scholarly journals In Defence of Pashukanism

2017 ◽  
Vol 14 (4) ◽  
pp. 103 ◽  
Author(s):  
R Koen
Keyword(s):  
General Theory ◽  
First Principles ◽  
New Left ◽  
Marxist Theory ◽  
Legal Form ◽  
Commodity Exchange ◽  
Form Theory ◽  
Theory Of Law ◽  
Commodity Form

This essay presents an extended defence of the general theory of law formulated by the Bolshevik jurist, Evgeny Pashukanis, and published in his Law and Marxism: A General Theory in 1924. The general theory is a theory of the legal form. Although Pashukanis did not name his theory, it has become known as the commodity form theory of law because of its theorising the legal form as a homologue of the commodity form. However, despite having weighty Marxist and revolutionary Bolshevik credentials, the general theory has been subjected to sustained attack, especially from new left and neo-Marxist circles. This essay identifies and explicates six major objections to Pashukanism from its left critics. These are that the general theory is too abstract to comprehend the reality of legal relations; that it is infused with economic reductionism; that it derives the legal form wrongly from commodity exchange; that it classifies the legal form incorrectly as an attribute of capitalism only; that it lacks the generality required of a general theory of law; and that it is imbricated in the growth of anarchism and Stalinism. Following a brief exegetical exercise, the bulk of the essay is devoted to demonstrating in detail that each of the six objections to the general theory is without merit, and that none makes any serious incursion into its integrity as a theory of the legal form. The central submission of the essay is that the Pashukanist general theory of law is rooted in the first principles of classical Marxism and hence may lay claim legitimately to being the Marxist theory of law.

scholarly journals All Roads lead to Property: Pashukanis, Christie and the Theory of Restorative Justice

2017 ◽  
Vol 16 (3) ◽  
pp. 187
Author(s):  
Raymond Koen
Keyword(s):  
Criminal Justice ◽  
Restorative Justice ◽  
Western World ◽  
Legal Form ◽  
Legal Subjectivity ◽  
Role Of The State ◽  
Core Elements ◽  
Form Theory ◽  
Theory Of Law ◽  
Commodity Form

Nils Christie is acknowledged generally as the theoretical founding father of restorative justice. Evgeny Pashukanis may be taken as the premier Marxist theoretician of law. This essay represents an endeavour to read Christie through the lens of Pashukanism, that is, to comprehend the theory of restorative justice developed by Christie in relation to the general theory of law formulated by Pashukanis. The early part of the essay is expository: firstly, it sets out in abbreviated form the fundamental tenets of Pashukanis's so-called commodity form theory of law, with some attention being given to the Pashukanist approach to criminal justice; and secondly, it explains the core elements of Christie's theory of restorative justice, including his critique of western criminal justice and his advocacy of a system of "conflicts as property" as the answer to the crisis of criminality which plagues the western world. The latter part of the essay is critical: it compares and contrasts Christie's proprietary theory of restorative justice with Pashukanis's commodity form theory of law. On the one hand, it is argued that there exists a remarkable theoretical concordance between Christie and Pashukanis in the sense that Christie's idea of criminal conflict as property constitutes a non-Marxist vindication of Pashukanis's analysis of the legal form. On the other hand, it is posited that because Pashukanis proceeds from a Marxist perspective and Christie does not, there remain crucial areas of difference between them, especially as regards the historicity of the legal form, the concept of legal subjectivity, and the role of the state. In the light of these differences the essay concludes with a Pashukanist critique of the Christie thesis, seeking to assess the prospects of restorative justice replacing criminal justice as the generalised mode of disposition of criminal conflicts.

The Rise and Fall of a Soviet Jurist: Evgeny Pashukanis and Stalinism

2004 ◽  
Vol 17 (2) ◽  
pp. 269-294 ◽  
Author(s):  
Michael Head
Keyword(s):  
Soviet Union ◽  
General Theory ◽  
Legal Theory ◽  
Theory And Practice ◽  
Early Years ◽  
Marxist Theory ◽  
New Economic Policy ◽  
Commodity Exchange ◽  
Economic Relations ◽  
Theory Of Law

One question looms large in the early history of Soviet legal theory and practice: how and why did EvgenyPashukanis emerge as the pre-eminent Soviet jurist from 1924 to 1930, come under only minor criticism from 1930 to 1936 and then be denounced and executed in 1937 as a ‘Trotskyite saboteur’? Of course, Pashukanis was not alone. Virtually every leading figure associated with the October 1917 Russian Revolution and the early years of the Soviet Union fell victim to Stalin’s purges by 1937 (from Trotsky, Zinoviev, Kamenev and Bukharin to thousands of less-known socialists). Yet, there are some particularly revealing aspects in the case of Pashukanis that have not been probed adequately by most Western or Soviet writers. His rise to leadership of Soviet legal work in 1924, with the publication of his The General Theory of Law and Marxism, coincided with Stalin’s initial victory over the Left Opposition and the enunciation of Stalin’s program of seeking to build ‘socialism in one country’. Pashukanis’ unexpected emergence from obscurity appears to be related to the fact that he publicly lined up against the Left Opposition as early as 1925. Pashukanis’ central theme in his General Theory, somewhat simplistically referred to as a ‘commodity-exchange’ theory of law, was related to the limited restoration of commercial property and market relations under the 1921 shift to the New Economic Policy. The dangers inherent in this temporary retreat became entrenched in Stalin’s bureaucratic elite after 1924. As discussed in this article, Pashukanis’ approach, which regarded commodity exchange as the essence of legal relations, to some extent reconciled Marxist theory with the official revival of economic relations based on private ownership and market forces.

THEORY OF LAW AND COMPUTER CRIMESTEORIA DO DIREITO E CRIMES INFORMÁTICOS

2017 ◽  
Vol 8 (16) ◽  
Author(s):  
Agata C. Amato Mangiameli (Universidade de Roma – Tor Vergata)
Keyword(s):  
General Theory ◽  
Social Engineering ◽  
Computer Crimes ◽  
Theory Of Law ◽  
Technology Advances

This paper aims investigate the general theory and the elements of the computer crimes as well it social engineering, because as technology advances, more and more people use it according to their needs.

LEGAL STATUS OF THE SOLE EXECUTIVE BODY OF A LIMITED LIABILITY COMPANY

2021 ◽  
Author(s):  
Yulia Fanilevna Aitova ◽  
Keyword(s):  
General Theory ◽  
Legal Status ◽  
Limited Liability ◽  
Point Of View ◽  
Limited Liability Company ◽  
Points Of View ◽  
Theory Of Law ◽  
The Individual ◽  
Executive Body

The article analyzes the issue of determining the legal status of the individual management body of a limited liability company. The author begins his research with the concept of legal status existing in the general theory of law, and then proceeds to consider the issue from the point of view of philosophical categories. In addition, the work explores the diversity of points of view existing in the doctrine regarding the legal status of the individual management body of economic societies.

scholarly journals There Are No Easy Counterexamples to Legal Anti-Positivism

2019 ◽  
Author(s):  
Emad H. Atiq
Keyword(s):  
General Theory ◽  
Social Philosophy ◽  
Social Practices ◽  
Legal Rule ◽  
False Negatives ◽  
Moral Properties ◽  
Theory Of Law ◽  
Inclusive Form ◽  
Moral Facts

Journal of Ethics & Social Philosophy, ForthcomingLegal anti-positivism is widely believed to be a general theory of law that generates far too many false negatives. If anti-positivism is true, certain rules bearing all the hallmarks of legality are not in fact legal. This impression, fostered by both positivists and anti-positivists, stems from an overly narrow conception of the kinds of moral facts that ground legal facts: roughly, facts about what is morally optimific — morally best or morally justified or morally obligatory given our social practices. A less restrictive view of the kinds of moral properties that ground legality results in a form of anti-positivism that can accommodate any legal rule consistent with positivism, including the alleged counterexamples. I articulate an ‘inclusive’ form of anti-positivism that is not just invulnerable to extensional challenge from the positivist. It is the only account that withstands extensional objections, while incorporating, on purely conceptual grounds, a large part of the content of morality into law.

scholarly journals Emilio Betti: from the history of law to the general theory of interpretation

2020 ◽  
pp. 30-44
Author(s):  
Iuliia Rossius
Keyword(s):  
General Theory ◽  
Practical Importance ◽  
Dialectical Tension ◽  
History Of ◽  
History Of Law ◽  
The Subject ◽  
Theory Of Law ◽  
The Impact ◽  
Hans Georg Gadamer

The goal of this article consists in demonstration of the impact of research in the field of history and theory of law alongside the hermeneutics of Emilio Betti impacted the vector of this philosophical thought. The subject of this article is the lectures read by Emilio Betti (prolusioni) in 1927 and 1948, as well as his writings of 1949 and 1962. Analysis is conducted on the succession of Betti's ideas in these works, which is traced despite the discrepancy in their theme (legal and philosophical). The author indicates “legal” origin of the canons of Bettis’ hermeneutics, namely the canon of autonomy of the object. Emphasis is placed on the problem of objectivity in Betti's theory, as well as on dialectical tension between the historicity of the interpreted subject and strangeness of the object that accompanies legal, as well as any other type of interpretation. The article reveals the key moment of Betti's criticism of Hans-Georg Gadamer. Regarding the question of historicity of the subject of interpretation. The conclusion is made that the origin of the general theory of interpretation lies in the approaches and methods developed and implemented by Betti back in legal hermeneutics and in studying history of law.   Betti's philosophical theory was significantly affected by the idea on the role of modern legal dogma in interpretation of the history of law. Namely this idea that contains the principle of historicity of the subject of interpretation, which commenced  the general hermeneutical theory of Emilio Betti, was realized in canon of the relevance of understanding in the lecture in 1948, and later in the “general theory of interpretation”. The author also underlines that the question of objectivity of understanding, which has crucial practical importance in legal hermeneutics, was transmitted into the philosophical works of E. Betti, finding reflection in dialectic of the subject and object of interpretation.

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