Why Pashukanis was right: Abstraction and form in The General Theory of Law and Marxism

Abstract

The area of Marxism and law has long been considered marginalised. However, hand in hand with the renaissance of Marxist theory in recent decades, neglect has finally been put to rest. As Marxists increasingly explore the connections between rights, law, democracy and capitalism, one text in particular has taken centre stage: The General Theory of Law and Marxism, published by E. B. Pashukanis in 1924. This article seeks to make three contributions to the field of Marxism and law. First, by proposing that Pashukanis’s polemic is best understood as a critique of a spectrum between formalism and instrumentalism, containing both differences and similarities, it rectifies the way in which these concepts most often either have been discussed at a too general level or been defined too narrowly. Second, by addressing the conceptions of abstraction and form in the General Theory, it reconstructs the concept of the legal form according to the spirit of Pashukanis’s thought to supersede the limits of the formalism–instrumentalism spectrum, despite the unevenness found in the letter of his text. Third, regarding the reconstruction of the concept of the legal form, it demonstrates how objections against Pashukanis’s focus on the sphere of circulation at the cost of production, his exclusion of inequalities of race and gender, and his structuralist, consequentialist or instrumentalist biases, which reduces the space for agency, processes and the relative autonomy of politics, ideology and law, can be reconsidered and challenged.