CHAPTER 5
PASHUKANIS' THEORY OF LAW

An anti-normative doctrine

THE most prominent representative of Soviet legal theory during the first period of its development 1 is E. B. Pashukanis. In his main work, The General Theory of Law and Marxism,2 he tries to develop a 100 per cent. Marxian doctrine of law in opposition to bourgeois legal theory, which he accuses of hiding the social reality in an 'ideological fog'. It is the normative theory of law, the one that defines the law as a system of norms and especially the so-called pure theory of law against which Pashukanis directs his criticism from the point of view of an orthodox Marxist, although it is just the pure theory of law which, long before Pashukanis, tried to purify the traditional science of law of its ideological elements. The paradoxical result of Pashukanis' attempt is that he takes over some really ideological elements of the bourgeois theory in order to disparage the bourgeois law, which he -- as usual -- confuses with an ideological theory of this law. And, finally, following strictly a line of Marx and Engels, he declares the bourgeois law, the law of the despised capitalist society, as the only possible law in the true sense of this term.

In order to inject into the theory of law the strongest possible dose of Marxism, Pashukanis imitates Marx' economic interpretation of political phenomena by reducing, in the field of jurisprudence, legal phenomena to economic phenomena in general, and in particular to economic phenomena which can exist only within a capitalist system of economy based on the

____________________
1
According to Professor Hazard, Soviet Legal Philosophy, p. xix, some experts distinguish three, others only two periods in the development of Soviet legal philosophy. The three periods are defined either as '(1) The Early Period, (2) The Climax of Marxian Theory, and (3) The Retreat to Bourgeois Positions' or '(1) The Early Period ( 1918-1928), (2) The Middle Period ( 1929-1937), and (3) The Period of Cleansing and Establishment of a New Base ( 1938 to date)'. The two periods are characterised as follows: '(1) when law and socialism were still treated as incompatible, and (2) after the idea of incompatibility had been openly abandoned, namely in 1936-1937'. The author agrees in principle with the division into two periods.
2
Soviet Legal Philosophy, p. 111et seq. The first edition was published in 1924.

-89-

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