand our StateDepartment mustact according to somecoherant, general plan. Such a plan cannotbe changed fromdayto dayif the workof manyindividuals is to be coordinated andtheirmorale preserved. Yetthe formulation of such a plandepends in large measure on a prediction of thefuture behavior of those withwhom we mustdeal.We haveto make thisprediction knowing thatit really liesbeyond ourpowers. If ourbestexperts are incapable of predicting the actions of ourown electorate, it is folly to suppose thatwe cananticipate thefuture aimsof the Politburo. The perplexities of this situation are such thatthe easiest way outis likelyto seemtheonlywayout.The temptation is overwhelming to takethe cluesforourownconduct fromthe taught doctrine of communism. Our experts in the StateDepartment are commissioned, in effect,to lay a slide-rule on the mIritings of Marx, Lenin andStalin, andto come upwiththeAnswer. Thisis a vervhazardous procedure, which, if taken tooseriously, canbecome disastrous. In ourpresent predicament, uTe needabove all elseto keepsome senseof contingency, somefeelingfor the pressures thatlie behind theprinted page,someawareness of the complexity andthe possible internal contradictions in the motives of our potential enemy.We musthavethe intellectual forbearance to let timeandnature work on ourside;we mustnot be likethe farmer in the Chinese proverb whopulled hiscrops outby theroots trying, ashe explained, "tohelp themgrow."5 Meanwhile, of course, we should keepourpowder dryandplentiful, andwe should not be distracted fromourgoalof peaceby the abusive epithets of a Vyshinsky, whois, afterall, playing a gameat homeintowhichwe areat bestimperfectly initiated.
5The eloquent appealfor this pointof view madeby the former director of the laboratory that developed the atomic bombshouldbe required reading for all of our "policymakers." See Oppenheimer, "TheOpenMind,"ATLANIIC 28 (Feb. 1949). Perhaps two readings of this article oughtto be recommended, for its thought is muchtoo profound and subtleto be absorbed in a singlereading.

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