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Evgenii Pashukanis, State and Law under Socialism: A Reversal of Thought. 1936 

Original Source: ³Gosudarstvo i pravo pri sotsializme,² Sovetskoe gosudarstvo, No. 3 (1936), 3-11.

The completion of the liquidation of the exploiting classes in our country raises the question of the Soviet state as a political superstructure in the classless socialist society. Colossal socioeconomic upheavals have led toward the creation of uniform socialist relations of production in cities and villages and thus toward a new stage in the development of the proletarian dictatorship and Soviet democracy.

The problem of the role of the state and law acquires an especially great theoretical and practical significance at the present time. It is, therefore, necessary to bring to mind several of Lenin's and Stalin's fundamental theoretical premises which should be used as departure points in explaining the significance of the state and law in the period of socialism. It is also necessary to settle accounts with errors and confusions ... perpetuated by legal theorists.

In State and Revolution Lenin quite clearly has resolved the problem of the state under socialism. He draws a sharp line between Communists and the diverse types of anarchist theorists: "We are not utopians. We do not indulge in 'dreams' of how best to do away immediately with administration, with all subordination; these anarchistic dreams, based upon a lack of understanding of the task, of the proletarian dictatorship, are basically alien to Marxism, and, as a matter of fact, they serve but to put off the socialist revolution until human nature is different. No, we want the socialist revolution with human nature as it is now, with human nature that cannot do without subordination, without control, without 'overseers and bookkeepers.' "

Lenin's State and Revolution was directed not only against the Opportunist, the reformist, and the Kautskyite distorters of Marxism, who were in favor of appeasing the bourgeois state and against breaking the machine of that state. It was also directed against petty-bourgeois and anarchistic "dreamers," who contemplated the abolition of political authority, of state organization, of the organization Of force and coercion, "the day" after the proletarian revolution.

Lenin's work was engendered not only by the necessity of settling accounts with Kautsky and his followers but also by the necessity of taking a stand against the anarchistic errors and conclusions of Bukharin. At that time, Bukharin had published several articles in which he developed the anti-Marxist theory of the "blowing up" Of the state. He contended that a proletarian party must constantly stress the unappeasable hostility of the working class toward the state.

Lenin's pronouncement concerning law is equally clear: " ... if we are not to fall into utopianism, we cannot imagine that, having overthrown capitalism, people will at once learn to work for society without any legal norms; indeed, the abolition of capitalism does not immediately lay the economic foundations for such a change."

These condensed premises advanced by Lenin should be thoroughly developed in our theoretical studies of the role of the socialist state and law...

In 1929, at the April Plenum of the Central Committee, Comrade Stalin demonstrated the profound difference between the anarchistic theory of blowing up, as developed by Comrade Bukharin, and the Marxist-Leninist theory of crushing, or breaking, the bourgeois state machine. Comrade Stalin ridiculed the claim advanced by Bukharin and his students that their confused, non-Marxist theory of "blowing up" was more effective in the struggle against Kautsky than was Lenin's.

At the Sixteenth Party Congress Stalin explained that the road toward the future communist, stateless society would lead through the strengthening of the state's authority in every way possible. He reiterated and developed this thesis at the January Plenum of the Central Committee and Central Control Commission, 1933: "The abolition of classes is not achieved in the subsiding of the class struggle but in its intensification. The state will wither away, not as a result of a relaxation of the state authority, but as a result of its utmost consolidation, which is necessary for the purpose of finally crushing the remnants of the dying classes and of organizing a defense against the capitalist encirclement, which is far from having been done away with as yet, and will not soon be done away with."'

Finally, at the Seventeenth Party Congress, Stalin once again took a determined stand against the opportunists, who as a result of the progression toward a classless society attempted to popularize their ideas about the subsidence of the class struggle and the weakening of" the dictatorship of the proletariat. "It goes without saying," stated, I Comrade Stalin, "that a classless society cannot come about of itself," spontaneously, so to speak. It has to be achieved and built by the efforts of all of the working people, by strengthening the organs of the dictatorship of the proletariat, by intensifying the class struggle, by destroying classes, by eliminating the remnants of the capitalist classes, and in battles with enemies both internal and external.

On the whole the classless society has been achieved through the efforts of the working people. But only an opportunist could imagine that a further development and strengthening of the socialist system will proceed spontaneously, that the destruction of the classes signifies the obsolescence of the dictatorship of the proletariat and of the state. As stated by Lenin,

The substance of the teaching of Marx about the state is assimilated only by one who understands that the dictatorship of a single class is necessary, not only for any class society generally, not only for the proletariat that has overthrown the bourgeoisie, but for the entire historic period that separates capitalism from a "classless society," from communism. The forms of bourgeois states are exceedingly variegated, but their essence is the same: in one way or another, all these states are, in the last analysis, inevitably dictatorships of the bourgeoisie. The transition from capitalism to communism will certainly bring a great variety and abundance of political forms, but the essence will inevitably be only one: the dictatorship of the proletariat.

From this paragraph (exceedingly rich in meaning) it follows that the proletarian state will preserve its role during the entire period between the overthrow of the bourgeoisie and the communist society and that, in spite of the possible variety of political forms, the essence and content of this state will be the dictatorship of the proletariat. Soviet authority is the state form of the dictatorship of the proletariat which acquired world-wide significance. However, the Soviet state is not immutable; it develops in connection with the success of the struggle for the destruction of classes.

The creation of a classless socialist society opened a new period in the development of Soviet democracy (new constitution, new electoral law); but, despite the change of political form, its essence remains the same; its essence is the dictatorship of the proletariat. On the whole we have achieved a classless socialist society, but we have 'lot yet attained the higher phase of a communist society. The distinction between socialism and communism, or between lower and higher phases of communism, lies essentially in that, under socialism, where (social) socialist property prevails, distribution takes place according to work, whereas, under communism, with a further strengthening and development of social property, distribution will take place according to needs.

The development of the productive forces and of a socialist culture, which will render distribution according to needs possible, signifies the abolition of the antithesis between intellectual and physical work as well as the transformation of work into a vital necessity for man; it signifies those conditions under which people will work without "overseers and bookkeepers," without legal norms, and without compulsory force, without the state. Hence, the process of the state's dying away can begin only after the compulsory character of work has disappeared. This is the fundamental economic prerequisite for the beginning of the process of dying away, for the falling asleep of the state authority.

Speaking of the process of dying away, of the state's falling asleep, in The Economy in the Transition Period Bukharin has arranged this process in the following sequence: at first, armed forces will fall away, then instruments of repression (prisons, etc.), and, finally, the compulsory character of work. Lenin inverted this sequence, and that which Bukharin had placed at the end was placed by Lenin at the beginning as a first and fundamental prerequisite without which the beginning of the process of dying away was inconceivable.

Nevertheless, there was a popular theory which asserted that the real process of dying away started with the October Revolution and that this process should be at its height during the period of the liquidation of classes and the construction of a classless socialist society. This was a false, opportunist theory because it did not take into account the fundamental, economic prerequisite without which the state cannot even begin to die away.

The confusion on the problem of the proletarian state's dying away stemmed from the fact that this problem has been fused with that of the nature of the proletarian state as a semi-state, as a state which, in contrast to the exploiters' states, does not strive to perpetuate itself but, on the contrary, prepares the conditions and prerequisites for its own destruction. Having overthrown the bourgeois state, the proletariat creates a state of a special type, a state which does not represent a minority exploiting the majority, as in the exploiters' stateS1 but which, on the contrary, is an instrument of the working majority, directed against the exploiters.

The Party's program, which speaks of the gradual drawing of the entire populace into the administration of the state ... asserts that "a complete and universal execution of these measures, which constitutes a further step on the road that was taken by the Paris Commune, and the simplification of the function of administration will lead to the liquidation of the state authority." Consequently, the question is how to prepare the conditions for the state's dying away. The dying away itself will become possible only in the second phase of communism. The creation of the conditions for the future stateless organization is not a process of weakening the state authority but a process of strengthening, particularly by drawing an increasingly greater mass of the working people into the administration of the state.

There are no barriers in the proletarian state between the state apparatus and the whole mass of the working people; this very state apparatus is, in the broad meaning of the term, the sum of the mass organizations. The peculiar role of mass organization, for example, labor unions and other organizations of the working people, is characteristic of our proletarian state and corresponds to its nature. Of course, these features of our state have existed from the moment of its appearance, that is, since the October Revolution. But the development and strengthening of these peculiarities does not at all signify the falling asleep and the dying away of state authority on account of its uselessness.

In a bourgeois state there exists contradiction, antagonism, between the state and society. Such an antagonism in our country is nonexistent. Our state embraces the mass organizations of the working people, and the activity of the state apparatus is at the same time its social activity. Our state ownership of the means of production is a social ownership. Consequently, the fact that the mass organizations are increasingly drawn into administration and control, the fact that they are entrusted with concrete tasks, should not be interpreted as signifying that state authority is in a process of falling asleep and dying away. On the contrary, this is merely one of the means of strengthening the state. The maximum development of participation of working people signifies the strengthening of the state apparatus, which does not only persuade, does not only exert an ideological influence, but possesses the power and is able to apply force, coercion, and violence.

In addition to governing human beings, the socialist state also governs things in the process of production ... The victory of social socialist property in villages and the success of the state planning and administration of the entire national economy increasingly intensify the role and the significance of the organs that manage the economic activity of our society. These organs will be preserved even in a stateless, communist society, for, in conditions in which " work will become man's prime need," organization of this work and Of the entire economic life will be necessary. In the present stage, in the stage of socialism, the socialist economy is administered by the state organs; the administration of things in the process of production is inseparable from the government of men, from the function of authority, from state coercion and state law. The increasing role of state planning, the strengthening and expansion of the economic organs, is a process of the strengthening of the socialist state and not a beginning of the state's dying away.

It should be noted also that despite the fact that on the whole the socialist classless society has been built, the class struggle is continuing and the necessity still exists for a further education and reeducation of the working masses as well as for the suppression of hostile elements-of those who have not yet surrendered, who continue their struggle with socialism, who continue to resist, who disguise themselves and play dirty tricks. A state apparatus, an apparatus of compulsion, is inevitable for the struggle with the enemies of socialism. Finally, the task of organizing the defense against capitalist encirclement also remains. The defense of the socialist motherland ... calls for the strengthening of the Red Army and of all other armed forces.

Socialism is a system based on the social ownership of the means of production. Work under socialism is a universal obligation. Distribution is accomplished according to work, its quality and its quantity. This means that nationwide state control and accounting of labor and consumption is inevitable; equally inevitable are legal norms and the apparatus of coercion, without which law would be meaningless.

Socialist society is organized as a state. The socialist state and socialist law will preserve their significance fully to the higher phase of communism. For only in the higher phase of communism will men learn to work without overseers and without legal norms. The view that law dies away under socialism is as much opportunist nonsense as is the assertion that the state authority began to die away the day after the overthrow of the bourgeoisie.

In this connection it is advisable once again to subject to deserved criticism the views that were advanced by the author of this article in his book The General Theory of Law and Marxism. This is particularly necessary in order to prevent the repetition of old errors and old confusions in new forms and under new conditions.

Since distribution according to work bears some resemblance to an equivalent exchange of commodities, Marx and Lenin have indicated that under socialism bourgeois law is fully abolished only in respect to the ownership of the means of production. In this case, private property is being replaced by social property. But in the field of distribution a law operates which could be designated, conditionally, in quotation marks, as a bourgeois law, for it represents an application of equal standards to factually unequal men. This law provides for the continuation of the factual inequality between men; it does not take into account differences in physical power, abilities, family situation, etc...

This principle of remuneration according to work is a socialist principle; it is applied in a society in which each can give nothing but his work, in which there is no exploitation, no crisis, and no unemployment, a society in which the principle "he who does not work does not eat" Prevails, in which the state guarantees to each a real right to work. Consequently, this "bourgeois" law neither has nor could have anything in common with the class interests of the bourgeoisie. This law, established by the dictatorship of the proletariat, is the law of the socialist state, serving the interests of the working people, the interests of the development of socialist production. A contemptuous attitude toward this law as a "bourgeois" law is becoming only to anarchistic heroes of the "leftist school" and to defenders of the petty-bourgeois wage leveling.

Marx spoke of the inevitability of distribution according to work as a "deficiency" of socialist society. It is self-evident, however, that this expression has a completely relative meaning. Marx spoke of deficiency in comparison with the higher phase of communism. Nevertheless, this problem is completely misrepresented in my book The General Theory of Law and Marxism. Law, state, and even morality are declared there to be bourgeois forms that cannot be filled with any socialist content and that must die away during the realization of socialism. In addition to this erroneous view, which has nothing in common with Marxism-Leninism, the meaning of the proletarian state, proletarian communist morality, and, finally, the meaning of Soviet law (which is the law of the proletarian state and serves as an instrument for the construction of socialism) became completely distorted.

The concrete, true history of Soviet law as an instrument of the Proletariat's policy ... was replaced with abstract and erroneous arguments about the withering away of law, about the "disappearance" of the juridical superstructure, etc. Confusing arguments about the dying away of "legal forms," as a phenomenon inherited from the bourgeois world, have led us away from the struggle against bourge0is influence and bourgeois attempts to distort Soviet law.

The Concept of law as a form exclusively predicating market exchange was the theoretical premise underlying this anti-Marxist confusion. The relationship between the owners of commodities was declared to be the true, specific content of all law. Naturally, the principal class content, namely, the ownership of the means of production, was thereby neglected. Law was deduced directly from the exchange of commodities whereby the role of the class state, protecting the system of property which corresponded to the interests of the ruling class, was obliterated. The gist of the problem is, however, which class holds in its hands the state authority.

The great October Revolution has inflicted a blow upon capitalist private property and has laid down the foundation for a new, socialist system of law. This is the main point for the understanding of Soviet law, its socialist essence, the law of the proletarian state ... The theory which asserted that all law is "bourgeois" was based on the confusion of many distinct things ... According to this theory, socialism ... is opposed to commerce, to cost accounting, and to the control of money. The "leftist" theories about the dying away of commerce and money and about the transition toward a direct exchange of products are logically related to the theories of the "dying away of law" and of "the withering away of the juridical superstructure."

At the First Conference of Marxist Jurists these erroneous theories were subjected to devastating criticism. The great significance of Soviet law was stressed there, a law whose source of power is the dictatorship of the proletariat ... There is no doubt in our minds that despite the fact that Soviet law has to do with diverse economic structures (with all five structures indicated by Lenin), it has at the same time one single source of power, namely, the October Revolution and the dictatorship of the proletariat."

Such facts as "the transformation of the proletariat into a ruling class, the creation of the Soviet state, the nationalization of the principal means of production, the nationalization of land, transportation, banks, and the monopoly of foreign trade impose an imprint upon all Soviet law and give to it a special quality.

After the discussion of 1930-31 the "theory" asserting that the specific feature of law is the fact that it predicates an equivalent exchange was severely criticized and discarded. However, the positive task, that is, a broad, exhaustive study of the system of Soviet socialist law remains unfulfilled so far. Scientific work is still lagging behind in this field. Such crucial decisions as the law of August 7, 1932, regarding sacred and inviolable socialist property, the decisions of the Seventeenth Party Congress on the liquidation of classes, and Comrade Stalin's directives at the January Plenum of the Central Committee and Central Control Commission, 1933, on new tasks of revolutionary legality, found their expression only in special branches of law (economic, criminal, etc.). The general theory of Soviet socialist law 'has not yet been worked out in any systematic way...

Now, in the state of victorious socialism, we have entered into a stage in which the Soviet socialist law, on the basis of social socialist property, introduces the same type of production relations to both cities and villages. We have entered the stage of a firm stabilization of socialist relations of production, which encompass both industry and farming. Social socialist property and distribution according to work are precisely the cornerstones on which the system of Soviet socialist law should be developed.

... The task of Soviet socialist law is to protect the achievements of the Revolution, the security of our socialist state or socialist social system, to protect social socialist property, to maintain discipline, to defend personal property rights, to defend and to strengthen the Soviet socialist system. This raises the problem of the relationship between Soviet socialist law and socialist morality. In particular, we should stress the close connection between our criminal law and our socialist morality in connection with the role of the courts. The decisions rendered by our Soviet courts on the basis of our law exert moral influence also upon those who are not directly involved in litigation-upon the entire society. Now, the task of education and reeducation is of primary significance. The court is precisely the organ that persuades and re-educates while applying coercion and suppression ... Our court is an organ of the dictatorship of the proletariat and will remain as such....

Source: Michael Jaworskyj, ed., Soviet Political Thought; an anthology.  Baltimore: Johns Hopkins Press, 1967.