This article addresses Schmitt’s concept of sovereign dictatorship—a departure from the normal legal order aiming to bring about a new mode of legality—as applied to the Marxist, and then Soviet, “dictatorship of the proletariat.” Unlike Schmitt, Marx and Engels, as well as Soviet legal theorists, saw the space for law even while aiming to dispense with the legal form on the road to communism. This is best explained by Schmitt’s failure to recognize the importance of legal systems not only for (...) controlling social conflict, but also for coordination, the need for which does not disappear in extraordinary circumstances. (shrink)

This chapter sets out to briefly introduce the theory of the legal form as originally conceived by Evgeny Pashukanis, a famous early Soviet legal scholar. Firstly, it will provide an account of Pashukanis's life, tragically cut short during the Great Terror. Secondly, it will move onto summarising his theory of the legal form through three theses: (i) Commodity Form Thesis, (ii) Bourgeois Law Thesis, and (iii) Withering Away Thesis. Thirdly, it will compare these theses to the positions on law and (...) state advanced by his various interlocutors, past and contemporary, namely Karl Marx and Friedrich Engels, Vladimir Lenin, Petr Stuchka, and Andrey Vyshinsky. Fourthly, it will analyse the similarities and differences identified in the previous section, drawing conclusions as to the cause of Pashukanis's downfall. It will be eventually pointed out that Pashukanis's theory was fundamentally unsuitable to the project of Soviet state-building, which explains why viewing law and state from Pashukanist lens was contested and eventually abandoned. (shrink)

This paper examines Hans Kelsen’s Communist Theory of Law in the context of his general critique of natural law theories. Kelsen argues that since there is no such thing as objectively determined natural law, a theory that attempts to use it to establish constraints on positive law is at risk of automatically justifying the latter. Kelsen deploys this ‘Pandora’s Box Objection’ in his characterisation of the Communist theory of law as the ‘handmaiden’ of the Soviet government that conserved, rather than (...) challenged, oppressive policies. The Objection is limited in scope. Firstly, it applies only to ‘forward-looking’ Communist theories of law that justify transitional socialist legal arrangements rather than seek to abolish the legal form as a whole. Secondly, it does not eliminate the Rule of Law constraints that are independent from natural law fetters – hence the state does not have a ‘blank cheque’ to introduce any positive law. (shrink)