Socialism and Law:

A survey of Soviet legal theory

by Brendan Clifford

Solzhenitsyn
A Coy Idealism
An Althusserian Discourse
Pashukanis
Stuchka
Fetishism and Nature
Kant On History
Modern Tragedy
Kant On Law
Law in Russia
Reisner- A Kantian Bolshevik (failed)
Fetishism and Unequal Distribution
Virtue and Necessity
Science and Society
Petrazhitski
A Critical Blank in Stalin-Criticism
The Webbs
The Webbs Reviewed
Crime and Punishment

Conclusion
Notes
Rousseau
Spinoza
Bibliography

The role of law in social development is a basic issue which has been undiscussed hitherto in the British socialist movement.

In this issue of Problems of Communism the Bolshevik theory of law, which writers such as Isaac Deutscher left completely out of account in their histories and criticisms of Stalin’s Russia is set out. There is ample quotation from the writings of the leading Soviet legal theorists of the early twenties, who were not mere academics but were organisers of the ‘justice’ department of the Bolshevik state. The conceptions of Stuchka and Pashukanis are brought out into the light of day.

The original Bolshevik theory, which views law as a specifically capitalist form of ideology, is compared with an alternative conception of law derived from the philosophy of Immanuel Kant and briefly taught in Russia by Petrazhitsky, which appears to be more appropriate to democratic socialist development.

The neo-Marxist notion of fetishism is reviewed, and it is suggested that the Soviet development is more meaningfully viewed as a reversion to fetishism from the comparatively non-fetishistic society of advanced capitalism than as an abolition of fetishism. The Communist Party functions as a fetish in the structuring of society.

And the hard-headed description of Soviet Russia by Sidney and Beatrice Webb, too long neglected, is revived and reviewed.

There is also a chapter on Crime and Punishment, which is very much to the point now that British society is beginning to emerge from a morass of pseudo-liberalism on that issue. The author suggests that individual freedom is sustainable only on the basis of law; that the categories of crime and punishment (rejected by Bolshevism) are necessary to the existence of law, and that the substitution of remedial treatment for those categories, which has been fashionable in the spurious liberalism of recent times, is totalitarian in its tendency. The ideology of individual irresponsibility has passed its peak,

1. Solzhenitsyn

Solzhenitsyn disappointed his early admirers with the first volume of the Gulag Archipelago. He put himself completely out of court with them by a chapter in the second volume: “What The Archipelago Stands On”. That chapter, dealing with the legal/ideological basis of the labour camps, demonstrated to them that his sufferings had driven him mad: that he had become a crank, if not a lunatic. Ken Coates, who was then the chief ideologist of Tribune, was particularly eloquent on that theme.

It so happens that that is the one chapter of Gulag which is based on information that is generally available – much of it in Lenin’s Collected Works. In the rest of the book, Solzhenitsyn himself supplies the information on which his case rests. But in this chapter the information is Marxist theory, and is available to anybody who cares to look for it. One might therefore expect those who disagreed with this chapter to attempt to refute it. But I have not seen a single attempt at a refutation. I am not in the least surprised by this. Solzhenitsyn’s contention is irrefutable: and must be known to be irrefutable by anybody who has read Lenin’s Collected Works from 1917 onwards.

But if it is irrefutable, why condemn it? Because the Marxist left does not know what it knows. The Leninist information which makes Solzhenitsyn irrefutable passes into their subconscious and determines their mental – or, perhaps one should say, psychological – processes, without being analytically available for theoretical purposes. The result is a muffled intuition that Solzhenitsyn is unanswerable and must therefore be condemned with great feeling.

Here is the gist of the argument in Gulag:

“Just as every point is formed by the intersection of at least two lines, every event is formed by the intersection of at least two necessities – and so although our economic requirements led us into the system of camps, this by itself might have led us to labour armies, but it intersected with the theoretical justification for the camps, fortunately already formulated.

“And so they met and grew together … And that is how the Archipelago was born.

“The economic need manifested itself, as always, openly and greedily; for the state which had decided to strengthen itself in a very short period of time … and which did not require anything from outside, the need was manpower: a) Cheap in the extreme, and better still – for free, b) Undemanding, capable of being shifted about from place to place any day of the week, free of family ties, not requiring established housing, or schools, or hospitals …

“The theoretical justification could not have been formulated with such conviction in the haste of those years had it not had its beginnings in the past century. Engels discovered that the human being had arisen not through the perception of a moral idea and not through the process of thought, but out of happenstance and meaningless work (an ape picked up a stone – and with this everything began). Marx, concerning himself with a less remote time (Critique of the Gotha Program), declared with equal conviction that the one and only means of correcting offenders (true, he referred here to criminals; he never even conceived that his pupils might consider political offenders) was not solitary contemplation, not moral soul-searching, not repentance, and not languishing (for all that was superstructure) – but productive labour. He himself had never in his life taken a pick in hand … and we don’t even know how his firewood was split – but he wrote that down on paper, and the paper did not resist.

“And for his followers everything now fell into place:

To compel a prisoner to labour every day (sometimes fourteen hours at a time, as at the Kolyma mine faces) was humane and would lead to his correction. On the contrary to limit his confinement to a prison cell, courtyard, and vegetable garden, to give him the chance to read books, write, think, and argue during these years meant to treat him ‘like cattle’. (This is from the same Critique of the Gotha Program.)

“True, in the heated times immediately following the October Revolution they paid little heed to these subtleties, and it seemed even more humane simply to shoot them. And those whom they did not shoot but imprisoned in the earliest camps were imprisoned there not for purposes of correction, but to render them harmless, purely for quarantine.

“The point is that even then some minds were occupied with penal theory, for example, Pyotr Stuchka, and in the Guiding Principles of the Criminal Law … of 1919, the very concept of punishment was subjected to a new definition. Punishment, it was there very refreshingly affirmed, is neither revenge … nor expiation of guilt (there is no such thing as individual guilt, merely class causation), but a defensive mechanism to protect the social structure – a measure of social defense.

“Once it is accepted as a ‘measure of social defense’, then it follows that war is war, and you either have to shoot (‘the supreme measure of social defense’) or else imprison. But in this the idea of correction had somehow gotten muddied – though in that very same 1919 the 8th Congress of the Party had called for ‘correction’. And, foremost, it had become incomprehensible: What should one be corrected for if there had been no guilt? It was hardly possible to be corrected for class causation?

“In 1922 the first Soviet Codes were established. In 1923 the ‘congress of the penitentiary labour workers’ took place. The new ‘basic principles of criminal legislation’ were composed in 1924 – the foundations of the new Criminal Code of 1926 (which hung around our necks for thirty-five years). All through this the newly found concepts that there is no ‘guilt’ and no ‘punishment’, but that there is ‘social danger’ and ‘social defense’ remained intact.

“Of course, this was more convenient. Such a theory made it possible to arrest anyone as a hostage, as a “doubtful person’ (Lenin’s telegram to Yevgenia Bosh), even to exile entire peoples because they were dangerous … but, given all this, one had to be a first class juggler in order still to construct and maintain in purified form the theory of correction.

“However, there were jugglers, and the theory was there, and the camps were indeed corrective. And we can bring many quotations to bear even now.

“Vyshinsky: ‘All Soviet policy is based on a dialectical [!] combination of the principle of repression and compulsion with the principle of persuasion and re-education … All bourgeois penitentiary institutions try to ‘harass’ the criminal by subjecting him to physical and moral suffering.” (They wish to ‘reform’ him) “In distinction from bourgeois punishment the sufferings of the prisoners in our country are not an end but a means … The end in our country … is genuine reform, genuine correction, so conscientious labourers should emerge from the camps.’ (Vyshinsky, Preface to From Crime To Labour by I.L.Averbach, Moscow 1936)

“Now have you got it? Even though we use compulsion, we are nonetheless correcting (and also, as it turns out, via suffering!) – except that it is not known exactly from what.

“But right then and there, on a nearby page, we find:

“‘With the assistance of revolutionary violence and corrective-labour camps localise and render harmless the criminal elements of the old society’.

“So not a single word about correction? We are localising and rendering harmless?

“And then in that same 1934:

“‘The two-in-one task is suppression plus re-education of anyone who can be re-educated.”

“Of anyone who can be re-educated. It becomes clear that correction is not for everyone.

“And now a ready-made phrase from somewhere already flits about among the small-time authors: ‘the correction of the corrigibles.’” (The Gulag Archipelago, Fontana edn, Vol 2, p. 128-31)

2. A Coy Idealism

Causative thinking is abhorrent to ‘creative Marxists’. The reason for this is not that they really expect socialism to be established without sufficient cause, through an act of creation such as that by which God was rumoured to have made the world.

‘Creative Marxism’ has more to do with the past than with the future. It is an inert psychological condition rather than a power to act. It is a means by which ideals connected with the October Revolution are protected from the subsequent development of the Bolshevik state.

A development may be inadequately explained, though it cannot come about through inadequate causes. ‘Creative Marxism’ is explanation of historical events by attributing them to inadequate causes for idealistic purposes.

But ideals which can only be sustained by historical falsification – by inadequate explanation of the historical events with which they are connected – are futile ideals. Andrew Marvell, the poet of the Puritan revolution, wrote (in To His Coy Mistress) against the waste of life which is involved in futile idealism, and urged a determination “to tear our pleasures with rough strife/Through the iron gates of life”. If the ideals and theories connected with the October Revolution must be removed from the historical chain of cause and effect in order to survive, if they must be disconnected from the subsequent development of the revolution which they inspired, then they are futile ideals; and their function is to provide consolation for leftist intellectuals.

In this connection the famous Thesis on Feuerbach needs to be re-formulated as follows: “The empirical philosophers interpreted the world with a view to changing it: Marxist philosophy re-interprets the world inadequately in order to provide consolation in a world which it cannot change.” That sums up the history of ‘Marxist thought’ pretty well, leaving aside the Panzer formation devised by Lenin and operated by Stalin and Mao. That is why anti-Stalin Marxism has the quality of a complex religious meditation, reminiscent of the exercises which the Catholic Church designed for the consolation of its disillusioned intellectuals.

The British & Irish Communist Organisation was somehow established on the other side of “the iron gates of life”, and never participated in the communion of consolatory Marxism. Though it was entirely Bolshevik in inspiration, it never sought to protect the theory and ideals of Bolshevism from the practice of Bolshevism in the conduct of the state. It wanted to understand the whole complex causation of the development of the revolution, and had begun working it out while Solzhenitsyn was still the darling of the New Left.

The B&ICO took little interest in Solzhenitsyn, regarding him as just another Khrushchevite eclectic until the appearance of Gulag. Gulag showed that he, too, had a consuming interest in working out the history of the revolution within the chain of cause and effect. And it was that interest, rather than his formally reactionary viewpoint, which turned the New Left completely against him.

The creative Marxist intellectuals could scarcely be unaware of Marx’s opinion of Balzac. Though Balzac was a Royalist reactionary, he had an obsessive need to understand and describe post-revolutionary society in all its human richness. Marx not only praised Balzac’s novels, he appreciated that his reactionary standpoint enabled them to be produced. And what applied to Balzac applies a thousand times more to Solzhenitsyn.

Indeed, Balzac’s Royalism was a mere personal necessity, as is proved by Stendhal’s novels, which were written from a revolutionary viewpoint (though under the restored monarchy).

Soviet literature produced no Stendhal. And Henri Beyle might never have become Stendhal if the Napoleonic state had lasted for another generation. The state which Stendhal served was overthrown by external force, and Stendhal became the first novelist of modern Europe, in every sense.

But the Soviet state survived. It organised an immense social revolution in the late twenties and early thirties and then settled down to the business of administering it. After the revolution society had no existence independent of the state. All political economic and cultural activity was organised by the state (with the exception of some fragments of economic activity which were free within narrow limits set by the state).

All official literary activity had the purpose of keeping the state stable. History was made a branch of current politics and no other sort of history was publishable.

Unofficial literary activity blossomed for a while in the sixties. The two major writers who developed in the unofficial sphere are Roy Medvedev and Solzhenitsyn. Medvedev attempts to write within a Marxist ideological framework, but he is not a Stendhal to Solzhenitsyn’s Balzac. He is in ideological complicity with the state, is subjectively incapable of writing its history within the chain of cause and effect, and, though his writings are not publishable in Russia, he survives under the protection of the KGB. He has had numerous books published abroad over the past twenty years, and yet remains as free as anybody else in Russia who is not one of the official elite. (See Medvedev’s Notion Of Stalinism, B&ICO, 1980 [and now on this website].)

It appears, then, that it is subjectively impossible to write a causative history of the development of the Bolshevik revolution while remaining in any way implicated in the ideology of the state. The need to protect the ideology of October from the subsequent development of the revolution paralyses thought, both with regard to the revolution and to the ideology. Solzhenitsyn’s formally reactionary viewpoint is therefore an epistemological necessity.

But, despite his reactionary viewpoint, Solzhenitsyn is more a Stendhal than a Balzac. He knows the Communist Party from the inside. He has felt the zeal of a Bolshevik. When he describes the system as inhuman, he knows that he has been inhuman. And when he shows that the Tsarist state was a weak, humanitarian state by comparison with the Bolshevik state he knows that it cannot be re-established. He is a critic rather than a restorationist, and his purpose is to establish human values and a historical perspective in present-day Russia.

The difficulty of producing a history of Soviet Russia from a Marxist viewpoint (that is, a descriptive history as distinct from an Althusserian theoretical structure), is greatest in the sphere of law.

3. An Althusserian Discourse

Shortly after the publication of Gulag, but without reference to it, a translation of Law And Marxism: A General Theory by E-B. Pashukanis was issued by a Marxist publisher in London (Ink Links, 1978). Pashukanis was one of the chief Soviet legal theorists of the 20s and 30s. He asserted that law is bourgeois, that the legal rights of individuals reflected ideologically the conflicts of commodity production, and that law would be abolished under socialism.

Since Marxist Stalin-criticism usually boils down to a characterisation of Stalin’s rule as a criminal variant within socialism, in which the law was disregarded and trials were shams organised by the Government for reasons of expediency, one would expect Pashukanis’s writings to be denounced as the theoretical precursor of, and justification of, full-blown Stalinism. (It is true that he fell victim to the purges of the late thirties, but, then, so did Yezhov, chief of the terrorist police, who might be viewed as the materialisation of Pashukanis’s theory.)

But Pashukanis was not revived as a horrible example of Stalinism in law. He is presented as one of the true Bolsheviks who were suppressed by Stalin. Chris Arthur, editor of the Ink Links translation, writes in an Introduction:

“The present revival of interest in the theories of Pashukanis forms part of the current renaissance of Marxist debate. More particularly, it is part of a process of recovery of the heritage of Bolshevik thought repressed by the Stalinist bureaucracy and its international supporters … The appearance of this English translation … provides a stimulus to the development of a far-reaching theoretical criticism of law, which is essential if a properly materialist approach is to distinguish itself from a radicalism that unconsciously remains imprisoned within a bourgeois frame of reference …

“Pashukanis … was one of the leading authorities in Soviet legal science; a vice-commissar of Justice … Criticism of Pashukanis began to mount in the late twenties and he found it desirable to publish an article correcting his errors in 1930. This did not prevent either his writings from being burnt, or himself from being liquidated in 1937 as a member of a ‘band of wreckers’ and ‘Trotsky-Bukharin fascist agents’ (Vyshinsky). After his fall the usual band of time-serving philistines and eclectics took over the field. After the 20th Congress (1956) things developed to the point where there was a call for his rehabilitation; but, although it is now recognised that he and others were unjustly condemned for sabotage, Vyshinsky’s negative standpoint on his work is still endorsed …

“The task of a Marxist critique of law is not to prove that juridical concepts are consciously manipulated by bourgeois publicists in order to browbeat the worker (which is indisputable), but to show that in them … social reality takes on an ideological form which expresses certain objective relationships arising from the social relations of production and stands or falls with them. An ideological form cannot die out except with the social conditions which generated it. The struggle against ideology, however, helps to deprive it of the capacity to mystify the social relationships out of which it grew, and to make possible a scientific politics.

“If law is not explored in terms of its internal structure, then its peculiar character will be dissolved away into some vaguer notion of social control. This is all most Marxists provide. Pashukanis complains that in place of providing a concept of law in its most complete and distinct form – and thus demonstrating its significance for a definite historical epoch – they offer a purely verbal commonplace about ‘external authoritarian regulation’ suitable to all epochs in the development of society …

“Pashukanis argues that the juridical element in the regulation of human conduct enters where the isolation and opposition of interests begins. He goes on to tie this closely to the emergence of the commodity form of mediating material exchanges. His basic materialist strategy is to correlate commodity exchange with the time at which man becomes seen as a legal personality – the bearer of rights (as opposed to customary privileges) …

“It is only in the conditions of commodity production that the abstract legal form is necessary – it is only there that the capacity to have a right in general is distinguished from specific claims and privileges. It is only the constant transfer of property rights in the market that creates the idea of an immobile bearer of these rights. Indeed, the abstract capacity of everyone to be a bearer of property rights makes it difficult for bourgeois thought to see anything else than subjects of rights: legal fetishism complements commodity fetishism.

“The ‘commodity exchange school’ … dominated Soviet legal science until the mid-thirties, Stuchka … interpreted civil law on the basis of commodity exchange relations; but Pashukanis, representing the radical wing, went further in claiming that law in general may be so related.” (C.J. Arthur: Introduction to Law & Marxism, p.9-15)

“The most striking of Pashukanis’ positions is his implacable opposition to any concept of ‘proletarian law’. Since he treats law as an historical form which achieves fullest expression in the bourgeois epoch … he opposes pseudo-radicalism that talks of the overthrow of bourgeois law and its replacement by proletarian law. For Pashukanis such a line is implicitly conservative since it accepts the form of the law as supra-historical and capable of infinite renewal … For Pashukanis the end of the forms and categories of bourgeois law by no means signifies their replacement by new proletarian ones … rather the juridical element in social relations gradually disappears.

“The objection may be made that, even if economic conditions change greatly, certain crimes against the person will always exist. Pashukanis believes that to reason that courts and statutes will always be necessary on this account is to mistake structures which are derived from elsewhere for essential forms in this context. As he points out, even advanced bourgeois criminology sees that anti-social behaviour is a social problem with which the jurist is ill-equipped to grapple, burdened as he is with the concepts of ‘guilt’ and ‘responsibility’ and subtle distinctions therein …

“He is able to base himself on one of Marx’s texts, Critique Of The Gotha Programme …” (ibid, p.8-19).

“The importance of Pashukanis, as far as Marxist politics is concerned, is that he casts doubt on the view, common to Stalinists and Social-democrats alike, that the form of law is essentially neutral and can be filled with a given class content according to the will of the dominant class.” (p.29)

4. Pashukanis

I have quoted the foregoing paraphrase of Pashukanis to show that the New Left is in sympathy with the view of socialism as a lawless social condition. We will now hear Pashukanis in his own voice. (Law And Marxism was first published in 1924. There are two English translations. One is in “Pashukanis: Selected Writings”, Academic Press, 1980. The following quotes are from the Ink Links edition):

“The withering away of the categories of bourgeois law will … mean the withering away of law altogether, that is to say the disappearance of the juridical factor from social relations.” (p.61)

“Man becomes a legal subject by virtue of the same necessity which transforms the product of nature into a commodity complete with the enigmatic property of value.” (p.68)

Stuchka – see later – defined law as “a system of relations corresponding to the interests of the ruling class and to the safeguarding of those interests by organised violence.” That definition “uncovers the class content concealed within legal forms, but does not explain why this content assumes that particular form. For bourgeois philosophy, which regards the legal relation as the eternal, natural form of every human relation this question never arises. For Marxist theory, which strives to penetrate the secrets of social forms and to reduce all social relations to man himself, this task must take priority.” (p.84)

“The state as an organisation of class rule, and for waging external wars, neither needs nor admits of any legal interpretation. This is an area were so-called raison d’etat holds sway, which is nothing but the principle of naked expediency. In contrast to this, power as a guarantor of market exchange not only employs the language of law, but also functions as law and law alone.” (p. l37)

“Before creating internally consistent theories, the bourgeoisie first constructed its state in practice. This process was inaugurated in the municipalities of Western Europe. Whilst the feudal world made no distinction between the personal resources of the feudal lord and the resources of the political organisation, in the cities there arose … the communal city purse; the spirit of ‘statedom’ is given, so to speak, its material basis.

“The establishment of state financial resources encouraged the people who live from these means: officials and functionaries … Public offices in the true sense of the word first appear in the municipalities; they are the material embodiment of the public nature of power …

“Absolute monarchy needed only to usurp this public form of power which had originated in the cities and the apply it to a wider area. Every additional improvement in bourgeois statedom … can be traced back to a single principle, according to which neither of two people exchanging in the market can regulate the exchange relation unilaterally; rather this requires a third party who personifies the reciprocal guarantees which the owners of commodities mutually agree to as proprietors …

“The English bourgeoisie, which gained dominance in the world market earlier than anyone else, and which felt invulnerable as a result of its insular situation, was able to go further than anyone else in realising the ‘constitutional state’. The most consistent realisation of the legal principle in the dialectical relationship between state power and individual subject, and the most effective guarantee that those in power cannot step out of their role as the personification of an objective norm, is the subjection of the organs of state to the jurisdiction of an independent court (not, of course, independent of the bourgeoisie). The Anglo-Saxon system is a kind of apotheosis of bourgeois democracy. Yet under different historical circumstances the bourgeoisie is … prepared to make do with … ‘Caesar-ism’.” (p. 148-9)

“For the products of human labour to be able to relate to each other as values, it is necessary for people to relate to each other as autonomous and equal personalities…

“Man as a moral subject, that is as a personality of equal worth, is indeed no more than a necessary condition for exchange according to the law of value. Man as a legal subject, or as a property owner, is a further necessary condition. Finally, these two stipulations are extremely closely connected with a third, in which man figures as a subject operating egoistically.

“All three of these seemingly incompatible stipulations, which are not reducible to one and the same thing, express the totality of conditions necessary for the realisation of the value relation…

“The net result of abstracting these definitions from the actual social relation they express, and attempting to develop them as categories in their own right … is a confused jumble of contradictions and mutually exclusive propositions. Yet in the exchange relation itself, these contradictions unite to form a dialectical totality.

“The person engaged in exchange must be an egoist, that is to say he must stick to naked economic calculation, otherwise the value relation cannot be manifested as a socially necessary relation. The person engaging in exchange must be the bearer of rights, that is, he must be able to make autonomous decisions … Lastly, he embodies the principle of the essential equivalence of human personalities for, in exchange, all forms of labour are equalised and become human labour in the abstract.

“The concept of the moral or equivalent personality is undoubtedly an ideological creation and, as such, not adequate to reality …

“If the moral personality is nothing but the subject in commodity-producing society, then the moral law must be manifested in the regulation of intercourse between commodity owners. This inevitably endows the moral law with a dualistic character. On the one handa this law must be a social law and must therefore stand above the individual personality; on the other hand, the owner of commodities is by nature the bearer of freedom … Kant’s categorical imperative unites these contradictory requirements. It is supra-individual … It is beyond all empirical or purely human motives. At the same time, it appears independently of any external pressure in the direct, crude sense of the word. It is effective by virtue of the consciousness of its universality. The Kantian ethic typifies commodity-producing society, yet at the same time it is the purest and most consummate form of ethic there is. Kant gave a logically perfected shape to the form which atomised bourgeois society sought to embody in reality, by liberating the personality from the organic fetters of the patriarchal and feudal epochs.” (p. 151-4)

(Kant’s ‘categorical imperative’ was formulated in the Groundwork Of The Metaphysic Of Morals: “But what kind of law can this be, the thought of which, even without regard to the results expected from it, has to determine the will if this is to be called good absolutely and without qualification? Since I have robbed the will of every inducement that might arise as a consequence of obeying any particular law, nothing is left but the conformity of actions to universal law as such, and this alone must serve the will as its principle. That is to say, I ought never to act except in such a way that I can also will that my maxim should become a universal law … The ordinary reason of mankind also agrees with this in its practical judgements.” (Harper edition, 1964, p.69) In this and other respects, Kant is a philosophical evolution of the Sermon On The Mount: ‘Do unto others as you would have others do unto you’.)

“The categorical imperative is by no means a social instinct … Where there is a close emotional tie blurring the limits of the individual self, the phenomenon of moral obligation cannot occur. If one wants to comprehend this category, one must start out, not from the organic bond which exists, for example between the mother animal and its young, or between the clan and each of its members, but from the condition of isolation. Moral being is a necessary complement to legal being; they are both modes of intercourse utilised by commodity producers. The whole solemnity of Kant’s categorical imperative comes down to the fact that man does ‘freely’, that is out of inner conviction, that which he would be compelled to do in the sphere of law.” (p. 155)

“Ethical doctrines claim to change and improve the world whereas, in reality, they are merely a distorted reflection of one aspect of this real world – the aspect which shows social relations to be subject to the law of value. It should not be forgotten that the moral personality is only one of the three hypostases within one subject; man as an end in himself is only another aspect of the subject operating egoistically. An act which is the real, and only true, embodiment of the ethical principle simultaneously also contains its negation. The large capitalist destroys the small capitalist ‘in good faith’, without thereby violating the absolute worth of his personality in any way. The proletarian’s personality is ‘equal in principle’ to that of the capitalist … But all that comes out of this ‘materialised freedom’ for proletarians is the freedom to die of starvation – without any interference.

“This ambiguity of the ethical form is not fortuitous; nor is it an external defect conditioned by the specific shortcomings of capitalism. On the contrary, it is a characteristic feature of the ethical form as such. Eliminating the ambiguity of the ethical implies the transition to planned socialist economy. This in turn means the construction of a social system which enables people to build and conceive of their interrelations in terms of the clear and simple concepts of harm and advantage. Abolition of the ambiguity of the ethical form in the most substantive area, that is, in the sphere of material existence, implies abolishing the ethical form altogether.” (p. 157-8)

“There is no doubt that the morality of the proletariat, or rather the morality of its avant-garde, loses its doubly fetishistic character by being purged of religious elements. Even a morality free of any impurity in the form of religious elements is nevertheless still morality, that is to say it is a form of social relations in which everything has not yet been reduced to man himself. If the living bond linking the individual to the class is really so strong that the limits of the ego are, as it were, effaced, and the advantage of the class actually becomes identical with personal advantage, then there will no longer be any point in speaking of the fulfilment of a moral duty, for there will then be no such phenomenon as morality. However, where such a fusion has not occurred, the abstract relation of moral duty with all forms arising from that, will inevitably occur. The precept: ‘act in such a way that you are of the greatest possible use to your class’ will then sound exactly the same as Kant’s formula: ‘act only on the maxim through which you can at the same time will that it should become a universal law.'” (p. 159)

“Does this mean, then, that ‘there will be no morality in the society of the future’? Not at all, if one understands morality in the wider sense as the development of higher forms of humanity, as the transformation of man into a species-being (to use Marx’s expression). In the given case, however, we are talking about something different, about specific forms of moral consciousness and moral conduct which, once they have played out their historical role, will have to make way for different, higher forms – the relationship between the individual and the collective.” (p. 161. This passage qualifying the abolition of morality is a footnote to the 3rd Russian edition, 1927. The term ‘species being’ is from Marx’s 1844 writings.)

“Basically, that is to say from the purely sociological standpoint, the bourgeoisie maintains its class rule and suppresses the exploited classes by means of its system of criminal law …

“Criminal justice in the bourgeois state is organised class terror.” (p. 173)

“Archaic criminal law knew only the concept of injury. Guilt and blame, which are given such a prominent position in modern criminal law, were totally absent at this stage of development. The deliberate act, the negligent act, and the accidental act were judged only by their consequences.” (p. 178)

“In modern criminal law, the concept of strictly personal liability corresponds to the radical individualism of bourgeois society … In contrast to this, the law of antiquity was permeated by the principle of collective liability. Children were punished for the sins of their fathers. Bourgeois society undermines all hitherto prevailing primitive and organic bonds between individuals. It proclaims the principle of ‘every man for himself’ and follows it with absolute consistency in all spheres, including criminal law … Shading responsibility is a basis for shading the punishment: it is a new, and if you like, an ideal or psychological element which is taken into account, together with the material aspect of the damage and the objective aspect of the deed, to provide, collectively, the basis for determining the degree of punishment.

“If, in place of the punishment, we substitute treatment, that is to say a concept of medical-health, what follows is entirely different, since we would then be interested, not primarily in whether the punishment fits the crime, but in whether the measures taken are adequate to the goals set, that is, whether they are adequate to the protection of society, to having an effect on the offender, and so forth …

“If the punishment functions as a settlement of accounts, the notion of responsibility is indispensable … This concept of liability would be quite superfluous in a situation where punishment has lost the character of an equivalent …

“The juridical concept of guilt is not a scientific concept, since it leads directly to the contradictions of indeterminism. From the standpoint of linking the causes which bring about some event, there is no basis for giving prominence to one link in the chain over another. The actions of a psychically abnormal person … are no less determined by a series of causes … than are the actions of a completely normal … person.” (p. 178-180)

“The People’s Commissariat for Justice … published guidelines for criminal law as early as 1919, in which the principle of guilt as the basis of punishment is rejected and the punishment itself is characterised, not as retribution for guilt, but solely as a protective measure. The 1922 penal code of the RSFSR likewise does without the concept of guilt …

“Transforming punishment from retribution into a measure of expediency for the protection of society and the reform of individuals who are a threat to society calls for the completion of a colossal organisational task. Not only does this task lie beyond the sphere of purely judicial activity, but it would actually … render the court case and the court verdict totally superfluous. For when this task has been fully accomplished, the reforming influence will no longer be a simple ‘legal consequence’ of the court’s verdict, in which some ‘evidence’ has been deposed, but will acquire a completely independent social function of a medical-educational nature. There is no doubt that our development is proceeding, and will continue to proceed, in that direction …

“A consistent realisation of the principle of social protection would not require the establishment of particular evidence (with the degree of punishment determined by law …), but would require an exact description of the symptoms characterising the socially dangerous situation, and an exact elaboration of the methods to be used in each individual case in order to avert the danger to society … compulsory atonement is juridical coercion addressed to the subject from within the formal framework of the trial … Coercion as a protective measure is an act of pure expediency, and as such, can be governed by technical regulations …” (pl86-7)

Here, within the mainstream of Bolshevik ideology, is a lucid and comprehensive statement of a view of socialism which Western socialists (including members of the Communist Parties) have frequently condemned as slanderous when stated by bourgeois commentators: the freedom of the individual within the law is a capitalist phenomenon; socialism replaces law with arbitrary measures of state expediency; socialist propaganda exploits the ideology of the rights of man during the struggle against capitalism, but the rights of man are incompatible with socialism and are abolished along with capitalism; the collective interest as determined by the state is absolutely dominant under socialism, and individual dissent from state policy is treated as a form of social disease; since the socialist state does not seek to establish the guilt of individuals under the law, and trials become a form of administrative correction of socially dangerous situations, legal evidence in the bourgeois sense is replaced by a description of social symptoms.

It might be argued, by treating Law And Marxism as a ‘text’, that Pashukanis did not attribute totalitarian power to the Bolshevik state, but made observations on the long term development of society. But Pashukanis was not the writer of a detached ‘text’ on law: he was a Bolshevik leader whose writings were designed to guide the operations of the state. The brilliant work which placed him amongst the leading Bolshevik theorists (for Law And Marxism is undoubtedly a work of very great brilliance), was every bit as much a programmatic political pamphlet as Stalin’s Foundations Of Leninism which was published in the same year. And Pashukanis kept pace with political developments, modifying his theory to justify the activity of the state, right down to 1937, when he himself was disposed of through “an act of pure expediency” by the state, which did “not require the establishment of particular evidence.”

It is not recorded whether Pashukanis approved of the exemplary manner in which he was disposed of by the state, or whether at the end he regressed to the “category of the subject” and wished for a trial in which he might try to establish that he was not guilty. One hopes that he lived out his ahuman ideology even when he became a victim of it. Few things are more despicable than the reversion of ahumans to a snivelling form of humanity when faced with a personal crisis. (When, as a mere human, one has hewed one’s way through the ahumanity of the Althusser, it is very difficult to summon up a spark of sympathy with poor Louis in his personal tragedy.)

Spinoza is the bourgeois philosopher who struck the deepest chord amongst the theoretically brilliant Bolsheviks. His contribution to morality was to treat evil as a natural phenomenon. He remarked that a bad man and a bad apple were of the same kind, in that the badness of each was adequately determined by causes. The bad man had no more choice in the matter than the bad apple.

A bad apple gets thrown away. And anybody who has had a hand in preserving apples knows that badness is highly infectious, and that an apple with even the tiniest speck on it must not be preserved.

It was decided in 1937 that Pashukanis had to be thrown away. Did he go down the rubbish chute with the equanimity of a bad apple?

(There is one serious criticism that must be made of Stalin. When he was disposing of defective ahumans, he should, as a matter of human interest, have asked them to write a memoir of their lives immediately before going down the chute, and preserved those documents for a time when it would be possible to publish them.)

Pashukanis did not exhaust himself in his initial tour de force, as many brilliant writers do. His writings remain consistently interesting from 1924 until his existence was deemed to be inexpedient in 1937 – much more interesting than one would suppose from the Ink Links volume.

Selected Writings In Law And Marxism by Pashukanis (Academic Press, 1980) is much more valuable than the Ink Links volume.

It includes Law And Marxism along with seven other items, one of which is Revolutionary Elements In The History Of The English State And Law (1927). Here Pashukanis observes that “the principles of the Levellers were soon to be the basis of the socio-political structure of the American states.” (p213)

He sees the thoroughgoing legalistic obscurantism of capitalism originating in the Leveller movement in the civil war:

“The Levellers – by virtue of the fact that they acted as champions of the most general conditions of development of bourgeois-capitalist relations – had to turn their attention again to judicial reform. John Lilburn in his work The Fundamental Laws and Liberties incidentally formulates two classical principles of the bourgeois doctrine of criminal law: no one may be convicted other than on the basis of a law existing at the moment of commission of the act, and the punishment must correspond to the crime according to the principle of an eye for an eye and a tooth for a tooth.” (p.211)

How fetishistic can you get! In Lilburne’s outlook, the law is erected as barrier between man and man, and in place of “clear and simple concepts of harm and advantage” there is gibberish about guilt and punishment.

Pashukanis might be described as the Lilburne of the Bolshevik revolution, who developed the distinctive features of its ideology most systematically. He tore down the mystique of justice so that everything in social relations might be “reduced to man himself”. And when everything is reduced to man himself there can be no question of whether a law has been broken: there is only the question of harm and advantage, such as occurs in a state of nature.

The Althusserian Stalin-critics have a point when they say that Stalin had a tendency towards humanist deviation. But I am sure he was not so humanist that he affronted Pashukanis with remnants of the legalistic fetishism of John Lilburne in 1937. He made a calculation of harm and advantage, and then just smashed Pashukanis down with the truly great club which he wielded.

Economics And Legal Regulation (1929) is the most interesting of Pashukanis’s writings – though not, of course, as brilliant as Law And Marxism. In it he feels his way from the simple economic determinism of the latter to the virtual ideological determinism of the economy:

“The legal influence of the state upon the economy – and legal regulation is merely a special form of this influence – must now be considered in the light of the experience of the imperialist stage of capitalist development, particularly in the light of those attempts at control and regulation of the national economy which took place at the time of the World War …

“Another fact of colossal significance is our construction of socialism. Here we can observe the deepest influence of the superstructure upon the base, accompanied by the fact that a superstructural organisation – the state – is becoming part of the base. The planning of the national economy is a combination of conscious and volitional elements, scientific prediction and purposeful arrangement.” (Selected Writings, p.237-8)

“While in the pre-Soviet period one often met the assertion that socialism would result in the uncommon development of the legal superstructure, now, of course, none of the Marxists would agree with this. For us it is now indisputable that the growing significance of the conscious regulation of economic processes, and generally the development of a common collective will on the basis of historical materialism and the basic features of socialist society, are in no way equivalent to the expanding role of law. But on the contrary, they are accompanied by its withering away.

“In its most general formulation, the problem – economics and law, or, more broadly, economics and social regulatory influences – represents … an arena for struggle for the materialist understanding of history …

“The unsatisfactory nature of solutions based upon philosophical idealisms does not, of course, eliminate the problem. Its essence is expressed in the following. A series of spontaneous and entirely objective regularities in the economic order, finding their expression in economic categories, are given; on the other hand, on the basis of these economic regularities, more or less subjectivist factors develop in the form of the interference of organised class forces, pre-eminently the state as the most all-encompassing organisation of the ruling class. It may be asked, how must one conceive of the relationship between the elementary laws of economics and the forceful intervention of social organisation? Above all, it is indisputable that the economic and the non-economic should be regarded as a kind of unity. Social forces do not encroach upon the economic process, tangentially, or deus ex machina. The social, as Bukharin properly emphasized in his polemic with Tugan-Baranovsky, is the alter ego of the economic. It is absurd to regard, as does Böhm-Bawerk, the economic and the social as pure opposites. However, it is also wrong to limit oneself to emphasising the element of unity, thus transforming them into an identity. It is impossible to be complacent about the fact that the class struggle is already included in economic categories. The dialectical method requires the consideration of social and economic phenomena as the unity of opposites. Economics not only includes elements of class struggle, but also assumes them outside itself, as basic, as opposed, comprised of the same unity. Economics achieves its potential through the non-economic (‘politics is concentrated economics’); it not only determines its alter ego, but in its turn is also determined by it. Socio-political processes not only reflect completed changes in the economic base, but also anticipate future changes. Such is the significance of the proletarian revolution and the dictatorship of the proletariat.” (p.240-41)

“The abstract categories of political economy indicate only general and rather broad limits. The more concrete regularity is that of the class struggle.” (p.242)

“Pure economic laws turn out to be quite useless.” (p.242)

“Every economic theory worthy of the name must have its basis in some sociological conception… The colossal advantage of Marxism lies in the fact that its economic theory rests upon the solid foundation of historical materialism, constituting a single whole.” (p.244)

Pashukanis then proceeds to a consideration of the relationship of economic law and political action in the Soviet Union, in the course of which he denies that commodity relationships are the entire subject of political economy. He does not himself try to establish “the actual laws of the development of the economy of the transitional period”, but he pointedly observes that: “Unfortunately, both Bukharin and Preobrazhensky merely promised us a second, substantive part of their studies.” (p.252)

There were, in fact, no economic laws of the ‘transition period’. The New Economic Policy (NEP) was an unstable combination of social elements held in check by a massive apparatus of state. If it had been allowed to generate economic laws, those laws would have been subversive of the Bolshevik state. The state survived by thwarting the development of economic tendencies rather than by reflecting them.

Private landownership was by far the most extensive form of economic property in Russia in the 20s, constituting an even greater proportion of the economy there than in Southern Ireland. The state survived and kept alive its revolutionising potential by disorganising the major property form. Its disorganising activities included suppression of information, economic manipulation, some positive cultural influence, extensive activity by the terrorist police, and a couple of internal wars. And, despite all of this, the state would not have survived if the Russian peasants were not socially very backward by comparison with the Irish farmers.

However, the reason why Bukharin and Preobrazhensky did not produce their promised second volume, establishing the economic laws of the transition period, was not that they came to realise that there were no laws of the transition period, and that everything depended on the ability of the state to abort the development of economic laws while it prepared itself for a great revolutionary effort against the society. Even though they were active participants in the dictatorship, and Bukharin was its leader during the four years leading up to the crisis of 1929 their minds were incapable of reflecting their activities. They were inveterate formulators of laws. They could not be at ease without a scheme of economic determinism. Economic laws were a spiritual necessity to them. Their minds could only function over a substratum of economic determinist belief. Thus, while Bukharin was dictator of all the Russias, and made jokes about the two-party system in which one of the parties had to be jailed, he formulated ridiculous schemes for the transition of NEP Russia into socialist Russia on the basis of economic laws. And he disputed with Preobrazhensky over the latter’s formulation of what was merely a variant of the same ridiculous position: the “law of primitive socialist accumulation.”

Pashukanis was a theorist of a different calibre. He had the aptitude (uniquely among the theorists of Bolshevism, so far as I know) of making well-considered accommodations with political and social reality. Despite his brilliant theoretical beginning, he was, to use an Althusserian phrase, in complicity with empirical reality. And it was that complicity which made possible statements like the following:

“If the study of economic regularities is reduced exclusively to the abstract analysis of the categories of value, then the very succession of economic forms will be entirely incomprehensible to us. At the same time Marx’s economic theory will be deprived of all its dynamism …”

(Althusser is the horrible example of this. His ‘rigorously’ constructed theory resulted in an idea of modes of production which could not conceivably succeed one another in actual time, and which had therefore to be designated as eternal. Economic change was declared to occur in a time warp, called “diachronic time”. Diachronic time lies beyond experience, and its existence can be known only through faith in the Althusserian revelation.)

“Rosa Luxemburg attempted to construct an economic theory of imperialism on the basis of an analysis of abstract schemes of reproduction, and she suffered complete failure. On the contrary, Lenin’s ‘description’ revealed the essence of the growth of pre-monopoly capitalism into monopoly capitalism.” (p.250)

Monopoly capitalism is not the best example that could have been chosen, but Lenin’s distinctive quality as a Marxist theorist certainly lay in his ability to describe reality through direct observation of it, and without confining his observation of it within the frame of reference of whatever systematic theory had been previously established. And it is remarkable that the author of Law And Marxism should, five years after publishing that brilliant piece of systematic theory, have been able to contrast description favourably against systematic theory.

Pashukanis undertook a major self-criticism following the remoulding of society in 1929-30. “We now find ourselves … at a stage when we are extending our assault upon the capitalist elements along the entire front … Against this background of upheaval – planned on a magnificent scale – we must pose afresh a whole series of problems”, he said in The Soviet State And The Revolution In Law: The Situation On The Legal Theory Front (a speech in a 1930 debate at the 1st Congress of Marxist Theorists Of The State. This will be found in the collection, Soviet Legal Philosophy, edited by J.N. Hazard, Harvard University Press, 1951).

Pashukanis acknowledged an “infiltration of the Bukharinist conception into our theoretical works” (p.243) and cast it out:

“The essence of the matter is that the transition period – when the dictatorship of the proletariat is carrying the revolutionary transition from capitalism to communism into effect – cannot be regarded as a special and final socio-economic conception, and it is therefore impossible to create for it a special and final system of law …

“We have no final system of production relationships at the present time, for the reason that we are changing them every day and every hour …

“To create a system of proletarian law which is as final as were the systems of bourgeois law … is to turn one’s back on economics.” (p.271-2)

“This aspiration … to palm off a special and final system of law upon us is an attempt to deprive us in our political work of that which is more necessary to us than anything else – political elasticity.” (p.278)

“The relationship of law to policy and to economics is utterly different among us from what it is in bourgeois society … We require that our legislation possess maximum elasticity. We cannot fetter ourselves with any sort of system, because every day we are demolishing the structure of production relationships and replacing them with new production relationships: we are doing this through the medium of the state – which the bourgeois state does not do. The bourgeois state is oriented in form. All the activity of the proletarian state is oriented in the attainment of results according to the essence of the matter … We have a system of proletarian policy, but we have no need of any sort of juridic system of proletarian law.” (p.279)

“We have a system of proletarian policy and upon it law should be oriented … We are against law being moved into the background and absorbing policy. We are in favour of policy occupying the first place in law, of policy being sufficient above the law (sic) because it leads forward.” (p.280)

“During the reconstruction period the one-sided and narrow character of the soviet jurist must be overcome … (Stuchka here interposed to ask: what of revolutionary legality?) Answering Stuchka, I may say that for us revolutionary legality is a problem which is 99 per cent political. We shall not now solve it otherwise than by being oriented in policy. This does not mean that we should wave aside the work of creating principles and codes – we should perform this work, because if we turn aside from it, it will be taken in hand by the old jurists, and they will smuggle in their reactionary ideas; but we must not put in the place of the movement forward … any system that has been frozen into immobility, even though it be dubbed proletarian law.” (p.280)

Two years later, in The Marxist Theory Of State And Law, (Selected Writings), Pashukanis explained revolutionary legality thus:

“The denial of formal legal logic … does not mean a denial of revolutionary legality, does not mean that judicial cases … must be decided chaotically in the Soviet state, unsystematically, on the basis of random whims of individuals, or on the basis of local influences. The struggle for revolutionary legality is a struggle on two fronts: against legal formalism and the transfer to Soviet soil of bourgeois chicanery, and against those who do not understand the organisational significance of Soviet decrees as one of the methods of the uniform conduct of the policy of the dictatorship of the proletariat.” (p.290)

Soviet law is “a special form of policy followed by the proletariat and the proletarian state.” (p.293)

This reduction of law to policy is strongly asserted in A Course On Soviet Economic Law (1935):

“Soviet law is a form of the policy of the proletarian dictatorship … Revolutionary legality signifies uniformity in the application of the policy of the Party and government, and undeviating observance of the decrees and prescriptions of the agencies of the proletarian dictatorship in the entire country … Revolutionary legality depends on exact and clear instructions from the central agencies.” (Selected Writings, p.313)

“It would be incorrect to think that revolutionary legality is characteristic only of certain stages of development of the proletarian dictatorship … or … is peculiar only to the period of the toleration and limitation of capitalist elements. This is the doctrine of bourgeois jurist restorationists, the choir of capitalist restoration. For them revolutionary legality was a synonym for the policy of tolerating capitalist elements.” (p.314-5)

That last statement is not seriously disputable, though it may superficially be regarded as a theoreticist extravagance.

Revolutionary legality is, in fact, a self-contradictory term, if it is not used with the meaning of legality established by the revolution. If the law itself is in process of revolutionary change, then it is not law. One may, perhaps, in that sense, speak of revolutionary justice, but the term revolutionary law is just mind boggling.

Revolutionary justice is generally understood to mean an arbitrary, and in great degree whimsical, dispensation and enforcement of judgements by sections of the populace in times of social turmoil. It tends to be moody and temperamental in its operation. It would therefore be an inappropriate name for a court system functioning as a direct instrument of state policy.

Legality requires laws. Laws must exist before they can be broken. And evidence that they have been broken must precede conviction.

Revolutionary law either is not revolutionary or it is not law. In Pashukanis’s usage it is not law: it is Party policy being implemented through a pliable judicial facade. But in the usage of his opponents it was law, and was therefore bourgeois in tendency.

Leaving aside the question of whether law in itself is bourgeois, the composition of Russian society was certainly not socialist. The constant and ubiquitous activity of the state in society was a necessary condition of socialist development in Russian society. If a system of laws, properly so called, had been established in place of Party policy masquerading as law, the society would have followed its own bent in a bourgeois direction.

And now we come to Pashukanis’s final work: State And Law Under Socialism (1936).

“Now, when “the liquidation of classes has been completed in our country”, practical politics raised “the problem of the Soviet state as a political superstructure of the classless socialist society”, and Pashukanis has to make a basic reassessment of his brilliant vision of 1924.”

The continuation of law, even though as a mere facade on Party policy, could no longer be reconciled with that vision. Policy masquerading as law was reconcilable with the vision during the transition period, but it ceased to be so when the transition period ended and the society settled down into socialist grooves. Now, if ever, law would wither away. And if it were now preserved as part of the constitutional structure of society, the implication would be that law, even though initially a facade on party policy, would fill out over time as the society grew into its new forms; and that the “category of the subject“, with the individualistic “bourgeois chicanery” which results from it, would flourish under socialism.

“Pashukanis begins by quoting Stalin’s speech of January 1933 ridiculing the idea that, following the basic construction of a socialist society, “the further development and consolidation of the socialist system can come about by allowing nature to take its course, or that the elimination of classes means that there is no need for either the dictatorship of the proletariat or for the state.”

That was an accurate empirical observation. Stalin was the great empirical politician of the Bolshevik revolution. He absorbed Leninism into his commonsense with the effect that it heightened his empirical faculties. And it would have been a poor look-out for Bolshevism if he had not done so, since the others in the Bolshevik leadership were so painfully and cumbersomely preoccupied in thinking about Leninism that whatever native empirical faculties they had possessed were made inoperative. If Stalin hadn’t happened to be in the leading group of the hierarchy established by Lenin, the Bolshevik revolution would probably have declined into a seedy, pretentious dictatorship waiting to be overthrown by either its own peasants or the Germans.

Lenin himself was a unique combination of empiricist and systematising theorist. At critical junctures the empiricist always broke free of the systematic theorist. If it had not done so, the October Revolution might have occurred but it would probably not have given rise to the Bolshevik state. And Lenin the theorist would probably have remained unknown to all but a few specialist historians if it had not been for the achievements of Lenin the empiricist. He was not a brilliant theorist. The brilliant theorists of his generation were Kautsky, Luxemburg and Bukharin. At his best he was a clumsy theorist, always being saved from brilliance by an aptitude which cannot be theorised. He was in complicity with reality. Despite his flirtations with systematic theory he never ceased to probe the real world for possibilities of action, and he was never inhibited from action by theory.

Systematic theory may be a guide to action in physics, but it is certainly not so in politics. It can be said with certainty of any systematic theory of politics or society that it is false. Only repeating systems can be adequately theorised. But human history is not a repeating system: it is more in the nature of an adventure into unknown territory. And that territory must remain unknown until it is occupied because it does not exist until it is occupied. It is largely what humanity makes of itself as it goes along.

It is therefore not at all surprising that Lenin’s immediate entourage proved to be politically incompetent after his death. What they got from him was the illusion that they were in possession of a science of politics, and that illusion was an impenetrable barrier between themselves (who were the state) and the social environment in which they had to survive. What is surprising is that one amongst them had developed as a revolutionary politician despite being in Lenin’s entourage.

Stalin was a very economical theorist. He did not prevent himself from seeing what had to be done by putting on theoretical spectacles before looking. He expressed himself theoretically after he had seen what had to be done. And in the mid-thirties he knew, as an empirical fact, that, despite the rearrangement of society in a socialist form, a spontaneous development of socialism would not take over if the dictatorship were dismantled.

But Pashukanis was a theorist above all else, and in 1936 he set about theorising this state of affairs.

Twenty years ago I was puzzling over the idea of the withering away of the state, trying to envisage the social conditions in which it might occur, and the kind of society which might exist without a state. In a transition from the Irish Republic to England I had experienced the change from a somewhat rudimentary state to a highly developed state as a liberation, and I was far from eager to move society back to a stateless condition.

It was only in the anti-revisionist movement, precipitated by the Sino-Soviet split, that I found people who were prepared to discuss the matter with any sort of realism. An old Cominternist in that movement put to me a view which had obviously been developed esoterically in Comintern circles in the late 30s and 40s: that what was called a withering away of the state was more a case of society withering away and being absorbed into the state. While I was not sure that this did not amount to the same thing in the end, it was certainly a more realistic view of the process: and it was less obnoxious since, for practical purposes, its final accomplishment lay at infinity.

The state might conceivably be dismantled in the near future: but society could only disappear into the state through a long and complex development. So, as an incorrigible Kantian Marxist, I let the matter rest there. Neither the state nor society was in immediate danger of disappearing. For many lifetimes to come they would constitute an antinomy – that elegant form of contradiction devised by Kant, which does not resolve itself, and therefore appeals to temperaments which are not eager for the end of history.

Pashukanis’s 1936 article is the only published statement I have come across of the view that the state will wither away by absorbing society.

He begins by criticising Bukharin’s scheme for the withering away of the state, set out in The Economics Of The Transition Period, according to which the process would begin with the armed forces, continue with the police, and end with the coercive nature of labour. He observes that Lenin reversed this sequence (Lenin made a note to this effect on the second last paragraph of Bukharin’s book. It is included in the 1971 translation). And he concludes that the withering away “can begin no sooner than the disappearance of the coercive nature of labour.” (p.351)

This means that the state (that is, the totalitarian Bolshevik state, not the representative state of democratic societies), must be fully maintained until labour becomes habitual. Labour will become habitual as a result of direction by the state. But how can it be known, while the state remains in being, that labour has become habitual? Obviously it cannot be known. And there are strong prima facie grounds for supposing that labour behaviour produced by the influence of a powerful state would never become habitual, in the sense of continuing if the state were dismantled. It will be habitual only in the sense of becoming routine in the conditions under which it developed: and chief amongst those conditions is the totalitarian state.

Pashukanis does not reason the matter out as clearly as this, but he comes surprisingly close to doing so:

“Even in our milieu the theory existed that the actual process of withering away had begun with the October Revolution and that, therefore, it should be proceeding at full speed during the period when classes were being abolished … But this was a false and opportunist theory. It was false because it did not take account of the fundamental economic premise without which there cannot even be any discussion of the superfluousness of the state.

“Confusion on the question of the withering away of the proletarian state began with the fact that this question was itself conflated with the question of the nature of the proletarian state as a semi-state – as a state which, in contradistinction to exploitative states, does not strive to be eternal but which, on the contrary, prepares the conditions and premises for the actual destruction of the state.” (Selected Writings, p.352. This is an ideological preliminary. What follows is a manifestation of the striving of the Bolshevik state, above all others, for eternity.)

“The creation of the conditions for the future stateless organisation does not represent a process of reducing state power, but a process of consolidating it. This is especially done by bringing larger and larger masses of working people into the administration of the state.’ (p.352)

“There is contradiction and antagonism between the bourgeois state and society. We do not have this antagonism. Our state includes mass workers’ organisations, and the activity of the state apparatus is simultaneously social activity.” (p.353)

“Despite the basic construction of classless society, it must be understood that the class struggle continues. Further work is essential both for the socialisation and re-education of the working masses and for the suppression of recalcitrant and hostile elements. These latter continue to oppose socialism, continue to offer resistance and to act deceptively. The state apparatus … is crucial to combating the enemies of socialism.” (p.354)

“Socialism is a system based on the social character of the means of production. Distribution is according to the quantity and quality of labour. This means that we must have a national supervisory and accounting organisation to oversee labour and consumption patterns. For this legal norms – and an apparatus of coercion, without which law is nothing – are necessary.

“Socialist society is organised as a statist society. The socialist state and socialist law will be fully preserved until the highest phase of communism. Only at this phase will people begin to work without overseers and legal norms.” (p.354)

(One is here put in mind of Kant’s antinomy of duty and desire. Humanity, according to Kant, was moved by two conflicting impulses, duty and desire. Duty could not be fully desired, nor could desire become wholly dutiful, until the two merged at infinity. But infinity is infinitely distant, so in practice a compromise between the two must always be worked out in which neither impulse is suppressed.

The “highest phase of communism“, in Pashukanis’s argument, is a sort of caricature of infinity. And contradiction is a debased antinomy. In place of an interaction of duty and desire, there is a suppression of desire by the state, as the dutiful agent of infinity, and an empty, pious, declaration that when infinity arrives everything will be relinquished to the impulse of desire.)

Pashukanis then proceeds to his final self-criticism:

“In this context it is appropriate to offer once again deserved criticism of those erroneous positions put forward by the author of The General Theory Of Law And Marxism …

“Since distribution according to labour bears some similarity to the equivalent exchange of commodities, thus Marx and Lenin argued that bourgeois law will only be fully abolished under socialism with respect to the ownership of the means of production. But in the area of distribution, law is effectively ‘bourgeois law’ because it represents the application of an equal scale to factually unequal individuals …

“This principle of reward according to labour is a socialist principle. It is applied in a society in which each person can give nothing but his labour … This ‘bourgeois’ law, therefore, does not and cannot have anything in common with the class interests of the bourgeoisie … The condescending attitude that this law is ‘bourgeois’ benefits only the anarchic theories of the ‘left wing’ and the champions of bourgeois equality.

“While Marx referred to this necessity of distribution according to labour as a ‘shortcoming’ of socialism, it is nevertheless obvious that this expression is a relative one. The discussion refers to shortcomings in comparison with the higher phase of communism: and only this.

“However, this question was totally misrepresented in The General Theory Of Law And Marxism. Law, state and morality were simply declared to be bourgeois forms which cannot be filled with socialist content and which must wither away in proportion to the realisation of such content. This grossly mistaken position, foreign to Marxism-Leninism, distorts the meaning of the proletarian state …

“The real and concrete history of Soviet law as a weapon of proletarian policy … was replaced by abstract and mistaken conclusions about the withering away of law.” (p.354-6)

“The great Socialist October Revolution … instituted a new socialist system of law. The main thing in the Soviet concept of law is its socialist essence as the law of the proletarian state. After the victory of socialism and the liquidation of the pluralist structure of the economy, law did not begin to wither away. Rather, this was the period when the content of Soviet law … mirrored uniform socialist relationships of production…

“These mistaken theories were harshly criticised at the First Congress Of Marxist Theorists Of The State … Also mistaken were Comrade Stuchka’s attempts to base the system of Soviet law on the principle of equivalence – equivalence in the sense of compensation according to labour, and equivalence in the sense of the guarantee that no property (including kulak property) would be expropriated without compensation. Such a ‘system’ would be an effective impediment and obstacle for the development of socialist progress.

“We struggled against these distortions … We also insisted that Soviet law must enjoy the maximum mobility and flexibility during the period of full-scale socialist offensive. But in itself this criticism was not sufficient because we failed to show clearly the conclusions that could be derived from the tremendous economic advances and those class relationships which have characterised the full scale socialist offensive. But this obligation was all the more pressing for us because earlier we held the confused view concerning the withering away of all law under socialism.

“We have now come to the period when Soviet socialist law formalises – within the state of victorious socialism and on the basis of socialist property – the domination of uniform socialist relations of production …

“The task before us is to express in Soviet law – in an appropriate, integral and completed code – these new and uniform relationships …

“The development and consolidation of public socialist property (in its state and collective farm/co-operative forms) assumes the consolidation of the personal property of working people. Socialism signifies the fullest protection of the rights of the individual…

“The question of the personal and property rights of the working people has been insufficiently developed by us.

“In our work on economic law – particularly in Vol. I of A Course On Soviet Economic Law – there was almost no room for the working person, for men, because everything was absorbed by the problem of the relationship between economic units. Questions of civil law were almost absent.

“This was wrong of course …

“Not long ago there was a scholarly conference of the fascist professors of law in Berlin. They decided that the concept of man should be excluded from civil law: this concept, they argued, was so broad that a foreigner, a non-Aryan, and ‘even’ a Jew might be encompassed by it. Against this racist gibberish … we propose the defence of the personal property of each member of socialist society.” (p.356-60)

Pashukanis thus concluded his theoretical career with a comprehensive capitulation to the ideology of Stalinist humanism, completely negating the systematic ahuman vision of Law And Marxism. Man is placed at the centre of a system of socialist law. Pashukanis became the legal ideologist of the 1937 Constitution before going down the chute. (It was Louis Althusser, a sort of reincarnation of Pashukanis – 1924 model – who revealed that “the Stalinian deviation” was a humanist aberration from Marxism.)

That the Soviet state did not in 1937 become, in practice, a Constitutional state with an operative system of law is neither here nor there. The Stalin Constitution was at best a signpost to a far distant future. While officially aligning itself with humanist ideology, the state continued to behave strictly as a Leninist state in which there were no private rights.

A state cannot produce free spirits at will, by official declaration. An official approval of the ideology of the category of the subject does not constitute the people into free subjects. And unless a substantial proportion of the people have the character of free spirits, and insist on living the illusion of freedom (to phrase it in accordance with the most “advanced” Marxism of our time), then a system of law must be a dead letter. That would be so even in a state which was less powerful and dictatorial than the Bolshevik state. It would have taken a body of very stubborn spirits indeed to subject Bolshevism to law.

Law does not produce free souls. Free souls produce law.

Solzhenitsyn, knowing that Soviet law was a sham, delighted in pretending that it was an operating system. But he could do that only because Khrushchev’s mistake in publishing A Day In The Life Of Ivan Denisovich had made him famous. It would have taken thousands of influential Soviet citizens as free-spirited and stubborn as Solzhenitsyn to transform the Soviet legal facade into a functioning system of law.

The law does not make the man. It is a product of freedom not its cause. Of course, in a well-established legal system even timid souls can find the courage to be free. But the system can only get established in the first place if many strong wills are prepared to oppose the arbitrariness of the state.

With the 1937 Constitution Stalin did as much to establish the freedom of the individual under the law as was practically possible for the dictatorial head of a totalitarian state. He disregarded the ideology of scientific socialism and wrote the ideology of freedom into the Constitution. He could have had any Constitution he wanted. And it would have been more in accordance with systematically theorised Leninism, and with the actuality of the Bolshevik state, if he had chosen a Constitution akin to that of Nazism, but with class taking the place of race.

And if Stalin had chosen to abolish “man” from the socialist Constitution, Pashukanis might have written a theoretical legal elaboration on that Constitution without completely overturning his brilliant system of 1924.

5. Stuchka

We will now take a look at some other Russian legal theorists, both Bolshevik and democratic.

P.I. Stuchka was active in the Latvian socialist movement from 1888 until 1897, when there was as yet no Russian socialist movement of any consequence. He was arrested in 1897, and after some years in exile transferred to St. Petersburg, where he was prominent in the 1917 Soviet. In March 1918, when the Socialist Revolutionaries, in protest against Lenin’s defeatist concessions to German imperialism, resigned from the Coalition Government which had been established the previous October, Stuchka became Commissar for Justice at the outset of the exclusive Bolshevik dictatorship. He also organised the Law section of the Communist Academy – later named the Academy of Sciences.

There does not appear to be a representative selection of Stuchka’s writings available in English. The 1951 Harvard collections Soviet Legal Philosophy, includes only one article by him: “The Revolutionary Part Played By Law And The State – A General Doctrine Of Law”, published in 1921, after the introduction of the New Economic Policy. It looks from this as if Stuchka prepared the ground for Pashukanis’s blinding insight of 1924, though he did not occupy that ground himself.

“What is law?” he asks. And he answers in the first instance that it is class law. There was feudal law, and bourgeois law, and a sort of peasant or petty bourgeois law. The French Revolution proclaimed the Rights of Man, but it merely established “a code of the bourgeoisie.” (p. 17)

This at first sight appears to be in conflict with Pashukanis’s view that law was the basic and distinctive ideology of bourgeois society. The following statement, however, implies that law is not simply class law: “if the bourgeois regards his civil law as innate … the feudal lord takes his oath that only his law – the law of brute force … is natural law.” (p. 17)

The idea of law as brute force is clearly different in kind from the idea of law as an innate attribute of humanity. The law of brute force is not legal.

But, to say that law is class law does not explain what law is, any more than saying that golf is a middle class sport explains what golf is. Stuchka sees this, and continues:

“The three classes” (i.e. feudal, bourgeois and peasant) “are consequently three kinds of sanctified natural law. But when, not so long ago, the German socialists were still enthusiastically singing ‘Forward, all who honour law and truth’, they were not … thinking of the first law or the second or the third – they were thinking of their own particular law. And finally when we overthrew the bourgeois social order in November 1917 we literally burned all the statutes of the world and recognised that all the rights of an earlier time were abrogated as a matter of principle, yet even after this we prate of law, of soviet law, of proletarian legal consciousness and the like.

“The question involuntarily arises: what is this concept ‘law’, actually and truly, which is so protean?…

“When we were confronted in the Collegium of the Peoples’ Commissariat of Justice… with the necessity of formulating our ‘soviet’ understanding of law, so to speak, we took our stand on the following formula: ‘Law is a system (or order) of social relationships which corresponds to the interests of the dominant class and is safe-guarded by the organised force of that class’ … I consider this formula perfectly applicable even now since it comprises the chief indicia incorporated in the concept of law of every sort in general … it renounces the purely formal view of law and sees in law a changing social phenomenon rather than an eternal category.” (p. 18-20)

“But we shall be asked if our definition corresponds with reality. Does it encompass the entire province of law as history and life conceive it? Of course, we cannot apply our law in a society which has no classes but we shall see … that there is no law in such a society and it is only the most undiscriminating application of contemporary terminology to antique society that creates ‘illusions’ such as this.” (p.25)

Stuchka’s definition of law may be a definition of something but it is certainly not a definition of law. Law may be a means by which a system of social relationships is safeguarded by the dominant class, but to say that it is that system itself fails to distinguish law from other means of social control, and more or less equates it with society. And, as if to demonstrate this point, Stuchka proceeds directly to a consideration of “Social Relationships and the Law” which leaves one wondering what difference there is between the two:

“No word is more frequently used than the word society, and there is no concept less definite and more hazy than the concept society …

“In the sphere related to our object the word society signifies either a more or less broad circle of human beings in their mutual relationships, or a certain congeries of mutual relationships themselves into which these human beings enter. But what sort of circle of human beings, and what kinds of mutual relationships of human beings, should be included as the object of the science concerned with society (sociology) provokes … a diversity of opinion among scholars.” (p.28-9)

Aristotle started from man as a member of society, but the bourgeois starts with Robinson Crusoe and talks of social contracts: “To the philosopher of ancient time, social relationships were as plain as though they lay in the palm of his hand, whereas bourgeois science starred from an infinite quantity of different fetishes.” (p.29)

“When he speaks of society as the relationships of production and exchange, Marx makes it clear that society is not the mere sum total of these relationships, but that over and above this sum total the process of production and exchange results in the existence of a certain overplus which is purely social. Thus man, as a part of society, is not simply an individual with social propensities – he is a social man … a man integrated in the process of labour’. If, accordingly, the word society can be found in Marx in another meaning as well – in the sense of an aggregate of person [sic. persons?] — this is only in the sense that human beings are in general the personification of production relationships …

“By the word society, Marx thus understands primarily the aggregate of production relationships, and then the aggregate of distributive relationships as well …

“The theory of Marx was not a mere theory in a book: it was a living theory. Personified by the proletarian masses, it was knocking at the doors of the bourgeoisie.” (p.30-31)

“‘Life is becoming complicated’ – such is the general characterisation of the age of capitalism. A life which is becoming complicated is bound to lead to bourgeois revolution – such was, for example, the quintessence of Marxism for the purely bourgeois idealists, such as Struve, who had gotten into the ranks of the first Marxists.” (p.40)

It was an “undoubted fact that this entire system of banks and other commercial institutions together with their juridic and political superstructure … actually form an excrescence over – and completely eclipse – the most natural and simple relationships.

“Into these relationships the October Revolution introduces great changes … In the place of the former artificial complication, the transition epoch introduces a natural simplification. But having its form of state: the Soviet order, the transition period possesses also its own characteristic social order as well as its soviet law.” (p.40)

But the existence of a vast peasantry necessitated a backward step: “We are in fact reintroducing – or, more accurately, legalising – the private exchange of goods, and at the same time we must – for a lengthy period in the future – reckon (not only in external relationships but in internal relationships as well) with a complication of life which is once more awaited.” (p.41)

Complication abounded under the NEP – but only in the undergrowth. The directing centre of the state did not allow its “natural” outlook to be obscured by the luxuriant “fetishism” which it tolerated during the twenties: and in 1929 all the ripe “fetishes” fell to the Bolshevik reaping-hook.

“If you open any text-book you like, any work on Soviet law, complete disillusionment generally overtakes you. The cover is Soviet but the inside gives off an ancient bourgeois smell.” (Quoted in E.H. Carr: Socialism In One Country, Vol 1, p.101, Penguin edn.).

It was the major achievement of Stuchka and Pashukanis that, as Party workers in the sphere of law, they discounted the conditional legality of 1921-8, prevented it from being “fetishised” ideologically, and kept the Bolshevik legal fraternity in a state of readiness for a grand reversion to lawlessness. Pashukanis did this with his clear vision of law as the basic ideology of capitalism, and Stuchka with a more eclectic position which was virtually identical with that of Pashukanis in the mid-twenties, but which was adaptable to later developments without essential revision because it lacked the internal coherence of Pashukanis’s view.

6. Fetishism and Nature

Marx used the term “fetishism” as a figure of speech when describing commodity relationships. Its extension to describe all the relationships of democratic society has become a substitute for thought – a fetish, one might say.

Fetishism, taken in its ordinary sense, is obviously a kind of simplification, and is conducive to routine. As a general characterisation of social behaviour, it is least applicable to the “complicated” life of “bourgeois” society (which in Leninist usage means democratic society), with its great variety of social relationships and its inbuilt process of change. The “natural simplification” of life projected by Stuchka and Pashukanis, and accomplished in the Soviet Union in the 30s, could only be a movement towards greater fetishism. The simple life, as a social phenomenon, is a very fetishistic life.

It is curious how the ideology of Leninism, which in other connexions is very dismissive of the French Enlightenment idea of human nature, places that idea at the heart of its own Utopia.

The Enlightenment philosophers, with the major exception of Rousseau, supposed that there was a human nature comparable to the natures of the various animal species, that men had been perverted from their natural behaviour by the influence of the aristocratic political system, and that a natural social harmony would result from the overthrow of aristocracy. The French Revolution demonstrated that there is no human nature in that sense.

Human nature in its social aspect (which is what this is all about) is culturally produced. The great cultural divisions of humanity show that “human nature” is made up – invented. A mode of life which is profoundly satisfying to people moulded by it will probably be found intolerable by people moulded by a different mode of life.

Now of all the modes of life in being, the one which is least characterised by fetishism is that which developed in Western Europe; and the mode of life which is most fetishistic is that which our Bolshevik theorists of law describe as natural and simple.

Seeing that, unlike cuckoos, we do not have a natural mode of life, we invent our modes of life and stabilise them by artificial devices. And the fetish is the substitute for nature which comes closest in its effect to the power of a natural mechanism. The most ancient societies, those which are most resistant to change, are the most fetishistic societies. The most simple and natural tribe is that which lives most in the shadow of things, and gets most profound spiritual satisfaction from things. And the great civilisations of Asia, which endured for millennia and have a superficial appearance of complexity, are conglomerations of simple units which are stabilised by fetishes, and fetishes also hold the conglomerate together.

The West European societies, in which millions of people form a common society through the medium of law, in which individuals are capable of forming an infinite variety of relationships, and in which society has been in a process of very rapid internal change for many centuries, are the reverse of fetishistic societies.

It has been assumed so far that the reader is familiar with Marx’s idea of the fetishism of commodities as stated in the first chapter of Capital. But that may not be a sound assumption. Marx’s terminology has been used to circulate a very different idea – “consumerism”.

Marx did not mean that capitalism led people to become too attached to consumer goods. He meant that, in the complex economic process of capitalism, relations between people in the physical process of production are lost sight of because of the monetary medium in which that process is conducted, and appear in mystified form as relations between economic abstractions.

A fetish, in its primary sense, is “a material object, whether natural or artificial … supposed to possess magical powers or to be endowed with energies capable of bringing to a successful issue the designs of the owner … The term was originally applied to the crude idols and talismans of West Africans, but is now applied to similar objects the world over” (Webster’s New International Dictionary). Its meaning was extended to describe a very strong attachment, in sexual relations, to a particular article of clothing, or a particular part of the body. This secondary meaning is in the spirit of the basic meaning, since the shoe or the foot produces in the fetishist something like the emotional charge of the talisman. But the connection with the basic meaning is greatly weakened in Marx’s usage of the term to describe social relations in a money economy. Marx, however, does refer his readers to the primary meaning:

“A definite social relation between men … assumes in their eyes the fantastic form of a relation between things. In order, therefore, to find an analogy, we must have recourse to the mist-enveloped regions of the religious world – that world in which the productions of the human brain appear as independent beings endowed with life, and entering into relations both with one another and the human race. So it is in the world of commodities with the product of men’s hands. This I call the Fetishism which attaches itself to the products of labour, so soon as they are produced as commodities.” (Capital, Vol 1, Chapter 1, Section 4)

“The life-process of society, which is based on the process of material production, does not strip off its mystical veil until it is treated as production by freely associated men, and is consciously regulated by them in accordance with a settled plan. This, however, demands for society a certain material ground work or set of conditions of existence which in their turn are the spontaneous product of a long and painful process of development.” (ibid.)

“The whole mystery of commodities, all the necromancy that surrounds the products of labour so long as they take the form of commodities, vanishes therefore as soon as we come to other forms of production.” (ibid.)

It is a regrettable fact of life that most Marxist theorists have been simpletons – immensely educated simpletons who construct complex sentences with obscure words, but simpletons nevertheless. And it is understandable that simpletons should take up this idea of commodity fetishism and, following hints dropped elsewhere by Marx, develop it into an idea of generally fetishised social relations in bourgeois society. They themselves are fetishists who get their emotional charge from shibboleths.

Marxist theory, having spun the idea of the general fetishism of bourgeois society out of Marx’s figure of speech, assumed that the ending of commodity economy would restore direct, unfetishised, relations between human beings.

But Marx borrowed the fetish analogy, with which he described economic relations in capitalism, from societies in which economic relations were not fetishised. “The whole mystery of commodities, all the magic and necromancy that surrounds the products of labour … vanishes as soon as we come to other forms of production.” But mystery, magic and necromancy, though vanished from those other forms of production, increase enormously when we come to those other societies.

“In order to find an analogy, we must have recourse to the mist-enveloped regions of the religious world” – regions, however, in which the form of production is entirely obvious and unmystified.

People in the simple economies and elaborately fetishised cultures from which the fetish analogy was taken lived lives in which production was “consciously regulated by them in accordance with a settled plan”. They knew what they were going to do every year, and, weather permitting, they did it. It is true that “mastery of nature” was not included in their economic plan, and it was therefore liable to be upset by the vagaries of nature. But they knew what they wanted to do economically and they usually did it – which is more than can so far be said of planning on the basis of mastery of nature.

Given the universal coincidence of natural economy and social fetishism in history, it is astonishing that no Marxist theorists wondered whether a return to natural economy would be accompanied by an intensification rather than a diminution of cultural fetishism and customary routine.

It is also remarkable that no Marxist writers found the fetish analogy, even when applied strictly to economic relationships, to be very weak in the light of Marx’s enlightening description of money as the universal equivalent, and the irresistible paint-stripper of aristocratic values which had been imprinted on society in ancient times. The universal equivalent is surely the greatest innovation of commodity economy, and it is the negation of fetish.

Class exploitation operated in some natural economies, and was made possible by cultural magic. And nothing so disables the exploited as magic. Class exploitation in commodity economy operated through the universal equivalent. The universal equivalent may be figuratively described as magic, but it operates as a stimulus to egalitarian aspirations rather than as a reinforcement of resignation to subordination. And since the culture of societies in which the universal equivalent had free reign as an economic solvent tended towards rationalist dissolution of all “magic and necromancy”, traditional hierarchy was doomed.

It seems, therefore, that a great deal of Marxist thought was motivated, not by a desire for even greater freedom of the individual than was developing in bourgeois-democratic society in the early twentieth century, but (despite the token use of libertarian language) by a profound yearning for a return to the security and comfort of routine and fetishistic society. This would account for its abhorrence of law.

A final word on the “fetishism of commodities”: perhaps it was fully applicable to early capitalism, but if so it was in decline by the 1860s when Capital was published. Adam Smith in the late 18th century and Ricardo in the early 19th went a long way towards making the capitalist production process intelligible. Ricardo did this work so well that “Ricardian socialism” made its appearance in the 1820s. Marx completed that work of analysis and dispelled the final remnants of fetishism. But the work was completed in Volumes 2 and 3 rather than in Volume 1 of Capital. And the spirit of Volume 3 is at variance with that of Volume 1.

Volume 1 is abstract and comparatively simple. It pictures the capitalist economic categories as mere devices of exploitation which might easily be got rid of once they are understood. Volume 3 is complex and concrete. It represents a functioning capitalist economy, and gives the economic categories a kind of justification which is absent from Volume 1. And the thoughts to which it tends to give rise are not those of “negation of negation”, but those of a reform of the system in the direction of an even greater complexity, so that the categories are preserved but are modified in their operation in order to be of benefit to the workers. There are a few references to fetishism in Volume 3 but they are intrusions.

Marx did not follow through the reformist possibilities which are implicit in Volume 3. He resisted temptation. But resistance of temptation is frequently a barren virtue. One can never know where temptation leads unless one has the ability to succumb to it. (The notion that it is easy to succumb to temptation is a fallacy.)

Marx defended his revolutionary virtue from the temptations of Volume 3 by going back to basics and preparing Volume 1 for publication. When he resumed work on Volume 3 he could not see his way to completing it. Engels was left with a mass of manuscript which breaks off after five paragraphs of what should have been the crucial chapter: Chapter LII, Classes. Boris Nicolaevsky who had possession of the manuscript in the 1930s, describes how Bukharin went to see it in Copenhagen in 1936, and turned over the pages hoping that Marx had written something on the backs which had been overlooked. (B.I. Nicolaevsky: Power And The Soviet Elite, 1966, p20). But, alas, having saved his ancient virtue by reverting from Volume 3 to Volume 1, Marx could not conceivably have completed Volume 3 in the spirit of Volume 1: and he could not bring himself to complete it in a different spirit. Hence the unfruitful industriousness of the theoretical activity of his later years.

Marxism was left with the simplicities of Volume 1, which were found to be most useful in societies where capitalism was in a rudimentary stage of development. The programme of comprehensive reformist development within advanced capitalism, which might have issued from Volume 3, was suppressed at conception, and was left to “bourgeois reformists” to develop piecemeal. And the entire sphere of law, which would have been the medium of development for a programme derived from Volume 3, was declared to be bourgeois.

7. Kant On History

The two great philosophers of freedom, and therefore of law, are John Locke and Immanuel Kant. But since Locke was a philosopher of political action, who used immediately comprehensible language, he is not suitable to be introduced amongst the kind of company we are in. We will therefore introduce Kant, whose highly developed common sense is masked by a dense obscurantism of expression. (The passages quoted are intelligible enough: but his reputation for obscurity, founded on The Critique Of Pure Reason, is such that nobody is likely to question his right to be here.)

Freedom, in Kant’s usage of the term, is in the first place freedom of the public use of reason. And “Reason in a creature is a faculty of widening the rules and purposes of the use of all its powers far beyond natural instinct; it acknowledges no limits to its projects.” (Idea For A Universal History From A Cosmopolitan Point Of View, 1784. All the translations used in this section are from the selection, Kant On History, Liberal Arts Library, USA, 1963.) Kant was an advocate of Enlightenment, but since he was influenced by the maverick Rousseau rather than by Voltaire and the Encyclopaedists, he did not hold the notion that there were laws of human nature and of society in much the same sense in which there were laws of nature:

“Whatever concept one may hold … concerning the freedom of the will, certainly its appearances, which are human actions, like every other natural event are determined by universal laws. However obscure their causes, history, which is concerned with narrating these appearances, permits us to hope that if we attend to the play of freedom of the human will in the large, we may be able to discern regular movements in it, and that what seems complex and chaotic in the single individual may be seen from the standpoint of the human race as a whole to be a steady and progressive though slow evolution of its original endowment … Individuals and even whole peoples think little on this. Each, according to his own inclination, follows his own purpose, often in opposition to others; yet each individual and people, as if following some guiding thread, go toward a natural but to each of them unknown goal; all work toward furthering it, even if they would set little store by it if they did know it.

“Since men in their endeavours behave, on the whole, not just instinctively, like the brutes, nor yet like rational citizens of the world according to some agreed-on plan, no history of man conceived according to a plan seems to be possible, as it might be possible to have such a history of bees or beavers … In the end, one does not know what to think of the human race, so conceited in its gifts. Since the philosopher cannot presuppose any individual purpose among men in their great drama, there is no other expedient for him except to try to see if he can discover a natural purpose in this idiotic course of things human. In keeping with this purpose it might be possible to have a history with a definite natural plan for creatures who have no plan of their own.

“We wish to see if we can succeed in finding a clue to such a history.” (p.11-12)

Kant set out his Idea of history in a set of nine theses:

“1st. All natural capacities of a creature are destined to evolve completely to their natural end …

“2nd. In man (as the only rational creature on earth) those natural capacities which are directed to the use of his reason are to be fully developed in the race, not in the individual …

“3rd. Nature has willed that man should, by himself, produce everything that goes beyond the mechanical ordering of his animal existence, and that he should partake of no other happiness or perfection than that which he himself, independently of instinct, has created by his own reason …

“4th. The means employed by Nature to bring about the development of all the capacities of men is their antagonism in society, so far as this is, in the end, the cause of lawful order among men …

“5th. The greatest problem for the human race, to the solution of which Nature drives man, is the achievement of a universal civic society which administers law among men …

“6th. This problem is the most difficult and the last to be solved by mankind …

“7th, The problem of establishing a perfect civic constitution is dependent upon the problem of a lawful external relation among states …

“8th. The history of mankind can be seen, in the large, as the realisation of Nature’s secret plan to bring forth a perfectly constituted state as the only condition in which the capacities of mankind can be fully developed …

“9th. A philosophical attempt to work out a universal history according to a natural plan directed to achieving the civic union of the human race must be regarded as possible and, indeed, as contributing to this end of Nature.” (p. 13-23)

Under the 4th Thesis, Kant comments:

“By ‘antagonism’ I mean the unsocial sociability of men, i.e. their propensity to enter into society, bound together with a mutual opposition which constantly threatens to break up the society. Man has an inclination to associate with others, because in society he feels himself to be more than man … But he also has a strong propensity to isolate himself from others, because he finds in himself at the same time the unsocial characteristic of wishing to have everything go according to his own wish. Thus he expects opposition on all sides because, in knowing himself, he knows that he, on his own part, is inclined to oppose others … Without those in themselves unamiable characteristics of unsociability, and the opposition from which springs characteristics each man must find in his own selfish pretensions – all talents would remain hidden, unborn in an Arcadian shepherd’s life, with all its concord, contentment, and mutual affection. Men, good-natured as the sheep they herd, would hardly reach a higher worth than their beasts; they would not fill the empty place in creation by achieving their end, which is rational nature.

“Thanks be to Nature, then, for the incompatibility, for heartless competitive vanity, for the insatiable desire to possess and to rule! Without them, all the excellent natural capacities of humanity would forever sleep, undeveloped. Man wishes concord; but Nature knows better what is good for the race; she wills discord. He wishes to live comfortably and pleasantly; Nature wills that he should be plunged from sloth and passive contentment into labour and trouble, in order that he may find means of extricating himself from them.” (p. 15-16)

Under Thesis 5: “All culture, art which adorns mankind, and the finest social order are fruits of unsociableness, which forces itself to discipline itself, and so, by a contrived art, to develop the natural seeds to perfection.” (p. 17)

Thesis 6: “Man is an animal which, if it lives among others of its kind, requires a master. For he certainly abuses his freedom with respect to other men … But whence does he get this master? Only from the human race. But then the master is himself an animal, and needs a master. Let him begin it as he will, it is not to be seen how he can procure a magistracy which can maintain public justice and which is itself just, whether it be a single person or a group of several elected persons… For each of them will always abuse his freedom if he has none above him to exercise force in accord with the laws … This task is therefore the hardest of all; indeed, its complete solution is impossible, for from such crooked wood as man is made of, nothing perfectly straight can be built …

“The role of man is very artificial. How it may be with the dwellers on other planets … we do not know. If, however, we carry out well the mandate given us by Nature, we can perhaps flatter ourselves that we may claim among our neighbours in the cosmos no mean rank. Maybe among them each individual can perfectly attain his destiny in his own life. Among us, it is different; only the race can hope to attain it.” (p. 17-13)

9th Thesis: “It is strange and apparently silly to wish to write a history in accordance with an Idea of how the course of the world must be if it is to lead to certain rational ends. It seems that with such an idea only a romance could be written. Nevertheless, if one may assume that Nature, even in the play of human freedom, works not without plan or purpose, this Idea could still be of use. Even if we are too blind to see the secret mechanism of its workings, this Idea may still serve as a guiding thread for presenting as a system, at least in broad outlines, what would otherwise be a planless conglomeration of human actions.” (p.24)

In Conjectural Beginnings Of Human History (1786), Kant reflected on the beginning of human freedom, and its record in ancient myths:

“Reason has this peculiarity that, aided by the imagination, it can create artificial desires which are not only unsupported by natural instinct but actually contrary to it … The original occasion for deserting natural instinct may have been trifling … Until that moment instinct had directed him towards specific objects of desire. But from these there now opened up an infinity of such objects, and he did not yet know how to choose between them. On the other hand, it was impossible for him to return to the state of servitude (i.e. subjection to instinct) from the state of freedom, once he had tasted the latter …

“In the case of animals, sexual attraction is merely a matter of transient, mostly periodic impulse. But man soon discovered that for him this attraction can be prolonged and even increased by means of imagination – a power which carries on its business, to be sure, the more moderately, but at once also the more constantly and uniformly, the more its object is removed from the sense. By means of imagination, he discovered, the surfeit was avoided which goes with the satisfaction of mere animal desire. The fig-leaf, then, was a far greater manifestation of reason than that shown in the earlier stage of development.” (p56-7)

“Man’s departure from paradise, which his reason represents as the first abode of his species, was nothing but the transition from an uncultured, merely animal condition to the state of humanity, from bondage to instinct to rational control – in a word, from the tutelage of nature to the state of freedom …

“The history of nature therefore begins with good, for it is the work of God, while the history of freedom begins with wickedness, for it is the work of man.” (p59-60)

“A thoughtful person is acquainted with a kind of distress which threatens his moral fibre … discontent with Providence which governs the course of this world …

“Undoubtedly war is the greatest source of evils which oppress civilised nations; not so much actual war, but rather the never-ceasing and indeed ever-increasing preparation for a future war. All the resources of the state are used to this end, as well as all the fruits of its culture, which might instead be used for the creation of a still greater culture. In many places freedom is curtailed because of war … All this must be admitted … And yet, were it not for this perpetual fear of war, would there be the culture which in fact exists? Would there be a close coalition between social classes, brought about for mutual economic benefit? Would there be such large populations? Would there even be such freedom as does, after all, remain, albeit under laws which greatly restrict it? For it is surely the fear of war which extorts from the heads of state at least this much respect for humanity. One need but think of China which, because of its geographical situation, has to fear at most the odd, unforeseen small attack, but no powerful enemy; and where for that reason every trace of freedom is extinct.

“In the present state of human culture, then, war is an indispensable means to the still further development of human culture. Only in a state of perfect culture would perpetual peace be of benefit to us, and only then would it be possible. But God alone knows when this will be achieved … And Holy Writ is quite right in regarding the fusion of peoples into one society – and their complete liberation from external dangers at a time when their culture had hardly begun, as an impediment to all further cultural progress, and a plunge into incurable corruption.” (p.66-7)

Finally, as a finishing touch to the scene for the Kantian conception of law, here is an extract from An Old Question Raised Again: Is The Human Race Progressing? (1793):

“I. What Do We Want To Know In This Matter … If it is asked whether the human race at large is progressing perpetually toward the better, the important thing is not the natural history of man … but rather his moral history and, more precisely, his history not as a species according to the generic notion (singulorum), but as the totality of men united socially on earth and apportioned into peoples (universorum).

“2. How Can We Know It? As a divinatory historical narrative of things imminent in future time, consequently as a possible representation a priori of events which are supposed to happen then. But how is history a priori possible? Answer: if the diviner himself creates and contrives the events which he announces in advance.

“It was all very well for the Jewish prophets to prophesy that sooner or later not simply decadence but complete dissolution awaited their state, for they themselves were the authors of this fate. As national leaders they had loaded their constitution with so much ecclesiastical freight, and civil freight tied to it, that their state became utterly unfit to subsist together with neighbouring nations. Hence the jeremiads of their priests were naturally bound to be lost upon the winds, because the priests obstinately persisted in their design for an untenable constitution created by themselves; and thus they could infallibly foresee the issue.

“So far as their influence extends, our politicians do precisely the same thing and are just as lucky in their prophesies …

“4, The Problem Of Progress Is Not To Be Resolved Directly Through Experience. Even if we felt that the human race … was to be conceived as progressing and proceeding forward for however long a time, still no one can guarantee that now … the epoch of its decline would not be liable to occur … For we are dealing with beings that act freely, to whom, it is true, what they ought to do may be dictated in advance, but of whom it may not be predicted what they will do …

“5. Yet The Prophetic History Of The Human Race Must Be Connected To Some Experience. There must be some experience in the human race which, as an event, points to the disposition and capacity of the human race to be the cause of its own advance toward the better, and (since this should be the act of a being endowed with freedom), towards the human race as being the author of this advance …

“6. Concerning An Event Of Our Time Which Demonstrates This Moral Tendency Of The Human Race. This event consists neither in momentous deeds nor crimes committed by men whereby what was great among men is made small or what was small is made great, nor in ancient splendid political structures which vanish as if by magic while others come forth in their place as if from the depths of the earth. No, nothing of the sort. It is simply the mode of thinking of the spectators which reveals itself publicly in this game of great revolutions, and manifests such a universal yet disinterested sympathy for the players on one side against those on the other, even at the risk that this partiality could become very disadvantageous for them if discovered. Owing to its universality, this mode of thinking demonstrates a character of the human race at large and all at once; owing to its disinterestedness, a moral character of humanity, at least in its predisposition, a character which not only permits people to hope for progress toward the better, but is already itself progress insofar as its capacity is sufficient for the present.

“The revolution of a gifted people which we have seen unfolding in our day may succeed or miscarry; it may be filled with misery and atrocities to the point that a sensible man, were he boldly to hope to execute it successfully the second time, would never resolve to make the experiment at such cost – this revolution, I say, nonetheless finds in the hearts of all spectators (who are not engaged in the game themselves) a wishful participation that borders closely on enthusiasm, the very expression of which is fraught with danger; this sympathy, therefore, can have no other cause than a moral predisposition in the human race.” (p. 137-143)

(The revolution in question is, of course, the French Revolution. This article was written after the atmosphere of universal harmony which prevailed in the early years had been dispelled, after the Reign of Terror and the consequent Thermidorian reaction had run their course, and when Napoleon was establishing his dictatorship.)

8. Modern Tragedy

Goethe once said something like this: the tragedy is that men usually achieve their heart’s desire. And James Connolly said that the only true prophets were those who carved out the future which they announced. There is undoubtedly a great deal of truth in these Kantian epigrams.

The moral is that one should give no less thought to one’s heart’s desire than to the economic means of life. It is not simple to be human: and to be idealistically human is perhaps the most difficult thing of all. Far-away hills are green, and distant ideals tend to take on a deceptive hue. That would not matter much if one could be certain of not realising one’s ideals. But in these changing times one cannot be certain of that.

Nikolai Chernyshevsky published in 1864 a revolutionary novel entitled What Is To Be Done? which set out in the most attractive colours an icy, inhuman vision of the future society, which was very influential on the next generation of revolutionaries. (Lenin took the title for the founding work of Bolshevism.) Dostoevsky, who had been a revolutionary in 1848 and had spent many years in prison and in Siberian exile, saw the inhuman features behind the rouge and mascara, recoiled from the revolutionary movement, and produced, in apparently reactionary form, the humanist novels which made him a major force in world culture.

In 1916 one might still have said that Dostoevsky had recoiled from a phantom. Lenin was in Zurich with a handful of followers, and was considering retirement from politics and emigration to America. Nothing seemed less likely than that Russia should fall into the grip of Chernyshevskian socialism. But it did so very suddenly in 1917: and Lenin’s heart’s desire began determining the development of Russia.

It was certainly Lenin’s tragedy that he achieved his heart’s desire. In 1923 he was removed from political activity by paralysis, but remained in possession of his senses. He was suddenly able to see what he had done, having stopped doing it. He made a few weak suggestions for altering the mode of development which he had instituted. But he had done his work too well for it to be affected by the half-baked proposals which he made. Rumours filtered through that he spent his last weeks baying at the moon in torment.

(When Pashukanis realised in 1929 that “pure economic laws turn out to be quite useless”, and that the economy functions in a noneconomic medium, he laid the theoretical preconditions for a humanist, or Kantian Marxism. But theoretical preconditions do not necessarily produce the thing which they make possible, and Pashukanis was, by all accounts, ahuman by natural inclination.)

In Soviet Russia and Catholic Ireland metaphysics was applied to the government of society in the 20th century. Humanity was reduced to a kind of puppetry operated by a transcendental ideal. Both systems used a humanistic terminology, but it was a Platonic humanism and was an attribute of an ideal.

The aim of both was to seal up humanity in a fixed form, and bring an end to history. Both have failed. Liberal democracy, their common enemy, will have at least one more innings.

9. Kant On Law

Kant is the only metaphysical philosopher who had the human cunning to construct an ideal which did not turn out to be inhuman in application. He is therefore the philosopher of law. In The Metaphysical Elements Of Justice (1797) he gives a legal application of the categorical imperative:

“The categorical imperative, which in general only asserts what obligation is, is this: act according to the maxim that can at the same time be valid as a universal law. You must therefore first of all consider your actions according to their basic principle. But you can recognise whether this basic principle is also objectively valid only by this: that, when your reason puts this principle to the test of conceiving yourself as at the same time universally legislating by means of it, it qualifies for such a universal legislation.” (Library Of Liberal Arts edition, p.26)

“The agreement of an action with the law of duty is its legality; that of the maxim of the action with the law is its morality. A maxim is the subjective principle of action that the subject adopts as a rule for himself (namely, how he wants to act). On the other hand, the basic principle of duty is that which reason absolutely and therefore objectively commands (how he should act).” (p.27. That is to say, an action is legal, regardless of one’s feelings, if it does not break the law, but it is moral only if one’s private impulses are in harmony with the law.)

“Justice is the aggregate of those conditions under which the will of one person can be conjoined with the will of another in accordance with a universal law of freedom …

“If, therefore, my action or my condition in general can co-exist with the freedom of everyone in accordance with a universal law, then anyone who hinders me in performing the action or in maintaining the condition does me an injustice, inasmuch as this hindrance … cannot coexist with freedom in accordance with universal laws.

“It follows that I cannot be required to adopt as one of my maxims this principle of all maxims, that is, to make this principle a maxim of my action. For anyone can still be free, even though I am quite indifferent to his freedom or even though I might in my heart wish to infringe on his freedom, as long as I do not through an external action violate his freedom. That I adopt as a maxim the maxim of acting justly is a requirement that Ethics (rather than jurisprudence) imposes on me.

“Hence the universal law of justice is: act externally in such a way that the free use of your will is compatible with the freedom of everyone according to a universal law.” (p.34-5)

“Freedom (independence from the constraint of another’s will), insofar as it is compatible with the freedom of everyone else in accordance with a universal law, is the one sole and original right that belongs to every human being by virtue of his humanity.” (p.43-4)

10. Law in Russia

Russia was a society formed by the state. In that respect Bolshevism only carried on the Tsarist relationship of state and society. The Muscovite state began its career as an agent of the Mongol conquerors, and with the decline of Mongol power it expanded by use of Mongol methods, obliterating the civil societies which had developed in pre-Muscovite Russia. While Western Europe developed through a complex interplay of law and the state, and while Poland declined because it consisted of laws without a state, Russia built up its power as a state without laws. It is not surprising that the ideology of law did not develop in a state in which laws were merely imperial decrees, which might be changed by the whim of the Emperor, and which were administered under the direction of the Emperor.

Stuchka’s definition of law as “a system of social relationships which corresponds to the interests of the dominant class and is safeguarded by the organised force of that class” is a fair enough description of what law was under Tsarism, with the qualification that the dominant class under Tsarism did not control the state. While the Tsarist state maintained a sort of feudal social order, the aristocracy did not have the rights of their feudal counterparts in the West. The Russian aristocrat was only a high-class slave. The Tsar might dispose of his possessions or his life as arbitrarily as he might dispose of a serf. (Which suggests that the status of the aristocracy as a ruling class under the Tsarist state had much in common with the status of the proletariat as a ruling class under the Bolshevik state.)

When the Tsar emancipated the serfs in 1861, some gestures were made towards the introduction of a system of law with the legal code of 1864. It appears that it failed not merely because the state retained an arbitrary right of interference, but also because the ideology of law was not diffused in the society.

Dostoevsky makes the following comment on Russian juries in his Diary Of A Writer:

“They do not punish but keep acquitting wholesale … The sweeping character of this ‘tendency’ cannot be doubted. And the problem is that the acquittal mania … affects not only the peasants, the humiliated and insulted of yesterday; it has captured all Russian jurors without distinction … Not long ago in one of our very influential newspapers … the following conjecture was set forth: is it not conceivable that our jurors … having suddenly grasped their great power (as if it fell from the sky), especially after ages of humiliation and oppression, are inclined on every opportune occasion to vex the ‘authorities’ …

“‘Simply, it is a pity to ruin somebody else’s fate: they are human beings too. The Russian people are compassionate’ – Such is the opinion of others …

“However, I was always under the impression that in England, too, the people are compassionate … that they do have a realisation and vivid feeling of the Christian duty toward their neighbour – a feeling which, perhaps to a higher degree, to a firm and independent conviction, is one which may be more unflinching than ours, bearing in mind their culture and secular independence. For truly, over there, that much power did not fall on them ‘suddenly from the sky’. Besides, they themselves have invented jury trial without borrowing it from anyone; they themselves have sanctioned it through the ages, carving it out of life itself and not merely receiving it as a gift.

“And yet, over there a juror comprehends that the moment he ascends his bench in a courtroom, he is not only a sensitive man with a tender heart, but above all – a citizen. He thinks – whether rightly or erroneously – that compliance with civic duty is, perhaps, even more important than the performance of a wholehearted private exploit. Only recently there was a general rumbling throughout their kingdom when the jurors acquitted a notorious thief. The general commotion … proved the fact that if there, too, as in Russia, such verdicts are possible, they do occur only rarely, as exceptional cases which promptly arouse public opinion. Over there the juror, first of all, understands … that he ceases to be a private person, but that he must represent the opinion of his land …

“‘Even though it be presumed’ – I can hear a voice – ‘that … one has to be, above all, a citizen … think where shall we find citizens? Consider only what we had yesterday! Now, you know that civil rights (and what rights!) rolled down upon him as from a hill. They crushed him and, as yet, they are to him but a burden!’.” (Diary Of A Writer, 1873, No.2. The Diary was a newspaper column. English translation, 1949, p. 10-11)

Despite the weakness of both the practice and ideology of law in Russia, there was an excellent Kantian philosopher of law in the University of St. Petersburg (Leningrad) at the beginning of the twentieth century. But he was a Pole: Leon Petrazhitski. (And Petersburg was an untypical Russian city – it was built from scratch, because of a whim of Peter the Great that there should be a European city in Russia.)

Petrazhitski, needless to say, was not a Bolshevik. According to Stuchka, he “strove to create an unfounded theory of uncultured and commonplace individualism”, which “started from the ‘normal’ individual psychology of the free liberal Philistine” (Soviet Legal Philosophy, p32). The real difficulty with his philosophy, however, was not that it was ‘unfounded’, but that the ‘free liberal Philistine’ was anything but a ‘normal’ part of Russian society.

11. Reisner- A Kantian Bolshevik (failed)

Petrazhitski had at least one Bolshevik supporter: M.A. Reisner, who in 1908 published The Theory Of Petrazhitski: Marxism And Social Ideology. Reisner was Professor of Law in Petersburg University from 1907 to 1917, when he joined the Commissariat of Justice. He observed in 1908 that:

“Marxism, which possessed a surpassing interest in the dissociation of state and law, and whose primary task would seem to have been the creation of a new law in contrast to the official state statute, was prepared to chime in with the political scientists in confounding state and law as necessarily and unavoidably bound up with each other …

“The law is thus identified completely with the contemporary civil and criminal law, directed at preserving the capitalist order by constraint, and here there can be no longer be any talk of any right whatsoever of the popular masses which would exist outside the state (except possibly the ‘right to revolution’). With the disappearance of the class state and the capitalist form of production, the present ‘state’ law must disappear also … In the social order of the future there remains, as it were, no place for other law.

“Of course the ‘rightless’ ideal of those Marxists who acknowledge it, notwithstanding the true meaning and spirit of Marxist doctrine, entails extraordinary practical disadvantages. The claims of the proletariat, asserted as the basis of new social conditions, are thus bereft of all the vigour of legal demands and sink to the position of economic and political importunities. They lose all the force of an ideal robed in legal vestments, and all the authority of a categorical legal demand admitting no objections. They are positively weakened by reason of the unsteady ideology of economic expediency, even though it be founded on the inevitability of the social process. The very struggle of those who have been deluded … acquires the character of an actual scuffle, of an eternal trial of strength which is constantly peering backward and is unsure of the categorical power of its watchwords and claims, and not the menacing character of a ‘struggle of right”‘ (Soviet Legal Philosophy, p.72)

“In Petrazhitski’s theory we find an entire system of special ‘intuitive’ law which is precisely what lies at the foundation of most revolutions of every character. This intuitive law, operating so to speak ‘as an invisible factor behind the scenes’, possesses an individual and changing character. It is defined by the special conditions of the life of every man.” (p.82)

In 1925 Reisner published Law, Our Law, Foreign Law, General Law. He still professes support for Petrazhitski’s conception (and was able to do so because of the NEP), but he now envisages the withering away of law:

“If I may consider that I have rendered any service in the field of Marxist jurisprudence, it is specifically that I refashioned Petrazhitski’s doctrine concerning intuitive law in the sense that I put it upon a Marxist foundation, and thereby obtained not intuitive law in general (which could here and there furnish individual forms adapted to certain social conditions) but the most genuine class law which was worked out in the form of intuitive law (in the ranks of the oppressed and exploited mass) independently of any official framework whatsoever: and it is for this reason alone that we were able to utilise ‘the revolutionary legal consciousness of the proletariat’ as the foundation of the activity of our revolutionary justice, which at the beginning was without any positive norms whatsoever.” (Soviet Legal Philosophy, p.35-6)

“I considered that the revolutionary masses have their own class intuitive law which must lie at the foundation of its future dominance.” (p.89)

“Law and legal ideology are by no means a merely objective (we should say, a merely technical formulation of existing relationships. Then it would cease to be an ideology and become merely a scientific and technical expression of the given relationships without the slightest addition of any subjectivism, refraction or perversion of any character whatsoever. It must not be forgotten that law is an ‘ideological form’, and so always bears within itself the seed of a similar perversion and is capable (with the aid of the formal method of presentation) of being isolated from reckoning with reality. For it is only an adequate theory which is capable of expressing reality with precision …”

In communist society: “Law, manifestly, will there die out forever – side by side with a whole series of other forms of ideological things, corresponding to ‘ideal stimuli’ and conceptions. The formula which economically and in reality assures that which is unequal to each unequal person, and furthermore guarantees without any sort of contest and without any subjective importunity, as well as without the compromise which crowns the real correlationship of struggling forces with its ideology of contract – this formula will kill the law.” (p. 108-9)

Reisner in the end becomes identical with Pashukanis. We cannot trace his Odyssey from Kantian freedom to absolute fetishism as his writings between 1908 and 1925 are not available in English translation. But in 1908 he envisaged socialism as an enhanced system of legal rights, and in 1925 he envisaged communism as a system without law – a system of fetishism.

12. Fetishism and Unequal Distribution

Only a powerful fetishistic system is capable of ensuring unequal distribution amongst unequal persons “without any sort of contest and without any subjective importunity.” It has been assumed by many who used that formula that unequal distribution by consent would somehow emerge through the development of equality and freedom. The present writer was greatly puzzled by this notion from his first acquaintance with Marxist politics, and has quizzed many people about it without being made any the wiser. The formula seems to be used for the most part without any definite idea of the social conditions which make its implementation possible.

When, in the 1930s, Trotsky began to make Utopian criticisms of the state which he had helped to forge, he tried to imagine that formula operating in conditions of individual freedom and he came up with the notion of an economy which produced a superabundance of material goods. Given superabundance, there could be unequal distribution “without any sort of contest and without any subjective importunity”, and without the restoration of binding customary practices. Individuals would take from the cornucopia of the socialist economy everything that they wanted, and unequal distribution would be the result of unequal wants. Some individuals would be satiated sooner than others. Inequality resulting from unequal thresholds of satiation was the only legitimate inequality in socialism

Such was the theoretical standpoint from which Trotsky saw The Revolution Betrayed. It was a mere fantasy standpoint. No economy is capable of producing material superabundance for a society of free individuals: that is, for a society in which the wants of the individual are not made to approximate to the conservative wants of an animal species by the operation of strict custom and fetish.

A well-ordered tribal society, whose wants are stable, and which wishes to live in future generations exactly as it has lived in past generations, may be superabundantly supplied with goods, and there may be unequal distribution within its personal hierarchy without compromise or subjective importunity. But nobody who is capable of thinking these thoughts belongs to such a society. Our wants are unstable and infinite. We can easily master any possible superabundance and change it into a shortage. We are human in the Kantian sense. So, how could we ever agree on unequal distribution, without compromise or subjective importunity – or, indeed, without some kind of objective compulsion?

13. Virtue and Necessity

In socialist ideology prior to the Bolshevik revolution the form of human development inaugurated by the Reformation and the bourgeois revolutions, and described philosophically by Kant (a Protestant of the ‘Pietist’ variety, which was akin to Quakerism in stressing the internal character of religion), was taken for granted as the starting point of socialism. The function of socialism was seen as abolition of class-based injustices connected with capitalism, and interference with the market in such a way that liberal democracy would be enhanced.

The Bolshevik revolution was enacted under a very confused ideology. It included a libertarian strain, but it would not be true to say that that libertarianism gave way to totalitarianism under pressure of political necessity. “Necessity” is a greatly overused concept. If there was a ‘necessity’ about the growth of Bolshevik totalitarianism in 1918, that was not a direct consequence of the general political condition of Russia. A restriction of freedom under the pressure of circumstances is a very different thing from the development of totalitarian ideology.

Perhaps the best way of putting it is that ‘circumstances’ made possible the rapid rise to dominance of the totalitarian strain within Bolshevism; and that, from a very early stage in the process, that totalitarian strain was active in bringing about the circumstances which facilitated its development.

Lenin, Trotsky and Bukharin required very little ‘necessity’ to make them active totalitarians. And once the totalitarian state began to develop, socialism as the satisfaction of human wants was made conditional on a socialist reorganisation of human wants. Unreconstructed human wants were deemed to be corrupt and bourgeois. The relationship of economy and people as envisaged prior to 1917 was reversed. A planning of people was now seen as a precondition of the planning of the economy. Administration of people did not give way to administration of things, but was intensified as a precondition of the administration of things. Instead of economic development to meet human wants, the scheme was now to determine human wants in such a way that a modest economic development might meet them.

Socialism changed from being a vision of a great, democratic opening up of society to being a vision of the organised closing down of society into a stable routine – the end of history because it was the end of freedom. The state became the ideology of economic determinism, shaping the people to be the ‘bearers’ of the organised economy. According to the formula, “politics is the concentrated expression of economics”, the state determined both economy and culture.

The comprehensive and systematic theoretical break with the vision of socialism developing amidst democratic human variety was expressed in Bukharin’s Economics Of The Transition Period, published in 1920 and highly praised by Lenin. Bukharin did not so much make a virtue of the necessity of War Communism as make necessity of the virtue of War Communism.

(This assessment is, in fact, confirmed by Bukharin himself: “The proletariat needed democracy in the past because it was as yet unable to think about dictatorship in real terms … Democracy was valuable in so far as it helped the proletariat to climb a step higher in its consciousness, but the proletariat was forced to present its class demands in a ‘democratic’ form. It was forced to demand, not freedom of assembly for workers, but freedom of assembly in general (hence, freedom of assembly for the counter-revolution), freedom of the press in general (and hence for the Black-hundred press too) etc. But there is no need to make a virtue of necessity.” (“The Theory Of The Dictatorship Of The Proletariat”, 1919, translated in The Politics And Economics Of The Transition Period, London, 1979, p46-7)

The retreat from War Communism to NEP the following year was frankly represented by Lenin as retreat from virtue for the purpose of preparing the ground for a conclusive return to it.

The vision of a closed society, ordered in all its parts by the state – a scientific socialist society – became the necessary end of social development in Bolshevik ideology. And it was a politically effective teleology. The activity of the state actually was determined by the end which its ideology represented as being necessary.

I4. Science and Society

The mode of Bolshevik development was not an inherent necessity either of Russian circumstances or of Marxist ideology. It was a necessity only for the variant of Marxist ideology devised by Lenin, Bukharin and Trotsky.

The political philosophy of Marx and Engels is eclectic. It veers between liberal democracy and totalitarianism. A philosophy rigorously derived from the Preface to the Critique Of Political Economy would tend to be totalitarian, but Marx himself did not devise such a philosophy.

Though Kautsky opted decisively for political democracy, his systematic theoretical writing tended towards totalitarianism. This is particularly true of his Ethics And The Materialist Conception Of History.

A distinction can be made between a totalitarian scheme of understanding of the history of society and a totalitarian programme for society. But it is doubtful whether it is a useful distinction. What is the use of a kind of political understanding which is disconnected from political activity? In the case of Kautsky, “scientific” understanding made for bad politics.

“Scientific” and “totalitarian” are, in a particular sense, interchangeable terms. While the development of scientific understanding is only possible through freedom of inquiry and speculation, there is nothing free about the formulas which are the useful products of science. The scientific formula encompasses the totality of a particular process in nature. It comprehends that process in a way which leaves nothing to chance. If the process is unpredictable in terms of the formula, then the formula is unscientific.

Science is not a contemplative activity. If it were contemplative it would not have progressed much beyond simple astronomy. It progresses by making use of processes which it has grasped by formulas, and thereby coming to observe and understand other processes.

“Social science” strives for a totalitarian understanding of society; for an understanding of society as a closed natural process.

It is a simple matter to construct pseudo-scientific tautologies for academic use in “sociological” lecturing. But, assuming that sociology were a real instead of a pseudo-science, what would it do?

Lenin detested the term “sociology”, but he thought he had scientifically grasped the elements of society. And he would have it that he made use of his scientific understanding in political activity. (Politics would be the technology of social science, if social science actually were a science.)

If one acts out of a supposed scientific understanding of society, the tendency of one’s actions must be to make society correspond as far as possible to one’s scientific understanding of it: to reduce it to the natural process which one conceives it to be. Scientific socialism in the strict sense of the term, if it is not to be merely a rudimentary and contemplative totalitarian understanding, produces totalitarian politics

Laws as regulations and laws as formulas which grasp natural processes have a place in totalitarian socialism. Law as a medium for the development of individual freedom, enabling the individual to behave unpredictably, has no proper place in it. Freedom of the individual must be judged by the pseudo-science of society to be as unscientific, irrational, obscurantist, mystical and reprehensible as the notion of freedom in the elements in a chemical reaction or in the pillars which are the “bearers” of a bridge. Freedom of the individual involves what Pashukanis calls “the contradictions of indeterminism“.

15. Petrazhitski

Petrazhitski, according to Stuchka, “strove to create an unfounded theory of uncultured and commonplace individualism”. He “started from the ‘normal’ individual psychology of the free liberal Philistine” (The Revolutionary Part Played By Law). The theory is said to be “unfounded” because it is not lodged in a totalitarian scheme of society.

Leon Josifovich Petrazhitski was born in Russian Poland in 1867, during the intensive Russification campaign which followed the Polish rebellion of 1363. Though he became a Professor at Petersburg University, his world-outlook was distinctively Polish.

(Among those who came under his influence was Pitirim Sorokin, a Socialist Revolutionary who was elected to the Constituent Assembly in 1918, refused to recognise the Bolshevik dispersal of the Assembly, waged a three year subversive struggle against the dictatorship, had a famous article written about him by Lenin on his capitulation, was saved from execution and contrived to emigrate with the assistance of former colleagues who were in the Bolshevik leadership, and became an eminent sociologist in America.)

Petrazhitski was appointed to the Senate by the Provisional Government in 1917, but, not being hopeful about the outcome of the democratic revolution, he declined to take his seat. He was enabled to return to Poland by a clause in the Treaty of Riga (which was signed in 1921 following the failure of Lenin’s attempt to conquer Poland), became Professor of Law at Warsaw, and took part in a project to unify the civil law of Poland. He committed suicide in 1931.

Petrazhitski’s Law And Morality was first published in 1905. The following extracts, (from an English translation published by Harvard University Press in 1955), represent law as the medium of democratic socialist development by making possible an increasingly intricate mutual accommodation of individuals in society:

“By forming general concepts, science attains orientation in the world of phenomena and converts the chaotic and boundless diversity of utterly heterogeneous and concrete objects and events into an ordered system.” (p.3)

“Legal phenomena consist of unique psychic processes … expressed in the unique form of ascribing to different beings (not only to people, but to beings of other classes conceived in the mind) … ‘duties’ and ‘rights’.” (p.8)

“The proper, and the only possible, method of observing legal phenomena must, therefore, be the method of self-observation: the introspective method.” (p. 13)

“In the life of animals and men, impulsions act as the principle and directing factors of adaptation to the conditions of life … Impulsions perform the function of stimulating external movements of the body and other actions – such as intellectual work and other inward actions … The enormous majority of impulsions – all except the very few indeed which attain such a degree of intensity and such trenchant expression as to catch the attention of those experiencing them – pass by unnoted. Every day we experience many thousands of them. They govern our body and mind. They evoke the bodily movements which we make, the thoughts and decisions which appear in our consciousness, and various other psychic processes.” (p.23-4)

“Ethical impulsions are experienced by us, and rule our conduct, with very great frequency … Like many other impulsions, however, they are ordinarily unnoted by the subject.” (p.35)

“The stimuli and incitements now under study … stand opposed to our emotional propensities … proceeding as from a source unknown and mysterious, and extraneous to our prosaic ego, and possessing a mystic coloration not without a tinge of fear. This character of ethical impulsions finds expression in popular speech, poetry, mythology, religion, and similar creations of the human spirit in the form of fantastic ideas and particularly the idea that in such cases some being other than our ego is also present opposing our ego and inciting to certain conduct: some mysterious voice addressing and talking to us. This is responsible for the word conscience (conscio) indicating the presence of another being …

“Religion, proverbs, poetry, and so forth ascribe this voice to mystic beings: to the revered spirits of ancestors, to various deities, or to God in monotheistic religions … These impersonations … reflect this character of the loftiest authoritativeness – and a tinge of the celestial – characteristic of ethical impulsions. These special characteristics of ethical impulsions exert pressure also on the thinking of philosophers … Socrates spoke of the higher spirit (daemon) which suggested to him how he ought to act. Kant founded his theory of morality on the hypothetical existence of a special, metaphysical ego – a double of our empirical ego – which gives directions to the latter … Even the theories of law and morality propounded by scholars of a positive and skeptical turn of mind, who strive to remain aloof from all mysticism, show a tendency toward various mystic impersonations.” (p.37-8)

“The specific nature of phenomena of law, morality and aesthetics, and their differences … have their roots in the sphere of their impulsive content (in our sense), and not in that of their intellectual content.” (p.61)

“Law is, on the one hand, a factor of socio-psychic life since its development evokes certain processes in the minds and conduct of individuals and masses. On the other hand, law is itself a product of certain socio-psychic processes: it is created and changed by them in accordance with the laws of causal significance.” (p.324)

This will, of course, appear to the systematic Leninist understanding as complete subjective idealism. But we should not be too bothered about that, seeing that the materialist determination of the ideal aspect of life, as imagined by Leninism, has in practice always functioned as determination of the material aspect by a totalitarian ideology assisted by an omnipresent political police.

Petrazhitski, following Kant, does not seek first causes, whether materialist or supernatural. Nor does he seek to establish a general theory of society which is equally applicable to Confucian, Hindu and European civilisations, and to the native societies of Borneo, Central Africa and Brazil. He takes humanity as he finds it, while trying to advance it politically. He accepts it as a growth of ages. His historical orientation is not made explicit in the book, but as a Kantian orientation it would be something like this:

Humanity has constructed itself in many different directions Most of its efforts became hidebound, and settled down into unchanging modes of life. Freedom is in modern times an attribute of the particular human adventure which began two and a half thousand years ago in Jerusalem, Greece and Rome. That mode of life has had a continuous development, and it produces people with impulses appropriate to its further development. Law, as a medium of social life, is made possible by one of those impulses.

“The most ancient and widespread doctrine as to the origin of norms of community living is that of their divine origin. It has been replaced by diverse metaphysical and mystical doctrines which substitute for deities sundry other supreme forces and beings: ‘Nature’ conceived of as a higher being, world ‘Reason’, ‘objective spirit’, and the like. Most of the relevant doctrines have in view so-called natural law. As to positive law, various representatives of the legal philosophy of earlier ages (before the doctrines of the so-called historical school appeared and became widespread) ascribed its creation to conscious and designed human activity for the attainment of certain ends – peace, wellbeing, and so forth. Some authorities identified positive law with statutes, and reduced its origin and development simply to the will and discretion of legislators, monarchs, and so forth, while others ascribed the establishment of positive law to a contract, whereby – in order to obtain peace, order, and the like – people consented to set up a superior authority and to obey it, and that authority later issued laws … But the obligatory force of the contract rested in natural law which required the observance of contracts.

“Periodically in the history of human thought theories appear which reduce all law – as well as morality, religious beliefs, and so forth – to the insidious invention of persons seeking better to dominate others and to effectuate their own interests. Such doctrines are seemingly expressive of lofty criticism but are essentially naive.

“At the beginning of the 19th century the so-called historical school came out against doctrines that positive law was consciously and arbitrarily created, and asserted that law like language, mores and so on is a cultural product which develops regularly, unnoted, gradually and independently of any human will, design, or consciousness whatsoever, and manifests the national spirit … This theory, too, must be referred to the category of mystic doctrines: its national spirit represents a lofty but inscrutable concept distinct from the national mind as a totality or aggregate of individual minds …

“The doctrine of Inhering is supposed to have created a further epoch in the theory of the origin and development of law … His fundamental propositions are 1) that the law, like the state, is the effect of conscious and designed human creativeness in the pursuit of definite and practical ends – the development and safeguarding of practical interests; and 2) that – in accordance with the nature of legal norms as commands which originate in a will having at its disposal adequate force to compel obedience – the law emanates from force and authority … The authority of the state is the source of all law … ” (p.325/6)

“Between certain sociological theories (such as the Darwinian, the theory of historical materialism and the like) and the nature of law as a special ethical experience, there is no essential antagonism … Thus if law is an individual-psychic experience based on corresponding dispositions, it seems from the point of view of the Darwinian theory analogous to various other elements and attributes of the psycho-social apparatus (the organism), the origin and development of which is explained by this theory. From the point of view of economic materialism, reducing all law to special psychic phenomena is not unfavourable: legal phenomena appear to be psychic correlates – reflections of social material – and their content changes in history in accordance with changes of social material, as a function of the latter. Nonetheless, even if these sociological theories are correct, they do not suffice for the construction of an adequate theory of the origins and development of law.” (p327)

“Law (together with other factors of socio-psychic life, including morality, normative aesthetics, and others) influences the development of the human mind and changes the human character in the direction of better adaptation to social life but is itself changed in conformity with these psychic changes and adapted thereto …

“The most recent legal systems require from the citizen more in the sense of socially rational conduct than did earlier systems of law which were adapted to a more primitive mentality, and attain the required conduct by acting upon the loftier sides of human character. They make use of results already attained, and rest on qualities of mass character on which earlier systems of legal motivation – adjusted to more coarse and socially less fitting mentality – could not rest. This may be illustrated by the transition, in the production of material goods, from the system of slavery … to the system of free labour, economic freedom, and competition (independent free motivation). This is a symptom and a product of the cultural advance of human masses. The same is true as to the socialisation of production now proceeding in various spheres, which presupposes for its success a certain degree not only of economic efficiency as such but also the capacity and inclination to work energetically for the general good and not for oneself.

“In precisely the same way the substitution of a system of self-government for a despotic regime, and the gradual democratisation of the state, are symptoms and products of progress of the national mind. As human character grows better, less and less motivational pressure of the punitive-remunerative class is required in order to attain socially rational conduct. Punishments and rewards are lessened, and the collective responsibility of the whole group for violations … is replaced by individual responsibility. The earlier inexorable liability for evil caused (though undesignedly) is replaced by a system of punishment which admits various justifications and mitigations of responsibility and so forth. In the lower stages of culture, threats in the form of creditors cutting the delinquent into pieces … selling him in to slavery, beating him in the public square until he paid, doubling the debt in cases of delay, and other forms of cruelty applied in order to secure the precise and honourable fulfilment of a right resting on contract. The history of the law of contracts displays a progressive weakening of this pressure.” (p.328-9)

“Of course the relevant laws of the historical development of mankind and its institutions do not signify that clever people study and measure the progress of the human mind and devise laws accordingly: the progress of socio-psychic adaptation is subconscious. The processes which evoke and direct it remain a mystery …

“The Darwinian theory (the only theory embracing the subconscious mechanism of adaptation) is in no state to explain the sociopsychic adaptation which is independent of the dying-out of individuals and the breaking up of groups. It leaves out of view the special processes occurring on the basis of communication and, in general, of the psychic community between members of social groups. Psychic community is, so to speak, mutual psychic infection: not intellectual infection merely, but emotional infection as well. Not only the relevant ideas, but also the emotions and impulsions connected therewith in the minds of those so communicating, are communicated and given currency.” (p.329)

“Such unconscious adaptation, improvement, and development takes place in all spheres of life: in the language itself (the chief instrument of the processes in which we are interested), in the classification of phenomena and objects, in the customs and rules of national hygiene, medicine, agronomy, education, morality, law, and so forth. Continuously these products – including the changing consciousness of mankind – alter and are shaped to the changing conditions of life.” (p.330)

This conception of law is profoundly social and historical, and it might have been assimilated into Marxism if Marxism had developed as working class philosophy in democratic society. But the bias of Marxist development, even before Lenin, was towards pseudo-science and away from working class politics.

Lenin based himself ideologically on the pseudo-scientific aspect of Marxism and made it into a major force in the world by combining it with a non-scientific aptitude for practical politics. Pseudo-science, as the ideology of the Leninist state, was given systematic expression by Lenin’s clever lap-dog, Bukharin, who had no aptitude for any but the most routine kind of politics. (He was in his element as chief dictator during the period of NEP, but he fell apart as a politician when the NEP went into crisis in 1923-9.)

The major theorists of Bukharinised Leninism have been Pashukanis and Louis Althusser. The latter, carrying the ideology to its theoretical extreme, demonstrated that it was profoundly unhistorical. Beginning with the scheme of history as five or six modes of production which occurred in succession, the contradictions of each producing its successor, he ended up with a “rigorous” theory of modes of production in which each was a complete and closed world, an eternity, capable, because it was scientifically conceived, of repeating itself endlessly, but incapable of changing into a different mode of production.

Althusser developed history into a theoretical impossibility long after it had become a practical impossibility in Soviet society. The writing of history was made impossible in Russia by the Bolshevik revolution – especially the writing of the history of the Bolshevik revolution. Science, though it has a history, is unhistorical. It grasps repeating systems by formulas. It may speculate on when and how these systems were established but its proper business is to grasp them by formulas on the assumption that they are not subject to change. Water is always H₂O. “Social science”, therefore, yearns for human counterparts of the physical elements.

Leninism was never a representative politics of the working class. It took the working class as a raw material from which a system might be hammered out. Socialism, as Lenin said at the outset of Bolshevism, is “an alien intrusion” into working class life.

And Bukharin explained in The Economics Of The Transition Period that

“Compulsion does not limit itself to the framework of the previously ruling classes and the groups which are near to them. In the transition period it is transferred … to the working people themselves, even to the ruling class.” “Proletarian compulsion in all its forms, from executions to compulsory labour, constitutes, as paradoxical as this may sound, a method of the formation of the new communist humanity from the human material of the capitalist epoch.” (Chapter 10)

Under Bolshevism the old, “corrupt”, working class was destroyed, the new working class was carefully nurtured in an ideology of unhistorical, scientific imagery. Solzhenitsyn’s vast ambition is to undermine Bolshevism by injecting a historical sense into the society.

Petrazhitsky, a Pole in Russia, developed a conception of law which is profoundly historical and social. (The relation of the elements in a scientific formula is not social.) That conception influenced a handful of socialist intellectuals, who were destroyed in the early years of Bolshevism.

In British society, history and law saturate the social atmosphere to such an extent that it now hardly matters what is said about them. Law is such a real and unalterable condition of social development that even “scientific socialists” unconsciously adjust to it.

It took the peculiar condition of a Pole in Russia to produce a theory (or description) of law appropriate to democratic socialist development.

16. A Critical Blank in Stalin-Criticism

Stalin (as viewed by his “Leninist” critics) was a very great criminal who abandoned the ways of revolutionary legality established by Lenin. By criminal use of the powers of state he debased the phenomena of Soviet socialism – though, of course, the state remained socialist in essence: the “noumenon”, the thing-in-itself, the Kantian unknowable, remained unaffected by the criminalising of the phenomena.

The idea of a noumenon, a substance which underlies all phenomena and which cannot be known in itself, used to be ridiculed in Leninist philosophy. But the ideology of the 20th Congress of the CPSU not only presumes the existence of a Soviet noumenon, but affects to have revealed knowledge of it.

Stalin corrupted and debased and transformed all the phenomena in his own anti-socialist image. The phenomenal world is all that can be known without supernatural or metaphysical revelation. Stalin is declared to have debased the phenomena of the Bolshevik revolution, but the essence of the revolution is said to have been beyond his reach and to have remained pure.

Such is the view of the history of Bolshevism that one finds in the writings of Trotskyists, Khrushchevites and Eurocommunists – except that the “state capitalist” Socialist Workers’ Party takes Tony Cliff’s view that Stalin debased the essence of the revolution along with the appearance.

Roy Medvedev writes: “In a socialist democracy, it is crucially important that the legal system … and the state security services function correctly.” (On Social Democracy, p. 148)

And: “In essence, Lenin and Stalin have almost nothing in common.” (This comes after an admission that they are very similar in appearance.)

“Stalin was not just a political criminal but also a criminal in the ordinary sense of the word; he recognised no rules in political struggle … Unfortunately it was just this lack of scruple that gave him an enormous advantage over his opponents and helped him to emerge victorious.” (Medvedev: On Stalin And Stalinism, p. 192)

One would expect the socialist historians who depict Stalin as a criminal, whose crimes of state had far-reaching effects, to be greatly concerned about Soviet law. Or that is what one expects until one discovers what the theory and practice of Soviet law was in the era of Lenin, Trotsky, and Bukharin. It then becomes entirely understandable why Isaac Deutscher, Tony Cliff, Roy Medvedev, etc. prefer not to give their readers an account of the theory and practice of law in the era of Lenin, Trotsky and Bukharin.

The “Soviet law” against which Stalin’s “criminal” behaviour is contrasted is a pious fraud. And it is a fraud which could not be perpetrated if the socialist movement was familiar with the writings of Stuchka and Pashukanis.

Roy Medvedev is the only writer of this kind who even mentions Pashukanis. And his references are grossly misleading:

“A similar pogrom was organised in jurisprudence by Vyshinsky … Many prominent jurists died, most notably E.B. Pashukanis.” (Let History Judge, 1971, p.225)

“Bookburning was another characteristic of Stalin’s cult … A ban fell on the works of such leading social and natural scientists as … E.B. Pashukanis.” (p.524)

“Jurisprudence also deteriorated, with Vyshinsky as the dictatorial plenipotentiary. He it was who established the principles that a court cannot aspire to absolute truth and must accordingly be satisfied with some degree of probability; that evaluation of evidence is based only on inner conviction; that the law is an algebraic formula, which is corrected in the process of application by the judge. Vyshinsky even suggested that the law should not be applied at all, if it has ‘lagged behind life’. Thus the science that should have defended legality was converted into a pseudoscientific defense of Stalin’s wilfulness.” (p.502)

“Jurisprudence was seriously hurt by Stalinism. Revolutionary legality was reduced to the protection of socialist property, to be achieved by an intensification of repressive measures … Stalin gave Soviet legality a one-sided repressive character.” (p.521)

Nobody who depended on Medvedev for information could possibly guess that the “prominent jurist” mentioned here advocated the abolition of law and morality under socialism, and the use of the withering legal form in the early phases of socialism as an instrument of state expediency; or that he maintained that, since the purpose of socialist trials is social defence, and not the determination of individual guilt, “a consistent realisation of the principle of social protection would not require the establishment of particular evidence … but would require an exact description of the symptoms characterising the socially dangerous situation“.

While bookburning is, of course, deplorable as a general principle, the burning of the books of a “prominent jurist” who maintains that “the establishment of particular evidence” is not required in trials is perhaps the kind which is easiest to bear.

And Stalin-criticism which purports to be in the spirit of true Bolshevism, but which tenaciously averts its attention from the theory and practice of Bolshevism in the sphere of law during the period before the establishment of Stalin’s personal dictatorship, is mere self-deception.

Those Stalin-critics frequently write about the Stalin period as if they – and Lenin – held the conception of law which prevails in liberal democracies. In fact they have no conception of law, and many of them are even more dismissive of liberal democracy than of Stalinism. What underlies their phrasemongering is a very hazy notion of a state of affairs in which there is total liberty and yet nobody does anything which they (the critics) would disapprove of, and in which there is total order without coercion or a stifling predominance of hide-bound custom. They have a vision of a condition of society such as might result from the activity of a perfect totalitarian state, but they imagine it as being produced by the spontaneous behaviour of the people at large in a condition of freedom. They have a day-dream of complete order flowing from perfect freedom, They have laid out their understandings so unrealistically that they must be repelled by any actual attempt to realise their ideals.

In order to bring out this point we will take a look at a book which has been almost forgotten because it understood the Soviet Union too well, and because it was too realistic in its understanding of the phrases which served, and continue to serve, as ideals for much of the ideological left in Britain.

17. The Webbs

Sydney and Beatrice Webb have been subjected to much ridicule because of their book, Soviet Communism: A New Civilisation. It has been suggested that they were a couple of gullible bureaucrats who were completely taken in by Stalin’s paper Constitution. But a reading of the book shows that the ridicule – at least from the left – is undeserved.

They took it that Soviet Communism was a new civilisation, and made an honest effort to understand and describe it without doublethink or mental reservation. Trotskyists and Eurocommunists also take it to be a new and higher civilisation, but then proceed, by means of doublethink and mental reservation, to make an absurd distinction between phenomena and essence. Stalinist actuality is condemned, and a Leninist essence, of which there is no phenomenal evidence, is postulated. That “essence” consists of some unrealistic ideals which never materialised in Soviet Russia, and of some ideals which were unrealistically envisaged in advance so that their materialisation is responded to as betrayal. What makes the Webbs unacceptable to the anti-Stalin pro-Soviet left is that they did not participate in this duplicity, self-deception, unrealistic imagining and general weak-mindedness.

The following extracts are from the second edition of Soviet Communism (Gollancz, 1937):

“As Stalin said, ‘man must be grown as carefully and attentively as a gardener grows a favourite fruit tree’ …” (p.804)

“Chapter X. The Remaking Of Man

“Far from believing that human nature could not be changed, Lenin and his colleagues thought that the principal object and duty of a government should be to change drastically the human nature with which it dealt.” (p.805)

“It is a distinctive feature of Soviet Communism that the organised society which it establishes deliberately and avowedly assumes the function of promoting, among all its participants, what it conceives to be ‘the good life’; a life to be spent, not in the worship of a mythical deity … but … in the promotion of the well-being of the whole community of men. For the worship of God Soviet Communism substitutes the service of man. Man, after centuries of oppression a poor image of what he might be, has accordingly to be remade, and a new civilisation established.

“One of the puzzle-questions for the historians of society is how new civilisations arise. Do the successive new species of social institutions … spring directly from the highest of existing civilisations, or from more primitive types, less differentiated, less minutely elaborated, and less stabilised in structure and function. Without doubt Soviet Communism, for good or evil, sprang from a low type of society, if we judge by the standards of western civilisation.” (p.807)

“Chapter XI. Science The Salvation Of Mankind

“What has been the emotional faith that has led the Bolsheviks to their amazing conquests of the manifold difficulties with which they have had to cope? What are the instruments upon which they rely? … In short, what is the philosophy on which they are, as they think, building a new civilisation?…

“Marxism, it has been said, is both a method and a doctrine, each of them supporting the other. The survey and analysis of the history of the past … led Marx and Engels, and … Lenin, to their confident assertion that the successive transformations of the way in which the production of food and other commodities was carried on must necessarily be accompanied … by changes in the organisation of society and government …

“Now, we are not here concerned with the question of the truth or validity of this doctrine or method of historical analysis, nor with its assertion of the inevitability of an eventual world revolution in which the ‘dictatorship of the proletariat’ takes the place of the ‘dictatorship of the bourgeoisie’. What we have to note is the dynamic effect of the method and the doctrine itself in the particular case of the Russian revolution … In our judgment this dynamic effect was considerable, alike on the mind and will of Lenin himself; upon the Bolsheviks whom he attracted and educated; upon the members of the … soviets; and eventually upon the mass of the population. We suggest that the future historian will attribute to the belief in the inevitability of the proletarian revolution no small part of the remarkable success of the upheaval which Lenin so persistently advocated, and, at the correct moment, so energetically led.” (p.944-7)

“There is no conception more fundamental to Soviet Communism than that of man’s perpetual struggle towards greater command of the universe … Civilised man struggles not only for … necessities … but also for the further development of himself, of his own community, and of mankind, in intellect and character … Accordingly the Bolshevist aim … has been the Remaking of Man. The Bolsheviks held that man’s power over nature could come only from his advancing knowledge of the universe …

“This devotion to science does not mean what the Englishman understands by materialism. To the Bolshevik the mind of man … is as much within man’s knowledge as his body.” (p.948)

“It would be foolish to suggest that the Bolsheviks have created a new science, or that they have, in little more than a decade, mounted on the shoulders of the scientific world of the west … What the western world may chiefly learn from them to-day is not so much such additions as they may already have made to the sum of human knowledge, as the manner and the spirit in which they are seeking to educate, in a true appreciation of science, alike their scientists, their administrators and their citizens.” (p.954/5)

“If, however, we examine with greater particularity the attention paid to science by the Soviet Government, we note an unevenness … There is … much more teaching and study devoted to the parts of the universe dealt with by mathematics and mechanics, physics and chemistry, biology and radiology – and vastly more research after new knowledge – than to social institutions … and the behaviour of individuals …

“We are struck by the fact that among all the thousand and more institutes of scientific research now at work under the intellectual supervision of the Academy of Sciences … there seems to be none taking as its sphere the structure and function of the contemporary administrative organs themselves … We do not overlook the various institutes of the Department of Social Sciences … But these seem to confine themselves to language and literature on the one hand, and on the other to social institutions of past civilisations or remote primitive tribes.” (p.988-9)

“We do not suggest that the Soviet Union has made no discoveries in the sphere of sociology. On the contrary, it has to its credit two new inventions in social institutions of fundamental importance … We count, as one of these, the entirely novel structure of the USSR, with its universal popular participation as citizens, producers and consumers, that we have described as ‘multiform democracy’ guided by a Vocation of Leadership, operating a governmental apparatus that transcends the old categories of legislative and executive, or politics and economics, by the more comprehensive one of social administration. The other discovery is the equally original conception of entirely dispensing with the capitalist entrepreneur and his profit-making motive, in the engagement of wage-labour; and of planning all production deliberately for community consumption …

“It was exactly because Lenin was a scientist and not a mere politician or administrator, and had spent laborious years in observing or studying, not people’s opinions, but the facts themselves, as to the nature and development of the mir and the artel, the trade union and the cooperative society, the working of parliamentary machinery and the strength and weakness of political parties, that, when the moment for action came he was able to suggest and elaborate the entirely novel social institutions which are achieving such a considerable measure of success in the USSR. Continuance of like inventiveness in meeting new emergencies cannot, without prolonged scientific study analogous to that of Marx, Engels and Lenin, be counted on …

“Hence it is to be regretted that more has not yet been done in the USSR, in the way of precise, objective comparative descriptions, as devoid of prepossessions as those of the biologist within his own sphere, of the structure and working of particular social institutions of the USSR, and without … There is, as yet, in any country in the world, only the beginnings of a science of sociology, but it has already taught something of value to the practical man …

“It is less easy to make a persuasive case in favour of a scientific study of human behaviour. Ethics, as such a science would be called, has hitherto been largely dominated by an imperfect psychology (which may be improved when the biologists know more about the processes of human consciousness); as well as by unscientific importations from metaphysics and theology. But an exact descriptive study of actual behaviour by men and women under particular circumstances … would probably throw light on certain problems that confront teachers and statesmen in the USSR and elsewhere. What, for instance, is the effect upon productive efficiency of the emotion of fear? … What is the effect of ‘terrorist’ measures, taken in order to deter counter-revolutionaries, upon members of the intelligentsia who, though not communist in opinion, are yet loyally serving the community in which they live? …

“What is the effect, upon the mentality of particular categories of men and women, of any sudden change in policy which upsets their ‘established expectations’? It was doubtless convenient to reverse drastically the ‘New Economic Policy’, or the conditions of membership of the kolkhosi, when previous arrangements had proved undesirable. But what was the social loss incurred when people found that conduct in which they had been encouraged was suddenly made a penal offence?

“We add another instance of the need for a more systematic and complete application of communist science in the field of human behaviour. Is the communist use of the emotion of hatred scientifically justified by its effects; or even correct ‘Marxism’? … Why is it that, in the USSR, as in other countries, the Communist Party is distinguished from all other controversialists by the peculiar virulence of the hatred that it concentrates on the bourgeoisie, leading to hatred of the various religious denominations, hatred of other parties created by different factions among the wage-earners, hatred even of those in its own ranks who are thought to be ‘deviating’ …? … Is there any truth in the assertions that in some of the Ogpu’s concentration camps, and even in some of its closed places of detention for ‘political’ offenders – after discounting the exaggerations which disfigure and discredit nearly all the ‘revelations’ on this point which have been published abroad – there has prevailed not only very unscientific insanitation and overcrowding … but also bad cases of deliberate cruelty and torture … equal to the worst that is alleged against the fascist dictatorships. Yet these ‘political offenders’ are just as much the result of their past circumstances as the thieves and drunkards, and the brutal assailants of women, who … are so much more humanely and so much more wisely treated in the USSR …

“Yet another problem in human behaviour. What is the effect, alike on ‘the leader’ and on the mass of the people, of the extreme adulation now given in one country or another to the chosen head of the community for the time being? … How far is the exaggeration and repetition, which seem to be inherent in this national habit, detrimental to veracity in the adulator, and to his own resistance of the temptation to hypocrisy? …

“All these problems of human behaviour are of pressing importance in the USSR, as in other countries.” (p.990-996)

“Chapter XII. The Good Life

“How far can it be truly said that the individual citizen enjoys less freedom in the Soviet Union than, in Great Britain or the U.S.A?

“First let us note that there seem to be not a few prohibitions with regard to personal life imposed by positive law in Great Britain … in which the inhabitant of the USSR has superior freedom. We need only refer to the British law as to divorce which is complained of among all social classes … There is the English law of trespass, involving the exclusion of the masses, not only from the extensive park-lands of the wealthy in the countryside, and from the expensively cultivated gardens in the squares of the London West End, but also from wandering at will along sea cliffs … What seems to the soviet authorities far more important to the community than these class restrictions on the personal freedom of the masses, in the interests of a tiny minority, is that … the whole people should enjoy … the widest possible enlargement of their mental or cultural environment …

“Such a universal extension of freedom requires, however, that the public authorities should see to it that nothing is provided for public use or enjoyment that is definitely harmful to the community. Thus, nothing may be printed in the USSR, whether book or pamphlet or circular, which has not been passed by the agent of the public censorship who sits in every printing establishment. As no individual can lawfully employ labour for his own profit, all the thousands of newspapers and other periodicals … are run, not by capitalist proprietors, but by one or other of the manifold agencies of the collectivity. The same is true of all theatres, concerts, cinemas … The couple of hundred thousand places of education … are equally provided … by one or other public authority … In short … no social institution of any kind, however voluntary its membership or clientele, escapes the universal plan. The mental and cultural environment is thus everywhere under the direction … of authorities of public character. This universal supervision is directed by a deliberate purpose.” (p.1025-6)

“Consider now the great part of the mental environment of an advanced industrial community that is constituted by the newspapers and magazines … and by places of public entertainment … In Great Britain … all these enterprises are provided by capitalists … Subject only to general legal restrictions … the enterprising capitalist is free to provide whatever entertainment he thinks will, by attracting most customers, yield him the largest profit. Or he may … use the newspaper … partly to promulgate his own opinions, or to further the interests of … his creed or political party … But whatever line of policy he chooses … the mental environment he is creating is beyond the control of the individual citizen …

“There is, of course, propaganda in the USSR, in every form … It would be hard to decide whether there is … more or less of it than in Great Britain … The difference is that in the USSR all the propaganda is deliberately planned, in what is believed to be the public interest …

“A characteristically modern part of the mental environment … is the prevalence of staring or illuminated advertisements … In the USSR the little that is done in this way is deliberately planned with public objects … In Great Britain … such unplanned advertisements for private profit are only just coming to be regarded, if not as public nuisances, at any rate as an entirely wasteful expenditure from the standpoint of the community, and as mentally detrimental to the individual who cannot escape the insidious and persistent suggestiveness of the advertisers’ characteristic mendacity.” (p. 1030-1)

“What the British or American intellectual is concerned about is not the aggregate of personal freedoms enjoyed by the total population … but the very serious loss suffered not only by himself, but also by the community, if the absolute freedom of speculative thinking by the tiny minority which is capable of original thought … is in any way interfered with. It is upon the complete ‘liberty of prophesying’ among this minority – the membership of which cannot be determined in advance – that the intellectual progress of the world ultimately depends …

“There is, assuredly, some validity in this assertion of the social importance of unlimited freedom of intellectual discussion … On the other hand, an indulgence in unlimited freedom of discussion … has the drawback that it is apt to militate against the effectiveness of corporate action …

“Is there any escape from the dilemma prescribed by the practical necessity of unity in action and the no less important requirement of freedom of thought?

“We suggest that the problem is one created only by the closet philosopher, and that the solution is found in practice. The answer has, in fact, been discovered, by experiment by the Soviet Government, as by other administrations …

“What is necessary to the freedom of the thinker and the investigator is unfettered communication to his fellow-thinkers … It is not communication to the unthinking public that he needs for the fostering of original thought. There seems no reason why the freedom of discussion and expression allowed by common consent, within reasonable limits, to the physiologists and medical practitioners, should not be allowed to the thinkers and investigators into the fundamental conceptions on which each society is based. What is complained of is that this is, to-day, not allowed in the USSR, as in many other countries, out of fear of faction. But it is not faction that such thinkers are after, and not popular discussion by the mass of unthinking men, any more than it is pornography that the physiologists and doctors have in view. What is desired is only the testing of their ideas that is given by discussion among their intellectual colleagues and equals. Hence the psychological speculators in thought, the philosophic critics of social theories, the metaphysical proposers of new utopias, should not ask or expect the State Publishing Houses to publish their lucubrations in popular pamphlets at the price of a few kopeks. The publications that such thinkers need and value is in the form of ‘proceedings’ or ‘transactions’ of a philosophical society, accessible to non-members but not brought indiscriminately to their notice; or in that of substantial treatises unlikely to find purchasers outside a narrow circle of those capable of understanding the phraseology which such discussions require … Published in this way, without newspaper reverberation, the most unrestrained adventures in thought are not likely to militate against unity of action in the particular constructive enterprises of the moment …

“We do not suggest that nothing more is called for, in the way of freedom of utterance, than the limited opportunity for the intellectuals that we have adumbrated. That amount of opportunity might well be conceded even in a state of war. When, however, the Soviet Government feels itself as secure as the British Government does, there seems no reason why popular lectures and speeches at open meetings, and discussions in cheap pamphlets and newspapers, should be any more restricted than they are in England.” (p. 1037-42)

“The unabashed and complete denial of any form of supernaturalism involved the abandonment of the code of morals founded on divine revelation. It is hard for anyone who has grown up in a Protestant country, and no less for a Roman Catholic, to realise how fundamental is the difference that this rejection of supernaturalism has made in the minds of the people. There is, in the USSR today … an almost complete absence of any sense of original sin.

“The loss of a sense of sin in the theological sense does not mean the disappearance of conscience … But it has been accompanied by a transformation of the conception of personal obligation. In contrast both with the Mosaic Commandments, and with such obligations as were emphasised by the Greek Orthodox Church, which were mostly in the form of specific prohibitions of what is wrong, the code of conduct of the Soviet Union has been, from its inception, almost entirely concerned with positive injunctions to do what is right. Morality is no longer mainly negative in form, but substantially affirmative.” (p. 1044)

“The service which morality requires the individual to give the community is only a particular outcome of the instinct of self- preservation … Scientifically considered, there is not, and can never be, any conflict between the genuine interest of the individual in the highest and fullest development of his own nature and his own life, and the genuine interest of the community in being constituted of the highest and most fully developed individuals. Morality is thus, in a very real sense, part of the nature of the universe, to be not invented but discovered … Thus, to the properly instructed soviet communist, scientific ethics is simultaneously both social morality and individual morality, because these are fundamentally and inevitably identical. Any breach of the moral code, whether by the community or by the individual, is a failure on the part of the one or the other accurately to realise these facts.” (p. 1049)

“In the minds of the administrators of the Soviet Union, and those of the philosophers who explain its policy, what is being built up in the USSR is not a government apart from the mass of the people, exercising authority over them. What they believe themselves to be constructing … is in fact not a state in the old sense of the word, but an organised plan of living which the people as a whole adopt … With them … there stands the new and unique professional association, which we have termed the Vocation of Leadership. This vocation, following the pattern of various professions in other societies, is recruited by co-option according to prescribed standards of knowledge and character.” (p. 1072)

“All the diversity of participation in the universal multiformity of organisation which distinguishes the USSR from every other country makes more than usually indispensable that leadership without which democracy, in any of its forms, is but a mob… In the USSR the function of affording to the population the necessary guidance of public affairs is assumed by a voluntary but highly organised and tightly disciplined Vocation of Leadership, which calls itself the Communist Party. It is … unlike anything that the western world understands by the term ‘party’ in the political sense … It is an absolute condition of membership that the candidates must be free from any vestige of belief in supernaturalism, and that they must continue to adhere to ‘Marxism’, as from time to time authoritatively determined. Since the offering of guidance in public affairs by political leaders is an inevitable feature of civilised society, we may classify the Communist Party of the USSR as a professional association voluntarily qualifying itself specially for the exercise of this function, analogous to any other organised scientific profession. For in the Soviet Union it is claimed that political science takes the place of the electioneering ballyhoo called politics in our western states …

“It is interesting to recall that essentially such a Vocation of Leadership, termed the Order of the Samurai, was suggested by Mr. H.G. Wells in 1905 in his book entitled A Modern Utopia.” (p. 1l30-31)

“But science … is not, by itself, enough for the salvation of mankind. If scientific knowledge is to be brought to the service of humanity, there must be added a purpose in man’s effort involving a conception of right and wrong to be embodied in the Good Life … The feature in this new morality which stands out in sharpest contrast with the morality of capitalist societies is the recognition of a universal indebtedness. No human being reaches manhood without having incurred a considerable personal debt to the community in which he has been born and bred for the expense of his nurture and training. That debt he is held bound to repay by actual personal service by hand or brain. Moreover, he is required throughout his able-bodied life to employ in the service of the community the faculties which he has derived from it. Any person who neglects or refuses to pay this debt … is held to be a thief, and will be dealt with as such.” (p. 1l35- 6)

13. The Webbs Reviewed

The Webbs were clearly not fellow-travellers. The fellow-travellers published romances about Soviet society. Even when they spoke of a civilisation of a new kind, they usually envisaged Soviet society as an evolution from the liberal-democratic characteristics of Western society. They saw Soviet society through whatever ideological spectacles they carried with them. (Since they tended to be economically successful intellectuals, they had a highly developed aptitude for seeing only what confirmed the views out of which they made a living – and their Soviet guides made that easy for them.)

The Webbs, however, actually did describe a civilisation of a new kind. One may be repelled by their admiration of it, but there is no doubt that they understood it on its own grounds and described it well.

What they described is very definitely not a liberal-democratic society, modified by the displacement within it of the bourgeoisie by the workers as the dominant class force, and retaining some authoritarian features from the civil war. They describe a new kind of civilisation, which is governed in a mode that is outside the conceptions of Western politics. Government is by a self-selecting Vocation of Leadership, organised as a “scientific profession”, and characterised by a strict uniformity of belief. This Leadership does not represent the workers. It acts scientifically on society remaking human nature gaining scientific control over the mind as well as the body, and superseding state and parties in the Western sense with “an organised plan for living which the people as a whole adopt”. There is some intellectual freedom for the intelligentsia which forms part of the Leadership and this should be extended as the system stabilises, but scientific investigation of society is not something with which “the unthinking public” should be disturbed.

That unthinking public is subjected to a “universal extension of freedom” in the sense of being carefully trained in cultural forms which the scientific Leadership thinks is good for them and being shielded from cultural material which might be bad for them. Everything – physical, cultural and spiritual – is provided through the universal plan. Universal supervision is “directed by a deliberate purpose”. Propaganda and advertising are organised in the service of that purpose. The negative morality of the West is replaced by a morality of “positive injunctions” (i.e. morality does not decree what must not be done, and then leave people to do what they please otherwise: it decrees what people must do, and thus leaves no vacuum in their lives which they must fill with their own devices).

Original sin is abolished, and its place is taken by a “conscience” which imposes on the individual an infinite personal obligation towards the state. Public and private morality therefore cease to be in conflict and become identical: “scientific ethics is simultaneously both social morality and individual morality.”

Now this is clearly not a society which diverges somewhat from the values and practices of liberal-democracy because of difficulties attendant on its birth, and which might be expected to become liberal as it stabilises. It is a society which functions on different principles from the liberal-democracies, and which might be expected to diverge ever further from them as it develops. (The liberal Constitution of 1936 was a Stalinist aberration from the system, and was later discarded by it.)

The Webbs were alone among the socialist intelligentsia of Britain – and, as far as I know, of Europe – in giving an account of Soviet society which was both sympathetic and accurate. They had only a few lapses from objectivity. One of these was the suggestion that the social effect of terrorism should be scientifically investigated.

There is little doubt that the social effect of terrorism was investigated. Terrorism, (as an essential part of the scientific social technique which took the place of “the electioneering ballyhoo called politics in our western states”), could not have been so effectively applied if it had not been carefully studied. And those who studied it were free to engage in “unfettered communication” with their fellow-thinkers.

But there was a good scientific reason why their investigations were not published even as “proceedings” or “transactions”.

The human subject matter of scientific activity differs from all other subject matters in that it is capable of overhearing what the scientist says and being influenced by it. It must be kept in the dark about certain things in order to be a suitable case for scientific treatment. Publication of objective studies on the effectiveness of terrorism in the remaking of human nature might have been strong meat even for members of the Academy of Sciences. The retention of scientific control by the Vocation of Leadership required that strict secrecy be maintained. (The Academy did not consist of “intellectual colleagues and equals” of the Politburo. Indeed it was, in this matter, virtually part of “the unthinking public”.)

Another lapse from objectivity is the answer to the question: “How far can it be truly said that the individual citizen enjoys less freedom in the Soviet Union than in Great Britain?” This is answered as if “the citizen” was the same substance in both cases, and a common standard could be applied to assessing his relative freedom in Britain and Russia.

The Webbs forgot for a moment that “the citizen” has had his nature remade in Russia. They are scornful of the freedom of the individual in the West, and are convinced that it could not be less in Russia, so they set about making comparisons which are invalid on their assumption that human nature has been remade in Russia. (If chalk were transmuted into cheese it would not be sensible to include it in a comparison of writing materials.)

The Webbs are scornful of the freedom of the individual in the West from the best of motives (as motives are usually judged). They themselves belonged to a privileged social class in which there was very great individual freedom. And it appeared to them, by contrast with the freedom within which they developed, that in the great mass of the working class there was no freedom of the individual worthy of the name.

But the piffling freedom of the working class does not appear as piffling to the workers themselves as it does to benevolent upper class intellectuals. Indeed, the attachment to freedom appears to be greater in the class which has tasted it but has an insufficiency of it than it is in the class which was bred in it and has a surfeit of it. Upper class socialists are much more willing to give away the freedom of the workers as something which is too meagre to be valued – and, of course, to shed the burden of their own privileged freedom at the same time, exchanging it for privilege of a different kind – than the workers themselves are.

The argument that freedom and equality in liberal democracies are for the mass of the people mere formalities, virtual illusions, is an elitist argument. The privileged few, knowing the real freedom of the rich, are willing to give up the illusory freedom of the multitudes.

But it is highly questionable whether it is the rich who are freest in Britain these days.

There is nothing new in the extensive external freedom which riches can buy. But in the 18th and 19th centuries the rich in Britain were not merely rich: they were a socially purposeful aristocracy increasingly supplemented by a socially purposeful bourgeoisie. Their freedom was of general social significance and consequence. (The rich in Russia in those times were slaves.)

But what are the rich in Britain today? What is their freedom? It is increasingly an aimless and pretentious egoism of the narrowest kind. The rich are merely rich.

The bourgeoisie of the 19th century knew that they were doing great and unprecedented things in the world. Their freedom did not consist merely of an absence of external restraint. They were a coherent and purposeful subjective social body which was enlarging its sphere of action and changing the world in the process.

The present-day rich are, in one sense, freer than the Victorian bourgeoisie, in that they are not bound by the Victorian network of social obligations. Once they have got their “pot of money” (as Reginald Maudling put it – remember Maudling, the poor little rich Tory who came under a bad influence from the working class?), all they have to do is enjoy themselves – having probably destroyed their capacity for enjoyment in the process of acquiring the external means for it. Many 18th century aristocrats had an enormous capacity for enjoying themselves: but not many of the modern rich have.

Your modern rich man, having got his pot of money, may feel the urge “to be of service” (as Jeffrey Archer puts it). The modern rich man trying to feel useful by ‘being of service’ is a pain in the neck. In bygone times it was easy for a rich man to be of service. He could just go out and do good works, and bask in the glory of it. But how does a rich man do good works in a welfare state?

The use that the workers have made of their “purely formal” freedom has spoiled the social conditions of life of the rich.

“Freedom is the inner value of the world”, in Kant’s view (Lectures On Ethics, Methuen edn, p. 122). Without that inner value, absence of restraint is freedom only in a trivial sense. And the development of the working class, within the medium of the ‘purely formal’ freedom so despised by those socialists who are in flight from the tedium of the lives of the modern rich, has in great measure destroyed the inner value of the world for the bourgeoisie.

“The light dove cleaving in free flight the thin air, whose resistance it feels, might imagine that her movements would be far more free and rapid in airless space. Just in the same way did Plato, abandoning the world of sense, because of the narrow limits it sets to the understanding, venture upon the wings of ideas beyond it, into the void space of pure intellect. He did not reflect that he made no real progress by his efforts; for he met with no resistance which might serve him for a support, as it were, whereon to rest, and on which he might apply his powers, in order to let the intellect acquire momentum for its progress.” (Kant, Critique Of Pure Reason, Introduction, Section 4). In similar manner, what counts in modern British society is not the empty personal freedom of the rich who have ceased to be the motive force of society, but the freedom which has developed among the vast body of the people and which progresses against restraints.

The Bolshevik revolution offered the workers of the world a guaranteed minimum standard of living (which turned out to be very minimum indeed), on the condition that they gave up their illusion of individual freedom and put themselves at the disposal of a strictly ordered state which would remake their human nature. The British workers, having decided long before the October revolution that they would develop within the medium of law and individual freedom, rejected the offer.

There is, of course, greater resistance to the development of individual freedom as a general condition of social life than there is to the development of individual freedom within a small privileged class. But the force, the momentum, resulting from each degree of development is many times greater in the former than in the latter.

Bolshevik society developed through the freedom of the state. British society developed through an ever-widening sphere of the freedom of the individual under the law. The choice to be made between them, therefore, is a choice between comprehensively different modes of life, and not between degrees or variations of basically the same mode of life. And the difference in the mode of life is not a class difference: it is a difference which underlies the development of classes.

“To the Bolshevik the mind of man is as much within man’s knowledge as his body … This universal supervision is directed by a deliberate purpose … In the USSR all propaganda is deliberately planned.”

But the mind is certainly not as much within man’s knowledge as his body. The mind always escapes from itself when observing itself. It escapes from itself in the very act of observing itself. It alters itself by observing itself. If it did not do so the human species would be closed and complete like an animal species.

“Have you never seriously considered the power, the strength, the swiftness, the far-reaching dominion, the comprehensive sympathies, the only less than infinite attributes, that belong to the mind of man? It is the one thing that is really terrible in created nature, because whilst striving to master all nature’s secrets its own workings remain the most imponderable secret of all. That mass of grey pulp that is hidden under our foreheads is the mightiest of natural agencies – it has forces more than electric in invincible strength and unimaginable swiftness. Look at the tenacity of man’s memory. Not an idea, not an impression or experience is ever obliterated from it … With the quickness of lightning it grasps an idea or a fact, and holds it, and turns it over, and studies even unconsciously and runs through a chain of reasoning, and compares one fact with another, and deduces from that comparison some great truth that was hidden away in the bosom of Nature. It is thus we have become acquainted with what are called the ‘Wonders of Nature’, and it is thus that the great Heavens, glittering with galaxies of stars have become an open scroll to the many; it is thus that granite rocks, and beds of gravel … are so many books in which the geologist can read the ages of their formations … and it is thus that the student of chemical science can resolve all things, except his own mind, into their original elements, and create new substances at his own will.”

That passage came from the only original philosophic mind produced by nationalist Ireland, that of Canon P.A.Sheehan, a reactionary priest who deliberately wrote novels which flouted the spirit of the age and yet took their place alongside the great liberal novels of England in the revolutionary centre of Ireland. (It will be found in “Irish Youth And High Ideals”, Irish Monthly, January 1891.) Sheehan took the fact that the active mind is capable of knowing everything but itself to be an indication of the existence of God. But it is a fact which has nothing to do with God, though an inadequate materialism has made a gift of it to the theologians. The mind can get to know itself only very partially because it develops in the process of establishing knowledge of itself. It always lies behind its knowledge of itself.)

In a strictly traditional society, organised by custom and fetish, sufficient mental stagnation may be achieved for the mind to meditate upon itself in such a manner that instead of disturbing itself into activity it numbs itself into tranquillity and achieves Nirvana. Something like that is usually meant when it is said that the mind knows or controls itself.

But that is not what happened in Russia, which was a society in turmoil. All that can be meant there is that certain minds knew other minds well enough to be able to control them. The minds which were directing the state knew how to be the engineers of human souls. And the ‘deliberate purpose’ of universal supervision and planning was a purpose of the engineers.

A liberal democratic society which becomes socialist through working class development in the medium of individual freedom cannot ‘know its mind’, or act as a whole in accordance with ‘a deliberate purpose’, (or can do so only in the emergency of war) because it is not a society controlled by an elite which knows it, plans it, and gives it its purpose.

There is a considerable amount of planning within British society even though it is not a planned society.

There is nothing marvellous about a planned society. Almost all known societies have been planned – they have been routine societies which knew in advance what they were going to do in the future because it would be what they had done in the past. But present-day British society, where economic planning is given the purpose of enhancing individual freedom, is something entirely new in history.

Lenin abolished every semblance of political freedom, and established a totalitarian state for the purpose of planning people along with the economy. Ernest Bevin was a much more daring socialist altogether.

19. Crime and Punishment

Liberal-democratic socialism develops in an open-ended framework of law. Bolshevik socialism, after the great upheaval at its beginning, binds society into a closed system of customary practices.

Bernard Levin, in the heyday of his crusade against totalitarianism in The Times, suddenly branched off into a totalitarian tirade against punishment as a legal category. Prison, he said, should be remedial, not punitive.

Official liberalism has completely lost its bearings in this matter. The one major defence of punishment in recent times which I can recall comes from the hippie culture: One Flew Over The Cuckoo’s Nest. That was a savage attack on prison as a place for remedial treatment.

It can be said, of course, that the remedial treatment depicted in it was of an improper kind. But it is in the nature of remedial treatment to engage in a ‘remaking of man’ against his will, whether this is done by a lobotomy which renders him inoffensive or by some kind of psychological terrorism which breaks his spirit.

Kant wrote an eloquent defence of punishment as a condition of freedom:

“Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else and can never be confused with the object of the Law of things. His innate personality protects him against such treatment, even though he may indeed be condemned to lose his civil personality. He must first be found to be deserving of punishment before any consideration is given to the utility of this punishment for himself or for his fellow citizens. The law concerning punishment is a categorical imperative, and woe to him who rummages around in the winding paths of a theory of happiness looking for some advantage to be gained by releasing the criminal from punishment or by reducing the amount of it – in keeping with the Pharisaic motto: “It is better that one man should die than that the whole people should perish”. If legal justice perishes, then it is no longer worthwhile for men to remain alive on this earth …

“What kind and what degree of punishment does public legal justice adopt as its principle and standard? None other than the principle of equality … Only the Law of retribution (jus talionis) can determine exactly the kind and degree of punishment.” (Metaphysical Elements Of Justice, p. 100-101)

In a matter such as this, the question is what humanity is to make of itself, and not whether one view or the other is true in a merely objective sense. People who develop in a culture which tells them that they are freely acting subjects, capable of choosing personally between good and evil, holding them personally responsible and subjecting them to punishment if they choose forms of evil which have been made illegal, and which continues to treat them as free subjects even while it punishes them, will be very different in character from people who develop in a culture which tells them their behaviour is rigorously determined by causes over which they have no control, that they are not free subjects responsible for their actions, and which treats law-breaking as a kind of sickness to be dealt with by an apparatus of social hygiene. To argue about which of these cultures is true is like arguing about whether the true rules of football are those of rugby, soccer, Australian or Gaelic. Football can take any of those forms, and mankind can mould itself into a variety of cultures, some of which are static and others progressive, and find satisfaction in each of them. And classes can exist in static cultures. But class differentiation in a static society is not resented, and does not generate social antagonist precisely because it is rigid and is sanctified by ideology and stabilised by fetishes. Class antagonism in Western society occurred because the society was progressive – was changing through the operation of internal forces – and the class structure was not comprehensively sanctioned by ideology. Books were written to justify it: but such books were written, and sermons were preached, only because the basic culture of bourgeois society – the various kinds of Protestantism – did not sanctify existing class differentiation and tend to mould society into a static hierarchy. Those books were only arguments, and they were disputed. Protestant Christianity, the ideological medium of bourgeois development, was, by comparison with the great conservative cultures like Hinduism and Confucianism, and even by comparison with Catholicism, a dispute and an incitement to rebellion. It was both a cultural revolution and a revolutionary culture. And, through the ideology of freedom of the individual, it produced widespread resentment of class stratification.

Socialism as it has actually developed in the West not only retained its protestant inheritance of individualism but developed it still further. It did not do that under the influence of socialist theory any more than it did it under manipulation by the bourgeoisie. At various critical junctures, from the 1790s onwards, hundreds of thousands of the most energetic people amongst the masses held back from forcing a revolutionary rupture and opted for progress within the medium of the law.

“The juridical concept of guilt is not a scientific concept, since it leads directly to the contradictions of indeterminism”, said Pashukanis. Guilt is an intrinsic part of the ideology of freedom, and freedom is not scientific (is not a repetitive system which can be grasped by formulas). But the “contradictions of indeterminism’ must be a possible mode of social existence since they are an existing mode.

“Unfortunately for speculation – but perhaps fortunately for the practical interests of humanity – reason, in the midst of her highest anticipations, finds herself hemmed in by a press of opposite and contradictory conclusions, from which neither her honour nor her safety will permit her to draw back”, Kant wrote in the Critique Of Pure Reason (Transcendental Dialectic, Book 2, Chapter 2, Section 3), And he set out four of these contradictions which are incapable of resolution – the antinomies of pure reason.

Here is the 3rd Antinomy:

“Thesis: Causality according to the laws of nature, is not the only causality operating to originate the phenomena of the world. A causality of freedom is also necessary to account fully for these phenomena. Antithesis: There is no such thing as freedom, but everything in the world happens solely according to the laws of nature.”

Kant showed that a persuasive case can be made for each side: but, as the producer of the most comprehensively human philosophy ever written, he refused either to dismiss the antinomy as a kind of illusion which it was best not to think about or to choose between the Thesis and the Antithesis. But, by virtue of refusing to choose, he accorded validity to the Thesis.

“Scientific socialism” has decisively chosen the Antithesis. The “contradictions of indeterminism” are intolerable to it.

Therefore “in place of punishment we substitute treatment, that is to say a concept of mental health … a measure of expediency for the protection of society and the reform of individuals.” (Pashukanis).

The alternative to the imposition of punishment for crime is the reform of the criminal so that he becomes incapable of crime.

Punishment treats the individual in question as an end in himself. The right of the criminal individual to make use of his freedom to commit crimes is not questioned. The law takes his character as given. It does not set itself the aim of remaking it. The criminal is punished. Through punishment he purges his guilt, and may then re-enter society. Society hopes that while undergoing punishment he will repent and will not revert to crime when his objective freedom is restored – or that if he does not repent, he will in future shun criminal activity for reasons of prudence. But society does not set itself the task of remaking him as a person.

A prison system which does not punish the criminal, but which sets itself the aim of reforming him so that he ceases to be capable of crime, treats the individual strictly as a means to a social end. Social harmony is the end, and individuals who disturb it are to be remade in accordance with the appropriate “concept of mental health” in such a way that they cease to be capable of disturbing it.

“The juridical concept of guilt is not a scientific concept, since it leads directly to the contradictions of indeterminism”, says Pashukanis. But, then, humanity is somewhat “indeterminate”, as a glance at the great variety of social forms which it has produced should demonstrate.

Pashukanis declares that law, personal responsibility, and personal guilt for crime, are an ideological product, or condition of commodity relations. But, as ideological categories, they were developed through Judaeo-Christian theology, which fed itself off the cultures of Greece and Rome. And one might, with at least as much plausibility, argue that the subjective development wrought by that theology made modern capitalist society possible as that the economic form of the market produced Judaeo-Christian theology. In the 1920s Comintern theorists, with their rigorous economic determinist understandings, puzzled over the problem (created by economic determinist dogma) of why the existence of extensive commodity relations in China over a very long period failed to produce a capitalist society there. If they had seized upon Pashukanis’s 1929 insight, that the non-economic is the medium in which the economic develops, they might have made some progress. But thought on such lines was not permissible within Bolshevik ideology, whose task was to mould its piece of humanity into a closed system rather than to dwell upon the great variety which exists in humanity at large. It might be said that the function of Bolshevik ideology was to explain away the world in order to change one piece of mankind into something unchangeable.

The ideas of law, personal responsibility and individual guilt developed within theology, but in British society they have not only survived the death of theology but have expanded their sphere of action since society became secular in its basic outlook. And the great question is not whether personal responsibility is an unscientific notion, but whether the human development which occurred in conjunction with it is to be destroyed.

Humanity may mould itself on the supposition that, as all actions are adequately caused, there is no personal responsibility, and that unacceptable social behaviour (behaviour which disturbs the harmony of society) is a sickness which should be treated medically. Or it may mould itself on the assumption that individuals are microcosms within which contending forces are in conflict; that they are not only able to choose between good and evil but must do so; that they are responsible for their choice, and the choice of certain kinds of evil merits personal punishment – with the individual undergoing punishment still remaining a free subject internally, and only his external freedom being circumscribed.

It is not a question of which of these suppositions is true. Humanity is capable of being moulded by either of them. It is infinitely flexible in its potential. The question is what humanity chooses to be rather than what it is by nature. By nature it is nothing in particular: it is wild.

The frenzied activity of the first generation of Bolsheviks had the purpose of taming humanity, and making it placid and custom-ridden.

(A leading Bolshevik, Yuri Pyatakov, who is mentioned in Lenin’s Testament, is reported as making the following statement during the period of frenzy: “Volsky made a critical remark about Piatakov’s rather sudden change of attitude towards Stalin’s policies. Piatakov … explained his conception of the Bolshevik party as a unique phenomenon in the world. ‘According to Lenin’, Piatakov said, ‘the C.P. is based on the principle of coercion which doesn’t recognise any limitations or inhibitions. And the central idea … is not coercion by itself but the absence of any limitation whatsoever – moral, political, and even physical … Such a party is capable of achieving miracles and doing things which no other collective or man could achieve. A real Communist, that is, a man who was raised in the Party and had absorbed its spirit deeply enough becomes himself in a way a miracle man.’ An ordinary man, Piatakov noted, cannot honestly change his views quickly, but a Communist, by an effort of will, can honestly and earnestly call white today what was black for him yesterday, and vice versa.” (Raphael Abramovich, The Soviet Revolution, p.415. Abramovich was a Menshevik who was involved in the affairs of 1917 and kept up close relations with Bolshevik intellectuals until the 1930s.)

The generation which made the revolution had to be capable of this kind of demented consciousness, this dizzy perversity. Their aim, however, was to produce a generation which would follow the party line matter-of-factly, without the need for frenzied states of mind; and which would be virtually unaware of changes in the party line because its basic knowledge was that at each given moment there was a definite party line.)

Marx in his early writings (The Jewish Question and Economic And Philosophical Manuscripts) flirts with the notion of mankind as a “species being”. This term re-surfaced in Bolshevik writing in the 1920s. A ‘species being’, as far as one can gather (for it is a hazy idea), is a being which exists uniformly in its species, but is conscious of so existing. All other animals, which actually do have a uniform existence in their species, are assumed to be unaware of the existence of their species. But man exists consciously as a species, though he is at the same time alienated from his species being. The revolution will end alienation, and man will become a species being in a direct and immediate sense. (But why consciousness should not only remain after the ending of alienation, but should blossom as never before, I cannot imagine.)

Kant appears to have had something like this idea of a ‘species being’ in mind when he remarked that on other planets, though not on Earth, the individual may “attain his destiny in his own life” (On History, p. 18). (And I am quite happy with this relegation of species-beings to other planets.)

A human destiny which is fully achievable in the life of each individual must be a meagre destiny. The destiny of sparrowhood is fully achieved in the life of every sparrow in every generation.

There are two ways in which the destiny of the species may be fully achieved in the life of each individual: the way of the spider and the way of the ant – of the self-sufficient family unit and the total collective. The individual may live out his full life in virtual isolation from other individuals of his species, or the species may live a collective life through a perfected division of labour. In either case each unit of the species is satisfied that he participates in a complete realisation of the destiny of the species.

The singular destiny of mankind as it has existed up to the present is that it has no positive destiny. It has escaped numerous positive destinies. It has constructed many frameworks with a view to becoming a “species being”, but has broken free of them all. Bits of mankind have constructed perfect closed frameworks of existence for themselves, in which they have lived for hundreds, even thousands, of years in the repetitive mode of a species being. But the open-ended mainstream has always disrupted those perfect, closed sub-divisions.

A great many Utopias have been projected along the line of the mainstream, signifying a yearning for a finite destiny – for an end of history. The positive content of Utopias, the ideal which they envisage, is invariably a closing down of mankind into a species-being, a reversion to Paradise, though their negative content may have the contrary effect by stimulating opposition to some prevailing equilibrium.

Lenin, who had studied the failure of earlier Utopias, presented his Utopia in the guise of a scientific programme and ridiculed the humanist ideology of his precursors. But there can be no doubt that he was a Utopian. He was, moreover, an effective Utopian. He aimed to save mankind from the existential turmoil of open-ended development, and to make it happy, by immediately giving it a finite destiny, and closing it down. He sometimes used liberal language and hinted at a human adventure into the infinite. But he always acted as a purposeful totalitarian.

Bolshevism has come close to realising its Utopian ideal of human happiness in a closed system. And its success is in great measure due to its readiness to obliterate millions of people with incorrect ideas in the decades following the revolution, so that all future generations to the end of time might be happy.

To make this social surgery more acceptable to the generations in which it occurred, and to prevent people at large from being so brutalised that they might be made unfit for fetishistic happiness, the state kept information about the surgery out of the public sphere, and presented the whole thing as an exercise in reform through labour.

The possibility of reform through labour is an illusion of people who have not laboured. It did not work either in Soviet Russia or Nazi Germany – at least it did not work in the crucial area of people whose crime was to have incorrect ideas. And it can be assumed that the Soviet leaders knew as well as the Nazi leaders that it would not work. “Arbeit macht frei” was the official motto of the Nazi concentration camps. I don’t think Soviet camps had slogans on the gateways, but the official rationale of concentration camps was the same in both systems. The reality was also much the same.

Solzhenitsyn was not being irrelevant when he observed that Marx (who in the last page of the Critique Of The Gotha Programme described productive labour as the “sole corrective” of criminals), “had never in his life taken a pick in hand.”

The present writer somehow happened to be a thinker of incorrect thoughts in a society which until very recently had strong totalitarian characteristics (but centred on a Church, not a state). He also happened to be an unskilled labourer, and did long hours of heavy labour of a kind which has become obsolete since the sixties. He would say that the hardest labour, if it is not carried to the point of physical destructiveness in an environment of oppressive hopelessness designed to crush identity, is more likely to stimulate incorrect thought than to stifle it. Hard physical labour facilitates free thought of a general kind in a person who is that way inclined. (And, while the present writer was freely elaborating his incorrect thoughts in the labouring base of Catholic Irish society in the fifties, the intelligentsia were vying with one another in the region of superlative orthodoxy.)

Arbeit macht frei, given half a chance. But freedom does not tend to produce orthodoxy.

If the Bolshevik state had taken Marx’s doctrine completely in earnest, and had placed the thinkers of incorrect thoughts in camps conducted on humanitarian principles so that they might reform themselves through useful labour, those camps would have become universities of heresy, and would have subverted the state. The nucleus of an alternative society would have flourished within them. And it must be assumed that the Bolshevik leaders, who had experience in Tsarist camps, knew that very well.

The function of the camps as actually conducted was to compel the thinkers of incorrect thoughts to perform some useful labour for the state under circumstances designed to destroy them fairly quickly. (And even then the first free soul to develop in post-revolutionary Russia was somebody who barely escaped destruction through forced labour.)

Stalin’s innovation was the addition of some useful labour to the process of destruction. In the era of Lenin, Trotsky and Bukharin the camps appear to have been purely destructive institutions.

The camps as actually conducted were realistically conceived means towards achieving the Utopian end. A closed society, structured by its fetishism so that people are content to live out their lives in set patterns, may present a charming aspect to the observer from our disturbed and progressive world. But why should it be thought that the transition from our open-ended and hectic world to the tranquil Utopia hazily envisaged by many on the left is achievable by charming means?

The mode of transition established by Lenin and operated by Stalin – unlimited state terrorism, unhindered by law, combined with the imposition of a positive and comprehensive state ideology – was undoubtedly the only effective mode for the realisation of Utopia.

The framework of Utopia is constructed by the arbitrary action of the state. The state thereafter remains as the guarantor of Utopian order, but it seeks as far as possible to bring about a state of affairs in which order is maintained by the force of custom.

Stuchka viewed liberal democracy as a juridic and political superstructure on commercial relations, and as “an excrescence over … the most natural and simple relations”, and he spoke of the “natural simplification” being wrought in the transition period.

“Pashukanis declared that “Man as a moral subject … is no more than a necessary condition for exchange according to the law of value”; that “We do not recognise any kind of absolute legal capacity or any inalienable subjective rights. For such inalienability is the inalienability of capitalist exploitation”; and that “Marxist theory … strives to reduce all social relationships to man himself.”

“Man himself” in his “natural relations” is a being who in his individuality is not a moral subject and has no human rights.

John Locke, the philosopher of the 1688 Revolution, whose philosophy is now woven into the texture of British social life, conceived of man in a state of nature as being a law unto himself, as a sovereign subject, who continued to possess inalienable rights even when he relinquished his sovereignty to civil government. And, while that conception may be described as a construction of developing bourgeois ideology, it allows for a development beyond capitalism (by according inalienable rights to the workers), and its influence has not tended to consolidate the capitalist state.

The Soviet conception of man in his “natural relations” is a conception which binds man to the totalitarian state. (It is akin to the Roman Catholic conception of “the common good”, which is theologically determined.)

“Man himself” is man as designed by the state. But, though he is a manufactured product, turned out by the “engineers of human souls”, man in this condition does begin to resemble an animal species of the collectivist kind, with the state operating in the place of instinct and structuring life around fetishes.

The natural life is highly fetishistic. A few eminent things charged with emotional significance are nodal points in its organisation and provide much of its satisfaction. Such a life is likely to appear empty to somebody who has developed amidst the concrete variety of things and relationships found in societies where freedom is an attribute of the individual rather than of the state. But fetishes are capable of making life full if one is properly bred for them.

“Archaic criminal law knew only the concept of injury. Guilt and blame … were totally absent”. “Only the complete disappearance of classes will make possible the creation of a system of penal policy which lacks any element of antagonism.” – Pashukanis.

The great Moscow Trials were not perfect, as perfection is conceived here. But they were in transition towards perfection. The language of guilt and responsibility was not absent from them, but they were indisputably acts of expediency. They were not entirely free of the “element of antagonism” which is the medium of bourgeois trials (Bukharin and one or two others had not completely freed themselves from bourgeois conceptions, and from the category of the moral subject which is a mere phenomenon of market exchange. See The Bukharin Trial, B&ICO), but by and large the defendants did not defend themselves, and the court-room was a delightfully harmonious scene.

“If, in place of punishment, we substitute treatment, that is to say a concept of mental health, what follows is entirely different, since we would then be interested, not primarily in whether the punishment fits the crime, but in whether the measures taken are adequate to the goals set”. “Transforming punishment from retribution into a measure of expediency for the protection of society and into the reform of individuals who are a threat to society calls for the completion of a colossal organisational task.” – Pashukanis.

Pashukanis fell victim to the expediency of the state, but his ideas lived on. His General Theory Of Law And Marxism was republished in Moscow in 1980. The “Stalinist ice-age” has gone, and the mystical lumber of personal guilt and punishment has gone with it. The holding of liberal-democratic ideas is now recognised to be a sickness, a problem of mental health, and the sufferers are being admitted to psychiatric hospitals.

It is puzzling that Roy Medvedev does not appreciate the great advance which has taken place. He berates Stalin for suppressing the work of that “prominent jurist” and “leading social and natural scientist”, E.B. Pashukanis. But when his brother, Zhores, was infected by some dangerous ideas, and Soviet psychiatrists tried to cure him – as Pashukanis advocated – Roy responded most unscientifically.

Conclusion

The Soviet Union has, in its post-Stalin era, discarded the liberal facade of the Stalin Constitution. Article 6 of the 1977 Constitution officially subordinates the whole life of society to the Party:

“The CPSU is the leading and guiding force of Soviet society and the nucleus of its political system and of all state and social organisations … Armed with Marxist-Leninist doctrine, the C.P. determines the general perspective of the development of society and the course of the domestic and foreign policy of the USSR, directs the great creative activity of the Soviet people, and imparts a planned and scientifically-sound character to their struggle for the victory of Communism.”

It also says that the CP “exists for the people and serves the people”. This is true enough in the sense in which a strict and domineering Victorian father existed for, and served, his family.

The Communist Party is not mentioned until Article 126 of the Stalin Constitution, and then only in a list of “public organizations” which citizens are accorded the right to unite in: i.e., “trade unions, cultural, technical, and scientific societies ; and the most active and politically conscious citizens from the ranks of the working class and other strata of the working people to unite in the All-Union Communist Party (Bolsheviks), which is the vanguard of the working people.” It is mentioned again in Article 141: “The right to nominate candidates shall be ensured to public organisations and societies of working people; Communist Party organisations; trade unions; organisations of youth; cultural societies.”

The impression of political pluralism conveyed here was, of course, meaningless in practice. Article 2 said: “The political foundation of the USSR is the Soviets of Working Peoples Deputies.” That, too, was practically meaningless. The Soviets, as political foundations, had been dug up by Lenin and were not restored by Stalin. They remained what Lenin had made them: a rubber stamp. Everybody knew that the political foundation (and the walls, ceilings, floors, doors, windows and roof) was the Party. Brezhnev only removed a facade: but he did remove it.

Recent developments in Soviet law are described as follows by W.E. Butler in Soviet Law (1983):

“Soviet jurists gave serious thought for the first time to mechanisms for social control in the first phase of communism as the State withered away. Customary law took on special interest in this connection and no longer was deemed to be inherently retrograde. Vyshinsky’s definition of law was deemed unsuitable for the new stage of societal development.” (p.35)

Vyshinsky became the doyen of the legal profession around the time Pashukanis was removed from it. In the West he is usually thought of as having debased the law by making it an instrument of state policy. But because he held in principle that law operated in socialist society he appears to post-Stalinist Russia to have been a legalistic obscurantist.

That is the story of the law and socialism in the Bolshevik revolution.

Socialism has been developing in Britain through the extension of law. It is admitted in practice in the British labour movement that law is the absolute condition of individual freedom, which is essential to socialism The extension of law in recent times has been an extension of freedom. Development which would restrict individual freedom has not been permitted to occur. But this state of affairs finds no reflection in the theoretical or propaganda writing of militant socialism.

Socialism which develops in the medium of law, and amidst the diversity and conflict produced by individual freedom, cannot present itself in the ceremonial ideological neatness which characterises totalitarian socialism.

Notes

Rousseau

The germs of Kant’s philosophical position are scattered throughout Rousseau’s Emile. The following is a germ of his conception of society:

“Every patriot hates foreigners; they are only men, and nothing to him …

“The natural man lives for himself; he is the unit, the whole, dependent only on himself and his like. The citizen is but the numerator of a fraction, whose value depends on its denominator; his value depends upon the whole, that is, on the community. Good social institutions are those best fitted to make man unnatural, to exchange his independence for dependence, to merge the unit in the group, so that he no longer regards himself as one, but as part of the whole, and is only conscious of the common life. A citizen of Rome was neither Caius nor Lucius, he was a Roman …

“A Spartan mother had five sons in the army. A Helot arrived; trembling she asked him his news. “Your five sons are slain”. “Vile slave, was that what I asked thee?” “We have won the victory”. She hastened to the temple to render thanks to the gods. That was a citizen.

“He who would preserve the supremacy of natural feelings in social life knows not what he asks. Ever at war with himself, hesitating between his wishes and his duties, he will be neither a man nor a citizen …

“Our inner conflicts are caused by these contradictions. Drawn this way by nature and that way by man, compelled to yield to both forces, we make a compromise and reach neither goal.” (Emile, 1762, Everyman edition, p.7-9)

Spinoza

Reference is made above to the popularity of Spinoza’s rigorous determinist philosophy with Leninist philosophers. Here is a sample of it:

“I want to explain here briefly in what sense I maintain the fatalistic necessity of all things and of all actions.

“For in no way do I subject God to fate, but I conceive that everything follows with inevitable necessity from the nature of God …

“Next, this inevitable necessity of things does not do away with either divine or human laws. For … whether we receive the good which follows from virtue … or whether it proceeds from Divine nature, it will not, on that account, be either more or less desirable, just as, on the other hand, the evils which follow on wicked actions and feelings will not be less to be feared merely because they follow from them necessarily. Lastly, whether we do what we do necessarily or contingently, we are nevertheless led by hope and fear.

“Further, men are inexcusable before God for no other reason than that they are in the power of God Himself as clay in the hand of the potter, who from the same lump makes vessels, some unto honour, others unto dishonour.” (Spinoza to Henry Oldenburg, December 1675)

“No one can blame God because He has given him an infirm nature or an impotent mind. For it would be just as absurd for a circle to complain that God has not given it the properties of a sphere, or a child who is tortured by a stone, that He has not given him a healthy body, as for a weak-minded man to complain that God has denied him strength … But you will insist that if men sin from the necessity of their nature, they are excusable: but you do not explain what you want to conclude from this … for men can be excusable and nevertheless lack blessedness, and be tormented in many ways. For a horse is excusable for being a horse and not a man; nevertheless it must be a horse and not a man. He who goes mad from the bite of a dog is, indeed, to be excused, and yet is rightly suffocated …” (Spinoza to Oldenberg, February 7, 1676, quoted from The Correspondence Of Spinoza, translated by A. Wolf, 1928, p.346-7 & 358)

Bibliography

N Bukharin: The Politics And Economics Of The Transition Period (London, 1979)
F_ Dostoevsky: Diary Of A Writer (London, 1949)
Immanuel Kant: The Metaphysical Elements Of Justice (USA, 1965)
On History (USA, 1963)
Lectures On Ethics (London, 1930)
Critique Of Pure Reason (Everyman edn)
K Marx – Critique Of The Gotha Programme
Capital, Volume 1
Roy Medvedev Let History Judge (London, 1971)
On Stalin And Stalinism (Oxford, 1979)
E B. Pashukanis; Selected Writings In Law And Marxism (Academic Press, 1980)
Law & Marxism: A General Theory (Ink Links, 1978)
The Soviet State & The Revolution In Law: The Situation On The Legal Theory Front (in Soviet Legal Philosophy)
Leon Petrazhitsky: Law And Morality (Harvard University Press, 1955)
M.A. Reisner: The Theory Of Petrazhitsky: Marxism And Social Ideology (1908)
Law, Our Law, Foreign Law, General Law (1925) (Both in Soviet Legal Philosophy)
Solzhenitsyn: The Gulag Archipelago, Volume 2
Soviet Legal Philosophy Introduced by J.N. Hazard (Harvard University Press, 1951)
P I Stuchka: The Revolutionary Part Played By The State – A General Doctrine Of Law (1921, in Soviet Legal Philosophy)
Sidney & Beatrice Webb: Soviet Communism: A New Civilisation (2nd edn, London, 1937)

The extremism of Soviet legal theory

Socialism and Law:

A survey of Soviet legal theory

1. Solzhenitsyn

2. A Coy Idealism

3. An Althusserian Discourse

4. Pashukanis

5. Stuchka

6. Fetishism and Nature

7. Kant On History

8. Modern Tragedy

9. Kant On Law

10. Law in Russia

11. Reisner- A Kantian Bolshevik (failed)

12. Fetishism and Unequal Distribution

13. Virtue and Necessity

I4. Science and Society

15. Petrazhitski

16. A Critical Blank in Stalin-Criticism

17. The Webbs

13. The Webbs Reviewed

19. Crime and Punishment

Conclusion

Notes

Rousseau

Spinoza

Bibliography

First published in Problems of Communism Nos 27 & 28, Autumn 1985.

Scanned for web posting by Peter Brooke, 2017.

Socialism and Law:

A survey of Soviet legal theory

1. Solzhenitsyn

2. A Coy Idealism

3. An Althusserian Discourse

4. Pashukanis

5. Stuchka

6. Fetishism and Nature

7. Kant On History

8. Modern Tragedy

9. Kant On Law

10. Law in Russia

11. Reisner- A Kantian Bolshevik (failed)

12. Fetishism and Unequal Distribution

13. Virtue and Necessity

I4. Science and Society

15. Petrazhitski

16. A Critical Blank in Stalin-Criticism

17. The Webbs

13. The Webbs Reviewed

19. Crime and Punishment

Conclusion

Notes

Rousseau

Spinoza

Bibliography

First published in Problems of Communism Nos 27 & 28, Autumn 1985.

Scanned for web posting by Peter Brooke, 2017.

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