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A Course on Soviet Economic Law |
Soviet economic law is not one indivisible whole. just like every other sphere of social relations, it is divided into several more or less independent parts. In correspondence with this, the science of Soviet economic law is also divided into a number of sections, the system and order of which is determined by the real delineation of the object itself
The literature of Soviet economic law unanimously sets apart the regulation of relations for labour (labour law), for land use (land law) and for the family (family law) from the general system of Soviet economic law. As for the rest, the delineation of the content of Soviet economic law is usually made in accordance with the forms adopted in bourgeois codes and bourgeois jurisprudence. It is necessary, first of all, to linger on these forms adopted in bourgeois codes and bourgeois jurisprudence and on the question of the propriety of their transfer to Soviet reality.
The division of law into public and private is basic to bourgeois law. One of the most important bourgeois civil law specialists, Dernburg, distinguishes between the spheres of public and private law as follows:
The main idea is the following. If a legal norm is designed to serve primarily the interests of individual persons, then it relates to private law; if it is for the social interest, then it belongs to public law. This division corresponds to the dual position of man in society. As a free personality he is the bearer of his own goals, he is an independent centre of legal relations. But at the same time he is a member of an expanded association to which he is subordinated, and which he serves. [31]
Public law includes state law, criminal law, criminal and civil procedure, canon law and international law. Private law includes civil law in the broad sense of the term (including commercial law and its subdivisions).
Dernburg’s definition is not generally recognized. Dozens of theories have been put forth on this question by bourgeois jurisprudence. In particular, in the Russian literature of the last years before the revolution and among Soviet bourgeois jurists, I.A. Pokrovsky’s viewpoint enjoyed great success. At the basis of the division of law into private and public it placed the type of method of regulation of the relations or the position of the subject in the legal relationship. “If public law”, wrote Pokrovsky, “is a system of legal centralization of relations, then civil law, on the contrary, is a system of legal decentralization: it by its very existence proposes for its life the presence of a multitude of self-defining centres. If public law is a system of subordination, then civil law is a system of co-ordination; if the first is an area of authority and subordination then the second is an area of freedom and private initiative”. [32]
Bourgeois jurists cannot agree and will not agree on the principle of the separation of public and private law. They are not able to do this, for they are deprived of the possibility of revealing the true roots of this division, its source and basis. This may be done only by using the method of historical materialism. The real existence of the difference between private and public law was revealed by Marx with exhaustive clarity.
The roots of the division of law into public and private must be sought in the distinction between property and the social totality, the separation of civil society and political organization, and in the enhancement of the individuality of man and the citizen. “Private law”, states Marx, “develops parallel with private property and out of the process of the decay of naturally developing collectivism.” On the other hand, “because of the emancipation of private property from the community the state has obtained an independent existence alongside civil society and outside it.” [33] The contrast between private and public law is most typical for bourgeois society, and impossible to eliminate. The monopoly of private property in the hands of individual members of the capitalist class, the separation of the state from society as a special organization of the ruling class for the purpose of supporting the relations of capitalist exploitation this is the basis for the division of law into private and public. The bourgeois (as owner) concludes commodity transactions of purchase and sale, including purchase and sale of labour power – this is private law. The bourgeois as a member of the ruling class exercises authority and punishes the violators of capitalist principles – this is public law.
The division of law into public and private develops and deepens parallel to the process of the development of the law of private property, from its initial primitive forms to “purely bourgeois private property”. Marx foresees the removal of this division with the transfer of the right of ownership of means of production into the hands of all society – and also the elimination of class differences and the ending of the opposition between civil society and political (state) organization. He had earlier noted this perspective in On the Jewish Question:
When the actual individual man recognizes in himself the abstract citizen of the state, and as an individual man becomes a species being in his empirical life, in his individual labour, in his individual relationships, when man recognizes and organizes his “forces propres” as social forces – and thus no longer continues internally to distinguish between social forces and the form of political force, only then will human emancipation be complete. [34]
The development of capitalism into the imperialist phase, characterized by the activation of the bourgeois state, its transition in a number of cases to methods of direct action in connection with the revolutionization of the working class, the growth of its power of resistance and the increasing breakdown of the whole capitalist system, the broad diffusion of methods of state control and “intervention” in economic life in the period of the war – all this has brought to life a whole series of theories showing that the division of law into private and public has already fully outlived itself, that it is now unnecessary for the regulation of social relationships in the present stage and that soon it can be placed in the archives. Anton Menger, one of the first theorists of “Juridical socialism”, has affirmed that the capitalist world will move towards socialism through the publicization of private law. The entire matter is said to lie in the fact that the relationships which private law regulates in bourgeois society have fallen into the sphere of public law. The worldwide gradual municipalization of economic relations, possible even within the limits of capitalism – in this, according to Menger, lies the establishment of socialism. Socialism means the victory of public law over private and the elimination of the primitive division of law into two spheres.
This theory was seized upon by the social fascists, the majority of whom are now “Juridical socialists”. On the other hand, a number of purely bourgeois theorists have developed the same or analogous notions. The typical ideologue of the imperialist bourgeoisie, the French jurist Duguit, proclaimed the socialization of private law. From now on the private owner is not simply a free personality, “the bearer of his own goals” (Dernburg), disposing of his property according to his will, but “the servant of society” fulfilling a “social function”, the organizer and manager of production. Only with respect to these social goals does the state preserve and defend the rights of the owner. The boundaries between private and public law are thus fully erased. In the same spirit, appropriately, was the German jurist Hedeman, one of the leading representatives of the “economic law” school. Economic or public economic law was the name given by the German jurists to the elements of state “regulation” of the economy, the appearance of which was conditioned by the war and the post-war devastation. Goikhbarg, and after him a number of other Soviet jurists, tried to transfer these ideas to Soviet soil. In particular, Goikhbarg himself proclaimed the elimination of the division of law into private and public, both for Soviet and bourgeois law. “The basic division of law into two major parts – public and civil”, wrote Goikhbarg in 1924, “which has rarely been explained well by jurists, now finds recognition only among the most backward jurists (including our own) ... The separation of the concept of civil law from other concepts – which has lost its meaning even in countries which have not lived through a proletarian revolution – is entirely unthinkable for us.” [35] Goikhbarg’s position signified, first, the beautifying of capitalism, masking over its contradictions; it was objectively based upon the social-fascist theory of the peaceful maturation of socialism in the laboratory of capitalism. It meant, secondly, ignoring the qualitative differences between Soviet and bourgeois law. Goikhbarg considered some arguments drawn from the analysis of the bourgeois Weimar Constitution and the Yugoslavian constitutional monarchy. He used these to prove the unnecessary division of Soviet law into private and public. Goikhbarg’s argument was discredited at its very roots.
It is necessary to proceed differentially towards the question of private and public law. This division cannot be eliminated for bourgeois law, to the extent that private ownership of the means of production has stability. This division keeps its significance even for the law of the modern imperialist state, just as competition, with all its conflicts and contradictions, is retained in the economy of imperialism alongside and together with monopolies. On the contrary it loses signficance in Soviet law. “We do not recognize anything ‘private’,” wrote Lenin to Kursky in connection with the preparation of the Soviet Civil Code, “for us everything in the area of the economy is public law and not private. We permit only state capitalism ... Hence, we must expand the application of state intervention in ‘private law’ relations, expand the right of the state to annul ‘private’ contracts, to apply not corpus juris romani to ‘civil legal relations’, but our revolutionary legal consciousness.” [36] The contradiction between private and public law vanishes in Soviet law, because in a society whose bases are the dictatorship of the proletariat and public (socialist) property, the contradiction between civil society and the state is eliminated.
Further, if one proceeds from purely practical considerations, there is also nothing in Soviet law which could motivate the preservation of the division of law into private and public. For us there cannot even be a discussion of the limitation of state intervention in any sphere of economic activity – but this is the first thing that follows from the division of law into two spheres. Soviet law denies the division of legal norms into compulsory (rules established as obligatory for the parties – which is characteristic of public law) and optional or supplementary (certain rules established for the parties only in the case when they themselves have not decided otherwise – this is characteristic of private law). All the norms of Soviet law, unless otherwise stated in the norms themselves, are compulsory. In bourgeois law, disputes and conflicts arising in the area of private law relations are con sidered by the court on the initiative of the disputing parties themselves. The initiative for the consideration of disputes and conflicts in connection with the violation of norms of public law belongs to the agencies of state authority. For us, also, this characteristic never had significance. The agencies of the court and arbitration have the broadest powers for the initiation of any case-to the extent that it is an issue of the property relations of economic agencies and individual persons, or of the violation of the directives of the Party and the governments on questions of economic construction.
The system of Soviet economic law also denies a second major subdivision of bourgeois law: the division of civil law into the law of things and of obligations.
The codes of bourgeois civil law are usually constructed on one of two systems: either on the Institutes system or on the Pandectist system. The Institutes system derived its name from the first part of the famous code of Roman Law: Corpus juris civilis of the Emperor Justinian (in the year 553). The French Civil Code of 1804 is compiled according to this system. It is divided into three basic divisions: persons, things and transactions. (“On persons”, “On property and on various modifications of ownership”, “On various methods by which ownership is obtained”). The Pandectist system derived its name from the second part of the Justinian collection (the Pandects). The German Civil Code of 1896 and other recent codes (the Japanese of 1898, the Brazilian of 1916, and the Chinese of 1929), and also the Civil Code of the RSFSR of 1922 are compiled according to this system. The Pandectist system contains a general part and also: the law of obligations, the law of things, family law and inheritance law. Codes constructed on the Pandectist system include all these parts in one order or another. The most important division for all bourgeois civil law is the division into the law of things and the law of obligations. This division lies at the basis not only of codes constructed on the Pandectist system, but also of those constructed on the Institutes system: the second division of the French Code is the law of things, the third – predominantly – of obligations.
The law of things deals with rights in things, the law of obligations with obligational rights. What is the difference, what content is embodied in these concepts? Bourgeois jurisprudence answers this question in the following manner: the law of things has as its object a thing – an item of the external world; the law of obligations – the action of another person. Thus the object of the law of property (the law of things) may be buildings, structures, commodities or consumer goods; the object of a contract of purchase and sale (law of obligations) – the action of the seller (to transfer the thing to ownership) and of the buyer (to accept the thing and pay the price). All rights in a thing have an absolute nature, i.e. the right of one person, authorized to use and dispose of the thing, contrasts with the obligation of an unlimited number of other persons not to violate his right (for instance not to violate the rights of an owner). Obligational rights have a relative nature. Here two or more completely determinate persons (seller and buyer, for instance) are connected with one another. The rights in things and obligational rights are further distinguished by the method of their protection. A right in a thing is defended by the so-called vindicational suit, under which the right of demanding the thing in kind from the illegal possession of another is understood. Obligational rights are defended by a suit for damages, i.e. by a demand for compensation for the monetary equivalent of harm suffered. Finally, every system of law always establishes only a precisely limited number of types of rights in things (the so-called numerus clausus: by the Soviet Civil Code for instance, the right of property, of lien, and of lease); the law of obligations is not limited to a finite number of institutions; relations not envisioned by the legislator are allowed, to the extent that they do not contradict the general principles of the law of obligations.
Besides rights in things and obligational rights, bourgeois civil law provides still another category of rights, intermediate between rights in things and obligational rights: the so-called exclusive rights – copyright, right to an invention, to a trade name, to a trademark. Exclusive rights have an absolute nature like rights in things, but the object of an exclusive right is not a thing, but an action, an action of the holder of the right himself; in copyright, for instance, the reproduction of a certain literary work. Exclusive rights, therefore, are located, so to speak, between rights in things and obligations.
This is the bourgeois theory of the delineation of rights in things and obligational rights. Despite the fact that as time goes on the boundaries between the law of things and the law of obligations has been further erased – both in legislation and in the practice of application of the law – contemporary bourgeois science insists upon the preservation of this distinction, upon its significance in principle. What are the actual roots and bases of the division of law into the law of things and the law of obligations?
Stuchka emphasizes the relation between the institutions of the law of things (with feudal relations) and that of obligations (with bourgeois relations). It is no accident that Marx speaks of land ownership as feudal ownership subordinate to bourgeois conditions of production. On the other hand, the law of obligations is the law of “commerce” primarily, facilitating relations of commodity exchange. Its basic institution (contract) is a most important instrument, and with its help capitalist social exchange of things is realized. However, the law of things, and its basic institution, the law of bourgeois private property, are foundations of the bourgeois system. Therefore, the law of things is revered with a special piety and is placed under the special protection of the bourgeois state. “In case of conflict between an absolute right and a relative one, the latter always gives way to the former” [37], asserts a bourgeois jurist. In other words, the law of obligations is, so to speak, “second class” law in comparison with the law of things. In case of a dispute, preference will always be given to the law of things over the law of obligations.
Stuchka connects the law of things with production, and the law of obligations with exchange. However, the basis of the division of bourgeois civil law into the law of things and the law of obligations consists not only in the fact that one is the law of production and the other is the law of exchange. The question must be posed more deeply. The root of the contradiction that is irreconciliable for bourgeois law – between the law of things and the law of obligations – consists of the antagonistic nature of the capitalist system of production, in the exploiting nature of bourgeois law. The contradiction between the social nature of production and the private form of appropriation – this is where it is necessary to look for the real basis of the division of civil law into the law of things and the law of obligations. A capitalist economy is a commodity economy. The bond between the isolated individual producers is established through exchange. “Exchange”, states Marx, “does not create the differences between the spheres of production but establishes a bond between spheres that are already different, and turns them into branches of social production that are more or less dependent on one on the other.” [38] The law of obligations, the central institution of which is contract, is only the legal expression of this general interdependence of individual branches of social production. The contracts of the purchase and sale of products of different branches of labour, serve the social division of labour. The contracts of loan serve the movement of finance capital. The contracts of employment facilitate the process of the production of surplus value. The law of obligations facilitates, therefore, the relations between individual capitalists, between industrial and finance capitalists, between capitalists and workers.
The law of things (the central nucleus of which is the law of property) is, on the contrary, a legal expression of the breakdown, separation and anarchy dominant in capitalist society. “Private property”, says Lenin, “is the expression of the material isolation of commodity producers.” [39] Private property isolates and distinguishes, since it creates “the possibility of disposing of ... the labour of another”; [40] it confirms relations of the domination and authority of the owner over working people; it facilitates mutual competition between industrial, commercial and finance capitalists. Therefore, the basic contradiction of capitalist society finds its clearest expression in the contradiction between the law of things and the law of obligations: the contradiction between the public nature of production and the private form of expropriation and acquisition. This is also typical for the system of bourgeois law as a whole, and for each of its institutions.
This contradiction does not exist in the socialist economy. It has been eliminated by the expropriation of the expropriators. The division of Soviet economic law into the law of things and the law of obligations is, therefore, artificial. The basic practical difference between rights in things and obligational rights – according to the method of their protection – does not have such a major significance in the conditions of the USSR. The law of things, according to traditional theory, is protected by a special (vindicational) suit for the thing, by virtue of which it is possible to demand the thing in kind from anyone illegally in possession; obligational rights are protected by a suit on damages. But in 1922 the Soviet Civil Code established a rule according to which, if the object of a demand from an obligatory legal relationship is a concretely defined (a so-called individually defined) thing, then the bearer of the right could demand it in kind, regardless of the recovery of damages. In this case, accordingly, the inviolability of the law of obligations is protected by a method typical only for the law of things.
However, the erasing of the boundaries between the law of things and the law of obligations in Soviet economic law is far from limited to Art.120 of the Civil Code. Current Soviet contract law firmly holds to the principle of so-called performance in kind, by virtue of which, not only in the case when the object of an obligation is an individually defined thing, but also in all other instances, compensation for damages, payment of a penalty, or a fine etc., do not free the debtor from fulfilment of the contractual obligation in kind. In a series of laws on contract this is specially emphasized. Soviet economic law has always ignored, and now rejects in principle, the characteristic difference between the law of things and the law of obligations. The difference is that there are only a precisely defined number of rights in things (numerus clausus), which does not apply to obligational rights; but in this area “all that is not forbidden is permitted”. In Soviet law this is not so. The Soviet state precisely establishes determinate organizational forms of relations between economic agencies and between individual participants in economic commerce. They can and must use these forms. To go outside the limits of the permissible is to travel the path of speculation, the route of evading state accounting and supervision – impermissible in Soviet conditions. And from this point of view, accordingly, the division of Soviet economic law into the law of things and the law of obligations would be untenable.
The bourgeois “science of law” and, in particular, bourgeois civil law is elaborated primarily by the so-called formal-legal or dogmatic method. According to Shershenevich’s definition, “dogmatics consists of the systematic statements of the rules of law in force at a given time in a particular country.” [41] The dogma of law begins with legal norms, i.e. obligatory rules of conduct protected by the power of state coercion. Next it systematizes them, and subjects them to formal logical analysis from the referent of the prescriptions contained in these norms. Next, it generalizes them, i.e. brings particular norms of law under more general ones (this is called “establishing the legal nature of an institution”) and dissects, contrasts etc. In the conditions of bourgeois states the dogmatic elaboration of law has a direct practical significance, since it provides material to courts and agencies of authority applying the law in force. “The dogma of private law is nothing more than an endless chain of arguments pro and contra, imaginary claims and potential suits. Behind each paragraph of this systematic guide stands an unseen abstract client ready to use the relevant propositions as advice.” [42]
At the basis of the dogmatic method are a number of premises. The first of them is the equation of law and statute. The dogmatic jurist knows only the statute. The dogmatic jurist knows only the statute sanctified by the authority of state power, and therefore obligatory for each person within the territory of the state. The law of each given country is exhausted by the “totality of norms” formally “in force”, i.e. promulgated by the corresponding agencies of the state and not repealed by the established procedure. The application of law consists in the conduct of concrete legal relations under the general norms of the law (the establishment of the “nature of legal relations”) and in the derivation of a conclusion by the rules of formal logic. The second premise is the equation of law with the “will of the legislator”. The task of the jurist, in applying law, consists in the clarification of the exact content of this will with the help of various methods of legal technique. And the third is the belief in the absence of gaps in the system of law in force. The state of affairs in which the law in force has no answer for each of the infinite questions arising in life, is recognized as impossible. If there is not a direct answer, then it is contained in hidden form in one of the more general norms from which it must be extracted, by means of operations of various types of the same legal technique.
Legal dogmatism flourishes in full bloom in the bourgeois state. The cult of the dogma of law constitutes the nourishing soil for the juridical world outlook of the bourgeoisie “of the classic world outlook of the bourgeoisie”. Engels characterizes it as follows:
It represented the secularization of theology. The place of dogma or divine law has been taken by human law, the place of the church has been occupied by the state. Economic and social relations, which earlier, since they were sanctioned by the church, were considered a product of the church and of dogma, were now presented as based on law and created by the state. The exchange of commodities on a societal scale leads in its more developed form (because of the practice of loans and credit). to intricate contractual relations. It therefore requires generally recognized rules which can be established only by the social collective, the need for legal norms established by the state. Among the representatives of the new class this fact has created the illusion that these legal norms owe their origin not to economic relations, but to the formal legislative activity of the state. But since competition – this basic form of relationships between commodity producers – is a great equalizer, so equality before the law became the battle cry of the bourgeoisie. The fact that the struggle of this new class, striving for authority against the feudal lords and the absolute monarchy that protected them at that time and which, like every class struggle had to become a political struggle a struggle for the possession of state power-the fact that this struggle had to be waged around legal demands aided still further the consolidation of the juridical world outlook. [43]
Marxism declares a merciless struggle both against the bourgeois juridical world outlook as a whole (and its recidivism and remnants on Soviet soil), and against the dogmatic method in jurisprudence. The latter has nothing in common with true science. It distorts reality. In the place of real facts it places “Juridical illusions”, it substitutes “legal stage settings” for real life. “The servants of the division of labour” [44] (in the expression of Marx and Engels), i.e. the professional jurists and courts, created a cult of legal concepts dedicated to hide the real relations of exploitation and of domination-subordination – with the mottoes of freedom and equality.
Marxism exposes the very roots of the bourgeois juridical world outlook and the dogmatic method. It reveals the class rule of the bourgeoisie. Law is the will of the ruling classes expressed in statute. In the bourgeois state, the bourgeoisie rules. The state is merely “a committee managing the common affairs of the bourgeoisie”. [45] Only for this reason is the law proclaimed immutable for each and everyone. Only for this reason does the bourgeoisie deceptively declare state authority itself to be subject to law and the state to be bound by law. For law in the bourgeois state is its class will, and statute reflects the will of the bourgeoisie as the ruling class. Bourgeois statutes formalize and confirm the capitalist conditions of production and the relations of capitalist exploitation.
The most recent bourgeois jurisprudence suggests, along with the dogmatic, other methods for studying the law in force. The basic alternatives are the socio-philosophical and the sociological. Each of them has in its turn a variety of forms serving as the bases of different directions in the “science” of law: legal policy, comparative historical jurisprudence etc. However, the dogma of law always remains as the basis of the scientific development of law for bourgeois jurisprudence. On the other hand, neither the most recent philosophical-legal studies, that led into the chaos of idealistic and metaphysical neo-Kantianism (neo-Hegelianism), nor the sociological and comparative historical research of those bourgeois jurists who have ignored the class nature of law, can assume a true scientific nature. Only individual works of bourgeois sociologists and historians of law have material which, on appropriate critical reworking, can be used for the study of the law of one country or another.
The Marxist theory of law in general – and the Marxist theory of economic law in particular – use the only truly scientific method, that of dialectical materialism. The systematic application of dialectical materialism to the study of Soviet law is one of the major victories of the Marxist theory of law in the U.S.S.R.
Coalescing in 1925 as a solid collective of Marxist jurists, the Section of State and Law of the Communist Academy formulated its tasks in the following manner:
We are united, above all, by the revolutionary-dialectical method both in scholarly and in practical work on law – its direction is opposite to the metaphysical, formal-dogmatic and, finally, the historical evolutionary method of bourgeois jurisprudence. This simultaneously means a class approach to the study of both state and law, for we consider these phenomena as rooted in the material conditions of social life and as having obtained their development in the process of class struggle. Finally, we, being materialists, proceed from the material relations of people in the study of state and law, so as to draw therefrom an understanding of the ideas and concepts of people about their own relationships. [46]
From this, in particular, it follows that there can be no discussion of the creation of any “dogma of Soviet law”. Socialist construction needs the systematic, but not the dogmatic study of Soviet law. Attempts to smuggle in the rubbish of the bourgeois-juridical world outlook, under the flag of “the limited” or “the subsidiary” application of the dogmatic method to the study of Soviet law, were met in the past and will be met in the future with invincible resistance.
What, concretely, should the application of dialectical materialism to the study of Soviet law signify?
Above all it signifies the necessity of an objective-materialist approach. This means that, in studying Soviet economic law, one cannot operate only with norms, even though they were promulgated by competent agencies of Soviet authority and have not been formally repealed. It is necessary to take norms in their unity with the corresponding legal relations. In the opposite case, particularly having in mind the unique dynamism of Soviet law and the “speed of legislation” already noted by Lenin, we will always risk being seduced by and accepting the “formally in force” (more precisely-formally unrepealed) for the actually existing.
Thus, for instance, until the end of 1933, the Law of October 7, 1929, On Procurement of Products of Agriculture was not repealed and was formally in force. But it was impossible to put together a correct impression of the organization (in 1933) of the procurement of agricultural products on the basis of this law. From the moment of publication of the law, radical changes took place in the economy of the whole country, and in particular in the economy of agriculture. The relations of the proletarian state with the basically collectivized peasant farming (from early 1933) were constructed very differently for a whole series of important crops. Procurement was entirely abolished for grain crops, for sunflowers, for potatoes, etc.; it was retained only for certain industrial crops, but even here it was often enacted differently to the provisions in the Law of October 7, 1929. From this it is obvious that the pure norm alone does not yet produce current Soviet law. The norm in unity with the legal relation – the norm with a modification for its realization in the practice of economic construction – is the correct position. However, it is wrong to err in the opposite direction: it is wrong also to tear the legal relation away from the norm. For the legal norm includes the rule which is in force and generally the “effective” directive of the authorized agencies of the proletarian dictatorship. Erring here also threatens the true Soviet law with a distorted reflection.
The objective-materialist approach requires the closest bond between theory and practice in the development of questions of Soviet economic law. Soviet economic law is not “pure” and abstract theory. It is a practical discipline, whose propositions must be directed to practice, which must draw the materials for its conclusions from the practice of economic construction, and which must arm practical workers with the power of its theory in their struggle for revolutionary legality and the conduct of the economic policy of the Party.
The next principle is the obligation to take account of the class nature of each institution of Soviet economic law.
Every law corresponds to the interests of a ruling class. Soviet law corresponds to the interests of the proletariat organized as the ruling class. Hence: every problem of Soviet economic law must be treated from the point of view of the interests of the ruling class, from the point of view of the policy of the Party (the vanguard of the class) and of the government, and must receive Party interpretation and a party solution. The slightest failure along this line revenges itself by a complete distortion of the essence and spirit of Soviet law.
Party-orientation is the highest and obligatory requirement in every scientific discipline and for Soviet economic law in no less a degree than any other. Marx and Lenin repeatedly emphasized the Party of Marxist theory. A Party, revolutionary-class, proletarian approach to Soviet economic law, or a bourgeois, formal – legal and reactionary – these are two poles, absolutely excluding one another. It is necessary to choose between them, but they allow no compromise, composite or mutual concessions. Only on the basis of true Party spirit – armed by Party Bolshevik vigilance – is it possible correctly to state and correctly to apply Soviet economic law. From this in particular comes the collossal significance of the problem of cadres for this area of socialist construction. On the contrary, the least concession to the bourgeois dogmatic-legal method leads to the loss of revolutionary-class perspective, to slipping into alien positions harmful to the proletariat.
Finally, there is a third point that derives from the application of dialectical materialism to the study of Soviet law. This is the requirement of taking each phenomenon in its motion, from the point of view of its origin, development and elimination.
Bourgeois jurisprudence transforms its concepts into solid essences. It eternalizes them, and declares them as timeless legal categories characteristic of the specifically bourgeois mode of production. This is not avoided even by the most advanced bourgeois jurists such as Jhering. On the contrary, the Soviet science of law must build its institutions from concepts with concrete content. In Soviet economic law, in particular, each category and each institution must be filled with a definite organizationaleconomic content, corresponding to specific measures of the economic policy of the Party and government at the corresponding stage. If one takes the contract of procurement, this institution must be studied and stated in Soviet economic law in such a way that its origin, its development and its abolition become obvious for the basic mass of products of agricultural production. In Soviet economic activity there is nothing frozen, motionless or static. Soviet economic law must consider and reflect the internal dynamics of its subject: the states of development of the class struggle, the stages of socialist construction.
Above (in Section 5) we indicated a series of basic concepts (categories) of Soviet economic law (property, economic accountability, contract etc.). Soviet economic law also uses a number of other elementary concepts whereby the structure of this discipline is erected. We will now list the most important of them, while the detailed critical analysis of their content, the indication of the limits of their application etc. will be made in the corresponding chapters of the treatise. These concepts are borrowed from bourgeois law. This is understandable since Soviet economic law contains a number of elements of “bourgeois law without the bourgeoisie”.
First, it is necessary to distinguish between the concepts of the legal norm and the legal relation. The first is the traditional terminology of bourgeois jurisprudence, and is so-called “law in the objective sense” (or objective law); the second is “a legal right in the subjective sense” (a subjective legal right). A norm is an objective rule of conduct. A juridic relationship is “the primary cell of the legal tissue” [47]; it is a “volitional relation whose content is given by the economic relation itself” An example of a legal norm is Article 403 of the Civil Code of the RSFSR. According to this the “one who has caused harm to an individual or property of another is obliged to compensate for the harm caused.” An example of a legal relation is the relation which has arisen in connection with the causing of harm to the victim, and the person who caused the harm. Another example: the Law of January 19, 1933, on obligatory supply of grain. This is a legal norm. The relation between the collective farm or the individual peasant farm, on the one hand, and the local branches and offices of Grain Procurement on the other, is a legal relationship for the delivery and receipt of grain.
A legal norm is obligatory (or, as jurists say, is “law in force”) to the extent that it is sanctioned by the state or other organization capable of guaranteeing coercive measures of observance (realization) of the norm. “Law ... is nothing without an apparatus capable of compelling the observance of the norms of law.” [48]
In the technical sense, the various forms in which legal norms are expressed and confirmed as generally obligatory are called sources of law. These are: Party directives, statutes, decrees of co-operative centres etc. (On the source of Soviet economic law: the authors refer to a later chapter in their book. – eds.)
The elements of every legal relationship are: the subject of the right (or duty), the object, the subjective right and the duty corresponding to it. The subject of a law is the bearer of the rights and duties, the final centre in the “legal tissue” to which property rights and duties are attached. In the first chapter of vol.1 of Das Kapital, Marx studies the process of commodity exchange. In an action “C-M” (exchange of commodities for money), two parties participate: the commodity owner and the owner of the money. From the legal perspective, a “C-M” legal relation is a transaction of purchase and sale. The parties in this legal relation, the subjects of the law, are the buyer and seller. The object of the law (or the property) is that which the parties have in mind, the object of their mutual demands and obligations (rights and duties). Above we indicated that bourgeois jurisprudence, according to the nature of the object (thing or action) classifies rights into rights to things and obligational rights. In a transaction of purchase and sale, the object of the law will be an action: of the seller – to transfer the thing to ownership of the buyer; and of the buyer – to pay the price. The latter element of the legal relation – the relation between the parties (the subjects of law) is the subjective right of one party and the subjective duty of the other corresponding to it. The duty, whose content is the execution of a certain action for the use of the other party, is also called an obligation.
Economic law makes broad use of the concept of a legal institution. “By a legal institution”, states Stuchka, “ we understand a typical legal relationship constituting a generic concept for a whole series of identical relations” [49] Examples of institutions of Soviet economic law include the law of public (socialist) property, prescription, the contract between the Machine Tractor Stations and collective farms, trusts, and others.
The bases for the origin of legal relationships are legal facts of different types: events, actions, transactions, agreements. For example, an earthquake is an event with which a series of important legal consequences are connected: in insurance law, an earthquake is considered one of the “insurable events”, whose occurrence involves the payment of the insurance premium provided by the insurance contract. Homicide is a legal act which is an act of will, the result of human conduct. This legal act also calls to life a series of legal relations, in particular of a property nature (for instance compensation for injury or provision for the family of the deceased). One of the types of legal actions is legal transactions. The Civil Code of the RSFSR provides a definition of legal transactions in Article 26. These are actions directed at the establishment, change, or cessation of legal relations. The essence of the matter here lies in the direction and the intention of the parties. Transactions may be unilateral, i.e. the volitional act of one person (for instance a will), and bilateral in which there must be an intent between a minimum of two persons. Bilateral transactions are also called agreements. Their significance in economic law is enormous.
31. H. Dernburg, Pandekten (1906), Moscow, vol.1, p.53.
32. I.A. Pokrovsky, The Basic Ideas of Civil Law (1917), St. Petersburg, p.10.
33. K. Marx and F. Engels, The German Ideology (1845-1846), op. cit., p.98.
34. K. Marx, On the Jewish Question (1843), op. cit., p.234.
35. A.G. Goikhbarg, The Economic Law of the RSFSR (1924), Moscow, p.7.
36. V.I. Lenin, On the Tasks of the People’s Commissariat of justice under the New Economic Policy (1922), LCW, Vol.36, pp.562-563.
37. G. Shershenevich, Textbook of Russian Civil Law (1914), Moscow, Vol.1, p.235.
38. K. Marx, Capital (1867), Vol.1, op. cit.
39. V.I. Lenin, What the “Friends of the People” Are (1894), LCW, Vol.1, p.153.
40. K. Marx and F. Engels, Sobranie sochinenii, Vol.4, p.209.
41. G. Shershenevich, The General Theory of Law (1911), Vol.4, St. Petersburg, p.768.
42. E.B. Pashukanis, The General Theory of Law and Marxism (1924), see this volume p.59.
43. F. Engels and K. Kautsky, Juridical Socialism (1887), Politics and Society, Vol.7, no.2, 1977, pp.199-220, at p. 204, translated and introduced by P. Beirne.
44. K. Marx and F. Engels, The German Ideology (1845-1846), op. cit., p. 385 – [eds.]
45. K. Marx and F. Engels, The Communist Manifesto (1847-1848), MESW, Vol.1, pp.110-111.
46. Revolution of Law: Collection 1, (1925), p.3.
47. E.B. Pashukanis (1924), op. cit., see present volume p.62.
48. V.I. Lenin, The State and Revolution (1917), op. cit., p. 471.
49. P.I. Stuchka, A Course on Soviet Civil Law (1927), op. cit., pp. 192-193.
Last updated on 13.5.2004