A remarkably strong claim for the form of rights-based law, as not simply homologous with the commodity form, but as internal to the dynamics of value under capitalism, lies at the heart of Evgeny Pashukanis’s book Law and Marxism. As the text indicates:
Man as a moral subject, that is as a personality of equal worth, is indeed no more than a necessary condition for exchange according to the law of value. Man as a legal subject, or as a property-owner, is a further necessary condition. Finally, these two stipulations are extremely closely connected with a third, in which man figures as a subject operating egoistically. All three of these seemingly incompatible stipulations which are not reducible to one and the same thing, express the totality of conditions necessary for the realisation of the value relation.
Read in the light of Christopher Arthur’s reframing Introduction, Pashukanis is making the argument that the contract, and all that goes with it, is internal to the wage-labour relation as a key relation of production and to commodity exchange as a key moment in the realisation of value in the reproduction of capital.
I first encountered Pashukanis over 40 years ago in the work of Peter Fitzpatrick on Law and State in Papua New Guinea while working on a PhD thesis addressing the role of custom and local courts in state formation in PNG. Two impressions have remained with me: 1) the inherent power, notwithstanding the dialectical temptations, of the proposed identity of the law and commodity forms; and 2) the radical implications of Pashukanis’s polemic against the pseudo-revolutionary pouring of proletarian content into the bourgeois form of rights based law, a cleaving to the necessity of the withering away of the state that cost him his life. A curiosity as to whether those impressions would stand the test of time led me to propose the book to our Past & Present Reading Group.
As is clear from the above quote, which may serve as a summary of the structure of the book, the full dialectical development of Pashukanis’s argument brings in its train a theory of the state and of the human subject under capitalism. The totalising nature of this claim has brought both accusations of idealism on the one hand and of crude materialism on the other. The implication is that Pashukanis has failed to escape the reductive dilemmas that Marx fought against throughout his writing.
Since its publication, those accusations have formed a thread in a relatively brutal series of critiques, revisions and revivals of the General Theory. Its adequacy as critique of ideology, and as a foundation on which to build a theory of the state has been challenged. There are recurrent anxieties about the relative absence of an explicit consideration of class and foundational critiques of the emphasis on exchange vis-a-vis production. The book’s claims for a theory of the legal subject have in turn been met by feminist critiques of the patriarchal bias of that theory. All these concerns re-emerged spontaneously as the reading group worked its way through the book. There was a concern that the very power of the methodological foundation of Pashukanis’s dialectics in the Introduction to the Grundrisse and the first chapter of Das Kapital implied a foundational equivalence of rights-based law and commodity exchange in a materialist understanding of the dynamics of capital. If law was, rather, to be understood as a moment in the reproductive cycles of capital then why wasn’t this reflected by incorporating Marx’s own work on the contradictory dynamics of these cycles into the argument? This in turn opened up questions as to whether this was a reductive account of law reflected both in the difficulties raised by imagining its withering away, and by Pashukanis’s rather disturbing tendency to treat the resolution of those difficulties as administrative and technical problems.
But, as is the case with any good dialectical analysis, the problems also tend to be the most stimulating and generative aspects of the argument. The scope of Pashukanis’s analysis is founded on a genuinely productive extension of the role of concrete abstraction in Marx’s work, both as method and as material process. Arthur’s editor’s Introduction reintroduced the General Theory to a context in which that scope matched structural Marxist attempts to extend the power of Marx’s insights into the political and ideological dynamics of wider social formations and their postmodern competitors. If we seem to have been refereeing Althusser and Foucault on power, economy and the formation of the human subject for a long time, perhaps Pashukanis would make a useful contribution to holding on to the material underpinnings of that dynamic.
There is a quality of Pashukanis’s work that inspires the reader to look for connections beyond the apparently technical considerations of law and its form. He was a student in Munich only 10 years after the publication of Georg Simmel’s Philosophy of Money with its own take on the correspondence between the hollowing out of value and of the subject. Pashukanis’s juxtaposition of private law and the formation of the bourgeois state also evokes Gramsci on civil and political society. Given Gramsci’s attendance at the 1922 Fourth World Congress of the Communist International in Moscow, one wonders if they ever met.
Perhaps a bigger stretch, but I think a productive one is, that the first edition of the General Theory was published the year before Marcel Mauss’s essay on The Gift in which it figures as a kind of anti-contract foundation of society, but in which Mauss also finds the seeds of the evolution of the contract. Back to my PhD project. As an anthropologist, the dialectics of Pashukanis made a kind of reverse engineering particularly productive. What would be the (potentially violent) results of pouring custom/gift economy content into the form of rights-based law in the process of state formation? In turn, might we conceive of custom/gift as the appearance of a burgeoning underlying commodity form? These questions were central to the understanding of a recently independent state, encapsulating an extraordinary range of linguistic and cultural diversity, and have only grown in significance with the waves of globalisation since.
China Mieville’s more recent reconsideration of Pashukanis from the perspective of international law, and his productive and considered defence of the General Theory, in some ways confirm his value in this global space. But I want to conclude this blog by suggesting that the very strength of Pashukanis also creates a problem. In the end, Pashukanis’s strong argument for law as an internal moment in the dynamics of capital is a strong argument for subsumption of all social dynamics to capital’s form. For many legal commentators this creates problems for our understanding of the scope and specificity of law. For those of us working on the margins of the metropole it is not clear how productive extending Pashukanis’s theory of law to classic contexts of uneven development and articulation of modes of production is going to be under those totalising theoretical conditions. What may be missing from Pashukanis’s revolutionary vision is the peasant.
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