Teoria Geral do Direito e Marxismo

by Evgeny Pashukanis

O livro Teoria geral do direito e marxismo, do jurista Evguiéni Pachukanis, despontou como a mais importante reflexão sobre o direito no campo do marxismo. A princípio, a obra não foi pensada como um manual marxista para a teoria do direito, mas como “uma tentativa de aproximação da forma do direito e da forma da mercadoria”, como afirmou o jurista e bolchevique Piotr Stutchka após a leitura da primeira edição, publicada em 1924. Pachukanis tinha como intuito apenas trazer algumas questões da teoria geral do direito para discussões futuras, esboçando os traços fundamentais do desenvolvimento histórico e dialético das formas jurídicas a partir de conceitos que ele havia encontrado em O capital, de Karl Marx, e Anti-Dühring, de Friedrich Engels, mas o resultado acabou indo muito além do esperado: o livro se tornou uma referência em filosofia do direito e a obra mais importante de Pachukanis, indispensável como material didático nos cursos de graduação e nos estudos de crítica às instituições jurídicas burguesas, do ponto de vista do socialismo científico.   Capa comum: 144 páginas
Editora: Boitempo; Edição: 1ª (5 de abril de 2017)
Idioma: Português
ISBN-10: 8575595474
ISBN-13: 978-8575595473
Dimensões do produto: 23 x 15,6 x 1,2 cm
Peso de envio: 381 g

Genres: Law, Philosophy, Politics, Nonfiction, Theory

358 pages, Paperback

First published January 1, 1924

About the author

Soviet legal scholar, best known for his work The General Theory of Law and Marxism.

Reviews

[Brad · Rating 4 out of 5]

I'm going to have to let this one "marinate" mentally for a while. It's no wonder Pashukanis is held in high regard as a legal scholar. His dialectical presentation of schools of law in the revolutionary context of early Soviet Russia and particularly in light of the NEP say so much so clearly.

One simple sentence in Chapter 4 says it all: "Commodity fetishism is complemented by legal fetishism." It's depressingly striking how effectively Pashukanis ties this critique of superstructure into an examination of the adversarial legal process as a pseudo-contract. It's not merely that the courts are in the hands of capitalists in a direct sense, but rather that the contractual legal form is capitalist superstructure. Punishment for crime is functionally "equivalent exchange", but of course not nakedly so, rather veiled in legal fetishism. A thief violates the "social contract" of property rights, but conceived as an actor in a market, the thief commits a quantified breach-of-contract. It's interesting to think of mandatory minimum sentences and questions of judicial discretion in this context.

The vision of the "withering away of law in general" is a powerful practical project central to the development of an organic social system. It's yet another example of the cruel irony of the left's 20th-century history, in which organic projects develop in an embattled and distorting context, with limited if any room to see them through.

[Yumeko (blushes) · Rating 4 out of 5]

"Law is simultaneously the form of external authoritarian regulation and the form of subjective private autonomy. In the one case, the fundamental substantive characteristic is that of unconditional obligation, of absolute external coercion, while, in the other, it is the characteristic of freedom, guaranteed and recognised within certain limits. Law appears sometimes as a principle of social organisation, and at other times as a means of enabling individuals to define themselves within society. On the one hand, law merges completely with the external authority, while on the other, it is just as completely opposed to every external authority which does not acknowledge it. Law as a synonym for official statedom, and law as the watchword of revolutionary struggle: this is the field of endless controversies and of the most unimaginable confusion."

I really liked this paragraph on the experience of law.
But anyway.
Is it just me ya Karl Korsch bund marwa raha tha bhai ki appendix mei, 'Isne kuch naya nahi kaha lol. Actually kuch cheezein jo Marx ne kahin thin clearly usne woh bhi nahi kaha ahahahha'. I am so not used to the appendix, preface, or the like to not basically be extensively praising the work. 
I mention around the end certain things Karl said, and my main dislike about the book. The bulk of the review consists of the summaries of the summaries I made while I read the book, which I'm glad I made because I had to put down this book for a long while...and because I was incoherent in my initial summaries 😃.

Introduction

The general theory of law can be defined as the dev of fundamental concepts in law like the legal subject, legal norm, and legal relation. The latter two came historically while the former was more consciously thought. Neo Kantian, or bourgois, legal philosophy contends however that these categories existed prior to experience, and so render experience possible at all. 

Basically, the definitions for the general theory of law you do find in bourgois legal texts are somewhat arbitrary (division of subjective and objective law, the relation between which is illusory), abstract, and so hardly represent the legal form. 
The juridical relation came into distinction with the advent of bourgois capitalist society, city development being the most important stage for the crystallisation of this relation.

Marxism doesn't look at the general theory of law at all (according to Pashu bhai) but at the historical development of its institutions, so the legal institution at any specific epoch, and at the concrete content of legal norms. It should be giving a materialist conception of legal regulation as a specific historical form. This conception will have little to do with formal definitions and the objections to bourgois legal philo as it explains it's dev alongside that of the bourgois state. 

One thing that was cleared up was the fact that it is not the case that the abstractions of bourgois law are exclusive to it and that prol law will have different abstractions. There isnt such a thing as proletariat law. You can't take the legal form away from its historical development into something revolutionary. The withering away of bourgeois law is the withering away of law, without replacement with something called socialist law, just as there is no such thing as a replacement of socialist profit instead of capitalist profit. 

1.
Bourgois legal theory is a peculiar blend of historicism and juridical positivism. Instead of trying to explain the legal form they justify it's binding force by formulating its fundamental conditions of existence in extremely abstract terms, terms that reflect bourgois interests. 
In the fact that this law seems universal, it infact expresses the aspects of a particular society, the commodity producing society. 

2.
The idea that law has an ideological character should not distract us from the fact of its social reality. The legal form is a social relation, specifically such that can transfer it's form to other social relations. For example, the regulation of a social relation can quickly take on legal character. 
A pre requisite for legal regulation is the conflict of private interests, while for technical regulation it is the unity of purpose.

3.
Without the legal relation, the legal norm is just an abstraction. The normative schools don't study the former however, claiming that the relation is something generated by the norm. But what does that mean? It could mean either that the norm takes primacy over the relation, or it could mean that the relation is derived from the norm. 

Now for the norm to take primacy over the relation, there will have to be a norm setting authority, so a political organization. Since this is before we're looking at a legal superstructure, this might imply that a legal superstructure is a consequence of a political superstructure. Here we will have to remember that the latter stems from the mode of production and property relations of a society, so with the same definitions as economic theory.

We should start our analysis of the legal relation as based on the economic relations of society, instead of a norm by a norm setting authority since the system of juridical concepts only partially accomodates for the logic of the relations of dominance brought upon by social relations for commodity production. That is to say, the roots of the system of private law is not in the permission of an authority, but in the social relations for comm prod. 

Now for the question of the relation being derived from the norm, I'm not entirely clear about what Pashukanis thinks here but what from I understand he means to say that it can't be derived, but it can with a regulating force safeguard the legal relation. 

The legal system deals with isolated private interests and not with the impersonal interests of the state.

If all economic life is to be built on the agreements of autonomous wills then every interaction assumes a legal character. It is in the nature of political org that it doesn't promote the full dev of private interests the way the economic system does (while economic systems are built on the principle of individuals pursuing their own interests through agreements, political organizations do not center around this principle). And so subjective public rights appear to lack gen1 roots and feel dubious. The state can only be conceived as a legal superstructure, since its legal workings are indispensable to understanding how the state works, it cannot explicitly be defined just as a legal superstructure.

Fun thing to mention since I liked it is that unconditional subjection to a norm setting authority has nothing to do with the legal form. The example he gave was of a military unit, the less autonomy, the less grounds to apply law. Though I would say to that the legal character is assumed in social relations too when there is exchange, and I'm not entirely sure what is exchanged here. 

4.
Every legal relation is a relation between subjects, and since it is the simplest element we should start our analysis with it. 

Razumovsky however, did not agree. He thought that we should begin with something relevant to all historical epochs, that is, property. The thing with that is that the relation of private property has only assumed legal form at a particular stage of development of productive force and of the corresponding division of labour (comm prod society). 

Razumovsky also thinks that Pashu bhai eliminates the relation of dom and sub (nice) by basing it on the subject, instead of on property which has the subject, and the relation of sub dom tied to it. 

It however needs to be mentioned that land ownership was liberated from the relation of sub dom (hehe) when capitalism took over the feudalism. A slave is totally subservient to his master, and such an exploitative relationship requires no specific legal formulation. Now, subordination is mediated through contract. 

A legal subject's will resides in the objects of its ownership, but at the same time rise reified relations (like profit rates) that treat the subject like an object. That already brings the commodity form into the conversation, which is interdependent on the legal form, but is not the same as it. Commodities dominate man economically while man dominates over them legally. In this way man is equal to others, and this will is juridically constituted. 

Legal rights are attributed to the individual as if they inherently possess them by subjective law, which is the form the sphere of dominance has taken (power structures of society). This is like how value is attributed to commodities as being inherent to them. Furthermore, like how Commodity Fetishism refers to when the social relationships between individuals involved in production are obscured, Legal Fetishism refers to when the social and power relations that actually create and enforce laws are obscured.

5.
The money economy makes the juridical interpretation of power possible by introducing the contradiction of private and public life, which was not present for feudal relations.

The state itself doesn't need a legal interpretation to the extent that it serves the function of class rule, but given that market exchange doesn't only use the language of law, but functions as law, and the dominance of the bourgeoisie is in the state's reliance on things like banks and all, this dominance gives facts their legal expression, for example in the sentence of courts. This is how indirect class rule arises in the shape of official state power.

Then there is the question of why the machinery of state coercion not come into being as the private machinery of the ruling class, why does it detach itself from the ruling class. 

To answer that it is advantageous is true but incomplete. If we look at the main differences between the theological and juridical conception of power, we see that the former mystifies the power of the authority, while the latter sees the state through the legal aspects of a comm prod society, so as a product of the legal structure. The state basically is not going to look like the private machinery of the ruling class when everyone seems to be 'the same under the eyes of law'.  The fact that the state power seems impersonal is how it works with stability.

If, then, dev began from owning, the relationship b/w ppl and things were transformed into a legal relationship as a result of needs created by the circulation of good, primarily buying and selling. It is the establishment of permanent markets, and not of trade by sea or caravan creating the need for protection, that created the need for settling the question of right of disposal over comm, and hence for property law. 

Objects have functions, and any function related to its utilisation is a means of consumption, but if its functioning as an exchange value, it becomes an impersonal object, a purely legal one, and its disposal is carried out by a purely legal subject.

6.
There are three necessary conditions for the value relation to be realised: men being of equal worth (so not slaves), men existing as legal subjects, men working as a subject operating egotistically (as in, with no regard for considerations other than economic; think moral, social, or ethical).

In a commodity-producing society, moral personality is the subject, and moral law regulates interactions between commodity owners. This makes it a social law above the individual, but the individual's freedom to alienate and appropriate necessitates an 'inner law.' Kant's categorical imperative combines these notions, being universal and independent of emotions or external pressures.

Ethical doctrines, while aiming to change the world, merely reflect the aspect of the world subject to the law of value. To abolish moral fetishism, one must abolish commodity and legal fetishism. Morality, law, and the state are forms of bourgeois society that must eventually disappear, as their existence and demise are historically necessary.

The contradictions in bourgeois legal philosophy manifest differently when discussing the relationship between law and morality versus law and the state. If law is seen as independent from morality, it merges with the state due to external coercion. If law is contrasted with the state, the concept of duty (Ought) aligns law and morality against the state.

SHIT FINALLY ENDED (I DIDN'T CARE TO READ 7)

I loved reading the Appendix. Remember Korsch's opinions? He gets specific abt what the book lacks and says that Pashukanis shies away from saying that after the prol revolution, and capitalist society withers away, alongside law, there will be no morality, as we know it atleast (my watering down), which is fucking crazy.

But the shade like, bruh, what is this: 

"We are far from reproaching the 'orthodox Marxist' Pashu­kanis with these and several other instances where his critically revolutionary 'theory' lags behind the theoretical ideas expressed by Marx and Engels themselves in an earlier historical period. We tend rather to see the decisive failing of this 'materialist' critique of law in its all-too didactic, scholarly­ dogmatic character, which compared with past and present reality and practice is frankly 'juridically unworldly' at a theoretical level." (NOT THE QUOTATION MARKS😭)

As much as this surprised me, I definitely agree with parts of it. This book has too few 'whys', he just yaps and yaps about what is 'truly' the case, and as reasonable as he often sounds, sounding reasonable is no heuristic for truth. Things do not infact follow logically from worded out premises, as they tend to in Marx's writing for example, and so my foundations for understanding this work are not at all on stable grounds, even right after reading it, which is all a shame because this was very fascinating. 

Fuck this review took me too many business days to write, unsubscribed🤚.

[Yumeko (blushes) · Rating 4 out of 5]

Law is simultaneously the form of external authoritarian regulation and the form of subjective private autonomy. In the one case, the fundamental substantive characteristic is that of unconditional obligation, of absolute external coercion, while, in the other, it is the characteristic of freedom, guaranteed and recognised within certain limits. Law appears sometimes as a principle of social organisation, and at other times as a means of enabling individuals to define themselves within society. On the one hand, law merges completely with the external authority, while on the other, it is just as completely opposed to every external authority which does not acknowledge it. Law as a synonym for official statedom, and law as the watchword of revolutionary struggle: this is the field of endless controversies and of the most unimaginable confusion.

I really liked this paragraph on the experience of law.
But anyway.
Is it just me ya Karl Korsch bund marwa raha tha bhai ki appendix mei, 'Isne kuch naya nahi kaha lol. Actually kuch cheezein jo Marx ne kahin thin clearly usne woh bhi nahi kaha ahahahha'. I am so not used to the appendix, preface, or the like to not basically be extensively praising the work. 

I mention around the end certain things Karl said, and my main dislike about the book.

I loved it reading the Appendix. Korsch says that Pashukanis shies away from saying that after the prol revolution, and capitalist society withers away, alongside law, there will be no morality, as we know it atleast, which is fucking crazy.

Like, bruh, I gasped a few times reading this: 

"We are far from reproaching the 'orthodox Marxist' Pashu­kanis with these and several other instances where his critically revolutionary 'theory' lags behind the theoretical ideas expressed by Marx and Engels themselves in an earlier historical period. We tend rather to see the decisive failing of this 'materialist' critique of law in its all-too didactic, scholarly­ dogmatic character, which compared with past and present reality and practice is frankly 'juridically unworldly' at a theoretical level." (NOT THE QUOTATION MARKS😭)

As much as this surprised me, I definitely agree with parts of it. This book has too few 'whys', he just yaps and yaps about what is 'truly' the case, and as reasonable as he often sounds, sounding reasonable is no heuristic for truth. Things do not infact follow logically from worded out premises, as they tend to in Marx's writing for example, and so my foundations for understanding this work are not at all on stable grounds, even right after reading it, which is all a shame because this was very fascinating. 

Intro

The general theory of law can be defined as the dev of fundamental concepts in law like the legal subject, legal norm, and legal relation. The latter two came historically while the former was more consciously thought. Neo Kantian, or bourgois, legal philosophy contends however that these categories existed prior to experience, and so render experience possible at all. 

Basically, the definitions for the general theory of law you do find in bourgois legal texts are somewhat arbitrary (division of subjective and objective law, the relation between which is illusory), abstract, and so hardly represent the legal form.

The juridical relation came into distinction with the advent of bourgois capitalist society, city development being the most important stage for the crystallisation of this relation.

Marxism doesn't look at the general theory of law at all (according to Pashu bhai) but at the historical development of its institutions, so the legal institution at any specific epoch, and at the concrete content of legal norms. It should be giving a materialist conception of legal regulation as a specific historical form. This conception will have little to do with formal definitions and the objections to bourgois legal philo as it explains it's dev alongside that of the bourgois state. 

One thing that was cleared up was the fact that it is not the case that the abstractions of bourgois law are exclusive to it and that prol law will have different abstractions. There isnt such a thing as proletariat law. You can't take the legal form away from its historical development into something revolutionary. The withering away of bourgeois law is the withering away of law, without replacement with something called socialist law, just as there is no such thing as a replacement of socialist profit instead of capitalist profit. 

1.

Bourgois legal theory is a peculiar blend of historicism and juridical positivism. Instead of trying to explain the legal form they justify it's binding force by formulating its fundamental conditions of existence in extremely abstract terms, terms that reflect bourgois interests. 

In the fact that this law seems universal, it infact expresses the aspects of a particular society, the commodity producing society. 

2.

The idea that law has an ideological character should not distract us from the fact of its social reality. The legal form is a social relation, specifically such that can transfer it's form to other social relations. For example, the regulation of a social relation can quickly take on legal character. 

A pre requisite for legal regulation is the conflict of private interests, while for technical regulation it is the unity of purpose.

3.

Without the legal relation, the legal norm is just an abstraction. The normative schools don't study the former however, claiming that the relation is something generated by the norm. But what does that mean? It could mean either that the norm takes primacy over the relation, or it could mean that the relation is derived from the norm. 

Now for the norm to take primacy over the relation, there will have to be a norm setting authority, so a political organization. Since this is before we're looking at a legal superstructure, this might imply that a legal superstructure is a consequence of a political superstructure. Here we will have to remember that the latter stems from the mode of production and property relations of a society, so with the same definitions as economic theory.

We should start our analysis of the legal relation as based on the economic relations of society, instead of a norm by a norm setting authority since the system of juridical concepts only partially accomodates for the logic of the relations of dominance brought upon by social relations for commodity production. That is to say, the roots of the system of private law is not in the permission of an authority, but in the social relations for comm prod. 

Now for the question of the relation being derived from the norm, I'm not entirely clear about what Pashukanis thinks here but what from I understand he means to say that it can't be derived, but it can with a regulating force safeguard the legal relation. 

The legal system deals with isolated private interests and not with the impersonal interests of the state.

If all economic life is to be built on the agreements of autonomous wills then every interaction assumes a legal character. It is in the nature of political org that it doesn't promote the full dev of private interests the way the economic system does (while economic systems are built on the principle of individuals pursuing their own interests through agreements, political organizations do not center around this principle). And so subjective public rights appear to lack gen1 roots and feel dubious. The state can only be conceived as a legal superstructure, since its legal workings are indispensable to understanding how the state works, it cannot explicitly be defined just as a legal superstructure.

Fun thing to mention since I liked it is that unconditional subjection to a norm setting authority has nothing to do with the legal form. The example he gave was of a military unit, the less autonomy, the less grounds to apply law. Though I would say to that the legal character is assumed in social relations too when there is exchange, and I'm not entirely sure what is exchanged here. 

4.

Every legal relation is a relation between subjects, and since it is the simplest element we should start our analysis with it. 

Razumovsky however, did not agree. He thought that we should begin with something relevant to all historical epochs, that is, property. The thing with that is that the relation of private property has only assumed legal form at a particular stage of development of productive force and of the corresponding division of labour (comm prod society). 

Razumovsky also thinks that Pashu bhai eliminates the relation of dom and sub (nice) by basing it on the subject, instead of on property which has the subject, and the relation of sub dom tied to it. 

It however needs to be mentioned that land ownership was liberated from the relation of sub dom (hehe) when capitalism took over the feudalism. A slave is totally subservient to his master, and such an exploitative relationship requires no specific legal formulation. Now, subordination is mediated through contract. 

A legal subject's will resides in the objects of its ownership, but at the same time rise reified relations (like profit rates) that treat the subject like an object. That already brings the commodity form into the conversation, which is interdependent on the legal form, but is not the same as it. Commodities dominate man economically while man dominates over them legally. In this way man is equal to others, and this will is juridically constituted.

5.

Legal interaction doesn't presuppose a state of peace, and law is closely linked with retaliation. 

History lesson: In feudal Europe there were incessant private wars which the Church would try to keep in check by announcing a treuga dei (divine peace) at certain time intervals (funnily enough this sanctioned wars for the rest of the time there was no truega dei. In the 11th century when it was proposed that these wars stop, a bishop protested saying that continuous divine peace is contrary to human nature). At the same time, markets were provided special concessions and merchants would go to the market to be guaranteed protection of their products from arbitrary seizure. What also happened was that special judges guaranteed fulfillment of contracts (later basis of municipal law). 

At first markets were part of the local lord's manor, and were only advantageous sources of income, which is a private interest. But bec of the lord's role as guarantor, authority went public (This was the feudal mode of authority which didn't distinguish between the private and public). 

This was an undeveloped form of law, and why feudal relations now have an element of theology. 
The money econmoy makes the juridical interpretation of power possible by introducing the contradiction of private and public life. 

The state itself doesn't need a legal interpretation to the extent that it serves the function of class rule, but given that market exchange doesn't only use the language of law, but functions as law, and the dominance of the bourgeoisie is in the state's reliance on things like banks and all, this dominance gives facts their legal expression, for example in the sentence of courts. This is how indirect class rule arises in the shape of official state power.

6.

There are three necessary conditions for the value relation to be realised: men being of equal worth (so not slaves), men existing as legal subjects, men working as a subject operating egotistically (as in, with no regard for considerations other than economic; think moral, social, or ethical).

In a commodity-producing society, moral personality is the subject, and moral law regulates interactions between commodity owners. This makes it a social law above the individual, but the individual's freedom to alienate and appropriate necessitates an 'inner law.' Kant's categorical imperative combines these notions, being universal and independent of emotions or external pressures.

Ethical doctrines, while aiming to change the world, merely reflect the aspect of the world subject to the law of value. To abolish moral fetishism, one must abolish commodity and legal fetishism. Morality, law, and the state are forms of bourgeois society that must eventually disappear, as their existence and demise are historically necessary.

The contradictions in bourgeois legal philosophy manifest differently when discussing the relationship between law and morality versus law and the state. If law is seen as independent from morality, it merges with the state due to external coercion. If law is contrasted with the state, the concept of duty (Ought) aligns law and morality against the state.

[Ricky]

Förkastar tanken att lagen bör förstås enbart som ideologi i psykologisk bemärkelse, som en fråga om falskt medvetande. Frågan är i vilken utsträckning lagens allmänna begrepp kan tjäna som utgångspunkt för en allmän samhällslära, som Marx använde ekonomins mest allmänna begrepp som utgångspunkt för Kapitalet: frågan är om lagens allmänna begrepp uttrycker samhälleliga sakförhållanden i fetischform.

Lagens hårda kärna är privaträtten, dess elementarform den juridiska personen. Alla privaträttsliga tvistemål grundar sig i intressemotsättningar: den borgerliga lagen har här samma struktur som vi finner i Rubins essäer om kapitalets "oberoende producenter". Pasjukanis understryker ändå lagens specificitet: det juridiska är ett särskilt sätt att organisera samhällsförhållanden, och den marxistiska rättsläran bör inte reduceras till de ekonomiska sakförhållandena rakt av, och inte heller svälla till en allomfattande lära om samhällsförhållanden i största allmänhet: Pasjukanis avvisar uttryckligen tanken på att lagen bara så att säga "sammanfattar" klassförhållandena, en tanke som han beskriver som ett uttryck för folkkommissariatfunktionärernas självförståelse. Den marxistiska rättsläran frågar sig inte vilket klassintresse som döljs i någon specifik rättsordning, utan varför klassintressena nödvändigtvis tar sig rättsliga uttryck.

(jag läste någon text för inte så länge sedan - minns inte längre vad - som gjorde just denna poäng apropå både Marx ekonomikritik och Freuds drömtydning - jag tror det var Adorno, eller möjligen Zizek - att de bådas egentliga vetenskapliga bidrag var just att de lät oss ställa frågan om formen som innehållets /nödvändiga/ uttryck. Det är en mycket bra poäng.)

Har naturligtvis inte läst klart boken än, men Goodsreads är en så otroligt värdelös sajt för bokläsande att de inte låter en skriva anteckningar till böckerna man läser. Ovanstående rör kapitel ett och två. Jag får i allmänhet samma intryck av Pasjukanis Allmänna rättslära som av Rubins Essäer - det är väldigt mycket upprepningar, och väldigt mycket tid läggs på att förklara saker som idag - i rätt kretsar - är allmänt accepterat. Så är det ju med klassiker, att de grundar sina egna fält.

[Sergio Ribeiro · Rating 5 out of 5]

A melhor introdução ao direito via materialismo histórico dialético.

[Margarida]

"A jurisdição criminal do Estado burguês é o terror de classe organizado que apenas em certo grau diferencia-se das assim chamadas medidas excepcionais aplicadas no momento da guerra civil. (...) Entender o verdadeiro sentido da ação punitiva do Estado de classe é possível, apenas, partindo de sua natureza antagonista. As assim chamadas teorias do direito penal, que deduzem os princípios da política penal dos interesses da sociedade como um todo, estão praticando, consciente ou inconscientemente, uma deformação da realidade. “A sociedade como um todo” existe apenas na imaginação desses juristas. Na verdade, temos diante de nós classes com interesses contraditórios. Qualquer sistema historicamente dado de políticas punitivas traz impresso em si os interesses de classe daquela classe que o realizou."

[Lucas Nunes · Rating 5 out of 5]

Leitura essencial para os marxistas do direito. A ideia do direito como fenômeno moderno que se torna o paradigma da sociedade burguesa avança contra toda a construção tradicionalmente ensinada nas universidades.
O autor consegue fazer uma explicação histórica da Europa que demonstra bem como o direito se torna expressão jurídica da relação de troca, e que vai captando toda a sociedade de mercadorias, de maneira que o próprio direito opera pela forma mercadoria.
O cap. 4 é essencial nessa construção, mas também o cap. 7, ao discutir o direito penal, também mostra bem como a pena tem como princípio intrínseco a troca de mercadorias.

[Marin Ivancic · Rating 5 out of 5]

Lagano rastjerivanje ideoloskih maglustina

[Jnoub101 · Rating 5 out of 5]

To start with, this book is fundamental reading for any legal worker interesting in a critique of the legal systems in which they work, or for any Marxist who wishes to understand law as more than bare ideology.

The book begins with a critique of common Marxist and bourgeois understandings of law. Pashukanis argues that both Marxist and Liberal scholars have assumed that the logic of law exists trans-historically. That law developed either as simple ideology (Marxists) or through the perfection of a system of positive rules. Instead, Pashukanis sought to develop a history of legal institutions and practices, through which, he believed, a link could be established between the legal form and the commodity form. Thus, Pashukanis' core thesis is that law, more specifically the legal form, is an outgrowth from the commodity form (particularly the CF as it goes through circulation).

In his chapter on Morality Pashukanis goes so far as to argue that the very concept of morality is temporally linked with class society. Our current morality, is one built on the belief in the totem of the egoistic individual (the holder of commodities) engaging rationally in the market. In law schools this is often described as 'reasonably prudent individual.' This is one who seeks to maximize their profits, avoid risk, and who has no 'backwards' cultural or ideological roots. To this end, a theory of equality before a universal law arose to create an 'equal' playing field for all of these rational actors within a 'fair' market place. Pashukanis argues that notions such as equality and liberty arose as a way ensure the smooth functioning of commodity circulation. In this way it divorced the right to property from 'self help' and personal strength and instead created institutions where subjects could symbolically duel over their rights to property.

In his final chapter, Pashukanis reviews criminal law and punishment. In it he argues that crime and punishment are also temporarily linked to the commodity, and capitalist society. A form which seeks to boil down a social wrong to the act of an individual, ignoring the context in which the wrong occurred. It ensures that any violations are punished in a way which seeks to prevent further violations which may hamper economic development. In one particularly elucidating passage Pashukanis posits that temporary imprisonment, which he argues is a particular development under bourgeois society, is, in a sense, the removal of ones productive capacities for a time. The punishment is the removal of an individual from the circulation of commodities. In the end, Pashukanis calls for what resonates as a particularly modern demand, for the replacement of a penal system with one of a system of care and support, where individuals who breach social rules are supported rather than removed.

This review is certainly not a fully fleshed out explanation of Pashukanis and his work, and is more just my attempt to put my thoughts down.

Although this was my second full read through, I must say, it still forced me to reconsider my understanding of law and the state. I cannot recommend this book more highly (so long as you are interested in a critique of the legal system).

[Nick]

Fairly short at under 200 pages but a brief overview of the field of law from a Marxist lens. The author is most cogent when discussing the legal system as an institution of the superstructure that capitalist society requires and reinforces. The main ultimate function being to maintain the material conditions for capital to flourish. Pashukanis also contrasts the legal field in liberalism- with its focus on guilt, punishment, and retribution, with that of the then just-emerging Soviet legal system- with its focus on social interest.

[Arbi]

Pashukanis was an interesting thinker, but the 1983 paperback edition printed by Pluto Press Ltd is missing several pages. According to the publisher this was an error of the typesetting used during production and they no longer hold the rights. Read a different copy.

[Alexander Theofanidis · Rating 2 out of 5]

Αδυναμία τεκμηρίωσης θέσεων, δογματισμός, ταυτολογίες. Πού να μην ήμουν και στους "συμπαθούντες"...

[Damian · Rating 5 out of 5]

Very good overview of the Marxist view of law told from an internal viewpoint, so be prepared to put the book down thinking, “How is this achievable and why would you want it to be?”

[Gabriel Dametto · Rating 5 out of 5]

Pela subjetividade jurídica, todos os sujeitos da sociedade capitalista são igualmente livres para vender a sua força de trabalho. Essa igualdade formal, contudo, mascara a desigualdade material. Os burgueses - apesar de, formalmente, poderem vender a sua força de trabalho - materialmente, não o fazem; pelo contrário, exploram a força de trabalho alheia, já que detém os meios de produção. Da exploração de trabalho, extraem a mais-valia, o que permite a acumulação de mais capital. Ao fim, percebe-se que esses direitos - propriedade, trabalho e liberdade - são protegidos pelo sistema jurídico, pois, formalmente, são de todos, mas, materialmente, só podem ser exercidos pela burguesia. É por isso que os trabalhadores não tem nada a perder com a revolução, a não ser as suas correntes.

O capítulo mais interessante é o 7, em que o autor tira o véu do misticismo so direito penal, apontando-o como a mais importante subestrutura jurídica do sistema econômico capitalista, já que é através dele que se pode perceber as suas contradições. Em resumo, assim como na troca mercantil - capital por bens ou serviços - a pena funciona como uma troca de equivalentes - no caso, a privação de liberdade, mensurável economicamente, pela violação de um direito. Assim, na sociedade burguesa, só há justiça quando a pena retribui, através da privação da liberdade do indivíduo, o que ele “deve” perante a vítima e perante a sociedade, na medida da sua culpabilidade. O Estado, portanto, da mesma forma que um banco em uma operação mercantil, funciona como o garantidor de uma operação de troca de equivalências específica, o que é fundamental para o reestabelecimento da ordem social.

[Sam Whitehill · Rating 4 out of 5]

Pashukanis was a Marxist critic of law who saw it as an essentially bourgeois form and so advocated for its “withering away”. He saw the ideas of “equivalency” and “abstract legal subject” mirroring the fetishism of the commodity and therefore linked commodity exchange with jurisprudence. His analysis was limited in many ways, even when compared to Marx’s own thoughts on the matter, but he was ahead of his time. Of course, he was executed by Stalin.

[Paulo Martins · Rating 4 out of 5]

De acordo com o autor, isso foi um rascunho de o que seria, aproximadamente, uma teoria do direito interligada com uma profunda análise das relações econômica. Em uma era que somos bombardeados a todo momento com a maneira de pensar do sistema vigente, Pachukanis se torna uma cutucada certeira em algo que você levava como garantido e nunca pensou

[Victor · Rating 4 out of 5]

Mesmo não sendo mais marxista, ainda reconheço este como o melhor livro sobre o tema.

[Carlos Eduardo · Rating 5 out of 5]

Entendi nada mas muito bom

[Beatriz Gênova · Rating 5 out of 5]

pachukanis <3