criminal law omissions essay

A Critical Analysis of the Criminalisation of Omissions

Samuel carthy.

Introduction

This essay aims to critically analyse the place of omissions within the criminal law, which traditionally has primarily focused on acts of commission which result in harm to another. However, in certain circumstances, it can penalise an act of omission, which is ‘something which is not done in circumstances where there is some reason or expectation for that thing to be done’. [1] This essay aims to assess the circumstances where such an expectation is held by the justice system. The common law generally imposes such a duty to act in four specific circumstances: where the defendant is a public servant, has a familial relationship to the victim, voluntarily assumed responsibility for the victim or created the danger to the victim. [2] In all other circumstances, there is generally no duty to act, even when it would be morally reprehensible to fail to do so. For example, an able-bodied person who does not attempt to save a drowning baby is not a murderer in the eyes of the law.  In some other jurisdictions, attempts have been made to impose a duty to help others in the form of ‘Good Samaritan’ laws.  This essay will also examine their application in continental jurisdictions.

Familial Relationship

As mentioned above, there are limited circumstances where criminal law imposes a duty to act. Perhaps the most obvious of these is when there is a familial relationship between parties. One of the earlier examples of this is R v Senior, [3] where a father was found guilty of manslaughter for refusing medication to treat his son’s pneumonia because of his religious beliefs. The rationale here is pragmatic. As a father, it is his fundamental duty to keep his son alive; by refusing to seek medical help, he was as responsible for his son’s death as the ailment that killed him.  This was somewhat contradicted decades later in R v Lowe, [4] when a father of low intelligence was acquitted of manslaughter. His daughter died after he failed to call a doctor; here, the rationale being that he had not foreseen the consequences of this failure. It is submitted this argument is overly cautious in its unwillingness to criminalise an omission, suggesting that parents caring for infants do not have a duty to know when to call for medical help. While this judgment was influenced by the low intelligence of both the father and the mother, surely such knowledge is a non-derogable requirement of parenthood, and as Mr Lowe had had children taken from him before,  he ought to have been even more vigilant in the circumstances.

The reverse relationship was considered in DPP v Joel, [5] where a mother with MS died whilst living in the home of her daughter and her daughter’s partner. She was poorly cared for and developed infected bedsores as a result of her condition. She contracted pneumonia and passed away after being taken to hospital for treatment. The daughter was found to have been negligent in the care of her mother, however questions raised concerning the negligence of the HSE lead to no conviction for the mother’s death. The prosecution also failed to prove that the daughter’s partner owed the mother a duty of care in this case. This particular case is interesting due to the family dynamic it encompasses. While parents have a natural responsibility to care for their underage children, there is a debate to be had on whether children have a responsibility to care for their parents, and whether that responsibility is a natural or legal one. In this case, neither the daughter nor her partner wanted the mother in their home. There is an argument to be made that the law should not impose a duty of care on them where they had no choice in the matter.

Public Service

Omissions are also penalised when the defendant is a public servant, as these people have duties to safeguard the public and their failure to do so can have very serious consequences. One harrowing Irish example is DPP v Bartley, [6] where a woman endured sexual abuse by her stepbrother for 25 years after her complaint to a Garda was ignored. The Garda was ultimately found to have failed in their duty to investigate all credible claims. The earlier case, R. v Dytham, [7] was cited as a precedent, where a police officer was convicted of misconduct in a public office for watching a man be beaten to death and not intervening. Both these cases establish the important precedent that police officers have a duty of care to all of society, and because of the high-stakes nature of their work, failing to act when they clearly should have acted can lead to criminal convictions. This ensures that they feel obliged to perform their job correctly and comprehensively and that the public receives the protection  they deserve.

Creation of Danger

One of the more abstract conditions where an individual can be held criminally liable for an omission is in a situation where they created a danger to others. In R v Miller, [8] the House of Lords found the defendant guilty of arson by omission. He had fallen asleep with a cigarette in his hand, woken up to find the mattress on fire, and instead of making an effort to put the fire out, moved to another room and allowed the building to be damaged. This established a common-sense precedent that a person who creates a danger is under a legal duty to alleviate the effects of that danger. The Court of Appeal extended this principle in R v Evans, [9] where they upheld a manslaughter conviction. The defendant had acquired heroin for her sister on which she overdosed and died, but both she and her mother did not seek medical help for fear of legal trouble. They found that an individual who contributes to a life-threatening state of affairs has a duty to take reasonable steps to save the other’s life. These rulings are not consistent with the emphasis put on autonomy and free will in criminal law, [10] but nonetheless, they are justified. In both of these cases, the defendants acted callously in failing to mitigate danger and prevent serious harm to others when they could have easily done so. In the interest of the common good, such negligent behaviour must be criminalised.

Voluntary Assumption of Duty

Perhaps the most unclear criminalisation of omissions comes in the form of voluntary assumptions of duty. In R v Gibbins and Proctor, [11] the first defendant left his wife and brought his children with him to live with the second defendant. The second defendant deprived one of his daughters of food and allowed her to starve to death, and both were ultimately convicted of murder. Even though the second defendant was not related to the deceased, she had acted as her mother and therefore owed her a duty of care. In R v Stone and Dobinson [12] the first defendant’s sister, who rented a room from him, died after living in squalor. Both he and the second defendant, his mistress-cum-housemaid, were convicted of manslaughter. As she had washed and provided food for the deceased, as well as attempted to summon a doctor, the second defendant had voluntarily assumed a duty of care. There is a grey area here regarding the liability of the second defendant. It may be argued that due to the lack of a concrete relationship between her and the deceased, as well her bona fide efforts to care for the deceased, she should not have been responsible for her death.

The principle of voluntary assumption of duty was arguably extended too far in the case of R v Taktak. [13] The defendant had brought a prostitute, who was nearly unconscious when he collected her, to his heroin dealer’s home, where he tried to help her but did not call a doctor. When the dealer arrived, he called a doctor, who pronounced the prostitute dead. It was found that the defendant had assumed a duty of care for her as, by bringing her to the dealer’s home, there was no chance of anyone else helping her. This is a tentative argument, as the defendant had no prior relationship with the woman. It is predicated on the assumption that, had he not collected her, a passer-by would have gotten medical assistance for her. This is a worryingly broad interpretation of a voluntary assumption of duty to a stranger. Will the courts one day impose the duty to call an ambulance on said passers-by? Any further extension of Taktak would be moving beyond the realm of administering justice and verging on infringing on individual liberty and autonomy.

Duty to Rescue and Duty to Act – An Alternative?

One of the proposed alternatives to this dilemma that we have seen in other jurisdictions, such as in France and Germany, is the imposition of so-called ‘Good Samaritan’ laws. These laws range from imposing a duty to rescue someone in peril to imposing a duty to act to prevent a crime. Both jurisdictions impose a ‘duty to rescue’ incurring a penalty of imprisonment or a fine. Section 323(c) of the German Criminal Code mandates assisting in the case of an accident, danger or emergency where it would not endanger oneself, while Article 223(6) of the French Penal Code requires offering assistance to a person in danger where it would not endanger oneself. It is submitted that the German laws in this area are fairer and less imposing on the general public than the French equivalents. The German duty to rescue, unlike the French, hinges on necessity in a manner analogous to the requirement for causation in the tort of negligence, as well as reasonability. Failing the French duty, on the other hand, does not require that your failure to help a person in danger actually had harmful consequences, or proof that your assistance would have been successful. [14]

Germany has an interesting approach to a ‘duty to act’. The official English translation of section 13 of the German Criminal Code sets out not a duty to act, but rather a penalty for ‘whoever fails to prevent a result which is an element of a criminal provision (...) if they are legally responsible for ensuring that the result does not occur and if the omission is equivalent to the [commission of] the offence through a positive act’. This provision is much more limited in scope than a more generic ‘duty to act’, while still achieving the desired result. It essentially imposes a duty to act only on parties with some degree of responsibility for would-be criminals. [15] More importantly, this duty is only breached should the crime actually occur, and where failing to prevent the crime is morally reprehensible enough to be equivalent to actually committing the crime oneself. [16] Opponents of these laws in other jurisdictions argue that the many nuances involved in the decision to undertake a rescue would make a failure to rescue difficult to prosecute. The potential rescuer may have only a split-second to assess their capabilities to perform a rescue and the danger they may face in doing so. [17] In any serious attempt to deal with rescuers under the law, courts would need to adopt a subjective test as to the difficulty of the rescue from the rescuer’s perspective at the time. [18]   It is submitted that the German provision here is effectual, but no more so than the current state of the common law.

Using a literal interpretation of actus reus, no omission could constitute a crime. However, the courts have correctly adopted a pragmatic, albeit cautious, approach to situations where a person’s failure to act should be considered criminal. In some of the cases mentioned above, particularly those where people have sat back and allowed their family members to die from neglect, there can be no doubt that the severity of a criminal conviction is deserved. This desire to issue just rulings must be carefully balanced with the fundamental legal principles of individual liberty and autonomy. Good morals cannot and must not be mandated by the judiciary. Legislative attempts to impose a duty to help others may be well-meaning, but to be effectual, they would have to be no more broad in scope than the current state of the common law. In Germany we have seen a more practical approach when compared to the paternalistic approach taken by France. Only those most heinous omissions should be criminalised, and even then only in situations where the person in question had a clear duty to act, be it as a result of their behaviour, their profession or their close relationship to those affected by their omission.

[1] A P Simester, ‘Why Omissions are Special’ (1995) 1 LEG 311.

[2] Conor Hanly, An Introduction to Irish Criminal Law (3rd edn, Gill & Macmillan 2015) 59.

[3] [1989] 1 QB 283.

[4] [1973] 1 QB 702.

[5] [2016] IECA 120.

[6] [1997] 6 JIC 1301.

[7] [1979] 1 QB 722.

[8] [1983] 2 AC 161.

[9] [2009] 1 WLR 1999.

[10] Hanly (n 2) 57.

[11] [1918] 13 CrAppR 134.

[12] [1977] 1 QB 354.

[13] [1988] 34 ACR 334.

[14] Andrew Ashworth and Eva Steiner, 'Criminal Omissions and Public Duties: The French Experience' (1990) 10 LS 153

[15] George P Fletcher, 'Criminal Omissions: Some Perspectives' (1976) 24 AJCL 703.

[17] Gavin Dingwall and Alisdair A Gillespie, 'Reconsidering the Good Samaritan: A Duty to Rescue' (2008) 39 Cambrian L Rev 26.

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How Omissions Aren’t Special

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• Published: 16 December 2023

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1 Not-Doings and Omissions

The basic structure of the criminal law features what appears to be a stark asymmetry between the treatment of acts and omissions. Whereas we are prima facie accountable for harms that come about as a result of our positive acts, only in exceptional circumstances are we accountable for the harms which depend on our omissions. I may be liable for an omission if a distinct duty to act can be adduced, and if my failure to discharge that duty is culpable to the point of criminality (after all, positive moral obligations practically besiege us, and failing to discharge them is hardly ever seriously culpable). I have a duty to feed a child because I am her parent; Footnote 1 a duty to call the ambulance for a critically sick relative because he is in my house; Footnote 2 a duty to close a railway gate because I am the person employed to do it; Footnote 3 a duty to put out a fire, or call the fire brigade, because I am the one who started it. Footnote 4 Apart from where these exceptional duties arise, one’s decision to allow a preventable harm to occur is no business of the criminal law, on the standard picture.

This default rule is one of the very first things students of the criminal law are made to learn. Omissions, we tell them, are special. The rule is all at once intuitive and curious. Intuitive, firstly, because it is unthinkable that failures to prevent harm in general should engage the attention of the criminal law. As Simester points out early on in his incisive reappraisal of the omissions problem in Fundamentals of Criminal Law , the category of ‘not-doings’ is boundless. Footnote 5 Consider how much hardship I fail to prevent merely by not sending more money to charity, by not volunteering in my local food bank, by choosing to be an ok legal academic rather than a spectacular nurse. So much activity to prevent harm is also mutually exclusive, of course: there is only so much one can do in the context of a single life, and putting one’s efforts into harm prevention of some kinds (inasmuch as one ever does this), will necessarily come at the expense of other kinds.

These reflections show why the default rule is so natural: failure to prevent harm is an inescapable fact of life, so it cannot be a general basis for criminal answerability. But they also demonstrate the curiousness of approaching this state of affairs as a rule to be explained and defended. For what would it possibly look like for the criminal law to treat our not-doings in general on a par with our doings? It is not easy to get a handle on this proposal, so as to explain why we do not take it up. Simester sets himself the task of justifying a default rule according to which ‘we are not accountable for failing to prevent something that it would be a crime to bring about through a positive act’, Footnote 6 but only become accountable, in law, when a special duty to act can be scoped out. Why should the law not treat not-doings tout court just like it treats positive acts, he asks. Footnote 7 Completely aside, though, from questions of justice in accountability, it is not clear what it would mean to be held responsible for all the bad things I fail to prevent as if I had brought them about via a positive act. How would the law even begin to assign ‘not-doings’ under this definition, so as to apportion liability for them? The issue here is that when the focus of our investigations is the law’s default rule around ‘not-doings’, understood as all the bad states of affairs I could improve but do not, it is difficult to see what alternatives there are to argue over. Surely, some principles must be fashioned from the outset to pick out from this limitless category of events those things that can be said to be my not-doings, as opposed to yet more things that happen in the world.

This is precisely where omissions come in. Omissions are more narrowly defined than the broader category of not-doings. An omission is the thing I didn’t do which I clearly had a duty to do, which, in the ordinary course of things, I would do, and, or, which any decent person in my position would have done. These features of omissions are critical to our ability to detect them amidst the sprawling ether of events one’s interventions could have affected. Omissions are, in this respect, like the hole in a donut, only hoving into view when viewed against the surrounding context which gives them their shape and defines their very existence. In this vein, Simester notes that omissions are a special subset of not-doings of a ‘morally significant kind’. Footnote 8 To say ‘You omitted to X’ is invariably to say something in the accusatory mood.

This makes a certain kind of sense of Simester’s decision to set his analytical sights on a default rule about not-doings rather than about omissions. Why treat not-doings differently from positive acts is the question to answer, he suggests. Are they, ceteris paribus, less culpable than our doings? Are they not causes of harm in the same way our positive acts are? Does liability for not-doings restrict our liberty in a special way? The question cannot be ‘Why treat omissions differently?’, is the thinking, because omissions are the subset of not-doings for which we are, almost by definition, answerable in some way. In their legal instantiation, omissions therefore constitute the exception to the default rule that we are not liable for our not-doings. The default rule pertains to the not-doings, not to the omissions.

But outside of the clutch of principles that define omissions, which bring them into view and give them their shape, there is no basis on which we can designate my not-doings and distinguish them from the not-doings of others. Outwith these principles, whatever they may be, there is no given set of not-doings yoked to each one us that present as candidate criminal offences. Defined as all the ills we fail to prevent, the category is far too vast, unruly, and full of internal tensions to provide such candidates. This is all to say, we can start only with omissions—with the things we fail to do that have normative salience, that stand in defiance of some expectation, moral or social (or both). The default rules worth exploring, I therefore maintain—the rules that present liability options the law could conceivably pursue—are those which concern the law’s approach to responsibility for our omissions, for those failures to act which stand out as our very own not-doings.

2 Ascribing Responsibility through Acts and Omissions

Is there a special default rule that applies to omissions ? I want to suggest that once we have the category omissions in our grasp, so to speak, it is far less clear that a special default rule exists with respect to it. A candidate default rule, transposing from Simester’s description of the rule about not-doings, is that whereas we are generally answerable in law for our harmful positive acts, we are not, generally, answerable for our harmful omissions. To reiterate, I am defining omissions as those of our inactions that in some way defy normative expectations.

Thinking about not-doings, Simester suggests that a default no-liability rule can be justified by reference to a few principled considerations. Most prominent of these is what he calls ‘the range-of-alternatives distinction’. Footnote 9 The core idea here is that when the law prohibits inaction, thus mandating conduct , it blocks us from engaging in our own projects and commitments while the positive duty is being fulfilled. This is not true when the law prohibits harmful positive acts. Each such prohibition knocks out only one option, but leaves the full range of other activities available. But this is not the only justification for the law’s forbearance, Simester argues. He also claims that not-doings are also typically less culpable than are their counterpart positive acts, and that the law ought to reflect this through the default rule. Finally, he argues that a person is prima facie not accountable for her not-doings, whereas she is for her doings.

Tuning into these considerations explains why we are generally not liable for our failures to prevent harm, Simester suggests, and why, therefore, a distinct duty to act, rooted in some kind of connection to the harm, is needed to legitimate legal answerability. But I have said that failures to act in breach of some distinct duty—what we should call ‘omissions’—are the only real candidates for any default rules about liability. To return to my own question, then, could considerations of the same kinds explain and justify the general no-liability rule which applies to omissions but not to positive acts? The main comment I wish to field in response to this question is that I am unconvinced there is a special ‘no liability’ rule that applies distinctly to omissions and not to positive acts.

We have already seen that any account of omissions requires us to carve out from the unlimited class of bad things I fail to prevent those which can credibly count as my non-deeds. Notice, however, that matters are very similar in respect of our deeds as well. We are not automatically accountable, even prima facie, for all of the ills that are causally connected to our movements in the world. What makes it the case, then, that X was something I did , was my harmful positive act, as opposed to one of the unlimited events which are causally dependent on my behaviour? In the words of Donald Davidson:

What events in the life of a person reveal agency; what are his deeds and doings in contrast to mere happenings in his history; what is the mark that distinguishes his actions? Footnote 10

Out of the morass of ‘mere happenings’, the law is compelled to define the realm of our positive acts through principles of ascriptive responsibility that tie various happenings to our agency. It is only by reference to such principles that we are able to say, for instance, that wounding Jim is something the defendant did , rather than something that simply occurred after the defendant moved his body this way or that with a knife.

The criminal law doles out and delimits ascriptive responsibility for positive acts in large part through its doctrines of causation and remoteness, and, in particular, through the insufficiency of ‘but for’ causation for establishing legal causation. The law’s doctrines of causation do not ask only whether the defendant’s conduct was a sine qua non of the relevant harm. They insist, also, on a requisite degree of directness between conduct and harm, on the absence of ‘intervening’ causes, and, arguably, on some out of the ordinary, sub-optimal, or duty-breaching character of the behaviour which sets the harm in motion. Footnote 11

In R v Kennedy (2007), the defendant filled a syringe with heroin and handed it over to the victim, who injected himself with the drug and consequently died of an overdose. Footnote 12 The pertinent legal question, on appeal, was whether the defendant had really caused the victim’s death, so as to be guilty of unlawful act manslaughter. It was held on appeal that the victim’s voluntary act of self-injecting was an intervening cause. Killing the victim was not something the defendant did, therefore, though his actions were a link in the causal chain leading to the victim’s death. As in so many cases, we see, in Kennedy , the doctrines of legal causation being used to sift out our responsible deeds from the unlimited bad states of affairs that depend on what we do. Given the victim’s intervention, killing the victim could not count as among the defendant’s deeds, though it was a downstream effect of his actions.

It is instructive to consider Kennedy alongside R v Evans , another heroin overdose case. Footnote 13 There, the defendant witnessed her sister dying, over the course of a night, from an overdose of drugs that the defendant had supplied to her, failing to call the ambulance until it was too late. The court ruled that the defendant owed her sister a duty of care, having created the dangerous situation she watched unfold. The breach of this duty (through not calling the ambulance soon enough) established her guilt for gross negligence manslaughter. The omission made it the case that her sister’s death was attributable to her.

From a certain point of view, Kennedy and Evans approached the same question from different sides. There is a baseline rule, let us say, that one is not responsible for the heroin-related deaths of others, in general, and even where they are causally dependent on something one does, such as supplying the heroin. Supplying is not sufficient for the death to be ascribed to one’s agency, we might say. Exceptionally, things may stand otherwise. In the first place, they will stand otherwise if one’s causal contribution is direct enough: if the defendant in Kennedy had literally injected the victim himself, said the court. In the second place, they will stand otherwise if, having supplied the heroin, the defendant breached a clear duty to help the victim, thereby omitting to save her. Both the ‘act doctrine’ and the ‘omissions doctrine’ are means of overturning the presumption that one does not bear ascriptive responsibility for other peoples’ overdoses.

We are not, in general, criminally answerable for our non-deeds, the standard view says. But we are not, in general, criminally answerable for our deeds either, if these are understood to be all the harmed states that result from our bodily movements and presence in the world. Principles of ascriptive responsibility are equally needed to carve out one’s own definable deeds from the heap of events connected to one’s activities (was killing the victim something Kennedy did?). On this plane, there is no special rule applying to omissions that doesn’t apply to acts. The criminal acts and omissions recognised by law are alternative routes to ascribing responsibility to agents for certain consequences and distinguishing those consequences from mere happenings and events. Both doctrines, we might say, fulfil the function of delimiting the states of affairs for which we are answerable, against the more basic master rule that we are not answerable in general for harms which depend, causally or counterfactually, on how we conduct ourselves.

Seen this way, there is no special default rule that I am not answerable for my omissions. I am not answerable tout court for bad happenings, but specifying an omission runs parallel to specifying an act as a means of connecting my agency to some of those happenings. In this fairly significant way, omissions are not all that special.

3 The Lesser Culpability Claim

I have suggested that the rules about omissions liability are not as distinctive and special as might first appear, once we see them as mirror principles of ascriptive responsibility that also apply to acts. But this still leaves us with plenty of interesting things to ask about the scope of criminal liability for omissions. Should the law still exercise special restraint when it comes to imposing criminal liability for our omissions, understood as our definable, duty-breaching, not-doings? Ought we to be punished less harshly for an omission than for its equivalent positive act? Should we be criminally liable for far fewer of our harmful omissions than of our harmful positive acts?

Simester surveys three possible justifications for treating omissions (‘not-doings’, in his rendering) and acts on a different footing. These are:

1. That culpable omissions are only non-interventions, or failures to improve matters, whereas positive acts worsen states of affairs;

2. That those guilty of omissions are, all other things being equal, less culpable than those guilty of harmful positive acts; and.

3. That there is, in general, a greater loss of liberty occasioned when proscribing omissions than when proscribing acts.

For reasons of space, I will neglect point 1: whether the difference between worsening and not making better justifies the special treatment of omissions. I will confine myself instead to some remarks about points 2 and 3: the putative lesser culpability of omissions and what Simester calls ‘the range-of-alternatives’ distinction.

First, the lesser culpability claim. Are omissions, ceteris paribus, less culpable than positive acts? Doubtless, plenty of omissions are more culpable than plenty of positive acts. Watching a small child drown, a child whom you could easily save, but out of sheer indifference do not, is arguably more monstrous than the impassioned revenge killing of a loved one’s abuser. Omitting to feed one’s children, knowing they will starve, is leagues more culpable than minor assault (even of them). But these are not the right test cases for determining whether the act/omission distinction is morally neutral, because across these paired cases all things are far from equal: the degree of ultimate harm, and, in the first pair, the motives, are deeply asymmetrical.

A more promising pair of cases for testing the neutrality thesis (the thesis that, when all things are equal, it is not morally consequential whether one hurts through act or omission), as Simester indeed notes, is that of the parent who intentionally starves his child considered against the parent who outright poisons her. Footnote 14 Here, the act and omission strike us as equally murderous, never mind precisely how the parent brings about the child’s death. That suggests the moral neutrality of the act/omission distinction reveals itself just as soon as we have the right cases to see it. But that conclusion is thrown into doubt when we consider a further pair of cases. The first features the aforementioned moral degenerate who refuses to rescue a drowning child who is unknown to him, when he could easily do so at practically no cost to himself. The other features a moral degenerate who actually drowns an unknown child. Footnote 15 In this pair of cases too, it seems we have kept everything equal—as equal as they can be—and yet it yields the contrary conclusion. When all that is left between the cases is the act/omission distinction, this does indeed seem to make a considerable moral difference. Even if the person who fails to save the child from drowning is culpable to the point of criminality, he is surely not as culpable as the person who does the drowning.

These pairs of cases point us in opposite directions vis-à-vis the neutrality thesis, generating something of a puzzle, as Simester points out. But we may wonder whether even these examples succeed in maintaining the ceteris paribus proviso. In order to serve as test cases for the neutrality thesis, the presumption across all four examples is, I think, that the agents (the negligent parent; the killer parent; the indifferent stranger; the killer stranger) act or fail to act with the same intention or motive: a desire or willingness for the victim to die. To achieve this, we might suppose, for instance, that the person who fails to rescue the child from the water wishes the child’s death every bit as much as the person who positively drowns the child. This would be a very non-standard omission. But positing a symmetrical desire that the victim dies may not yet settle it that the mens rea is fixed across the cases. For, is the intent to end a person’s life by one’s own hand, by putting one’s agency in the world to work to ensure that outcome, ever the same state of mind as that which is involved in the most determined refusal to save? The killer who drowns the child intends that the outcome be brought about by his own agency; he intends, himself, to be the agent of death; the omitter intends to do nothing, and so to allow death. Are these morally equal intentions?

If, as I suspect, they are not, one might take this to upend the ceteris paribus proviso in these cases, diminishing their usefulness for pronouncing on the neutrality thesis. Contrariwise, one might argue that the persistence of some moral difference, captured by a difference in intention, is what falsifies the neutrality thesis. Perhaps what we understand to be a difference in intent constitutes the moral difference between act and omission when all else is equal.

For Simester, the great difficulty in crafting ceteris paribus examples has pointed implications. Defenders of the neutrality thesis tend to make their examples quite extraordinary, he says, ‘in order to achieve ceteris paribus terms’. Footnote 16 The hardship of achieving those terms alerts us to an important fact: ‘virtually always’, he says, omissions will be less culpable than positive acts, because things are so rarely all equal. The fact that ceteris paribus does ‘not normally hold’ hence works to justify the default rule that we are not accountable for our not-doings, but only become so where there is a distinct duty to act and a special connection to the harm.

Even if the neutrality thesis is right, then, the typical lesser culpability of not-doings gives the law a reason to ‘exclude liability’ for them as a baseline rule, Simester argues. Footnote 17 This said, the correctness of the moral neutrality thesis is attested to by the comparison of the parent who starves or poisons his child, he thinks, where it seems there really is no moral difference, as well as by numerous instances of inadvertent negligence. When D fails to take reasonable care, resulting in harm, it seems to matter precious little whether her negligence takes the form of an act or omission—whether a factory safety technician negligently fails to flip a safety switch needed to prevent accidents, or flicks off the safety switch, mistakenly thinking she was turning it on. Footnote 18

Let me venture just a few comments about these suggestions. First, the case of the parent who starves his child, along with so many examples of negligence, is indeed where the moral neutrality thesis looks at its strongest. Yet these are also the failures to prevent harm which most lend themselves to re-description as a form of conduct, or, rather, of misconduct. The parent who starves his child is not doing nothing; he is engaged in an activity, the activity of negligent child-rearing. Manifold negligent ‘omissions’ can be just as well understood in similar terms—as, rather, illicit ways of carrying on. The ‘omission’ by an anaesthetist to notice and respond to a patient’s disconnected oxygen pipe is also, and every bit as much, the activity of medical malpractice. Footnote 19 Where omissions seem the most morally equivalent to acts, then, is also where they least resemble mere inaction and are akin to the act of doing something badly, like a misreading or a misdirecting.

Does this feature of negligence cases reinforce their bearing out of the neutrality thesis, or does it instead suggest they are not the right examples with which to test it? I find it difficult to say. The characteristics that place these so-called omissions on a par with acts culpability-wise are the same characteristics which undercut their description as being, strictly speaking, omissions. The fact that omissions liability is most straightforward where omissions are at their most act-like—when they are, seen from the other end, badly performed activities Footnote 20 —also bolsters the thought that the omissions rules are, to begin with, not all that special. So much of what we might think of as liability for negligent ‘omissions’ fits neatly within a principle of prima facie accountability for one’s harmful conduct, which Simester’s remarks about inadvertent negligence helpfully illuminate. To be sure, the lazy bystander case, wherein the wrongdoer does wrong by really doing nothing (watching the saveable child drown, for instance), stands out in sharp contradistinction to these negligent performance cases, and it is no coincidence that it generates more consternation regarding criminal liability.

Second, let us return to Simester’s proposal that the typical lesser culpability of omissions part grounds the default rule that we are not legally accountable for them. Though it may be true that omissions are equally culpable when all things really are equal, this is so rarely the case that we ought not to be accountable for our failures to prevent harm unless a distinct duty to act is apparent, the suggestion goes. I have suggested that we can only get hold of our omissions, to begin with, in the light of distinct and specific duties to act. Let us assume, then, that one can almost never find positive act counterparts for these omissions, because things are almost never (if ever?) equal between omission and act. Does that sponsor the conclusion that omissions are ‘typically’ less culpable than acts? But which omissions have been adjudged less culpable than which acts, so as to reach the conclusion about typicality? Omissions in general cannot be said to be less culpable than acts in general ; it all depends which omissions and acts one has in mind, as I have said. (Refusing to call an ambulance for your critically ill mother isn’t less culpable than stealing money from your sister.) So the claim that omissions are typically ‘less culpable’ can only mean that they are typically less culpable than their counterpart positive acts . But if the ceteris paribus proviso almost never holds, we lack sufficient comparisons with direct counterparts to yield the conclusion about typically lesser culpability. To be able to say that, we actually do need to have a spread of cases where we are confident enough that all things are equal, and where it is clear the omissions are standardly less culpable. The fact that it is fiendishly difficult to find a pair of cases where all things are equal does not mean, then, that omissions are typically less culpable than positive acts.

If it turns out that in the only ceteris paribus examples we can manage to think up the omission is less culpable, this will indeed be bad news for the neutrality thesis. But disproving the neutrality thesis would not, in any case, entail that harmful omissions are typically or generally less culpable than harmful positive acts, only that every omission is less culpable than its exact positive act equivalent.

Third, and last, what sort of default rules do these reflections sponsor? Simester is quite aware of the points raised here, I believe. Given this, I propose we can faithfully restate his core claim as follows: to the extent we ever can specify a positive act that is the mirror opposite of some culpable omission, the omission will reveal itself to be less wrongful. This suggests that qua omission, there is what we might call a ‘culpability deduction’. If that were right, should the law exhibit any special reticence to criminalise omissions on this count? Footnote 21 I do not see why. Plenty of omissions are culpable enough for criminalisation even if they are not culpable on a par with their counterpart positive act, assuming we can specify one. And many omissions are much more culpable than numerous, harmful positive acts that are apt for criminalisation. Formulated this way, then, the lesser culpability claim does not endorse a principle of special legal restraint with regard to omissions qua omissions.

4 The Range-of-Alternatives Distinction

Let me now turn to the ‘range-of-alternatives distinction’. Footnote 22 Summarised above, this is the idea that prohibitions on not-doings are more onerous, in their very nature, than prohibitions on doings. In proscribing a doing, the law rules out for us only one option, whereas when mandating positive action it rules out everything else, for as long as the positive duty lives. A key plank here is the thought that we may legitimately demonstrate partiality towards our own projects, goals, and attachments as we go about our lives. Sweeping liability for failures to prevent harms to which we are not personally, uniquely connected would threaten this freedom to pursue our own ends, by demanding that we subordinate our own projects to the impersonal goal of harm prevention wherever doing so would yield results. This opportunity costs dimension is a foremost justification, as Simester sees it, for the rule that, absent a distinct duty to act, we are not accountable for not-doings.

To reiterate, I find it very difficult to conceive of a general ground of liability for not-doings prior to some principles of ascriptive responsibility that scope out what properly counts as my not-doings (as opposed to mere happenings), principles that will surely cite personal connection to particular harms, and clear and distinct duties to act. I am in full agreement with Simester that a regulatory scheme of general liability for preventable harms would seriously imperil the ability to pursue one’s own life projects. But I also find all thought of such a regulatory scheme confounding, insofar as it posits a definable category of ‘not-doings’ that does not depend on the distinct, individualised, duties to act which give omissions their shape. In a similar train to the above, then, I would rather ask whether the opportunity costs worry tends toward special restraint when it comes to criminalising omissions —the things one does not do in breach of some obvious normative expectation.

Clearly, prohibitions on positive acts can be more onerous and liberty-restricting than prohibitions on omissions. In making the ‘range of alternatives’ point, Simester asks us to ‘compare being prohibited from drowning the other swimmers at a beach to being mandated to save—or indeed, drown—them’ (142). Footnote 23 In this comparison, the duty to act is far more liberty-restricting than the duty to abstain. But compare, instead, being mandated to share one’s sun screen whilst on the beach and being prohibited from setting foot on the beach altogether. Here, the act liability (you are banned from going on the beach) is far greater an imposition than the omissions liability (you are banned from not sharing your sun screen, when on the beach). So there is an ‘all other things being equal’ element to the range-of-alternatives distinction, too. The idea is not that omissions liability is more liberty-reducing across the board, but that any instance of omissions liability sports a feature that positive act liability does not: that for whatever time the corresponding duty to act applies, all other options are foreclosed. If I must rescue a wounded hiker I happen upon on a mountain pass, I am not free to do anything else in the meantime.

Looping back to the previous discussion, there is one order of omissions liability it seems inapt to view as liberty-restricting in this special way. These are the sorts of cases where the omission is in fact just a mode of negligently engaging in some activity. The opportunity costs element is not germane here, it could be argued, once the duty to act is more accurately understood as a duty to perform an activity responsibly, given your choice to perform it. You cannot assume the social role of parenthood without feeding your children. You cannot be an air traffic controller without telling pilots when they are too close to other aircrafts. Liability pegged to failures like these does not exactly amount to coercing people into conduct, to the exclusion of all other options. It is, rather, the legal conditioning of all manner of options: one cannot choose to do that thing in this way. That is indeed a restriction on liberty—being an inattentive air traffic controller is an excluded choice. But it is not a liberty restriction of a wholly different character to the coercive removal of my choice to punch someone, or to smash up some property.

The more straightforward example of the ‘pure omission’—the bystander who elects not to save the drowning child—better lends itself to the analysis according to which a legal duty to act is especially liberty-restricting in blocking all other options. In many cases, Simester rightly says, this liberty consideration is simply outweighed, for instance, where the liberty infringement is minimal, fleeting, and the costs of not acting are severe. Footnote 24 In her widely-read essay about abortion ethics, Judith Thomson imagines that she is on the brink of death, and that the actor Henry Fonda only has to cross a room and place his cool hand on her fevered brow to revive her—the easiest rescue case there is. Footnote 25 Thomson believes Fonda’s refusal would be monstrous, but that his performance is not morally required, a pair of propositions I have always found difficult. What is clear enough, though, is that Fonda’s freedom to pursue other options and to not cross the room—when he is already in the room!—holds hardly any weight against the value of Thomson’s life.

Simester claims that the liberty concern of having all but one option forbidden to us is outweighed in all cases where there is a distinct duty to act. Putting things slightly differently, I might say that the fact it is so grossly outweighed is what explains, in such cases, why there is a duty to act which it would be wrong to shirk. Were things not set up in such a way as to make it horribly unjust for Fonda to refuse, even taking into account his need to live his own life, we would not be looking at such a clear case of a culpable omission.

Can the range-of-alternatives distinction provide the basis for any default rule regarding omissions? It might be thought that the opportunity costs dimension of duties to act favours an especially limited scope of pure omissions liability. For any isolated duty to act, the loss of liberty to the obliged person may well be trivial. (What is it to Henry Fonda if, once in his lifetime, he is obliged to cross a room to save a person?) As Simester remarks, though, a general and recurrent legal duty to act is far more onerous. Footnote 26 It is not easy to specify the exact quota of easy rescues the law can require of one person before it is too demanding, but a general duty to forestall preventable harm whenever it is within one’s power to do so would certainly ask too much. However, a duty to act which is that capacious would not amount to the legal enforcement of our positive moral obligations, for we are not morally obliged to intervene against all the harms we can thwart or lessen. Simester is entirely correct to point out that not all ills can be equally everyone’s business, or we’d never be able to do anything. Moreover, he rightly says, a responsibility system like that—wherein everyone capable of making a difference bears ascriptive responsibility for a bad consequence in equal measure—sit uneasily with our sense of our own agency in the world and of the separateness of persons. Footnote 27 To assimilate everyone who doesn’t pick up some litter with the original litterer, he writes, would ‘weaken the sense of what the original litterer does ’. Footnote 28 I think this right, and also that it is as true of a system of moral responsibility as it is of a system of legal responsibility.

I am in total accord with Simester, then, that some personal connection to or involvement with preventable harm ought to be a condition of omissions liability. But this is, in any case, what is required to identify the breach of a particular duty to act and, hence, any omission that is a candidate for criminalisation. Not all our harmful omissions should trigger the interest of the criminal law, just as not all our harmful acts should. Where, however, the personal duty to act is clear, the refusal iniquitous, and the harmful consequence the law’s business, there is no special reason for regulatory restraint attaching to the fact that it is a culpable omission we are looking at. There is nothing too recurrent or general about obligations meeting this description; any incident meeting the criteria is already atypical, and far from a standing feature of life. So there is no great worry, I think, concerning the burdensomeness of the law’s treating acts and omissions alike, the range-of-alternatives point notwithstanding. It must be remembered, moreover, that the more intrusive and ubiquitous a putative duty to act is , the more footing one has to argue that it does not reflect our actual moral duties.

5 The Bad Samaritan and the Easy Rescue

The lazy bystander who malignly declines an easy rescue has already made several appearances in this discussion. He also tends to be a central figure in the first lesson of my own criminal law undergraduate course, where much of the debate concerns whether the law of England and Wales should recognise the criminal responsibility of the ‘Bad Samaritan’. As Joel Feinberg defines him, the Bad Samaritan is:

(a) a stranger standing in no ‘special relationship’ to the endangered party,

(b) who omits to do something—warn of unperceived peril, undertake rescue, seek aid, notify police, protect against further injury—for the endangered party,

(c) which he could have done without unreasonable cost or risk to himself or others,

(d) as a result of which the other party suffers harm, or an increased degree of harm,

(e) and for these reasons the omitter is ‘bad’ (morally blameworthy). Footnote 29

The refusing Henry Fonda would certainly fit this description of the Bad Samaritan, as would the apocryphal villain who sits reclined, sipping his cocktail, declining to move a muscle, while a toddler in the pool in front of him drowns in two feet of water. It is always perplexing to me just how zealously students work, almost without exception, to rebut the arguments in favour of criminal responsibility for failures of easy rescue of this and less farfetched kinds (as well as how instinctively they identify with the would-be rescuer instead of the imperilled party). Arguments featuring heavily in these discussions include problems of knowledge on the part of the omitter (perhaps it is not obvious that the victim is in such peril, and that he can help, and without unreasonable cost?); the liberty restriction in mandated action; the view that easy rescue liability mandates supererogatory acts; and worries about unbounded categories of duty-breachers and too many Bad Samaritans—i.e. what if you are just one of many people who could have acted but didn’t?

Many of these counter-arguments end up deflating as soon as one builds in the indispensable conditions of a legal duty of easy rescue, for instance, that it is obvious to the omitter what will likely happen if he fails to intervene, obvious that the cost of intervening is reasonable, and that he is singly and especially marked out as able to help. I agree with Simester that we cannot countenance a legal duty to aid that condemns everyone on a packed beach who failed to assist a swimmer in trouble. Footnote 30 In such cases, though, the surplus of potential rescuers undercuts the clear and distinct duty on each would-be rescuer to intervene. The less clear it is to a would-be rescuer that it falls to her to do something (as it would if she were the only one around, or if she were the lifeguard), the weaker the argument that she omitted to help. Too many bystanders can crowd out a clear duty of aid, and with it, ascriptive responsibility for the harm.

None of this tells us why the law ought not to impose a duty to rescue where there is no problem of too many bystanders, and where it is abundantly clear to the duty-bearer that it rests with her to act, as it is if I happen across the wounded hiker on the mountain pass, with no one else around. Furthermore, as Feinberg underscores, the refusal to act in a quintessential easy rescue case is not the refusal to engage in supererogation. Footnote 31 Where the rescue is easy enough, and the costs reasonable, refusing to rescue is not the refusal to go beyond the call of duty, but a refusal to do exactly what duty, what morality, requires. When specified properly, then, a legal duty of easy rescue is not the enforcement of gratuitous benevolence, not the legal requirement to be a Good Samaritan (a figure synonymous with supererogation) at all, but only to do the absolute minimum that morality demands. Footnote 32

There are ample ways of being personally connected to some bad state of affairs one fails to prevent. Being responsible for bringing about that bad state of affairs, or volunteering to ensure against it, are some ways. Being in a unique position of easy rescue is another. Simester is explicit about the fact that nothing in his analysis rules out a legal duty of this kind. Footnote 33 It is only, he says, that the lack of ‘prima facie connection’ to the harm in easy rescue cases—and the general right, we might say, to go about one’s own business without becoming implicated in any preventable harm—underwrites the initial right to not intervene, which must then be overridden by other considerations, such as the negligible costs of acting and what is at stake in not acting. Footnote 34 Again, I would venture a slightly different analysis: a personal connection to the harm can be established by the fact that one is singled out, by fate, as the only person capable of assisting, when it is evidently easy to do so, when the costs of not helping are grave, and so on. Easy rescue cases, defined thusly, pass the personal connection test quite plainly.

It is a sound basic rule that we are not legally on the hook for preventable harms that have nothing specifically to do with us. A duty of easy rescue is not an exception to this rule, though; it is an instantiation of it.

R v Gibbins and Proctor (1918) 13 Cr App Rep 134.

R v Instan [1893] 1 QB 450; R v Stone & Dobinson  [1977] 1 QB 354.

R v Pittwood (1902) 19 TLR 37.

R v Miller [1983] 2 AC 161.

A. Simester, Fundamentals of Criminal Law (henceforth FOCM ) (OUP, 2021), chapter 6, at 133.

FCOM chapter 6, passim .

D. Davidson, Essays on Actions and Events (OUP, 2001) 43.

See R v Hughes [2013] UKSC 56.

R v Kennedy (No 2) [2007] UKHL 38.

R v Evans [2009] 2 Cr App R 10.

See FCOM 148 for Simester’s own reference to this comparison.

R v Adomako [1994] 3 WLR 288.

‘Badly’ here is intended to mean ethically inadequate, not to denote only practical incompetence in the field of activity.

To recapitulate, I acknowledge that this is to subvert Simester’s own question, which is whether the law ought to adopt the default rule that we are not accountable for our ‘not-doings’, understood as any failure to prevent harm, with or without a duty to act. As I have explained above, though, I am not convinced there is a default rule of this kind that applies to not-doings but not to deeds. We are not, and cannot conceivably be, answerable in general for the bad consequences that depend on our actions and inactions. Principles of ascriptive responsibility are called upon, in both cases, to connect bad states of affairs to our agency, via the identification of a specific act or omission. Since that is so, the only default rules I consider ripe for discussion are rules pertaining to the scope of criminal omissions.

FCOM 136-137; 141-143; 150-152.

J. Thomson, ‘A Defense of Abortion’, Philosophy & Public Affairs , 1 (1):47-66 (1971).

J. Feinberg, ‘The Moral and Legal Responsibility of the Bad Samaritan’ in Freedom & Fulfillment (Princeton University Press, 1992) at 175.

Feinberg (above) at 189.

Thomson had this latter standard in mind when she wrote of ‘Minimally Decent Samaritans’.

Acknowledgements

I would like to thank Massimo Renzo and all the attendants of the symposium workshop on Andrew Simester’s Fundamentals of Criminal Law for their comments.

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MIA   >  Archive   >  Pashukanis

Piers Beirne & Robert Sharlet

[introduction to pashukanis].

Editor’ Introduction , to Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.273-301. Published here by kind permission of Peter B. Maggs . Downloaded from home.law.uiuc.edu/~pmaggs/pashukanis.htm Marked up by Einde O’Callaghan for the Marxists’ Internet Archive .

Evgeny Bronislavovich Pashukanis (1891-1937) has been the only Soviet Marxist legal philosopher to have achieved significant scholarly recognition outside of the USSR. [1] The pre-eminent Soviet jurist of the 1920s and early 1930s, Pashukanis fell victim to the great purges of the late 1930s and was thereafter reviled as an “enemy of the people” until his posthumous legal rehabilitation in 1956. [2]

As a student at the University of St Petersburg before World War I, Pashukanis had been active in the Russian revolutionary movement and, as a result of his involvement, found it necessary to complete his education abroad at the University of Munich where he specialized in law and political economy. The available details on his early life are sketchy, but it is known that he joined the Bolsheviks in 1918, briefly, served as a local and circuit judge in the Moscow region, and then for several years into the early 1920s worked as a legal adviser in the People’s Commissariat of Foreign Affairs while, simultaneously, he cultivated a blossoming career in juristic scholarship. [3]

In 1924 Pashukanis emerged from relative obscurity with the publication of his major theoretical work The General Theory of Law and Marxism [4] , which quickly placed him in the front ranks of the field of aspiring Soviet Marxist philosophers of law. He regarded this treatise primarily as an introduction to the problems of constructing a Marxist general theory of law and by no means as the definitive statement on the subject. In this spirit, he appropriately subtitled his monograph An Experiment in the Criticism of Basic juridical Concepts , emphasizing that he had written the book primarily for “self-clarification” with the hope that it might serve as a “stimulus and material for further discussion”. [5]

Pashukanis’ General Theory was warmly received by the reviewers and went into a second edition in 1926 followed by a third edition in 1927 which eventually encompassed three printings. [6] The originality of Pashukanis’ theory of law – which was largely outlined in the first Russian edition of The General Theory of Law and Marxism in 1924, and successively revised in a number of works after 1927 – lies in the contraposition of three notions with what Pashukanis took to be the modus operandi of Marx’s Capital. From Hegel Pashukanis borrows the familiar distinction between essence and appearance, and also the notion in The Philosophy of Right that the Roman lex persona was an insufficient basis for the universality of rights attached to individual agents under capitalist modes of production. [7] And from Pokrovsky, an Old Bolshevik and the leading Russian historian between 1910 and 1932, Pashukanis borrows the assertion that the development of Russian capitalism must be understood in the context of the historical primacy of mercantile capital. [8]

Pashukanis saw that it was not accidental that Marx had begun his analysis of the inner dialectic of the capital-labour relationship (the production of surplus value) with a critique of the categories of bourgeois political economy. It was not simply that the categories of rent, interest, industrial profit etc. mystified the essential qualities of this relationship. Rather, in order to apprehend the historically specific form of the relationship of capitalist exploitation, one had first to pierce the veil of appearances/semblances/forms which the real relationship inherently produced, and on which it routinely depended for its reproduction.

Pashukanis therefore infers that had Marx actually written a coherent theory of state and law, as indeed he had twice promised, [9] then it would necessarily have proceeded along the same lines as his iconoclastic analysis of the categories of political economy and the social reality which they mysteriously yet inaccurately express and codify.

Pashukanis consistently argues that there is an homology between the logic of the commodity form and the logic of the legal form. Both are universal equivalents which in appearance equalize the manifestly unequal: respectively, different commodities and the labour which produced them, and different political citizens and the subjects of rights and obligations. The salience of this insight has only very recently been recovered by Marxists [10] , and there are now some healthy indications that the sterile dichotomy between instrumentalist and formalist approaches to law is likely to be transcended. If Pashukanis’ main argument is correct, then it obliges us to ask two crucial questions. First, the specific content of legal imperatives does not explain why the interests of dominant classes are embodied in the legal form. Why, for example, are these interests not embodied in the form on which they episodically depend, namely, naked coercion? Second, if under capitalism the struggle between competing commodity producers assumes legal form through the principle of equivalence, then it follows that the class struggle between proletariat and bourgeoisie must also typically appear in the medium of the legal form. [11] And how, then, are we able to transform legal reformism into a revolutionary political practice?

By the late 1920s, as a result of his scholarly reputation, Pashukanis had become the doyen of Soviet Marxist jurisprudence, eclipsing even his juridical mentor Piotr Stuchka. However, after 1928 Pashukanis’ theory as a Marxist critique of bourgeois jurisprudence became increasingly incompatible with the new political and economic priorities of the first Five Year Plan, especially the necessity for a strong dictatorship of the proletariat and its ancillary, Soviet law which, after 1937, would become socialist law.

In the ensuing ideological struggle on the “legal front” of the Soviet social formation, Pashukanis made the first of his eventual three self-criticisms in late 1930. [12] After that experience his theory underwent substantial revision during the period of the first and second Five Year Plans (1928-1937), as Pashukanis became the principal spokesman for the Stalinist conception of the Soviet state, while simultaneously striving to maintain his political commitment to the Marxist concept of the withering away of law. However, as soon as Stalin’s “revolution from above” subsided with the essential completion of collectivization and a new legal policy of stabilization was demanded, the intrinsic ambivalence of Pashukanis’ dual commitment to the respective marxisms of Stalin and Marx became apparent. This contributed to his downfall in early 1937. Following Pashukanis’ purge, his successor as legal doyen , Andrei Vyshinsky, began the almost immediate demolition of the considerable structure of his predecessor’s influence and, concomitantly, the systematic reconstruction of the Soviet legal system. Vyshinsky ushered in the era of the “Soviet socialist state and law” which has prevailed to this day in Soviet jurisprudence and legal practice.

Finally, in the process of destalinization after Stalin’s death in 1953, Pashukanis’ name was “cleared” of the politico-criminal charges which were the cause of his demise, and since then his status as a legal philosopher has been partially rehabilitated in the Soviet Union. Ironically, in the USSR today Pashukanis is posthumously honoured as one of the founders of the jurisprudence of Soviet socialist state and law, a formulation the full implications of which he had resisted almost to the eve of his arrest.

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Marxism and Soviet jurisprudence from War Communism to the New Economic Policy

The General Theory of Law and Marxism is a theory of the historical specificity of the legal form, and Pashukanis ostensibly introduces his argument with a critique of three trends in bourgeois jurisprudence dominant in the USSR before 1921: Renner’s social functionalism, Petrazhitsky’s and Reisner’s psychologism, and Kelsen’s legal positivism. The reader quickly learns that the gist of this critique contains two observations directed against the consequences of economic reductionism. The first concerns the ontological nature of ideological categories in general, and in particular the nature of legal regulation as a specific form of ideological category. The second concerns those instrumental forms of economism which reduce law to the status of an epiphenomenon within the compass of the base/superstructure metaphor.

Pashukanis notes that within the sphere of political economy concepts such as commodity, value and exchange value are indeed ideological categories, but that this assignation by no means signifies that they indicate only ideas and other subjective processes. They are ideological concepts principally because they obscure objective social relationships. Yet the ideological character of a concept does not nullify the material reality of the relationships that the concept expresses. Nor does the fact that they are ideological concepts excuse us from searching for the objective conditions which they express yet somehow wrap in mystery. What needs to be proved is not that juridic concepts can and do become integrated into the structure of ideological processes, but that these concepts have more than an ideological existence. Pashukanis therefore asserts that law is also a real form of social being, and in so doing he seems astutely to have avoided the troublesome charge that both social scientists and theorists of ideology, in the final reckoning, base their assertions on a positivist epistemology.

Pashukanis is equally concerned to rebut the view that law is capable of voluntaristic manipulation by dominant social classes. Stuchka, for example, one of the early RSFSR Commissars of justice and the author of Decree no.I on the Soviet Court , had misconstrued the nature of law in his The Revolutionary Role of Law and State as a “system of relationships which answers to the interests of the dominant class and which safeguards that class with organized force”. Pashukanis retorts that such a definition [13] is useful both in disclosing the class content of legal forms and in asserting that law is a social relationship, but that it masks the real differences between the legal form and all other social relationships which involve regulative norms. Indeed, if law is seen simply as a form of social relationship, and if one asserts that law regulates social relationships, then one must engage the tautology that social relationships regulate themselves.

Pashukanis correctly avers that the social organization of collectivities as diverse as bees and primitive peoples require rules. But not all rules are legal rules: some rules are customary and traditional and may be based in moral, aesthetic or utilitarian considerations. Further, not all social relationships are legal relationships; under certain conditions the regulation of social relationships assumes a legal character . ( 1924 : see this volume, p.58.) Marxist theory must investigate not merely the material content of legal regulation during definite historical periods, but must also provide a materialist explanation of legal regulation as a definite historical form. The crucial question therefore involves the elucidation of the social conditions in which the domination and regulation of social relationships assumes a legal character.

Pashukanis argues that the fundamental principle of legal regulation is the opposition of private interests. Human conduct can be regulated by the most complex rules, but the legal element in such regulation begins where the isolation and antithesis of interests begin. “A norm of law acquires its differentia specifica ...”, he says, “because it presupposes a person endowed with a right and actively asserting it.” ( 1924 : see p.72.) Accordingly, and following some of Marx’s Hegelian-inspired comments in The Law on the Theft of Woods (1842) and On the Jewish Question (1843), Pashukanis distinguishes between those rules which serve the universal interest and those which serve a particular interest. The former are technical rules and are based on unity of purpose, the latter are legal rules and are characterized by controversy. Thus, the technical rules of railroad movement presuppose a single purpose, for example the attainment of maximum haulage capacity, whereas the legal rules governing the responsibilities of railroads presuppose private claims and isolated interests. Again, the treatment of invalids presupposes a series of rules – both for the patient and for the medical personnel; but inasmuch as these rules are established to achieve a single purpose – the restoration of the patient’s health – they are of a technical character. But when the patient and the physician are regarded as isolated, antagonistic subjects, each of whom is the bearer of his own private interests, they then become the subjects of rights and obligations, and the rules which unite them become legal rules.

Pashukanis asserts that Marx himself had pointed to the basic conditions of existence of the legal form. Thus, Marx had indicated that the basic and most deeply set stratum of the legal superstructure property relations was “so closely contiguous to the foundation that they are the very same relationships of production expressed in juridic language”. Law is some specific social relationship and can be understood in the same sense as that in which Marx termed capital a social relationship. The search for the unique social relationship, whose inevitable reflection is the form of law, is to be located in the relationships between commodity owners. The logic of legal concepts corresponds with the logic of the social relationships of commodity production, and it is specifically in these relationships – not in the demands of domination, submission or naked power – that the origin of law is to be sought. We might add that Lenin himself had said, in relation to the law of inheritance, “... [it] presumes the existence of private property, and the latter arises only with the existence of exchange. Its basis is in the already incipient specialization of social labour and the alienation of products in the market.” [14]

Pashukanis recalls that the ascendant bourgeoisie’s central antagonism with feudal property resided not in its origin in violent seizure, but instead in its immobility in exchange and circulation. In particular, it was unable to become an object of mutual guarantees as it passed from one possessor to another in acquisition. Feudal property, or the property associated with the feudal order, violated the abstract and cardinal principle of capitalist societies – “the equal possibility of obtaining inequality.” ( 1924 : see p.83.)

At a certain stage of development (with the appearance of cities and city communes, markets and fairs) the relationships of human beings are manifested in a form which is doubly mysterious: they appear as the relationships of objects which are also commodities, and as the volitional relationships of entities which are independent and equal inter se: juridic subjects. Law thus appears side by side with the mystical attributes of value and exchange value. Moreover, it is in the concrete personality of the egoistic, autonomous subject-the property owner and the bearer of private interests – that a juridic subject such as persona finds complete and adequate embodiment. [15]

The historically specific object of a commodity, for Pashukanis, finds its pure form in capitalist economies. The authority which the capitalist enjoys, as the personification of capital in the process of direct production, is essentially different from the authority which accompanies production through slaves or serfs. Only capital stands in stark, unhierarchical contrast to the mass of direct producers. Capitalist societies are first and foremost societies of commodity owners. Commodities have a dual and a contradictory character. On the one hand a commodity is and represents a use-value. But commodities necessarily embody different use-values because the qualitatively distinct social needs which they fulfil, and the quality and quantity of labour expended in their production, are necessarily different and unequal. And, on the other hand, a commodity is and represents an exchange-value. One commodity may be exchanged for another commodity in a definite ratio. The values encountered in this exchange are expressed by and facilitated through the mediation of another commodity, money, as the form of universal economic equivalent.

The potential for commodity exchange assumes that qualitatively distinct commodities enter a formal relationship of equivalence, so that ultimately they appear as equal. The exchange of commodities thus obscures a double abstraction in which concrete labour and concrete commodities are equalized inter se and are reduced to abstract labour and abstract commodities. This abstraction in turn perpetuates the fetish that commodities themselves, including money, contain living powers: commodities thus dominate their very producers, human subjects.

Pashukanis illustrates how commodity fetishism complements legal fetishism. Exchange transactions based on the vi et armis principles of feudalism create a form of property which is too transient and too unstable for developed commodity exchange. De facto possession must be transformed into an absolute and constant right which adheres to a commodity during its circulatory process. Pashukanis notes that Marx had tersely stated, in Capital I , that “commodities cannot send themselves to a market and exchange themselves with one another. Accordingly we must turn to their custodian, to the commodity owner.” ( 1924 : see p.75.)

The legal form itself is therefore cast as both an essential part and simultaneously as a consequence of the exchange of commodities under capitalism. At the very same time that the product of labour is assuming the quality of commodities and becoming the bearer of value, man acquires the quality of a juridic subject and becomes the bearer of a right. In the development of legal categories, the capacity to perfect exchange relationships is merely one of the concrete manifestations of the general attribute of legal capacity and the capacity to act. Historically, however, it was specifically the exchange arrangement which furnished the notion of a subject as the abstract bearer of all possible legal claims. Nor does the juridic form of property contradict the factual expropriation of the property of many citizens; the attribute of being a subject of rights is a purely formal attribute, qualifying all persons alike as “deserving” of property but in no sense making them property owners.

It is only under developed commodity exchange that the capacity to have a right in general is distinguished from specific legal claims. Indeed, a characteristic feature of capitalist societies is that general interests are segregated from and opposed to private interests. The constant transfer of rights in the market creates the notion of an immobile bearer of rights, and the possibility therefore occurs of abstracting from the specific differences between subjects and of bringing them within one generic concept. Concrete man is relegated to an abstract man who incorporates egoism, freedom and the supreme value of personality; the capacity to be a subject of rights is finally disassociated from the specific living. personality and becomes a purely social attribute. The legal subject is thus the abstract commodity owner elevated into. the heavens ( 1924 : see p.81), and acquires his alter ego in the form of a representative while he himself becomes insignificant. The specific characteristics of each member of Homo sapiens are, therefore, dissolved in the abstract concept of man as a juridic subject.

In order for property to be exchanged and alienated there must be a contract or accord of independent wills. Contract is therefore one of the central concepts ‘in law, and once it has arisen the notion of contract seeks to acquire universal significance. In contradistinction to theorists of public and constitutional law, such as Leon Duguit, Pashukanis holds that all law is necessarily private law in that it emanates from commodity exchange. The distinction between private law and public law is therefore a (false) ideological distinction and it reflects a real contradiction in capitalist societies between the individual and the social interest. This contradiction is embodied in “the real relationships of human subjects who can regard their own private struggles as social struggles only in the incongruous and mystifying form of the value of commodities.” ( 1924 : see p.109.)

Pashukanis argues that the political authority of the state appears to be disassociated from the economic domination and specific needs of the capitalist class in the market. He thus hypothesizes that the capitalist state is a dual state: a political state and a legal state. Thus he says that:

the state as an organization of class domination, and as an organization for the conduct of external wars, does not require legal interpretation and in essence does not allow it. This is where. the principle of naked expediency rules, ( 1924 : see p.92)

Class dominance, i.e. the dominance of the bourgeoisie, is expressed in the state’s dependence upon banks and capitalist sectors, and in the dependence of each worker upon his employer. But it should not be forgotten that in the political class struggle most evidently, at its critical phases – the state is the authority for the organized violence of one class on another. The legal state, on the other hand, reflects the impersonal, abstract and equivalent form of commodity exchange. The legal state is the third party that embodies the mutual guarantees which commodity owners, qua owners, give to each other.

The leitmotif of early Soviet Marxist thought on law at the time of the October Revolution and immediately thereafter, was the imperative of implementing the Marxist concept of the withering away of law. This initial eliminationist approach to law was best exemplified by Stuchka, a Bolshevik revolutionary and a jurist, who in the days following the seizure of power was assigned the task of taking physical and political possession of the premises and institution of the highest court of imperial Russia. On arriving at the court building in what is now Leningrad, Stuchka found that the judges had fled the scene leaving behind only a number of frightened and bewildered clerks and messengers. To put this group at ease, Stuchka reassured them that although previously the judges had occupied the chambers while they themselves had waited in the antechambers, from that time on the clerks and messengers would sit in the judges’ chairs and their former occupants would be relegated to the antechambers. [16]

The first Soviet attempt to implement the process of the withering away of law began less than a month after the October Revolution. The Bolsheviks’ first legislation on the judiciary abolished the hierarchy of tsarist courts, which were soon after replaced by a much less complex dual system of local people’s courts and revolutionary tribunals. [17] This initiated a process of simplification and popularization that in the immediate post-revolutionary days and months swept away most of the inherited tsarist legal system, including the procuracy, the bar, and all but those laws vital to the transitional period between capitalism and communism (e.g. Decree Abolishing Classes and Civil Ranks , Nov. 1917). Even the remaining legal minimum was subject to interpretation by a new type of judge, usually untrained in law. These new judges were encouraged to guide themselves by their “revolutionary consciousness” in applying the law. The Bolsheviks’ objective was that even these remnants would ultimately become superfluous and wither away or disappear. Their vision was of a new social formation in which people would be able to settle their disputes “with simplicity, without elaborately organized tribunals, without legal representation, without complicated laws, and without a labyrinth of rules of procedure and evidence.” [18] However, harsh reality quickly impinged upon this vision as civil war engulfed the country. Confronted with the exigencies of governance under the most difficult conditions, the Bolsheviks deferred this transformative process and, as early as 1918, as John Hazard has conclusively demonstrated, began the process of re-legalization, which culminated in a fully articulated legal system based largely on foreign bourgeois models and perfected in the first federal constitution (1924) during the early years of the New Economic Policy.

Pashukanis concludes his argument in The General Theory of Law and Marxism by opposing those who would wish to construct a proletarian system of law after the 1917 revolution. Marx himself, especially in The Critique of the Gotha Programme, had grasped the profound inner connection between the commodity form and the legal form, and had conceived of the transition to the higher level of communism not as a transition to new legal forms, but as the dying out of the legal form in general. If law has its real origin in commodity exchange, and if socialism is seen as the abolition of commodity exchange and the construction of production for use, then proletarian or socialist law was a conceptual, and therefore a practical, absurdity. While the market bond between individual enterprises (either capitalist or petty commodity production) and groups of enterprises (either capitalist or socialist) remained in force, then the legal form must also remain in force.

The purportedly proletarian system of law operative under NEP was, Pashukanis asserts, mere bourgeois law. Even the new system of criminal administration contained in the RSFSR Criminal Code (1922) was bourgeois law. Pashukanis notes that although the Basic Principles of Criminal Legislation of the Soviet Union and Union Republics had substituted the concept of “measures of social defence” for the concept of guilt, crime and punishment ( 1924 : see p.124), this was nevertheless a terminological change and not the abolition of the legal form. Law cannot assume the form of commodity exchange and be proletarian or “socialist” in content. Criminal law is a form of equivalence between egoistic and isolated subjects. Indeed, criminal law is the sphere where juridic intercourse attains its maximum intensity. As with the legal form in general, the actions of specific actors are dissolved into the actions of abstract parties – the state, as one party, imposes punishment according to the damage effected by the other party, the criminal.

Pashukanis points out that the Soviet Union of 1924 had two systems of economic regulation. On the one hand there were the administrative-technical rules which governed the general economic plan. On the other were the legal rules (civil and commercial codes, courts, arbitration tribunals etc.) which governed the commodity exchange that was the essential feature of NEP. The victory of the former type of regulation would signify the demise of the latter, and only then would Marx’s description of human emancipation be realized. Five years later, in “Economics and Legal Regulation”, Pashukanis still clung precariously yet tenaciously to his dictum that “the problem of the withering away of law is the yardstick by which we measure the degree of proximity of a jurist to Marxism” ( 1929 : see p.268).

It must be stressed that The General Theory of Law and Marxism was written during NEP at a critical juncture in Soviet development. Pashukanis argued that in certain respects NEP had preserved market exchange and the form of value, and that this was a consequence of “proletarian state capitalism” ( 1924 : see p.89). [19] Lenin himself had fully appreciated the contradictory character of the different modes of production encouraged by NEP. The Supreme Economic Council, set up in 1917 with the explicit aim of introducing socialist methods of production into both industry and agriculture, had achieved such limited success that in May 1921 Lenin observed: “there is still hardly any evidence of the operation of an integrated state economic plan.” [20] Arguing that there was much that could and must be learned from capitalist techniques (Taylorism), Lenin wrote in December 1921 that NEP marked “a retreat in order to make better preparations for a new offensive against capitalism.” [21] The painful experiences of War Communism had indicated that socialism would not be attained overnight, and that unless the political domination of the proletariat was ensured, it would not be attained at all. The temporary solution was to allow the peasantry limited ownership of the agricultural means of production. But this was to be a regulated retreat:

The proletarian state may, without changing its own character, permit freedom to trade and the development of capitalism only within certain bounds, and only on the condition that the state regulates (supervises, controls, determines the form and methods of etc.) private trade and capitalism. [22]

The general feeling among the Bolsheviks, then, was that NEP was a temporary, necessary and regulated retreat: one step backward, and two steps forward. Lenin warned that “It will take us at least ten years to organize large-scale industry to produce a reserve and secure control of agriculture ... There will be a dictatorship of the proletariat. Then will come the classless society.” [23] The seeds of this progression were already at hand, however, and in May 1921 he observed that: “the manufactured goods made by socialist factories and exchanged for the foodstuffs produced by the peasants are not commodities in the politico-economic sense of the word; at any rate, they are not only commodities, they are no longer commodities, they are ceasing to be commodities.” [24]

Under NEP Pashukanis’ theoretical achievements earned him more than just the praise of his contemporaries. During the years 1924-1930, he assumed a number of important positions in the Soviet academic hierarchy and was named to the editorial boards of the most influential law and social science journals. Through these strategic positions and key editorial posts, Pashukanis extended and strengthened the influence of the commodity exchange school of law on Marxist jurisprudence. [25]

When The General Theory of Law and Marxism appeared in 1924, Pashukanis was a member of Stuchka’s Section of Law and State, and of the Institute of Soviet Construction, both of the Communist Academy which he subsequently described as “the centre of Marxist thought. [26] Later, he was to become a member of the bureau or executive committee of the Institute and of the Section, as well as head of the latter’s Subsection on the General Theory of Law and State.

During 1925, the Section of Law and State formally launched the “revolution of the law” with the publication of a collection of essays entitled Revoliutsiia prava. Pashukanis served as co-editor and contributed a major article on Lenin’s understanding of law.

In 1926, the second edition of General Theory was published. During that year Pashukanis joined the law faculty of Moscow State University and the Institute of Red Professors, the graduate school of the Communist Academy. Bol’shaia sovetskaia entsiklopediia also began publication in 1926, and Pashukanis was named chief editor for law shortly afterwards.

The third edition of General Theory was issued in 1927, the year Revoliutsiia prava was established as the official journal of the Section of Law and State with Pashukanis as a co-editor. Beginning that year, the Section’s periodic reports reflected Pashukanis’ increasing predominance. His annual intellectual output in books, articles, essays, doklady, reviews and reports was prodigious. Along with Stuchka, Pashukanis dominated the scholarly activity of the Section. As an indication of his growing impact on Soviet legal development, he was assigned the task of preparing a textbook on the general theory of law and state, and was chosen to represent the Communist Academy on the commission for drafting the fundamental principles of civil legislation, created by the USSR Council of People’s Commissars.

During this period Pashukanis began to assume additional positions and editorships. He became Deputy Chairman of the Presidium of the Communist Academy, and a co-editor of Vestnik kommunisticheskoi akademii, the major Marxist social science journal. He had previously been named a founding editor of the journal Revoliutsiia i kul’tura, a new publication designed to promote the cultural revolution. His co-editors on these publications were the most eminent Marxist social scientists, including Lunacharsky, Pokrovsky and Deborin.

In 1927, in The Marxist Theory of Law and the Construction of Socialism [27] , Pashukanis undertook two objectives. First, he once again warns of the political dangers involved in trying to erect proletarian or socialist legal forms, and he asserts that the dialectic of the withering away of law under socialism consists in “the contrast between the principle of socialist planning and the principle of equivalent exchange” (1927: see p.193). Thus, he took issue with those such as Reisner [28] who saw Decree no.I on the Court , or the RSFSR Civil Code , as evidence that NEP utilized private property and commodity exchange to develop the forces of production. But this was to imply that in this context private property and commodity exchange had a “neutral” character. What was important, Pashukanis pointed out, was that one should understand the use of these forms not from the perspective of developing the forces of production, but from “the perspective of the victory of the socialist elements of our economy over the capitalist ones” ( 1927 : see p.192). Provided that remnants of the capitalist mode of production were in practice eliminated and that subsequent social rules in the USSR were of a technical-administrative nature, then Pashukanis could argue prescriptively and, possibly, descriptively, that law would disappear only with the disappearance of capitalism.

This 1927 article contains some interesting emendations to his General Theory of Law and Marxism. The most important of these, in response to Stuchka’s State and Law in the Period of Socialist Construction [29] , is the admission of “the indisputable fact of the existence of feudal law” (Pashukanis, 1927 : see p.195). Pashukanis now indicates that we find “purchase and sale, with products and labour assuming the form of commodities, and with a general equivalent, i.e. money, throughout the entire feudal period” ( 1927 : see p.195). But although feudal and bourgeois law may have a common form, their content and class nature is essentially different. Feudal law is based on the will of the simple commodity owner, while bourgeois law is based on the will of the capitalist commodity owner. This is a most important concession because, although Pashukanis will not yet admit the primacy of production relations within historical materialism, it allows him to posit the existence of what he refers to as “Soviet law, corresponding to a lower level of development than that which Marx envisioned in The Critique of the Gotha Programme ... [and which] is fundamentally different from genuine bourgeois law” ( 1927 : see p.194).

In 1929, in Economics and Legal Regulation , Pashukanis explicitly discusses the reflexive status of the legal form, a question that was only implicit in his analysis of ideological forms in The General Theory of Law and Marxism. He uses two arguments to refute the criticism of Preobrazhensky, Rubin and Böhm-Bawerk that economic regulation under conditions of socialism (in the USSR) is similar, in certain respects, to the regulation exercised by capitalist states under conditions of monopoly capitalism and imperialism (chiefly in Germany and England).

Pashukanis argues, first, that these sorts of criticisms tend to be based on the false polarity of base and superstructural forms. “The social”, he retorts, “... is the alter ego of the economic” ( 1929 : see p.241). He continues, significantly, “in every antagonistic society, class relationships find continuation and concretization in the sphere of political struggle, the state structure and the legal order ... productive forces [are] decisive in the final analysis” ( 1929 : see p.244). Superstructural forms, in other words, are incomprehensible apart from those social relationships to which they initially owe their existence. This marks the crucial transition in Pashukanis’ work. Even if he has as yet neither identified the proper place of the political within the complex of the social relationships of production, nor posited that the political has primacy in Marxist political economy, he has at the very least conceded that productive relationships are in some sense “determinant factors in the final analysis.” Quite clearly, the origin of law could not now be explained by commodity exchange – primitive or generalized – and Pashukanis seems to have recognized the inferiority of his radical position in the debates with Stuchka that were contained within the Communist Academy and not made public until 1927. [30]

Pashukanis’ second argument is a weak rebuttal of the assertion that, because NEP relationships in part conformed to the law of value, and also to the law of the proportional distribution of labour expenditures, therefore the primitive socialist economy contained capitalist contradictions. These notions, he replies, stem from a simplistic understanding of Engels’ concern with the leap from the kingdom of necessity to the kingdom of freedom. To hold that the form of value exists in the U.S.S.R. is to miss, as did Preobrazhensky, the crucial point that the U.S.S.R. is a dynamic formation founded on “the economics of co-operation and collectivization” (Pashukanis, 1929 : see p.251), and “the union of the working class and the peasantry” ( 1929 : see p.254). What matters, concretely, is not where the USSR is, but where it will be . The USSR is in a necessary phase preparatory to Engels’ quantum leap. Further, it is trivial to claim that the law of the proportional distribution of labour expenditures is effective in the USSR. This law is effective in all social formations. What matters here is how it is determined, and in the USSR it is determined by “the economic policy of the proletarian state” ( 1929 : see p.257).

The regulation of the national economy by the proletarian state under NEP, Pashukanis continues, is qualitatively distinct from the domestic economic intervention of capitalist states during the 1914-1918 War. In contradistinction to the latter’s “57 varieties” of socialism represented by wartime state control, the proletarian state has three unique characteristics by which it will effectively realize the dialectical transformation of quantity into quality: the indissolubility of legislative and executive, extensive nationalization and the firm regulation of production in the universal rather than the particular interest. The more these characteristics are actualized, says Pashukanis,

the role of the purely legal superstructure, the role of law – declines, and from this can be derived the general rule that as [technical] regulation becomes more effective, the weaker and less significant the role of law and the legal superstructure in its pure form. ( 1929 : see p.271)

Pashukanis’ responsibilities continued to multiply when he was appointed Prorector of the Institute of Red Professors, which was also known as the “theoretical staff of the Central Committee.” [31] In 1929, the Institute started a journal for correspondence students with Pashukanis as chief editor. By this time, the influence of his commodity exchange theory of law on the syllabi for the Institute’s law curriculum and correspondence courses was pronounced.

Finally, in 1929-1930, Pashukanis reached the apex of the Marxist school of jurisprudence and the Soviet legal profession. In a major reorganization, the Institute of Soviet Law was fully absorbed and its publication was abolished. All theoretical and practical work in the field of law was concentrated in the Communist Academy. In turn, the Section of Law and State and the Institute of Soviet Construction of the Communist Academy were merged, and the journal Revoliutsiia prava was reoriented and renamed. Pashukanis became director of the new Institute of the State, Law and Soviet Construction (soon renamed the Institute of Soviet Construction and Law); chief editor of its new journal, Sovetskoe gosudarstvo i revoliutsiia prava ; and a co-editor of Sovetskoe stroitel’stvo , the journal of the USSR Central Executive Committee.

An indication of Pashukanis’ influence on the Soviet legal profession was the gradual emergence of the commodity exchange orientation within the Marxist school of law. just a few years after the appearance of The General Theory of Law and Marxism, the group of Marxist jurists working with Pashukanis in the Communist Academy became known as the commodity exchange school of law. This group, led by Pashukanis, dominated Marxist jurisprudence and was strongest in the general theory of law and in the branches of criminal law and civil-economic law. As the commodity exchange theory of law became identified with the Marxist theory of law, Pashukanis gradually assumed the unofficial leadership of the Marxist school of law. By 1930, the Communist Academy was bringing all Soviet legal scholarship and education under its control, and Pashukanis, as the pre-eminent Marxist theorist of law, was soon being acknowledged as the leader of the Soviet legal profession.

As Pashukanis’ prestige soared in the late 1920s, a critical accompaniment, at first low-keyed but later swelling in volume, began to be heard. From 1925 to 1930, Pashukanis was criticized for overextending the commodity exchange concept of law, confusing a methodological concept with a general theory of law, ignoring the law’s ideological character, and even for being an antinormativist. Other critics disagreed with Pashukanis’ positions on feudal law, public law and the readiness of the masses to participate in public administration. He was denounced by one critic as a “legal nihilist”.

Nearly all of Pashukanis’ critics were Marxists. Most were members of the Communist Academy. Within the Communist Academy, as the commodity exchange school of law became ascendant, it divided into two wings: the moderates and the radicals. All of Pashukanis’ critics within the Communist Academy were associated with the moderate wing of the commodity exchange school. This group was led by Stuchka, and the radical wing was led by Pashukanis. Outside of the Communist Academy, A.A. Piontkovsky, at that time a member of the rival Institute of Soviet Law, was Pashukanis’ major critic. [32]

Stuchka’s criticism, which began to appear publicly in 1927, was by far the greatest challenge to Pashukanis. Basically, Stuchka, as a leader of the moderate wing of the commodity exchange school, criticized Pashukanis’ overextension of the commodity exchange concept of law from civil law to other branches of law. Specifically, he criticized Pashukanis for overextending the notion of equivalence, insufficiently emphasizing the class content of law, reducing public law to private law, and denying the existence of either feudal law or Soviet law.

Stuchka apparently had been criticizing Pashukanis within the Communist Academy before the first publication of his criticism in 1927. In his article State and Law in the Period of Socialist Construction , Stuchka footnoted his criticism of Pashukanis to the effect that their mutual opponents, presumably those outside the Communist Academy’s legal circles, had been exaggerating the extent of their differences. Stuchka conceded that differences existed between him and Pashukanis and that under the circumstances, it was best to bring them out into the open. In this article, however, he tended to minimize these differences.

Stuchka’s contributions to building a Marxist theory of law were undisputed by his contemporaries. During the early 1920s, he had, first, argued for a materialist conception of law and for a class concept of law against prevailing idealist conceptions. Second, he was responsible for the conception of a revolutionary role for Soviet law during the transitional period from capitalism to communism. [33] Perhaps Stuchka’s greatest contribution to the development of the Soviet legal system was his insistence, which grew in intensity throughout the 1920s, on the necessity for “Soviet” law during the transition period, although he had no illusions about this body of law becoming a permanent feature of the Soviet system. In an article in early 1919, Stuchka clearly stated that “We can only speak of proletarian law as the law of the transition period ...” He underscored the temporary nature of proletarian law by characterizing it as “a simplification, a popularization of our new social system.” [34] At the end of the decade Stuchka summarized his recognition of the importance of law as an agent of socio-economic development by writing in the Foreword to his collected essays, “Revolution of the law is revolutionary legality in the service of furthering the socialist offensive and socialist construction.” [35]

In this context, Stuchka criticized Pashukanis’ theory of law for its

omissions, its one-sidedness insofar as it reduced all law to only the market, to only exchange as the instrumentalization of the relations of commodity producers – which means law in general is peculiar to bourgeois society. [36]

If Stuchka’s criticism was sharp and constructive, then the criticism put forward by Piontkovsky was definitely hostile. Piontkovsky was a specialist in criminal law, an advocate of the development of a specifically Soviet legal system, and a member of the Institute of Soviet Law until its absorption by the Communist Academy. Piontkovsky’s main and most effective criticism was that Pashukanis had mistaken an ideal-type concept, the commodity exchange concept, for a theory of law. He developed this in his book, Marxism and Criminal Law , which was published in two editions. Possibly because Piontkovsky was outside the legal circles of the Communist Academy, his criticism of Pashukanis’ work was more explicit and much more blunt. He effectively incorporated into his own criticism the criticism of Pashukanis’ colleagues, but without being subject to the restraints that they apparently imposed upon themselves in the interest of unity within the Communist Academy.

Piontkovsky valued Pashukanis’ General Theory of Law and Marxism , but with definite reservations. He devoted a large part of his book to what he termed the “dangers” of Pashukanis’ theory, while at the same time, in his second edition, he defended himself against counter-criticism from Pashukanis’ followers. One of these had written that Piontkovsky’s study had nothing in common with Marxism and by no means explained reality, to which Piontkovsky replied:

Of course, our point of view has nothing in common with that Marxism that is limited only to the explanation of reality, but has ... something in common with that Marxism ... which is a “guide” to action. [37]

By the end of the decade, the volume of criticism of Pashukanis’ radical version of the commodity exchange theory of law had grown considerably. The two directions from which the criticism emanated, from both inside and outside the Communist Academy, could no longer be easily distinguished. Stuchka’s and Piontkovsky’s criticism began to converge as the criticism took on an increasingly political tone in 1930. One critic observed that Pashukanis had repaired to the “enemy’s territory” and had lapsed into “bourgeois legal individualism”. Another critic, in a similar tone, characterized Pashukanis’ commodity exchange theory of law as a “collection of mechanistic and formalistic perversions”. [38]

The most salient aspects of these debates involved the fundamental questions concerning the role of state and law in the lower phase of communism. These questions indicated a certain dissatisfaction and uneasiness with the type of thought characteristic of Marxist legal circles during the 1920s. Most fundamental was Stuchka’s question of the relationship of dictatorship to law. As he wrote, “We know Lenin’s definition of dictatorship as ‘a power basing itself on coercion and not connected with any kind of laws’.” But then Stuchka goes on to ask, “What should be the relationship of the dictatorship of the proletariat to its law and to law in general as the means of administration?” [39]

The other important question, raised from outside the Communist Academy by Piontkovsky, involved the relationship of Pashukanis’ general theory of law to the vital tasks of political and economic development in a social formation dominated by feudal social relationships. Piontkovsky pointed out that Pashukanis’ theory of law was “not revolutionary” in the sense that it was not designated for a voluntarist approach to social change. [40]

h4>“Revolution from Above” and the Struggle on the Legal Front

Despite growing criticism of Pashukanis’ theory the impact of his commodity exchange school of law on the withering away process began to become apparent in the late 1920s. Pashukanis and his colleagues assiduously devoted themselves to bringing about the realization of his prediction that private law and the legal state would gradually begin to wither away upon the elimination of the institutions of private property and the market. From their point of view, the prevailing political and economic trends were favourable. The doctrine of “socialism in one country”, signalling the forthcoming end of the strategic retreat of the New Economic Policy, was first officially expressed in 1925 at the XIVth Party Conference, Later in the same year, the XIVth Party Congress adopted the policy of industrialization, which meant that a substantial growth of the socialist sector of the economy could be anticipated For the commodity exchange school of law, the imminent end of the New Economic Policy and the subsequent growth of the state sector meant a significant weakening of the juridical superstructure. By 1927 the Keith Party Congress was calling for the construction of socialism, an objective that for Pashukanis and his colleagues required the gradual elimination of law. The growth of the socialist base, argued Estrin, meant “the simplification and contraction” of the “legal form” – in other words, a withering away of law. [41]

The revolutionaries of the law directed their main attacks against the NEP codes as the core of the real legal culture, and against the legal education system as the nexus between the real and ideal legal cultural patterns and the means by which they were transmitted and maintained. They reasoned that if the thicket of bourgeois laws could be gradually thinned out, the ground could eventually be cleared, with the remaining legal structures becoming increasingly superfluous and falling into disuse towards that time when they would be razed. Tactically, this meant the necessity of initially replacing the NEP codes with shorter, simpler models which would compress (and hence eliminate) the finer distinctions of bourgeois justice. The longer-term thrust was towards radically reforming legal education for the purpose of preparing cadres who would be socialized into and trained to preside over the transition from the legal realities of NEP to a future without law.

Their primary target was the notion of equivalence, which they regarded as the unifying theme of bourgeois legal culture and the factor most responsible for its cohesion. Against the symmetry of economic-legal equivalence, they opposed the asymmetrical principle of political expediency in their radical efforts to recodify NEP law and reform legal education during the first and second Five Year Plans.

Expediency as a principle of codification meant that the draft codes of the transitional legal culture were characterized by flexibility and simplicity, in opposition to the stability and formality of the NEP codes based on equivalence. Although only a few of the draft codes of the Pashukanis school were actually adopted (in the emerging Central Asian republics), their re-codification efforts nevertheless had a subversive effect on the administration of civil and criminal justice during the first half of the 1930s. The draft codes were widely distributed in the legal profession, while their basic principles were constantly elaborated upon in the legal press and taught in the law schools. The revolution of the law appeared to be winning, creating what was subsequently called an atmosphere of legal nihilism.

In the legal transfer culture, criminal law became “criminal policy” (ugolovnaia politika), reflecting its extreme flexibility, while many of the procedural and substantive distinctions characteristic of bourgeois criminal jurisprudence were discarded in the interest of maximum simplicity. Similarly, the civil law of equivalent commodity exchange was supplanted by the new category of economic law, encompassing the economic relationships between production enterprises within the Five Year Plans, which were enforced as technical rules based on the criterion of planning expediency. All of this was taught in the law schools, where the legal cadres were being prepared to preside over the gradual withering away of the law. [42]

Although the second Soviet attempt to carry out the withering away of law progressed well into the 1930s, Pashukanis and the commodity exchange school, as advocates of his theory, collided with the process of Soviet rapid industrialization at the XVIth Party Congress in June 1930. The conflict between industrialization and withering away, which had been implicit since 1925, now clearly emerged. Until 1928, this implied conflict had been largely academic while NEP and the policy of economic recovery were still in effect. However, once large-scale industrialization and forced collectivization were underway, a collision was inevitable as it became apparent that the intervention and active support of strong and stable legal and political systems would be necessary in the USSR. Consequently, the commodity exchange school of law began its rapid decline in the late 1920s, culminating in 1930 as Marxist jurisprudence was brought into line with the “socialist offensive along the whole front”.

Stalin, as General Secretary, in his address before the Central Committee Plenum of April 1929, warned against promoting hostile and antagonistic attitudes towards law and state among the masses. He argued instead that the intensification of the class struggle by the kulaks required the strengthening, rather than the weakening, of the dictatorship of the proletariat. [43] This tendency culminated at the XVIth Party Congress in the rejection of the concept of the gradual withering away of law and state. On that occasion Stalin reconceptualized this process:

We are for the withering away of the state, while at the same time we stand for strengthening the dictatorship of the proletariat which represents the most potent and mighty authority of all the state authorities that have existed down to this time. The highest development of state authority to the end of making ready the conditions for the withering away of state authority: there you have the Marxist formula. Is this “contradictory”? Yes, it is “contradictory”. But it is a living, vital contradiction and it completely reflects Marxist dialectics. [44] The Communist Party’s rejection of the gradualist notion of withering away made it necessary, therefore, to redefine the transitional role of law and state and seriously undermined the theoretical foundations of the commodity exchange school of law.

In 1932, in his Doctrine of State and Law , Pashukanis recognized that he should not have equated law as an historical phenomenon with the equivalent exchange of commodities. In class societies every relationship of production has a specific form in which surplus labour is extracted from the direct producers, and he now argues that “the nature of the bond between the producer and the means of production is the key to understanding the specificity of socioeconomic formations” (1932). The factor that determines the typical features of a given legal system is therefore the form of exploitation. We might add that by now Pashukanis himself must seriously have wondered whether the primacy of the individual subject within his theory of law had its origins not in the legacies of Hegel, Marx and Pokrovsky, but rather in that subjectivist epistemology represented in bourgeois jurisprudence by Jhering, Laband, Jellinek and possibly Max Weber – all of whom he would undoubtedly have read during his studies at the University of Munich.

Sensitive to the political dangers which he detects in his own earlier work, in Stuchka, and in the Second International, Pashukanis raises the delicate question of whether social relationships which are not relationships of production or exchange can enter into the content of law. He asserts that law in bourgeois society does not serve only the facilitation of commodity exchange, and bourgeois property is not exhausted by the relationships between commodity owners. To argue that law is reducible simply to economic relationships is in the end to identify it with economic relationships, which in turn both excludes all but property and contract law, and denies the reflexive effect of the legal superstructure on economic relationships. And to hold to this latter argument would clearly be inappropriate in the context of the end of the first Five Year Plan and the beginning of the second. Pashukanis responds that law cannot be understood unless we consider it as the basic form of the policy of the ruling class. “A legal relationship is a form of production relationship”, he continues, “because the active influence of the class organization of the ruling class transforms the factual relationship into a legal one, gives it a new quality, and thus includes it in the construction of the legal superstructure” (Pashukanis, 1932 : see p.297).

Pashukanis accordingly now reformulates his definition of law provided in The General Theory of Law and Marxism as “ the form of regulation and consolidation of production relationships and also of other social relationships of class society ” ( 1932 : see p.287). He adds that this definition is incomplete without reference to a coercive apparatus (the state) which guarantees the functioning of the legal superstructure. But the dependence of law on the state does not signify that the state creates the legal superstructure. The state is itself “only a more or less complex reflection of the economic needs of the dominant class in production” ( 1932 : see p.291). To emphasize the primacy of the state would be to miss the distinction, so crucial for the working class in its struggle with capitalism, between the various forms of rule (democracy, dictatorship etc.) [45] and the class essence of all states. “Bourgeois theorists of the state”, says Pashukanis, “conflate characteristics relating to the form of government and characteristics relating to the class nature of the state” ( 1932 : see p.280). Following Lenin, Pashukanis stresses that the techniques of legal domination are less important than the goals to which they are directed. Soviet law, in each of its stages, was naturally different from the law of capitalist states. Further:

... law in the conditions of the proletarian dictatorship has always had the goal of protecting the interest of the working majority, the suppression of class elements hostile to the proletariat, and the defence of socialist construction ... As such it is radically different from bourgeois law despite the formal resemblance of individual statutes. ( 1932 : see p.293)

In the course of the “revolution from above” of forced collectivization and rapid industrialization, a politically chastened but still theoretically active Pashukanis tried unsuccessfully, as it transpired, to re-define his concept of the state during the transitional period. In effect, Pashukanis superimposed the Stalinist concept of the state in Soviet socio-economic development onto the remnants of his original theory of law. Then by simultaneously presiding over the theoretical articulation of the Stalinist state as well as the practical process of the withering away of criminal law, Pashukanis inevitably contributed to the growth of a jurisprudence of terror. As bourgeois criminal law and procedure were superseded in application by a simplistically vague and highly flexible “Soviet criminal policy” – shaped by Pashukanis and his associate Nikolai Krylenko through several proposed draft codes – legal forms were co-opted for extralegal purposes, judicial process was subordinated to political ends, and law itself was used to legitimate and rationalize terror. The jurisprudence of terror institutionalized and routinized political terror within the context of formal legalism. In effect, terror was legalized and the criminal process overtly politicized. Through the legalization of terror, the concomitant criminalization of a wide range of political (and even social) behaviour, and the politicization of the co-opted administration of justice, the Jurisprudence of terror became a highly effective instrument of Party policy. Speaking in late 1930, Pashukanis expressed the basic premise of the jurisprudence of terror which he seemed to recognize as an inevitable stage on the road to communism and the ultimate withering away of the law. Rejecting the notion of a stable system of law, he argued for “political elasticity” and the imperative that Soviet “legislation possess maximum elasticity” since “for us revolutionary legality is a problem which is 99 per cent political”. [46]

The inherent contradiction between the ideas of a strong state and weak criminal law did not become fully evident until the waning of the revolution from above was embodied in the XVIIth Party Congress’s (1934) policy emphasis on the need for greater legal formality and stability in Soviet jurisprudence as a means of consolidating the gains of the previous turbulent years. Paradoxically, it was Vyshinsky, the Procurator-General of the USSR and soon to become prosecutor of the major purge victims, who became the spearhead of Stalinist criticism of the adverse effect of Pashukanis’ and Krylenko’s legal nihilism on the administration of ordinary (“non-political”) criminal justice. [47]

Similarly, Pashukanis and another associate Leonid Gintsburg exercised an equally strong influence on civil jurisprudence through their concept of economic law. Hazard, then an American student at Pashukanis’ Moscow Institute of Soviet Law, subsequently reported:

Law, concerning the rights of the individuals was relegated to a few hours at the end of the course in economic-administrative law and given apologetically as an unwelcome necessity for a few years due to the fact that capitalist relationships and bourgeois psychology had not yet been wholly eliminated. [48]

The final two translations in the present volume illuminate how emasculated the brilliant insights of The General Theory of Law and Marxism had become after the XVIth Party Congress and the introduction of the second Five Year Plan. It is at this point that we no longer need to speculate on whether the intellectual revisions to the main thrust of Pashukanis’ work were induced by strictly political and opportunist pressures. In the Course on Soviet Economic Law, written with Gintsburg and published in 1935, Pashukanis offers a lengthy, simplistic and functionalist account of the nature of Soviet economic law under the transitional conditions of socialism. Conceived within the manifest constraints to conform with the Stalinist interpretation of Marx’s and Engels’ brief and unsatisfactory analyses of the period transitional between capitalism and the higher phase of communism, the Course defines Soviet economic law as “a special (specific) form of the policy of the proletarian state in the area of the organization of socialist production and Soviet commerce” (Pashukanis and Gintsburg, 1935 : see p.306). [49] Bourgeois law serves the interests of the capitalist class in capitalist production; Soviet law serves the interests of the proletariat organized as the ruling class under socialism. The special nature of the production policies (i.e. planning) of the proletarian state are revealed through the concept of socialist (revolutionary) legality. Bourgeois legality, according to Pashukanis and Gintsburg:

is the will of the ruling class ... directed at the support of the basic conditions of the capitalist mode of production. Socialist (revolutionary) legality expresses the will of the last of the exploited classes, which has taken power, of the proletariat.( 1935 :see p.314)

Just as criminal policy came to be regarded as counterproductive after the XVIIth Party Congress, so too economic law during the second Five Year Plan began to encounter muted criticism from the direction of a countervailing tendency toward the need to return to the concept of contract (albeit a planned contract) as a method of stabilizing and more effectively managing the planning process. Pashukanis, as the principal theoretical exponent of both criminal policy and economic law, became increasingly politically vulnerable in the mid-1930s.

In “State and Law under Socialism”, published on the eve of the new Constitution of 1936, Pashukanis weakly confronts the most serious criticism that the commodity exchange theory of law had always explicitly invited-that it was a left communist, or perhaps anarchist, theory which, if implemented, would greatly impede the construction and reproduction of socialist relations of production in the USSR. Pashukanis apologetically quotes Lenin’s State and Revolution to the effect that:

... we want a socialist revolution with people as they are now-with people who cannot do without subordination, without supervision, without “overseers and auditors” ... it is inconceivable that people will immediately learn to work without any legal norms after the overthrow of capitalism. ( 1936 : see p.349)

h4>Stalinism and Soviet Jurisprudence

The demand for greater contractual discipline within the planned economy, the revival and strengthening of Soviet family law so long submerged within economic law, and, above all, the publication of the draft of a new constitution in June 1936, all clearly foreshadowed an impending major change in Soviet legal policy. The new constitutional right of ownership of personal property and the provisions for the first all-union civil and criminal codes implied the reinforcement rather than the withering of the law. Stalin’s famous remark later that year that “stability of the laws is necessary for us now more than ever” signalled the new legal policy, and the promulgation of the Stalin Constitution a few weeks later, in December 1936, formally opened the Stalinist era in the development of Soviet legal culture. [50]

As the symbol of the defeated revolution of the law Pashukanis was arrested and disappeared in January 1937. The purging of Pashukanis and his associates cleared the way for the re-articulation of the dormant Romanist legal ideals of stability, formality and professionalism. The process of rebuilding Soviet legal culture began immediately under the aegis of Vyshinsky, Pashukanis’ successor as doyen of the legal profession. While Pashukanis had been the theorist of NEP legal culture, explaining its rise and predicting its demise, Vyshinsky, the practitioner, was its consolidator by reinforcing and converting it into the Soviet legal culture. [51]

Vyshinksy’s critique of Pashukanis involves an intellectual contortionism replete with invective-laden and often self-contradictory statements. [52] Vyshinsky argues that law is neither a system of social relationships nor a form of production relationships. “Law,” he stresses, “is the aggregate of rules of conduct – or norms; yet not of norms alone, but also of customs and rules of community living confirmed by state authority and coercively protected by that authority.” [53]

Soviet socialist law, the argument continues, is radically unique in both form and content because:

it is the will of our people elevated to the rank of a statute. In capitalist society, allusions to the will of the people served as a screen which veiled the exploiting nature of the bourgeois state. In the conditions of our country, the matter is different in principle: there has been formulated among us, a single and indestructible will of the Soviet people – manifested in the unparalleled unanimity with which the people vote at the elections to the Supreme Soviet of the USSR and the Supreme Soviets of the union and autonomous republics ... [54]

The specific mark of Soviet law ... is that it serves, in the true and actual sense of the word, the people – society – ... In the USSR for the first time in history the people – the toiling national masses themselves – are the masters of their fate, themselves ruling their state with no exploiters, no landlords, no capitalists. [55]

Law is now to be viewed as a set of normative prescriptions, enforced by the state (whose own character is unproblematic), in accord with Stalin’s conception of the character and duration of the transitional phase. The conditions for the existence of Soviet socialist law are the necessity “to finish off the remnants of the dying classes and to organize defence against capitalist encirclement”. [56] Soviet socialist law must incorporate and instill revolutionary legality and stability. “Why is stability of statutes essential? Because it reinforces the stability of the state order and of the state discipline, and multiples tenfold the powers of socialism ...” [57]

Ignoring the internal class contradictions of the new Soviet state, Vyshinsky applauds Stalin’s teaching that “the withering away of the state will come not through a weakening of the state authority but through its maximum intensification.” [58] The process of withering away is of necessity postponed until:

all will learn to get along without special rules defining the conduct of people under the threat of punishment and with the aid of constraint; when people are so accustomed to observe the fundamental rules of community life that they will fulfil them without constraint of any sort. [59]

The legal culture of NEP along with the statutory legislation of the intervening years, so long castigated as bourgeois, was redefined as a socialist legal culture. The need to systematize the legal culture, so long obstructed as inconsistent with its withering away, became the new agenda for the legal profession. jurists, driven from the law schools, the research institutes, and the legal press by the revolution of the law, reappeared as participants in the reconstruction of legal education and research. Disciplines banished from the law curriculum by the radical jurists were reintroduced beginning in the spring term of 1937. New course syllabi and textbooks for every branch of law, especially those eliminated or suppressed by the legal transfer culture, began to appear with great rapidity. New editions of earlier texts were purged of Pashukanis’ influence and quickly re-issued. Carrying out the mandate of Article 14 of the Stalin Constitution, numerous jurists were mobilized to prepare drafts for the all-union civil and criminal codes. Finally, a vulgar neo-positivist jurisprudence, based on “class relations” and largely derived from the Stalin Constitution and even the Short Course , replaced the tradition of revolutionary legal theory epitomized by Pashukanis. [60]

By way, not of conclusion, but as preparation for future work, we must briefly outline the importance of a question confronted but unanswered in Pashukanis’ project that is also unanswered, and unfortunately unaddressed, in our own time. How, precisely, are we to understand the historical configuration of state and law in social formations where capitalist property has been abolished but where communism has by no means yet been achieved? How are we to resolve the apparent paradox that the legal practices of most, if not all, social formations dominated by the political rule of the proletariat have included the form, and very often the content, of the legal rules typically associated with capitalist modes of production?

To explain this question, as did Stalinism, in terms of capitalist encirclement and the construction of socialism in one country, is to avoid the issue. This is so for at least two reasons. First, as Marx always and Lenin usually argued, under socialism the proletarian dictatorship has two features which radically demarcate it from all other state dictatures : the extent of its powers and the duration of its domination must be limited, and these must ultimately inhere in the consent of its citizens. These features are structural preconditions of socialism, and without wishing to lapse into utopianism or idealism, they seem necessary irrespective of the specific economic, political or ideological histories of a given social formation. This would therefore exclude that Common explanation of the intensity and longevity of the Soviet polity which pointed to the essential continuity of pre- and post-revolutionary political practices. Further, these qualities of the proletarian dictatorship – clearly discernible as the early Roman, and not the post-Reformation concept of dictatorship [61] – must dialectically contain the capacity for self-transformation. State and legal forms, even while they are actively utilized by the proletariat or by the party which truly represents it, must simultaneously be in the process of immanent transformation. As Lenin himself put it in 1919, “The communist organization of social labour, the first step towards which is socialism, rests, and win do so more and more as time goes on, on the free and conscious discipline of the working people themselves”. [62] As such, we are convinced that only intellectual sophistry could assert that, at least since the late 1920s, the proletarian dictatorship in the USSR is a dictatorship (in the classical sense) of the proletariat .

The second reason in part involves the absence of the conditions necessary to the truth of the first. If the historical development of the USSR cannot be characterized as the development of the dictatorship of the proletariat, then how can it best be understood? If it is the case that capitalist property relationships have been abolished, and that they have been replaced by state property and collective farm property as the 1936 Constitution proclaimed, then one must inquire how it is that the agencies of the proletarian dictatorship have been used not only to prevent the external threats posed by capitalist encirclement, but much more so to repress what are perceived as internal dangers? This, to us, can only be explained by the endemic existence of class contradictions within the USSR. At the very least, therefore, we must reject the mechanistic identification of transformations in legal forms of capitalist property with the abolition of exploiting classes. [63] What is needed is a transformation in social relationships themselves. We are left with an ironic twist to Lenin’s dictum, when applied to the USSR since his death, that the dictatorship of the proletariat is the continuation of the class struggle in new forms. This was the thrust of Pashukanis’ own concern.

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1. His major treatise was Obshchaia teoriia prava i marksizm , first published in Moscow in 1924 and subsequently translated into French, German, Japanese, Serbo-Croat and into English in its third edition of 1927 as The General Theory of Law and Marxism. In J. Hazard (ed.), Soviet Legal Philosophy (1951), Harvard University Press, Cambridge, translated by H. Babb, pp.111-225.

2. According to the official spravka, Pashukanis was legally rehabilitated by the Military Division of the RSFSR Supreme Court in March 1956. The editors wish to acknowledge the generosity of Professor Dietrich A. Loeber, of the University of Kiel, for sharing a copy of this document with them. The most recent evidence of Pashukanis’ limited intellectual rehabilitation is contained in the Soviet collection of some of his early writings from the 1920s. These will appear under the entry E. B. Pashukanis, Obshchaia teoriia prava i marksizm, Nauka, Moscow.

3. The sources for this biographical information are Robert Sharlet’s interview with the late L.Ia. Gintsburg in Moscow, 1974; and J. Hazard, Settling Disputes in Soviet Society: The Formative Years of Legal Institutions (1960), Columbia University Press, New York, pp.17-18. The English reader should see generally E. Kamenka and A. Tay, The Life and Afterlife of a Bolshevik Jurist , Problems of Communism (1970), vol.19, no.1.

4. See pp.37-131 of present volume for translation of the first Russian edition.

5. E.B. Pashukanis, Predislovie to Obshchaia teoriia prava i marksizm (1926), Moscow, 2nd corrected and supplemented edition, p.3.

6. See R. Sharlet, Pashukanis and the Rise of Soviet Marxist jurisprudence, 1924-1930 , Soviet Union 1, 2 (1974), pp.103-121, esp. pp.103-112.

7. For Pashukanis’ own account of his Hegelian heritage, see E.B. Pashukanis, Hegel on State and Law , Sovetskoe gosudarstvo (1931), pp.1-32.

8. See M.N. Pokrovsky, History of Russia from the Earliest Times to the Rise of Commercial Capitalism (1910-1912), translated and edited by J.D. Clarkson and M.R.M. Griffiths, Martin Lawrence, London, n.d. See further G.M. Enteen, The Soviet Scholar-Bureaucrat: M.N. Pokrovskii and the Society of Marxist Historians (1978), Pennsylvania State University Press, Pennsylvania and London.

9. See K. Marx, Letter to Weydemeyer (February 1st, 1859), in Marx and Engels: Selected Correspondence (1942), International Publishers, New York, p. 119; and K. Marx, The Grundrisse (1857-1858), translated by M. Nicolaus (1973), Random House, New York, p.108. 10 For example, see A. Fraser, Legal Theory and Legal Practice , Arena, no.44-45.

10. For example, see A. Fraser, Legal Theory and Legal Practice , Arena , no.44-45 (1976), pp.123-156; C. Arthur, Towards a Materialist Theory of Law ” Critique , 7 (1976-1977), pp.31-46; I. Balbus, Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law , Law and Society (1977), vol.11, no.3, pp.571-588; J. Holloway and S. Picciotto, Capital, Crisis and the State , Capital and Class, summer 1977, no.2, pp.76-101; C. Arthur, introduction to Evgeny B. Pashukanis, Law and Marxism: A General Theory (1978), Ink Links, London, pp.9-31, a translation from the German edition of Allgemeine Rechtslehre und Marxismus: Versuch einer Kritik der juristischen Grundbegriffe ; S. Redhead, The Discrete Charm of Bourgeois Law: A Note on Pashukanis , Critique , 9 (1978), pp.113-120.

11. Other than in some of his early writings, such as On the Jewish Question (1843), Marx himself had very little to say on the importance of the legal form. But see F. Engels and K. Kautsky, Juridical Socialism , Politics and Society (1977), vol.7, no.2, pp.199-200, translated and introduced by P. Beirne.

12. See E.B. Pashukanis, The Situation on the Legal Theory Front (1930), translated in J. Hazard (ed.), Soviet Legal Philosophy (1951), op. cit. , pp.237-280. Pashukanis’ second self-criticism appeared in 1934, his third – State and Law under Socialism (1936) – is fully translated in the present volume, pp.346-61.

13. This definition was officially adopted by the Commissariat of Justice in 1919, and incorporated into RSFSR Laws (1919). See also P.I. Stuchka, Marksistskoe ponimanie prava , Kommunisticheskaia revoliutsiia (1922), no.13-14, pp.37-38; and Zametki o klassovoi teoriia prava , Sovetskoe pravo (1922), no.3.

14. V.I. Lenin, What the “Friends of the People” Are and How They Fight the Social Democrats (1894), LCW , vol.1, p.153 (for abbreviations, see this volume, p.125).

15. The concept of persona in Roman jurisprudence originally derived from the function of an actor’s stage mask. The mask enabled the actor to conceal his real identity and to conform to the role written for him. Transposed into the legal realm, as a permanent condition, man must assume a legal mask in order to engage in the activities regulated by legal rules. See further, O. Gierke, Associations and Law (1977), translated and edited by G. Heiman, University of Toronto Press, Toronto.

16. P.I. Stuchka, Na ministerstvom kresle , in P.I. Stuchka, 13 let bor’by za revoliutsionno-marksistskuiu teoriiu prava (1931), Moscow.

17. See Dekrety sovetskoi vlasti (1957), Moscow, vol.1, pp.124-126.

18. J. Hazard , Settling Disputes in Soviet Society (1960), op. cit. , p.vi.

19. In 1927 Pashukanis asserted that the term “proletarian state capitalism” was an error. See J. Hazard (ed.), Soviet Legal Philosophy (1951), op. cit. , pp.179.

20. V.I. Lenin, To Comrade Krzhizhanovsky: the Praesidium of the State Planning Commission (May 1921), LCW , vol.42, p.371.

21. V.I. Lenin, Draft Theses on the Role and Function of the Trade Unions Under the New Economic Policy (1922), LCW , vol.33, p.184,

22. ibid. , p.185.

23. V.I. Lenin, Report on Party Unity and the Anarcho-Syndicalist Deviation (March 16, 1921), LCW , vol.32, p.251.

24. V.I. Lenin, Instructions of the Council of Labour and Defence to Local Soviet Bodies (May 1921), LCW , vol.32, p.384.

25. See R. Sharlet, Pashukanis and the Rise of Soviet Marxist jurisprudence , op. cit. , pp.112-115.

26. Pashukanis’ phrase in Disput k voprosu ob izuchenii prestupnosti , Revoliutsiia prava (1929), no.3, p.67.

27. E.B. Pashukanis, Marksistskaia teoriia prava i stroitel’stvo sotsializma , Revoliutsiia prava (1927), no.3, pp.3-12, translated in present volume on pp.186-99.

28. M.A. Reisner, Pravo, nashe pravo, chuzhoe pravo, obshchee pravo (1925), Moscow, translated in J. Hazard (ed.), Soviet Legal Philosophy (1951), op. cit. , pp.83-109.

29. P.I. Stuchka, Gosudarstvo i pravo, v period sotsiabsticheskogo stroitel’stva , Revoliutsiia prava (1927), no.2. See also the criticism in S.I. Raevick book review, Sovetskoe pravo (1928), no.2 (32), p.98.

30. Indeed, it is most likely that Economics and Legal Regulation was an indirect response to Stuchka’s Vvedenie v teoriim grazhdanskogo prava of 1927. Here Stuchka had reiterated that exchange must be subsumed within the concept of production because “... the distribution of the agents of production is itself only one of the aspects of production”. See P.I. Stuchka, Izbrannye proizvedeniia (1964), Riga, p.565, and R. Sharlet, Pashukanis and the Commodity Exchange Theory of Law 1924-1930 , unpub. Ph.D. diss., Indiana University, 1968, p.210. The Communist Academy effected a compromise in 1929, in its first syllabus on the general theory of law. The concept of law was now rooted in the process of commodity production and exchange. See A.K. Stal’gevich, Programma po obshchei teoriia prava (1929), Moscow, p.11, and see R. Sharlet (1968), op. cit. , p.210.

31. A. Avtorkhanov, Stalin and the Soviet Communist Party (1959), New York, p.21.

32. On the two wings of the commodity exchange school see R. Scheslinger, Soviet Legal Theory (1945), Kegan Paul, London, pp.153-156.

33. A. Vyshinsky, Stuchka , Malaia sovetskaia entsiklopediia (1930), vol.8, pp.514-515.

34. P.I. Stuchka, Proletarskoe pravo , in P.I. Stuchka, 13 let ... (1931) , op. cit. , pp.24, 34.

35. P.I. Stuchka, Foreword to 13 let ... (1931), op. cit. , p.4.

36. P.I. Stuchka, Vvedenie v teoriiu grazhdanskogo prava (1927), in P.I. Stuchka, Izbrannye proizvedeniia (1964), op. cit. , pp.563-564.

37. A. Piontkovsky, Marksizm i ugolovnoe pravo: sbornik statei (1929), 2nd ed., Moscow, pp.32-33, 39. Quoted in E.B. Pashukanis, The Situation on the Legal Theory Front (1930), op. cit. , pp.253, 250.

38. Note missing - [ MIA ]

39. P.I. Stuchka, Dvenadtsat’ let revoliutsii gosudarstva i prava , in P.I. Stuchka, 13 let ... (1931), op. cit. , p.189.

40. A. Piontkovsky, Marksizm i ugolovnoe pravo (1929), op. cit. , pp 87.

41. A.Ia. Estrin, XVth Congress of the Party and Questions of Law , Revoliutsiia prava (1928), no.2, p.13. See also R. Shatter, Pashukanis and the Withering Away of Law in the USSR , in S. Fitzpatrick (ed.), Cultural Revolution in Russia, 1928-1931 (1978), Indiana University Press, Bloomington, pp.169-188.

42. See R. Sharlet, Stalinism and Soviet Legal Culture , in R.C. Tucker (ed.), Stalinism (1977), Norton, New York, pp.161-162.

43. J. Stalin, Problems of Leninism (1947), 11th ed., State Publishing House, Moscow, pp.344-345.

44. J. Stalin, Political Report of the Central (Party) Committee to the XVIth Congress, 1930 , in J. Hazard (ed.), Soviet Legal Philosophy (1951), op. cit. , p.234.

45. Marx himself had first appreciated the salience of this distinction in The Eighteenth Brumaire of Louis Bonaparte and The Civil War in France .

46. E.B. Pashukanis, The Situation on the Legal Theory Front ” (1930), op. cit. , pp.278-280.

47. See R. Sharlet, Stalinism and Soviet Legal Culture , op. cit. , 149 and pp.172-173.

48. J. Hazard, Housecleaning in Soviet Law , American Quarterly on the Soviet Union (1938), vol.1, no.1, p.15.

49. To Pashukanis’ credit he still refused to recognize the concept of “proletarian law”, But even this incorporated somewhat of a major retreat, however, by his terminological nicety of the “class law of the proletariat” ( 1935 : see. p.307).

50. See R. Sharlet, Stalinism and Soviet Legal Culture , op. cit. , pp.168-169.

51. See R. Sharlet, ibid. , p.169,

52. This critique is largely contained in four sources. See A.Ia. Vyshinsky, The Fundamental Tasks of the Science of Soviet Socialist Law (1938), in J. Hazard (ed.), Soviet Legal Philosophy (1951), op. cit. , pp.303-341; The Marxist Theory of State and Law , Bolshevik (1938); The XVIIIth Congress of the CPSU and the Tasks of the Theory of Socialist Law , Sovetskoe gosudarstvo (1939), no.3; J. Hazard (ed.), The Law of the Soviet State (1948), Macmillan, New York, translated by H. Babb.

53. A. Vyshinsky, Fundamental Tasks of the Science of Soviet Socialist Law (1938), op. cit. , p.337.

54. ibid. , p.339.

55. A. Vyshinsky, The Law of the Soviet State (1948), op. cit. , p.75.

56. ibid. , p.62.

57. ibid. , p.51.

58. ibid. , p.62.

59. ibid. , p.52.

60. Published in November 1938, The History of the Communist Party of the Soviet Union (Bolshevik): Short Course almost immediately became the Stalinist forerunner of what, for China later, Mao’s Little Red Book was the functional equivalent.

61. See particularly, V.I. Lenin, A Great Beginning (1919), LCW , vol.29, p.420.

62. ibid. , p.420.

63. Any distinction between economic and legal property faces the logical difficulty that economic property is usually conceptualized in legal terms (ownership, use, possession etc.). This problem has recently been posed, unsatisfactorily, by several authors. See E. Balibar, On the Dictatorship of the Proletariat (1977), New Left Books, London, pp.66-77; C. Bettelheim, Class Struggles in the USSR 1917-1923 (1976), Monthly Review Press, New York, pp.20-32; A. Glucksman, The Althusserian Theatre , New Left Review (1972), p.68; N. Poulantzas, Political Power and Social Classes (1973), New Left Books, London, p.72. But, see the interesting and important reformulations contained in G.A. Cohen, Karl Marx’s Theory of History: A Defence (1978), Princeton University Press, Princeton; and P. Corrigan, H. Ramsay and D. Sayer, Socialist Construction and Marxist Theory (1978), Monthly Review Press, New York and London.  

Last updated on 13.5.2004