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    7 views25 pages

    Fine - Democracy and The Rule of Law. ch7

    Uploaded by

    kamal nayan

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 25
    154 / Democracy and the rule of law its own needs and pressures. ‘The state derives from private property, but it also becomes an alien form in opposition to private property, since it assumes unto itself the rights associated with private property. The state becomes the real abstraction of the power of capital: an object of greed and ambition in its own right, Private property and the state are complementary poles: dependent on each other for their mutual survival, but antithetical to each other not merely as competitors for the lion's shate of surplus value but as embodiments of private right and socialized power respectively. The state represents the socialization of power in an alicn, capitalist form; consequently its relation both to capital and to labour is inherently contradictory. Workers need the social power of the state against the private rights of capital, ‘but they do not need the state's alienated form. Capitalists need the state's alienated form as its guarantee against labour, but live in apprehension of its sociat power. Ifthe contradictory character cf the relation between state and capital is missed, then all is missed. The state does not transcend the contradictions inberent in capital, rather, in its own particular way, it necessarily embodies them, 7. Twentieth-century theories ‘The withering away of law and the state: Evgeni Pashukanis One of the most serious atterapts to collate and to develop Marx's theory of law was made by the Russian legal theorist Evgeni Pashukanis. His most important text, Law and Marxism, was, written in 1924s one contribution to the extremely ich theoretical discussions on law and the state which were held in the early years of the Bolshevik revolution. The particular strength of Pashkanis’s work was that he sought fo derive a Marxist theory of law not merely’ from this or that occasion on which Marx happened to comment about the.taw, but.from the method which Marx developed in his critique of politicat economy. He developed both the analogy between and the common derivation of comm« fetishism and legal fetishism, of the theory of value and the theory Jaw as « historical form of regulation ssing the emergence of definite social relations between individuals, just as Marx analysed value and capital as the expression of definite social relations, Pashukanis demonstrated that the category of law" category that can be applied to the authority relations of any. and every society, but rather a specific eitegory valid only as a representation of a particular kind of authority relation. This constituted a great advance over theories of law which cither ignored the form of law ‘and equated law with authority in general, or idealized the form of law, dissociated it from social relations and presented it as the natural and eternal condition of any and every social order. Pushukanis's brief critiques of vulgar materialism’ ie. theories of aw which subordinate the form of law to its content, and of formalism’, ie. theories of law which subordinate the content of, Jaw to its form, still stand today as a valid and important starting point for Marxist theories of law. 156 / Democracy and the rule of law “Twentieth-century theories / 157 ‘The political significance of Pashtukanis's theory lay in his relations take on the objective form of a third party representing rejection of economiom, in the sense that he saw the transition to the law, who acts as a mediator between the conflicting claims of ‘communism as signifying not onty transformation of economic rival parties. The fetishism of law is thereby increased, asa social relations but, alongside that, algo a transformation of authority relation of domination between one individual and another “relations between individuals. His great strength lay in the clarity appears in the mystified form of mutual subordination to an » with which he saw that legal forms of authority have characteristics impersonal authority; authority, in other words, is abstfacied which make them unsuitable as a basis on which communist from the relations between people of which it is in fact an society should be regulated, however necessary they may bein the expression. The law’ appearsasa subject in its own right divorced ‘course of the transition to communism. from individuals; at thesame time, it appears as neutral arbitrator Pashukanis brought out the fetishism of gal relations, that is, between rival claimants, whereas it in fact puts its social weight theabstraction of legal subjects from their real qualtiesas natural ‘and social individuals; the formal character of legal equality behind one claimant or another andso resolves’ disputes by virtue of its power rather than its impartiality. I this role the law iecdom which abstract from rather than overcome the real represents itself as the public interest, whereas in reality it is one inequalities and dependencies which mark relations between private interest among others. The emergence of the state takes individuals in society; the manner in which legat relations express this fetishism to its highest point, since class relations take’ the and reproduce social relations based on the conflict of private form not of direct domination of one class by another but of interests, rmutual indifference and all-round competitiveness rather indirect domination, mediated by the state. ‘This mediation, than celations based on mutual co-operation, love, comradeship, Pasfivkanis argued, on the one hand mystifies power, since class the collective pursuit of a common goal. Imagine, he said, what a domination no longer appears as what it is, and on the other ‘marriage would look like if t were based purely on the defence of creates a mighty apparatus that crushes society beneath its weight. private rights and the putting forward of iegal claims; such a ‘This was not, Pashukanis concluded, the form of power suitable ‘marriage’ might be necessary in bourgeois society but could not for communist society, Pashukanis's abstract language may easily possibly be the goal of how individuals should relate to one ‘obscure the nub of « fine argument, which has its roots deep within another under communism, A legal relation is a definite kind of Marxism relation, which frst ofall has ta be distinguished from other kinds ‘At the same time, however, Pashukanis did not simply reflect ‘and then has to be criticized from the perspective of the co- Mars, he also gave his theory of law his own mark and character, ‘operative, communal ways in which individuals should relate to which diverged significantly from that of Marx and in my view tach other under communism, where the atomistic pursuit by sianified a regression from Mars and aot aa advance over him viduals of their private interests gives way to the collective “This divergence was both theoretical and political. ‘pursuit by individuals of their common interests. In private law, ux derived law from relations of commodity Pashukanis writes, ‘production, Pashukanis derived it from commodity exchange ‘This was the essence of their difference. Marx wrote that ‘the relationship of rulers and ruled’ is determined by the specific ‘economic form in which unpaid surplus labour is pumped out of direct producers’, that is: ‘The a priori assumptions of legal thought are clothed in the flesh and blood of two disputing parties defending their own rights... the dogma of private law is nothing more than an ‘endless chain of arguments pro and contra imaginary claims The basic assumption of legal regulation is thas the ht is always the direct relationship of the owners of the oppestion of pat maets At hse ins tear { Basona&rprosucaon ieee protaces a caton ‘the logical premise of the legal form. always naturally corresponding to a definite stage in the { Pashukanis showed how, in the course of their development, legal development of the methods of labour ad thereby its social i | 158 / Democracy and the rule of law ‘Twentiet-cemury theoris / 159 productivity - which reveals the innermost secret, the hidden basis of the entice social structure? contrast to bourgeois jurisprudence, which offered a ‘positive” idealization of forms of law which ignored what have been called its ‘effects of isolation and individuation’, Both Pashukanis and Pashukanis, by contrast, argued that the elementary legal category bourgeois jurisprudence thereby miss the contradictory nature of | from which all other legal categories arise, that of ‘juridie subject’, {egal forms; Pashukanis offered an abstract negation af bourgeois emerges out of relations of exchange between what healternatively jurisprudence, simply reversing its portrayal of law, highlighting, calls ‘guardians of commodities’ or ‘owners of private property’ its dark side over its ight side, without yet seeing law in, as Marx ‘Theoretically, Pashukanis’s confusion stemmed from the fact that called it, its ‘raulti-facetedness Mars first wrote about the emergence of juridic forms in Capital at On che other hand, Marx revealed that the content of exchange the beginning of his chapter on “The Process of Exchange’ snd this is determined by relations of production and that quite different ed Pashukanis - and many others since ~ to believe that Marx relations of production (e.g. simple commodity production, , derived juridic forms from exchange, which was not the ease and capitalist production, state capitalist production, socialist produe- "Which belied the method he ereated for analysing economie forms. tion, ctc,) will be expressed and mediated in exchange. Pashukanis Pashukanis argued that in exchange, just as the product takes on and bourgeois jurisprudence have in common their abstraction oC” the form of value, so too the owner takes on the form of jutidic exchange’ fron “felutioAs “of production. The consequence of subject. But the analogue should not be between produce and Pashukanis's abstraction of exchange from production was to give owner, but rather between product and producer. Tt is the his approach to law an entirely different coloration frotn that of producers of commodities who appear in exchange relations as no Marx's (one which lost sight of the dialectic). Instead of secing ‘more than owners of private property, regardless of how they both the content and forms of law as determined by and changing acquired that property, or of what that property comprises, or af ‘with the development of productive relations, Pashukanis isolated ‘what they need to reproduce that property. [fone looks only atthe rom its content and reduced quite different forms of law,

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