Lesser Spotted Comrades - Marxist Theoretician of Law Evgeny Pashukanis

Diarmuid Flood

Early Activist Life

It is difficult to write a short piece on the life and thought of ‘The Father of Marxist jurisprudence’ Evgeny Bronislavovich Pashukanis. Born in 1891 in the Russian town of Staritsa, on the Volga river, he played both an active role in the Russian Revolution and in developing the Marxist analysis of law under capitalism. 

Pashukanis joined the Russian Social Democratic Workers’ Party (RSDLP) in 1908 in St. Petersburg and became involved in socialist agitation. In the same year, he began studying law and jurisprudence at university. Due to his political activity, he was targeted by the Tsarist police and eventually forced to leave Russia for Germany where he continued his studies and political work.

During the First World War, he returned to Russia and played a role in drafting the RSDLP resolution opposing the war. Pashukanis was actively involved in the October Revolution and joined the Russian Communist Party in 1918. In the first few years of the new state, he quickly rose to prominence in the legal field, becoming a judge, advisor to the Soviet Embassy in Berlin, and a full-time academic at the Communist Academy. 

Law and Marxism

It was during these years that Pashukanis made his main theoretical contributions to Marxist jurisprudence and published his magnum opus, ‘The General Theory of Law and Marxism’. Unlike legal theorists who argued that the law was a product of God or the human intellect, Pashukanis put forward a ‘Commodity Exchange Theory of Law,’ which argued that, in any given society, the economic structure determines the nature of legal and moral principles. As capitalism places commodity exchange at the centre of production, so too must it establish laws to facilitate this exchange. Pashukanis argued that as a society transitions away from a system of generalised commodity exchange, the existing laws tied to it will lose purpose:

“The withering away of the categories of bourgeois law will, under these conditions, mean the withering away of law altogether, that is to say the disappearance of the juridical factor from social relations.”

Pashukanis also investigated the nature of crime in capitalism and stated that this could be found in the deprivation inherent to class society. He argued that under the existing legal system, crime is seen as emanating from the individual rather than caused by social or material conditions. In a democratically planned economy, however, the motive for crime withers away as does the necessity of punishment as the solution to crime:

“Imagine for a moment that the court was really concerned only with considering ways in which the living conditions of the accused could be so changed that either he was improved, or society was protected from him - and the whole meaning of the term ‘punishment’ evaporates at once.”

The Wrong Side of the Law

These theoretical innovations aided Pashukanis in rising through the ranks of the legal profession through the 1920’s. However, as the political reality changed in Russia and factional disputes heightened between the Stalinists and the Left Opposition, his theories began to be seen as suspect. 

In this context, Pashukanis revised his earlier theories to make them more amenable to the emerging Stalinist consensus. As reward, he was made director of the Institute of Soviet Construction and Law in 1931 and Deputy Commissar of Justice in 1936. However, the comfort granted by these changes proved short-lived as he quickly found himself on the wrong side of Andrey Vyshinsky, the Stalinist Procurator General of the Soviet Union.

Like many others, Pashukanis was denounced as a secret agent of Leon Trotsky and, after an intense process of prosecution, provided a long list of fantastical confessions. He was executed in September 1937 on charge of being involved in an ‘anti-Soviet’ terrorist plot. It is ironic in the grim manner usual to this period that Pashukanis, who laid the foundations for a nuanced and faithful framework of Marxist law, was replaced by Vyshinsky, the architect of the Moscow show trials and the methods undergirding them. 

Not without his flaws, Pashukanis retains his place as an original thinker who played an important role in developing Marxist analysis during the tumultuous years of the 1920’s and 1930’s. Like many others, his commitment to these theories cost him his life.

As academic Igor Shokhedbrod has stated: “Present-day Marxists should learn from Pashukanis mistakes without giving up on his rigorous quest to unearth the historically limited character of the bourgeois legal form. Part of this quest involves saving Pashukanis from his bedfellows and from himself.”

Article originally published in Issue 10 of Rupture Magazine. Subscribe or purchase previous issues here.