From Substance to Form: The Legal Theories of Pashukanis and Edelman

Abstract

The history of the 20th century is replete with a welter of state and legal forms to which theory cannot remain indifferent. Over the last eighty years, capitalism has existed with fascism, laissez-faire and interventionist-welfare states with formally representative or autocratic governments, with or without working class parties. It has become, by now, a convention to claim that, Gramsci excepted, classic Marxism does not offer a general theory of law and the state applicable to capitalist or communist societies. As with many verities the value of this convention should not go unchecked. And to observe that the state will wither away with the demise of capitalism is simply not sufficient (Bahro, 1978). Thus it is encouraging to find the emergence of a lively debate over the nature of the capitalist state and its laws. In America and England for example, instrumentalist theories flourish, albeit not without widespread criticism. The critique of instrumentalism has been a major theme in recent Marxist literature on law and the state. The instrumentalist position characterizes the state as directly controlled by a ruling class who uses it as a weapon to advance bourgeois interests, especially in relation to other classes. Critics have held that this perspective exaggerates the unity of the ruling class and neglects the partial independence of the state from ruling class control in capitalist societies. However, instrumentalism fails to distinguish legal from extralegal coercion and thus does not identify what is unique about law. Nor does it explain why the ruling class resorts to law when it rules. French structural Marxism, particularly Althusser and Poulantzas, has given the study of the state a new direction. Here the focus is on the relationship between state action and objective class structure. This relation need not (and generally does not) involve the capture of the state by a single class. From this perspective, what make a capitalist state capitalist is not direct control by capitalists but its existence in a capitalist totality, and its functioning to reproduce necessary capitalist social relations, economic and non-economic. In light of these theoretical developments, alternatives to instrumentalist perspectives on law one important product of state action are of particular interest. In this article we will present a comparison and critical assessment of two attempts those of Evgeny Pashukanis and Bernard Edelman to develop formalist Marxist analyses of law. Pashukanis, a prominent Soviet legal scholar, developed his commodity exchange theory of law in the 1920s, partly in opposition to Second International instrumentalism. And while the commodity exchange theory differs in its political implications from contemporary structuralism, Pashukanis' work has recently been revived by among others Edelman, a French Althusserian jurist and philosopher. Both formalist Marxian legal theorists seek to establish alternatives to the deeply flawed instrumentalist tradition.