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John N. Hazard, Foreword 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.
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Pashukanis was an imaginative Marxist, the most imaginative to appear among Soviet lawyers immediately after the October Revolution, or so Harvard’s noted legal philosopher, Roscoe Pound, told me when I contemplated entering upon the study of Soviet law in 1934. Pound said he had been so impressed while reading a German translation of Pashukanis’ principal work that he had undertaken to study Russian so as to read his works not yet translated.
Pound’s verdict on Pashukanis’ place among Marxist legal theorists was shared by others. Members of a group assembled to suggest what should be included in a volume on Soviet legal philosophy to be published by the Association of American Law Schools said the same thing in 1947. All of them put Pashukanis first among their choices.
Pashukanis’ influence was profound within the USSR, as I found when I became a student in what was then called the Moscow Institute of Soviet Law. While he came to the Institute only rarely to lecture, its teachers were largely his disciples, devoted to his commodity exchange theory of law. His textbook was the key to the study of legal philosophy, and his attitude toward law’s future shaped the curriculum. His expectation that civil law would wither away as market conditions became overshadowed by socialism caused the introduction of a new discipline called “Economic Law” to the very end of which were relegated a few lectures on civil law.
Stripped of its complexities, which can be appreciated only on reading the editors’ comprehensive Introduction following this Foreword, Pashukanis’ theory held that Soviet legislators and jurists were not creating a proletarian or socialist system of law, but were merely putting to their own use the bourgeois law that they had inherited. Thus, there was no new legal form in process of creation, but only a transformation by degrees of content to meet the needs of those engaged in creating Soviet public order during the limited period required for the state and its handmaiden, the law, to wither away with the achievement of a classless society.
Pashukanis’ influence reached beyond the domestic scene. He became interested in international public law as well, although this phase in his career did not fully begin until the mid-1920s. In this field he met resistance, for the noted Professor Evgeny Aleksandrovich Korovin, who had published his first treatise in 1924, had caught the attention not only of Soviet jurists but internationalists throughout the world. In his volume, entitled The International Law of the Transition Period, he had noted that Soviet diplomats, while rejecting general international public law as the creation of imperialist states, were finding it useful, and even necessary, to rely upon some of the norms of general law to protect their diplomatic status, establish their state’s frontiers, and hold potential aggressors at bay. By so doing, the new diplomacy was helping to create a “new” law which Korovin identified as the law of the transitional period between capitalism and communism.
His theory of new law was in direct opposition to Pashukanis’ denial that new law was in the making. Conflict was inevitable as Pashukanis turned his attention from municipal law to international law. In that conflict, Pashukanis revealed a personality which needs to be understood by those who can today see only his printed words. He was not a kindly figure, as one might suppose when the international public law term doyen of the profession is used to describe him. He was a revolutionary, brought up in the school of “hard knocks” where courtesies are unknown and where one attacks to survive.
Korovin appeared to Pashukanis to be his enemy. He had already cowed those who opposed him on municipal law, although he had some battles, recounted in the Introduction, but Korovin remained. Pashukanis showed his colours as a man: he was not content to argue. He was merciless in his personification of Korovin as politically disoriented, if not hostile toward the new Soviet system. He made his intellectual argument into a personal indictment, as so many other revolutionaries were to do in their attacks upon theoretical positions they opposed.
Korovin had learned to trim his sails to meet the wind of the moment during the stormy years of War Communism when the wind beat hard upon scholars coming from the former bourgeois intellectual stratum. He adapted quickly because he knew where power lay, and Pashukanis indubitably had power at this point. Nevertheless, he smarted under the attack, as I was to learn in the 1930s in my many associations with him at his home on visits to discuss his lectures at the Moscow Institute. It was on one of those discussion evenings when I saw what Pashukanis’ attack meant to one who had felt it, for it was a few nights after Pashukanis was denounced in Pravda in early 1937 as an “enemy of the people”. Pravda’s columnist had singled out for attack Pashukanis’ theory that Soviet law was not new in form, but only in content. Korovin turned to me and said, “Ivan Ivanovich, don’t you think that I have been proven right?”
I had to agree that the Pravda criticism of Pashukanis seemed to imply that his major error was to have thought that Soviet socialism was not imparting a new form as well as a new content to law, and that this position when applied to international public law would seem to support Korovin’s view that, as applied by Soviet diplomacy, it was in process of transition, or metamorphosis. It had become the new “law of the transitional period”. Korovin felt himself vindicated, and I thought him right in thinking so, although no subsequent praise of Korovin as a pioneer ever appeared from any official pen. His reward was to be his survival at a time when Stalin was rolling many academic heads, and his maintenance of the chair of international public law at Moscow University until his sudden death from a heart attack years later.
On looking back to those turbulent times of 1934 to 1937 while I attended classes in Moscow, I have to admit that I came to dislike Pashukanis. Perhaps it was my upbringing in America which influenced my emotions. I turned against him not as a thinker, for at the time I was trying to wash all emotion and evaluation out of my mind as I tried to understand what Soviet Marxists were saying. I turned against him as a man. It was quite out of my experience that academic argument would become fortified by an imputation that an opponent was disloyal to his country and its cause. Nor had I experienced deans and department chairmen acting as dictators to their colleagues. Some had spoken with authority, but their directions were not dictates in the sense that I came to understand dictatorship under Stalin. To my mind American universities were priding themselves in presenting to their students ideas from many positions upon the political spectrum; no one pretended to have a patent on infallible truth.
To find myself in a Soviet law school where the teachers projected a theory said to be infallible, and where those who strayed from Pashukanis’ line were castigated like Korovin or denied faculty appointments, promotions and salary raises was novel to me. I saw teachers compelled to conform not only to ideas of Marx but also to those of Pashukanis as his infallible interpreter. This was unsettling to my sense of justice, and more so since in my numerous conversations with Korovin in his apartment, I caught his sense of frustration. He was not a new boy who might be expected to reflect his professor’s views, at least for a time until he developed his own. He was a world figure with views of his own on what Marxism meant, and he was being silenced and even threatened with one knew not what.
Korovin’s plight extended even to his family. One spring evening his wife brought in the traditional tea at the end of the conversation. We had been discussing what Korovin thought he might say in evaluation of the Communist Manifesto on a forthcoming anniversary. His wife caught the end of the conversation, and blurted out, “But, Genia, that will only make more trouble for you. Why do you keep trying?” I sensed the problems Pashukanis had created for this one family whose integrity and faithfulness to the ideas of the October Revolution were unquestionable. Consequently, when it was learned that Pashukanis had been carried away by the police in early 1937, I doubt that many of the learned jurists mourned the loss to the law or thought that scholarship would suffer. Although no one among the scholars seemed to be happy with the purge style of Pashukanis’ ouster, his removal was welcomed by those whose had experienced his authoritarian rule over Soviet legal scholars for more than a decade.
Little did I realize as Pashukanis’ influence faded away and his disciples in the Law Institute were dismissed, and sometimes arrested as well, that within a year, Andrei Ia. Vyshinsky would mount the empty pedestal and proclaim a new doctrine of normativism, which was to bind his subordinates with bonds as strong as those Pashukanis had used. An outsider like myself could not but meditate on the impact of the life of polemics which revolutionaries had lived since the founding of what became the Communist Party. There was no spirit of accommodation, of compromise, such as Anglo-Saxons usually favour. It was “we or they,” or in the Russian revolutionary language kto-kogo.
Pashukanis as a physical being was a dominating figure. While memories fade over decades, those heavy black bushy eyebrows moving vigorously up and down above an animated face remain before my eyes. He was a large man, or at least gave the impression of being so, as he spoke behind a lectern or paced the floor of his office at ulitsa Frunze 10. His figure still haunts that same office even today, for it is the office of the current Director of what is now called the Institute of State and Law of the USSR Academy of Sciences, and many visit there. On one occasion in 1936 the late Professor Samuel N. Harper of the University of Chicago took me along as an observer to an interview on the forthcoming Constitution. Pashukanis was at the time deputy chairman of the constitutional drafting committee and had been gathering comparative material from the constitutions of the states of the world to aid the experts. Harper’s experience with Russia dated from the turn of the century when he had been a student in St. Petersburg. He had been brought close to death on the great square in front of the Winter Palace on “Bloody Sunday” in 1905 when the Cossacks charged the crowd, swinging their sabres from their lofty saddle seats. He was now trying to understand Stalin’s Russia.
I have forgotten the substance of the interview, although I recall that it seemed to me but to repeat what I had already read in the numerous pamphlets being published about the new Constitution. I do, however, remember the dominating figure of Pashukanis in his large office, his desk like the top of a “T” across the end of a long green-covered table where we were invited to sit. He showed politeness to his foreign guest, but he spoke with supreme authority. Little did he know, or appear to know, that within a few months, his name would be branded as that of the enemy, and his theories expunged from the textbooks.
Pashukanis was rehabilitated posthumously after Stalin’s death, as the Introduction following this Foreword chronicles. He was said to have been punished unjustly, like so many others rehabilitated at the time. Memorial minutes were printed in what was the successor to the law review he had once edited, and finally his portrait was hung with those of other past Directors of the Institute. His ideas were not reinstated as acceptable, even for discussion, but the reading of them is no longer forbidden, and his books have been restored to the open shelves of the Lenin Library a few doors away towards the Kremlin.
For Westerners, Pashukanis’ works have a fascination, not only because of their imaginative character, but because they trace the evolution of his thought as he tried to bring to bear his sense of what was needed pragmatically upon the doctrines as he understood them. He had to create a new legal system that would provide order, but at the same time prepare the way for a classless society in which he fervently believed. He worked for a difficult master, Joseph Stalin, whose word was law for most people. Pashukanis showed that he could modify his behaviour to survive but he was not prepared to be wholly subservient. He tried to save something of his theory. The essays in this volume indicate the tacks he took to make headway, and they will prove stimulating reading if they are approached not only as a progression of ideas like those of any other great thinker, but as the efforts of a man to remain true to what he thought Marxism meant while trimming himself enough to survive. It is an exercise in political juggling; unsuccessful in the end as he was snatched from the stage by his unappreciative master, but fascinating nevertheless.
The team assembled to produce this volume is unusually well equipped to select, translate and interpret Pashukanis’ writings. Piers Beirne is an English sociologist currently Assistant Professor of Sociology at the University of Connecticut-Storrs. He has written broadly in the field of sociology of law with special attention to Marxist theory and legal philosophy. Together with Professor Sharlet, he has restyled and edited Professor Maggs’ translations against the legal vocabulary and idiom of Marxism and Soviet jurisprudence during the formative period of Soviet history.
Robert Sharlet is a political scientist with long experience in Soviet law, having focused upon Pashukanis as a graduate student at Indiana University and having attended the Law Faculty of Moscow University on his way to chairmanship of the Department of Political Science in Union College, Schenectady, New York. His writings on Soviet law are numerous and widely read for their perceptive analysis of the politics of Soviet Law.
Peter Maggs, who assumed the primary responsibility for translation of Pashukanis’ texts, began his study of Soviet law while a student at the Harvard Law School with Professor Harold J. Berman. He continued with a year as an exchange student in Leningrad University’s Law Faculty, and returned to the USSR only a short while ago as a Fulbright Lecturer on the law of the United States. He too has written extensively on Soviet law, and translated materials for use in teaching it in law schools of the United States. He is currently Professor of Law in the College of Law of the University of Illinois at Champaign.
As one who trudged through pages of Pashukanis in the original Russian and listened to his disciples on the Moscow lecture platform, I am prepared to testify that the English rendition of his works and their selection from an extensive bibliography do his ideas justice. As he tended to take pride in the attention he received from bourgeois jurists whom he despised as enemies in the class struggle, he would probably have relished the attention given him in this volume, although he would probably not have admitted that his vanity was titillated.
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September 1979 |
Last updated on 13.5.2004