Marksistskaia teoriia prava i stroitel抯tvo sotsializma, Revoliutsiia prava (), no.3, pp From Evgeny Pashukanis, Selected Writings on Marxism and Law . From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York , pp Evgeny Pashukanis was born in of a Lithuanian family. He became a Bolshevik in and later was a Vice-Commissar of Justice and the editor of.
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Whether one believes that evgwny is provided by God Natural Lawis created by human intellect Positivisma gendered institution perpetuating patriarchy Feminism or the maintainer of the status quo against marginalised groups Critical Legal Studiesundergirding those beliefs is the assumption that law is autonomous. Law sustains society through universal regulation. The state as an organization of class domination, and as an organization for the conduct of external wars, does not evvgeny legal interpretation and in essence does not allow it….
Authority as the guarantor of market exchange not only may be expressed in terms of law, but itself appears as law and only law, and is merged entirely with the abstract objective norm. Therefore, every juridic theory of the state which wishes to embrace all the functions of the latter, necessarily appears inadequate.
It may be a true reflection of all facts of state life, but gives only an ideological, i. Under the conventional perspectives of Law, law is a grand judge sitting on a cloud deciding our fates. Sometimes evggeny is a supernatural entity who knows more than we do. Sometimes law is just like us and makes mistakes and only knows as much as we do. Sometimes law is a man who only thinks like a man and is missing the intelligence of a woman. Sometimes law is a pshukanis person from the ruling-class who only knows to rule by class.
In all of these scenarios law is above the world and rules it without much input from the world. Commodity-Form Theory argues that law is a product apshukanis capitalism svgeny acts as a commodity for the exchange of political interests; capitalist interests.
Marx notes that out of all of the commodities, over time, arises one commodity which can be used in exchange for all pashukkanis commodities. For example, gold evbeny be used pashukanls purchase anything in the world because that gold can be taken and used to purchase anything else. We call this commodity the money-commodity.
That universal appeal is in relation to commodities. Commodities are economic products. Money is a commodity. Capital is money in use for the production of commodities with the ultimate aim of making more money.
Law arises as a means to the end of generating capital. We know that, as a result of colonialism, the world is under the capitalist regime. Pshukanis goes as far as to posit that theories of the State develop after the practice of State-making has already been developed as a way to rationalise the legitimacy of government.
Evgeny Pashukanis: Commodity-Form Theory of Law
From this point-of-view, there is no material demarcation between the logic of capitalists and the logic of law. That is to say that the law is a mirror image of capitalist rules.
Law is law because it is universally applied. Every human interest in society is a political interest. Law is used to mediate interests. By having a capitalist logic, law inherently mediates along capitalist lines. Hence, the law on theft is interpreted along private property lines a mechanism of capitalism and not, for example, in the logic of Amerindians who had no concept of private property.
If the law, incorporated the logic of multiple social actors, the law of theft may incorporate a ban on the commodification of water since Amerindians would have seen privatising water as inherently against communal principles. Other perspectives consider law to be law and not just mere rules because they believe it to be autonomous. What gives law its legal form is its autonomy. However, if law is indeed a by-product of capitalism it cannot be said to have an actual legal-form.
Commodity-Form Theory argues this thing called law has no legal form. Law, is therefore, a set of rules imposed upon the population through the violence of capital. One may argue that the question is silly but it is not.
If law were truly autonomous its character would transcend material paradigms. If the law states that all people in the country cannot eat in public but there are those without private dwellings or the means to utilise private spaces such as restaurants for consuming food then this equal application does serve one and not the other.
The person with means need not consider the law because he or she has access to private space. Under Capitalism, law is equally applied to social relations but its impact is unequal due to the economic advantages each person, household and entity holds. Law, therefore, is equally inequitable by its very nature. Law sits above capital only to reinforce capital.
Laws are used in ways which reinforce the inequalities capitalism produces. If the product of impartial application is a partial outcome the application itself is a hollow shell for bias. Under Mercantilism, trade barriers were law. This was the time of colonialism when capitalists considered protecting domestic markets as key to profit.
As capital saturated domestic markets, capital needed to find new markets and free-trade was introduced at the time that colonies became independent States. The new States who under mercantile Capitalism would have had the space to develop via protectionism were subjected to the new rule of free trade.
The inequity of free-trade law becomes apparent when one considers the reality that young markets lack the capital to fend off large influxes of capital competition into their markets.
Commodity-Form Theory sees nothing autonomous about law.
evgdny There is no legal form to law. That is not to say that law is not legal. To say that law is not legal is to suggest that there is an institution which forms Standards which we can call law. It is easy to find appeal in the idea that we are all equal under the law.
This sense of equality makes humans believe that they relate to each other socially as equals. In other words, if we are equal under law we are equal politically. Commodity-Form Theory pashukkanis that the sense of social equality produced by legal equality produces a fetishistic fixation with law. Just like any other commodity we become fixated with law pasyukanis it appears to alleviate the power imbalance of economic inequality. The common person believes himself or herself equal to any other person because he or she can bring a lawsuit against another.
Any person can apshukanis another but a suit costs money. Without means a suit is unlikely to get off of the ground or get very far if it does take flight. Generally, in the case of crime, the legal action belongs to the government which may deny you the right you believe yourself to have. It, therefore, becomes quite difficult to say that law alleviates economic power imbalances. Balbus argues that it is the ignorance of the origins of commodities as human ideas that results in Fetishism.
Commodities are believed to have a life of their own but in reality they do not. They are but material spawns of mental copulations.
Fetishism causes the common person to advocate for perpetuating a money-system even to their disadvantage because equal access to money gives the illusion of social equality. The legal system is deified because it is believed to give a false sense of social security. Commodity-Form Theory allows us to more materially understand the underlying politico-economic forces underpinning law.
For those who are interested in the social ramifications of legislation and legal interpretation this theory is a vital component of a the mental toolkit. Commodity-Form Theory deserves wider scrutiny in order to harness its full potential as an explainer of social interaction and humans relations to the products of their own ideas. This was an informative document. It was a enjoyable read. I believe majority was spot on.
Congratulations on reaching this level of interpretation.
The General Theory of Law and Marxism
CLS thinks that law is autonomous and has a mind of its own???? Has the author read anything that Duncan Kennedy has ever written? Your email address will not be published.
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Learn how your comment data is processed. Key Concept Whether one believes that law is provided by God Natural Lawis created by human intellect Positivisma gendered institution perpetuating patriarchy Feminism or the maintainer of the status quo against marginalised groups Critical Legal Studiesundergirding those beliefs is the assumption that law is autonomous.
Universal Political Equivalent and Legal Form Marx notes that out of all of the commodities, over time, arises one commodity which can be used in exchange for all other commodities. Fetishism It is easy to find appeal in the idea that we are all equal under the law. Conclusion Commodity-Form Theory allows us to more materially understand the underlying politico-economic forces underpinning law.
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