Jointly Edited and Translated by Rafael Khachaturian and Igor Shoikhedbrod.
Introductory Editorial Note[1]
The article that follows offers what appears to be Pashukanis’ earliest and most sustained critical engagement with Hans Kelsen’s “pure” theory of law. There is good reason to believe that Pashukanis was reviewing Kelsen’s Das Problem der Souveränität und die Theorie des Völkerrechts (1920) and Der soziologische und der juristische Staatsbegriff (1922) as he was completing his General Theory of Law and Marxism (1924). In that famous work, Pashukanis dismisses Kelsen’s legal theory as a theory that “explains nothing, and turns its back from the outset on the facts of reality, that is of social life, busying itself with norms without being in the least interested in their origin (a meta-juridical question!)”.[2] Elsewhere in that work, Pashukanis contrasts Kelsen’s theory with his own theoretical attempt “to present a sociological interpretation of the legal form and of the specific categories that express it”.[3] In this article, Pashukanis spends more time unpacking Kelsen’s “meta-juridical” framework before pointing out its many shortcomings. Pashukanis also interrogates the extent to which Kelsen—a token neo-Kantian legal positivist—oscillates between a legal positivist and a legal naturalist framework when it comes to the broader arena of international law, a point that receives less attention in The General Theory of Law and Marxism. Kelsen responded with a polemic against Pashukanis and other early Soviet legal theorists in The Communist Theory of Law (1955). Pashukanis was shot in 1937 and was therefore deprived of his response to Kelsen.
Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (1920)
Hans Kelsen, Der soziologische und der juristische Staatsbegriff (1922)
The first major work by Hans Kelsen–one of the prominent representatives of the normative or neo-Austrian school of jurisprudence–“Hauptprobleme der Staatsrechtslehre,” appeared fairly recently, in 1911. In the monographs listed above, Kelsen continues to develop and deepen his methodological constructs, not only not retreating from his original viewpoint, but in places even further sharpening it.
As it often happens, in doing so, with particular brilliance, he discovers all the weak points of his one-sided, formalist-logical approach to the subject. The constructs that he offers are so artificial, paradoxical, and–most importantly–lifeless, that it is doubtful they will find application even in the narrow sphere of legal dogmatism. As for the actual scientific understanding of law and the state, Kelsen’s method leads one straight in the opposite direction.
One should not think that Kelsen’s theory stands apart from a series of other currents in bourgeois philosophical thought. On the contrary, it should be examined as a manifestation, in a particular sphere, of that tendency that cannot be called anything else but a break with reality for the sake of the logical purity of the subject. Kelsen’s “pure theory of law” is undoubtedly related to [Edmund] Husserl’s “eidetic intuition”, which Kelsen himself acknowledges (Der soziologische und der juristische Staatsbegriff, p. 81). On the other hand, Kelsen’s theory also undoubtedly represents an attempt to bring to a logical conclusion those positions advanced by the representatives of so-called legal positivism. Such is the irony of fate or, more accurately, of the dialectic of human reason. Legal positivism matured in the struggle against natural law and saw as its primary task the destruction of the last remnants of that doctrine. Kelsen, who considers himself to be the successor and completer of this struggle for the positivism of law [legal positivism], in his conclusions, descends down to that very same natural law that has been reduced to dust innumerable times. Together with Kelsen, bourgeois legal thought, having completed a cycle, returns to its starting point–methodologically-sophisticated but rendered entirely harmless politically. If Karl I tried to persecute Hugo Grotius for proclaiming the principle of the freedom of the seas, then Kelsen, calling for a return to the jus naturale gentium, is not threatened by anyone.
Kelsen’s methodological constructs are essentially the further development of the ideas we can already find in [Paul] Laband and [Georg] Jellinek. In particular, in the latter (see System der subjektive Rechte, Ch. 3) we find almost the entirety of the main reasons from which Kelsen proceeds. Kelsen’s merit is only in the exceptional consistency and energy with which he follows through on a principle once it is accepted, not stopping in the face of the most paradoxical conclusions. His starting point is the counterposing of the normative reasoning of the jurist to the explicative, explanatory reasoning of the sociologist, historian, and natural scientist. While the latter deal with phenomena occurring due to a natural necessity, by virtue of a causal relationship, the jurist only deals with particular kinds of obligations. Relying on [Wilhelm] Windelband and partly on [Georg] Simmel, Kelsen excavates a real logical abyss between being and duty, and closes off to the jurist any access to the world of reality apart from the world of norms. Subjecting the principal legal concepts to thorough analysis, he diligently excludes from them all psychological and sociological elements–any residue of the factual. Thus, for example, having examined the concept of the will, which plays such an important role in legal theory, Kelsen comes to the conclusion that actual mental experiences are not at all what is meant here–that they are immaterial and irrelevant, that the juridical will exists as a particular attributional construct; that is, once again, as a combination of norms, directing in which cases one or another action should be attributed or “imputed” to this or that persona.
Likewise, the very notion of the “persona,” according to Kelsen, has nothing in common with either the biological or psychological understanding of personhood. Juridically, the “persona” is nothing other than the personification of the norms related to it. Developing his initial premises with logical coherence, Kelsen comes to fully identify the state with the normative order as a whole. One cannot object to him that this is not so in reality, for as a “pure” jurist, he does not wish to have anything in common with reality. From the normative point of view, state power can only be “conceived” of as the rule of law. Kelsen goes even further: while Jellinek considers it possible to formulate a sociological understanding of the state alongside the juridical one, Kelsen insists that the state, as a concept, formulated in the normative order, does not at all exist for sociology. The very concept of the supreme power for a given community can only be understood normatively. In the real order of phenomena, the supreme power is just as impossible to discover as a first cause. Upholding the purely mental–one can say transcendent–objectivity of the state, Kelsen also walls himself off from objections that identify the state with the state’s ideology, understood as a psychological phenomenon. For him, the concrete experiences of people, subjected to the law of causality, are separated off by a logical abyss from the normative order and its own internal regularity.
Little should be said about the pity with which Kelsen speaks of the “naive and shortsighted” people, who following Lassalle, think of the state in connection with corporeal-real things like cannons, fortresses, the instruments of production, and so forth. For these are nothing but inert, indifferent things, our professor reasons; they receive their social meaning only in connection with the actions of people–and the actions of people can be examined “juridically” as the actions of the state only when they coincide with the normative order conceived ideally. Ergo, the power of the state is the power of the rule of law. Here is a sampling of truly farsighted professorial thinking.
But it may be asked, what makes up that notorious internal lawfulness of the normative–that is, legal–order? Kelsen answers: in that each particular legal norm is derived from a more general one, which is in turn from an even more general one, until we reach the basic, or as it is said, original norm or juridical hypothesis (Ursprunghypotese). This basic norm determines the supreme norm-setting authority for a given society. Kelsen hurries to clarify that the obligation consisting in this norm, as in all legal obligations, is relative and conditional; nevertheless the jurist cannot go further than this form, for only with it begins the sphere of law. Apparently, further along one finds those “legal voids” (Rechtsleerer Raum) of which Bergbaum had already written.
But what should one be guided by when choosing this initial hypothesis, which, according to Kelsen, seals off and at the same time bears upon itself the entire normative order? The author answers this perfectly reasonably: “From the juridical point of view, the selection of the basic premise, from which the entire positive legal order is deduced, appears arbitrary” (Das problem der Souveränität, p. 97). Further along in the same work, Kelsen clarifies that one cannot prove, on legal grounds, the senselessness of such a legal assessment of the relations of modern France in which the ancien regime would be assumed to be a “functioning” legal order. As we see, the purely juridical method would have been quite useful for the residents of the yellow house.[4]
However, Kelsen once again returns to this same question in a different monograph, published in 1922. Taking the example of the Russian Revolution, this time he attempts to reconcile “legal sense” with ordinary common sense. For this reason, he is forced to remark that “to a specific normative regularity in the ideal system of the state and law there must somehow (italics mine, E.P.) be appended (zugordnet) a slice of real life, factually occurring by the causal necessity of human behavior (Der soziologische und der justistiche Staatsbegriff, p. 96). And further along: “the tension between norms and facts should not exceed a known maximum.”
The venerable jurist has decided to descend from the heights of his unearthly normativism. In a way, another success of the Russian Revolution.
As is known, in stressing the formal nature of law, legal positivism waged a persistent struggle against the “natural and innate” rights of man, advanced by the bourgeoisie in the revolutionary moment of its own history as a class.
Kelsen continues this approach with exceptional decisiveness and consistency. He explains that the very concept of subjective rights introduces a completely unnecessary dualism; that the only and quite sufficient premise of a legal system is the norm that establishes the legal obligation. In so far as the state “conveys” the quality of a “person” by establishing rights and obligations, it may also rescind it: “The introduction of slavery as a legal institution lies entirely within the scope of the possibility of the legal order or of the state” (Das problem der Souveränität, p. 45). At the very least, this statement cannot be said to lack courage. But Kelsen goes even further. His formal understanding of law is sufficiently broad as to include not only slavery, but extreme forms of despotism. For if only what is essential to the legal norm is its connection to a higher, basic norm from which it is derived–while the content itself is irrelevant–then, “juridically,” the most extreme despotism unquestionably appears as a legal regime; for to conceive of a monarch’s orders juridically, we likewise have to generate them from a higher norm: “everyone must do as the monarch wishes” (Das problem der Souveränität, p. 25).
Empty tautologies of this kind are presented as the most profound of discoveries. At that, Kelsen is condescendingly ready to admit that, “of course, psychologically, this moment of formal coherence through the mediation of the basic norm recedes into the background in comparison to material arbitrariness.” Reasoning of this kind is naturally interesting, as a curiosity. But it clearly shows how the normative understanding of law leads to a barren desert of scholasticism. Here the inaptitude of the normative method even for the narrow aims of dogmatic jurisprudence is clearly visible. Even if all the logical operations of the latter were actually limited to consisting of the ascendance from the norm to the original source, still no system of law would be possible. Logical threads traced from particular norms to their original source by themselves cannot provide for that unity of norms that make up the various legal institutions. Dogmatic jurisprudence developed into a system only because it took as its foundation the abstracted factual relations between people opposed to each other as commodity producers. The norms that regulate property fold into an institution of property because their basis lies in private appropriation as an economic fact. The doctrine of contracts represents a unified logical idea because at its foundation is exchange as an economic fact, and so on.
The necessary categories through which this jurisprudence captures these relationships–such as the concept of the subject or person, the will in a juridical sense, and subjective right–are all concepts which are derivatives or expressions of the different sides of one and the same substrate of reality—a private economic subject.
Having freed dogmatic jurisprudence from these “substantialist” concepts and turned it into the logic of juridical duty, Kelsen has removed its vital purpose and turned it into a kind of scholasticism akin to medieval theology. He was actually forced to admit the latter, dedicating the final chapter of Der soziologische und der juristische Staatsbegriff to the parallel of the state and law to god and nature.
The immanent laws of juridical logic fully showed their influence as soon as Kelsen shifted to international law. Here before him stood a dilemma: either to accept the proposition “God, just as right, is always with the strongest battalions,” or in the search of the basic norm of the international order, go down the path of the natural law school. He was prevented from occupying a space somewhere between right and fact by his own methodological framing. And so, strongly dissociating himself from those German scholars who, succumbing to the excessively one-sided influence of the successes of 1870-71, proclaimed “victorious war as the norm that decides whose side right is on,” Kelsen safely anchors himself in the peaceful waters of natural-right doctrine. The foundational and supreme formulation that he borrows from [Christian] Wolff proclaims a “legal community in which the freedom of the subjects (states) is limited by their equality in principle.” In one bound, Kelsen leaps from the formal and official statist understanding of law to a natural-right one. The “substantialist” understanding of subjects (especially “free and equal” ones) that he so diligently destroyed reappears completely unexpectedly in the basic formula itself. All of Kelsen’s methodological scouring turned out to be in vain.
Old Grotius understood things much more clearly when he, listing the conditions of the development of peaceful commerce within a state (which he identifies with the conditions of the existence of the state itself), such as the security and freedom of property, the equal use of the means of communication, and freedom of commerce, posed a question to emerging bourgeois society: how is it possible, outside of these conditions, to ensure international commerce?
In this, he clearly showed that the so-called “idea of law” is nothing but the one-sided and abstract expression of one of the relations of bourgeois society–namely, the relationship of independent and equal property-owners–that is the “natural” prerequisite for the act of exchange.
[1] Originally published under the same title in Vestnik Sotsialisticheskoi Akademii [Bulletin of the Socialist Academy], Vol. 5, August-September 1923, pp. 227-232); republished in E.B. Pashukanis, Selected Works on the General Theory of Law and State, (Moscow: Nauka, 1980), pp.230-236. Our editorial interventions are designated using square brackets and/or “Ed”. We would like to express our gratitude to the editorial team at Kritika Prava for transcribing this essay and making it available in Russian on their website.
[2] Evgeny Pashukanis, The General Theory of Law and Marxism, translated by Barbara Einhorn (London: InkLinks, 1978), p.52.
[3] Ibid., p.107
[4] Ed. Pashukanis is possibly referring to the Palace of Versailles.
