Pashukanis, Evgeny B. (1891–1937)

Evgeny Bronislavovich Pashukanis arose after the 1917 Russian Revolution to reach a prominent role in theorizing Marxist law in the 1920s and 1930s. His commodity-exchange theory of law was the capstone of his thinking. His interpretation of Marxist law was to have a major impact in the West in the late 1970s and 1980s in theorizing about structural Marxism. This came to replace the instrumental Marxist theory of the 1960s and 1970s that was so prominent in various disciplines.

Pashukanis's role as the most prominent theorizer in Russia in the 1920s and early 1930s ended in 1937 when the government branded him an enemy of the state and executed him. His reading of Karl Marx (1818–1883), that the “dictatorship of the proletariat” would “wither away,” was at odds with Josef Stalin's (ruled 1928–1953) ruthless repressions in the 1930s. Stalin wanted to further empower the proletariat, centralize police power, and crush anyone who appeared to be dissenters or part of the bourgeoisie. After Pashukanis's execution, the state removed his works from all law schools and replaced them with those of Stalin's right-hand man, Andrey Vyshinski (1883–1954), and his brand of Marxism.

In 1954, the USSR rehabilitated Pashukanis, but it was not until the late 1970s and early 1980s that scholars took his work seriously and examined it for its contributions to Marxist law. After careful examination, a major change in orientation in Marxist theorizing materialized. The dominant perspective was no longer instrumental Marxism, but rather became a structural version of Marxism. This dominance has remained until today.

The centerpiece of Pashukanis's theory appeared in The General Theory of Law and Marxism (1924). Pashukanis drew heavily from the first one hundred pages of Marx's Capital, which explained commodity fetishism. In turn, Marx relied quite heavily on Georg Hegel (1770–1831). Pashukanis demonstrated that there was a so-called homology (similarity in development) between commodity fetishism and legal fetishism. The juridic subject (the “reasonable man” in law) and formal rights (incorporating notions of equal-ity, free will, and proprietorship interests) resulted from commodity exchange.

Commodity fetishism takes place when commodity owners enter the competitive market place in a laissezfaire capitalist economy to exchange their commodities. Initially, a commodity has use value. It reflects differences in uses, to which it responds by the amount of labor in its production. However, in the constant exchange of commodities certain appearances (phenomenal forms) emerge. This exchange eventually produces a mathematical ratio of exchange (such as two bushels of apples for one pound of butter). A quantitative (ratio of exchange) replaces a qualitative notion (use value). The commodity now takes on the appearance of exchange value: use value disappears. Money becomes the universal equivalent expressing exchange value. People then “worship” money, “elevate it to the heavens,” and it becomes fetishism. The differences in production and need found in use values disappear from consciousness.

A similar process, Pashukanis explained, takes place with the legal form. During the constant transfer of commodities, certain appearances emerge. Each commodity exchanger assumes that the other has free will to exchange his commodity. Similarly, proprietorship interests and notions of equality emerge, since they are inherent in the exact moment of exchange. Lawyers give these thousands of commodity exchanges' emergent appearances an “idealized expression.” They articulate notions of free will, equality, and proprietorship in the created juridic subject. This is legal fetishism. The inherent differences in human beings (use values) disappear, replaced by an abstraction, the juridic subject, the “reasonable man.” All are formally equal. The U.S. Constitution's Fourteenth Amendment reflects this equality idea, as do many declarations of rights during the rise of capitalism and the struggles in its aftermath.

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