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.

Keywords

formalism instrumentalism Marxism and law Pashukanis the concept of abstraction the concept of form the legal form value form

Introduction

After a decade of near-silence in the 1990s, the area of right, rights and law within Marxist historiography and theory has returned from the shadows of neglect.¹ Consequently, in terms of publications, the contemporary field of Marxism and law now resembles the debates about the state, law, the rule of law and capitalism from the late 1960s to the beginnings of the 1980s (see, for example, Holloway and Piciotto 1978; Thompson 1975) and about Marx and justice and whether a ‘Marxist can believe in human rights’ in the 1980s (see, for example, Geras 1985; Lukes 1981). In any event, just like the ‘crisis of Marxism’ (Callinicos et al. 2021: 1; Kouvelakis 2021: 338–240) has been put to rest for the time being, the field of Marxism and law is expansive and thriving (see, for example, the 30 essays in O’Connel and Özsu 2021).

Amid the renaissance of the field of Marxism and law, one text in particular has taken centre stage: The General Theory of Law and Marxism, published by the Soviet legal theorist E. B. Pashukanis in 1924. The significance of Pashukanis’s General Theory, most recently highlighted by Étienne Balibar (2023: 76), is rooted in his achievement of the first and arguably most decisive methodological break in the history of the Marxist critique of right. By paying particular attention to the first chapters of volume one of Karl Marx’s Capital, Pashukanis argued that the legal form ought to be theorised in tandem with the commodity form. In turn, therefore, he disapproved of the common Marxist rejection of bourgeois rights and law as mere ideology or as a simple instrument of the elite in the class struggle, without ending up in an uncritical and idealist acceptance of the ideal of law. As Sonja Buckel (2020 [2007]: 83) has written to underscore the importance of Pashukanis, ‘just as bourgeois economists [before Marx] had focused on analysing measures of value and in doing so overlooked what was specific about the value form’, before Pashukanis, ‘Marxist legal theory consciously and categorically refrained from any analysis of the legal form itself’.

Against the background of the central status of the General Theory, I seek to make three contributions to the field of Marxism and law. First, I propose that Pashukanis’s objections against idealist as well as psychological, sociological and Marxist theories of law are best understood as a critique of a spectrum between formalism and instrumentalism (for an account that uses the term of a continuum, see Tomlins 2007: 53), containing both differences and similarities. In that way, I adjust the way in which his critique most often has been discussed in the literature in terms of either differences or similarities between formalism and instrumentalism, in conformity with too specific definitions, or with definitions lacking in detail. Second, by focusing on the conceptions of abstraction and form in the General Theory, I reconstruct the concept of the legal form according to the spirit of Pashukanis’s thought to supersede the limits of what I delineate as the formalism–instrumentalism spectrum, despite instances of unevenness and tensions found in the letter of his text. Third, based on the reconstruction of the concept of the legal form, I demonstrate how three major objections against Pashukanis in the field of Marxism and law loose a considerable degree of their force, covering critique against Pashukanis’s (a) focus on the sphere of circulation at the cost of production, (b) his structuralist, crude materialist, consequentialist or instrumentalist biases and (c) his exclusion of social difference along with inequalities of race and gender.

Despite the central status of the General Theory in the present article, I do not defend exegetical claims and contributions. Instead, I build on the procedure of reconstruction (see, for example, Buckel 2020: 3; Habermas 1979: 95). In the present case, reconstruction involves taking apart the conceptual totality of the General Theory and putting it back together again in a new form to more effectively achieve the goal of superseding the formalism–instrumentalism spectrum and addressing existing objections.

It follows from the method of reconstruction that I do not argue that Pashukanis was completely right. If so, reconstruction would be unnecessary. Instead, I seek to establish that Pashukanis moved in the right course, which also includes a focus on the limits of his intervention. Thus, it is evident that I disagree with Raymond Koen’s (2011: 110–111) assertion that a defence of Pashukanis ‘must be unconditional’ since his theory ‘is an indivisible, coherent and cohesive construct’. Also, contrary to Koen’s claims, Pashukanis (2009 [1924]: 36–37) himself describes his intervention as a ‘sketch’ and ‘. . . a first draft . . . meant to provide at best a stimulus and material for further discussions . . .’. As I outline my argument, it will become clear that my contribution both builds on and diverges from other defences of Pashukanis, including significant contributions by Isaac D. Balbus (1977), Chris Arthur (1978), Alan Norrie (1982), China Miéville (2005) and Mathew Dimick (2021).

The spectrum of formalism and instrumentalism

Pashukanis prepares the ground for his concept of the legal form by establishing the parameters of a polemical landscape, in which he challenges not only what he calls idealist theories but also psychological, sociological and Marxist theories – commonly referred to as formalism and instrumentalism (Pashukanis 2009 [1924]: 48–53). However, in the existing literature, when the issue of formalism and instrumentalism is not omitted or merely tackled briefly (e.g. Adams 2020: 44–47; Baars 2019: 16–18; Parfitt 2019: 35), the attention tends to be directed towards either differences (e.g. Fine 2002: 106; Taylor 2019: 49-50; Shoikhedbrod 2021: 498) or similarities (e.g. Balbus 1977: 571–573; see also Tomlins 2007: 53). In addition, there is a tendency to narrow the scope of instrumentalism solely to class instrumentalism (e.g. Bolton 2023: 12; Piekarska 2022: 12; Shoikhedbrod 2020: 465, 2021: 498). To be clear, I am not arguing that brief accounts or a narrow focus on differences, similarities, or class instrumentalism in isolation from each other cannot be suitable in these or other cases. That said, the concept of the legal form would be inadequate if it merely would surpass the differences between formalism and instrumentalism. Similarly, it would be insufficient if it solely were to move beyond class instrumentalism or beyond the similarities between formalism and instrumentalism. Thus, I begin by investigating differences and then moves on to similarities, which unite formalism and instrumentalism into a spectrum.

Pashukanis identifies formalism as the primary adversary. Just like Pashukanis’s critique of instrumentalism has a broader relveance than objections to class instrumentalism, the critique of formalism should not be conflated with a critique of legal positivism, which represent a more narrow target. Although his treatment of formalism is far from exhaustive, it is possible to discern several criteria. Implicitly or explicitly, a formalist argument operates under the premise that rights and law can be examined and applied independently of temporal and spatial variations. Politico-legal ideals and institutions, such as human rights, are often favoured as the starting point for critique, serving as a supposedly neutral and independent standard of what ought to be, which can expose and challenge differences, exclusions, privileges, and inequalities. This stance implicates an image of the future as an extension of the present, wherein societal circumstances merely need to conform to the ideal. Moreover, the lens of ideals and norms obscures qualitative and historical differences rooted in class, gender, race, or other power relations, privileging a focus on marginalisation, difference, inequality and exclusion in general (see, for example, Young 1979: 13–19). Ultimately, the disparity between the ideal of norms and rights and the actuality of marginalisation, exclusion, inequality and difference is theorised as a tension, contradiction, or paradox that fuels social transformation. In a broader sense, by disregarding or downplaying the origins, functions, and consequences of politico-legal ideals and institutions, formalist arguments grant them an independent and neutral status as norms that transcend time and space (see, for example, Pashukanis 2009 [1924]: 47–48, 50–53). The legal form of rights and law is assumed to be isolated, independent and neutral in relation to its legal, social and political content.

Pashukanis distinguishes himself from the Marxist mainstream by emphasising the imperative to steer clear of formalism while also cautioning against sliding into the opposite extreme, instrumentalism. Marxist theorists themselves are not exempt from blame in this regard. On more than a few occasions, rigid interpretations of the base and superstructure metaphor have led to the conclusion that rights and law merely serve as masks for the ruling class, wielding these ideals and institutions as instruments to advance their own interests or disguise class privileges (see, for example, see the references offered in Collins 1982: 22–30). Criteria for identifying instrumentalism, whether directly or indirectly, involve objections to the formalist assumption that societal conditions can be critiqued based on a norm or an ideal of what ought to be. Formalism distorts our understanding of actual social circumstances and uncritically accepts the neutrality and independence of the legal form, failing to scrutinise its origins, functions, and effects (Pashukanis 2009 [1924]: 39, 40, 53–55). Thus, instrumentalist arguments present the disparity between the bourgeois ideals of equality and freedom and the reality of inequality and particularity in bourgeois society as confirmation of the impoverishment of the ideal itself. Indeed, claims of universalism involved in bourgeois ideals and institutions are perceived as fully compatible with the actuality of inequality, and therefore, as deceptive or illusory rather than as tools for criticising and transforming society (see also Postone 2003 [1993]: 66, 162–163; Wood 1978: 227–228). From the instrumentalist perspective, engaging with politico-legal ideals such as freedom and equality with the intention of identifying their limitations or unattainability within capitalism, is seen as a failure to recognise that these ideals are already achieved. Freedom and equality are manifestations of the existing capitalist constraints and inequalities, rather than being unrealised due to those very constraints and inequalities. In this particular context, it is possible to further progress the argument by inferring that the similarities between a liberal capitalist state and a fascist capitalist state surpass their dissimilarities, thereby encouriging the conclusion that defending the liberal state against fascism is not warranted (see, for example, Fine 1979: 32). In summary, the instrumentalist perspective replaces the notions of isolation, independence, and neutrality of the legal form of rights and law with reduction, dependence, and partiality in relation to its content. A fundamental transformation can only be achieved by completely severing ties with the societal content that the form conceals.

Yet, Pashukanis also argues that formalism and instrumentalism unite in their inability to address the legal form. Either the legal form is not taken seriously from the very beginning (instrumentalism), or it is idealised (formalism). Thus, already on Pashukanis’s own terms, it is plausible to address the negative foundation of the concept of the legal form in terms of a spectrum that spans similarities no less than differences. However, these affinities can be specified in more detail.

To begin with, both formalism and instrumentalism depend on a neat separation of form and content. In turn, the connection between form and content is conceived of in aprioristic, timeless, dichotomous and external terms. More specifically, in the case of formalism, to gain insight into the assumptions about form and content, it is enough to observe the instrumentalist critique. This critique objects to the way in which formalists implicitly embrace the form of law for critical purposes without serious reservations (see also Cornell 1984: 48–50; Fine 2001: 62; Marx 1970 [1843]: 62, 100). To understand universal politico–legal ideals, such as equality and freedom, as neutral and independent standards of critique and as benchmarks of progress, presupposes a prior distinction between form and content. Without such a distinction, affirming the legal form for critical purposes would be considerably more complex, as its origins, effects, and functions in an unequal setting are troubling, to say the least.

Prima facie, as the instrumentalist argues that in actuality, these ideals are permeated with the power and interests of a select few, and epitomise a distortion of the foundational continuum linking l’ancien régime to the bourgeois society, the formalist distinction between form and content seems to be denied. Yet, just as the formalist is committed to an a priori judgement that form can be utilised as a measure, the instrumentalist is also committed to an a priori judgement that politico–legal forms invariably serve social actors and interests, regardless of time and space. Consequently, for the instrumentalist, the given and social content is transferred into a reified and timeless domain, detached from socio-material contexts and political conflicts. The legal form is attributed with a singular and exclusive effect. Therefore, the instrumentalist, like the formalist, fails to question the basic opposition and mutual externality between form and content – between the forms of universalism, equality, and freedom, on one hand, and the content of inequality, power and particularism, on the other hand. None of the two conceptions manage to avoid the naturalisation of the basic opposition between form and content (compare Fine 2002 [1984] : 5–87, 109). Stated more directly, with respect to the relation between form and content, the instrumentalist is effectively a formalist too.

In parallel with their common dependence on the form-content dichotomy, the instrumentalist and the formalist also unite by presupposing that the form of rights and law is independent granted that it is independent of the will of social actors in a setting involving interests and power. The apparently clear-cut difference between formalism and instrumentalism erroneously seems to be a debate about unmediated ‘facts’ of observable intentions. The uncritical acceptance of the legal form presupposes that it is independent from the will of influential social actors and that it potentially even can be wielded against them. Yet, the instrumentalist then exposes that the legal form remains intertwined with the volition of diverse actors, catering to specific interests. Consequently, the instrumentalist concludes that the legal form is suffused with power and interests and therefore profoundly dependent. As a result, the problem of whether the legal form is independent of the will of social actors is conflated with the problem of whether it is independent of the capitalist mode of productions as a concrete totality (see also Balbus 1977: 571–573).

Crucially, by noting how both formalism and instrumentalism assume that form and content are externally related as oppositions, and how they both equate the independence of the legal form with the independence of the legal form from the will of social actors, one can discern how each, on their own, instigates a counterreaction (for a similar critique but in relation to the concept of ideology, see Morris 2016: 33–59). As the legal form within the temporal and spatial scope of capitalism invariably has appeared hand in hand with observable instances of power, interests and inequality, formalism itself fosters an instrumentalist response centred on analysing the content of the uncritically accepted form. This analysis involves investigating its origins, effects, functions, and the interests and intentions of the actors involved. Conversely, as the instrumentalist reduces form to content, it creates an opportunity for the formalist to argue that knowledge concerning the form’s origins, functions or effects can never definitively annul its validity, as doing so would amount to committing the genetic fallacy (see, for example, Morris 2016: 50–51). Notwithstanding the contamination of the form of equality and freedom by its content of power, interests and inequality, endeavours can still be undertaken to refine the form by addressing existing deviations. Similarly, the mere coexistence of form with power and inequality in specific instances does not entail that these instances universally epitomise a particular case, nor does it negate the possibility of uncovering fresh evidence concerning actors’ intentions to uphold universalist ideals.

Ultimately, thus, the category of the will maintains a central standing for both formalists and instrumentalists. Meanwhile, an unrelenting cycle of debate, predicated on the simple alternation between collapse and revival of the distinction between form and content, is sustained, extending infinitely without resolution unless we move beyond the premises of the formalism–instrumentalism spectrum. According to the tenets of the spectrum itself, differences between formalism and instrumentalism serve to fuel polarisation, which turns out to rely on a dual convergence: both instrumentalism and formalism rely on voluntarism and the instrumentalist is not devoid of formalist assumptions about the relation between form and content.

The legal form

Shifting from Pashukanis’s negative contribution to his concept of the legal form, the reconstruction must be performed while maintaining a safe distance from an aprioristic and external opposition between form and content. It should also go beyond matching or neighbouring distinctions such as universality versus particularity, equality and freedom versus power, state versus civil society, politics versus economy, economic form versus content, or the form of the commodity versus the form of law or rights. These oppositions would only draw the contribution back into the realm of the formalism–instrumentalism spectrum.

Equally important, it is not sufficient to merely combine the different extremes of the spectrum. As Balbus (1977: 573) has argued, such a combination would still preserve the elemental opposition between form and content. In this context, the significance of the conceptions of abstraction and form in the General Theory will prove to be particularly momentous. I begin below with the concept of abstraction, and then move on to three separate sections on the concept of form.

Levels and modes of abstraction

Notably, pertaining to the concept of abstraction, Pashukanis articulates sharp – albeit less than unequivocal – limits to the claims involved in the theorisation of the legal form. He writes that we should proceed ‘from the most simple to the more complex’ and concrete manifestations (Pashukanis 2009 [1924]: 65, 66). Like Marx, Pashukanis partly involves a Kantian concept of abstraction, which implies that by using ‘very abstract concepts, we learn little in many things; through very concrete concepts, we learn much about few things; what we win on the one side, then, we lose again on the other’ (emphasis in original, Kant 2004 [1800]: 597; see also Delgado 2021: 540–541). In this setting, a high level of abstraction refers to a composition, combination or concentration of diverse events, actions, processes, causes, structures, forces, conditions or determinations. In contrast, a low level of abstraction refers to simplicity and the isolation of a one-sided element (see Liedman 2018: 146–147; Marx 1993 [1857–1858]: 101). This Kantian-Marxian concept concerns different levels of abstraction.

In turn, Pashukanis also differentiates the vantage point of ‘logical deduction’ or ‘dialectical development’ from the vantage point of ‘historical evolution’ or ‘historical process’ (Pashukanis 2009 [1924]: 71, 114; for references to the Introduction that became included in Marx’s Grundrisse, see Pashukanis 2009 [1924]: 67). By doing so, he aligns his argument with the Hegelian distinction between ‘time order’ and ‘logical order’ (see Hegel 2008 [1820]: 48; see also Hegel 1969 [1812–1816]: 70, 77, 1991 [1830]: 52, 237; Houlgate 2006: 83–88). This distinction was reconceptualised by Marx (1993 [1857–1858]: 107) as a difference between ‘logic’ and ‘natural history’. Consequently, making use of the Hegelian and the Marxian terminology, one perspective addresses the logical order or – to use another term from the third volume of Capital – the ideal average of the legal form in capitalism as a totality. In this setting, the aim is to assess the simplest determinations of the legal form and ask questions about its differentia specifica in comparison with other totalities. The other perspective addresses the time order of the concrete, concentrated and complex historical development or ‘natural history’ of the various parts that relate to the legal form. This perspective aligns with the instrumentalist theory of law. Importantly, the intentions, ideology and actions of individual and collective actors as well as causes, effects and specific sequences of events and processes, clearly appear as central if we opt for an abstraction of the time order of a specific object, such as rights, democracy and revolutions in the 20th century. Nevertheless, the significance of these categories diminishes considerably if our abstraction is meant to put the relations between these revolutions and capitalism into focus according to an abstraction of their logical order. In the context of the logical relation between revolutions and capitalism, intentions, causes and effects are simply less relevant. Moreover, as I will come back to later, whereas Marx seems to suggest that the orders of logic and time are mutual ‘opposites’, Pashukanis (2009 [1924]: 71) maintains that the logical order of the legal form ‘parallel’ it’s time order or historical development. Differences notwithstanding, I will refer to logic and time or history as two different modes of abstraction, in contrast to different levels of abstraction (I borrow the term ‘modes of abstraction’ from Ollman 2003; see also Wilén 2023).

Three crucial criteria follow from the critique of the formalism–instrumentalism spectrum. First, the reconstruction of the concept of the legal form must be built on a distinction between two modes of abstraction, within which one can shift between low and high levels of abstraction. That is, it is perfectly possible to shift between lower and higher levels of abstraction while retaining a specific mode of abstraction, such as the history of legal institutions during the 20th century. Second, an effective alternative to the formalism–instrumentalism spectrum will be articulated at a low level of abstraction within the mode of abstraction of the logical order of the legal form with respect to ‘those societies in which the capitalist mode of production prevail’ (Marx 1990 [1867]: 125), in contrast to the mode of abstraction of the time order of legal institutions, ideals or ideology. Thus, it is only within these strict limits that I will argue that Pashukanis moved in the right direction. Third, while I agree with Miéville (2005: 96–97) that the difference between logic and history is more significant than evoked by Pashukanis’s ‘parallel’, a simple opposition between the two modes of abstraction is no less erroneous. By secluding the logical order from history, we are, as Helmut Reichelt (1978 [1974]: 47; see also Gerstenberger 1978 [1975]: 148; Hirsch 1978 [1973]: 66–67) compellingly argues against certain Pashukanists in the 1970s, left with a

model-like and unhistorical method which in its exclusion of all history is the equal of any bourgeois model-building, but which in its attempt to be ‘above history’ is painfully contemporary and precisely in this reveals itself to be eminently historic.

This model-like method is not only ahistorical but also fails to recognise the interdependence of logical and historical abstractions. A logical abstraction of the ideal average of the legal form implies some kind of historical abstraction of time and space that provide an exterior limit of the constituent parts that the specific whole emerges from (compare Ollman 2003: 75). And the other way around, a logical abstraction is implied by the very move of deploying a specific historical abstraction, since a limit is simultaneously constructed within a particular whole, not only differentiating specific boundaries of the part but also of the logical whole to which it belongs. Thus, a priori, the relation between the orders of logic and time should not be conceived of in terms of a parallel or an opposition but as a unity, according to which the two modes of abstractions can be distinguished from each other provisionally to prioritise one at the cost of the other according to specific aims and claims.

The concept of form: tensions

Turning to the concept of form, I initiate by noting an important but rarely observed tension in the General Theory. I then demonstrate how this tension can be addressed with the help of the distinction between levels and modes of abstraction. Finally, I reconstruct the concept of the legal form in four successive instances of concretisation, which involves a limited and rough but nonetheless decisive shift from logic to history.

To begin with, as stated, I maintain that the General Theory harbours a significant tension regarding the concept of form. On one hand, at a low level of abstraction in accordance with a logical mode of abstraction, Pashukanis claims that law should be subjected to an enquiry that parallels the determination of the commodity in volume one of Capital, in which it is positioned as the initial and most abstract category. Thus, Pashukanis (2009 [1924]: 85) acknowledges Marx’s (1990 [1867]: 125) observation that the ‘wealth of societies in which the capitalist mode of production prevails appears as an “immense collection of commodities”’, but then supplements that ‘so this society itself appears as an endless chain of legal relations’. Building upon Marx’s conception of abstraction and the commodity as the cell-form of the capitalist mode of production, Pashukanis (2009 [1924]: 45, 93, 109) proceeds to argue that as the subject is the simplest, irreducible element of legal theory, the analysis should commence here. That is, while Marx initiates his analysis with the commodity, Pashukanis places the legal subject as such at the forefront, devoid of direct references to categories such as circulation, commodities, value, production, social relations of production, capitalists and proletarians, or the historical appearance of law.

On the other hand, though, Pashukanis also theorises the legal form as one out of two appearances of an anterior relation between the proletarian and the capitalist in sphere of production, and as a function of the circulation of commodities. The issue of the legal form as an appearance of a preceding relation is rooted in Pashukanis’s (2009 [1924]: 117) attempt to ‘complement’ Marx’s concept ‘commodity fetishism’ with the otherwise quite brilliant concept of ‘legal fetishism’. Considering the concept of commodity fetishism, it signifies the ‘enigmatic’ manner in which the value of commodities appears as both the socio-natural properties of the commodities themselves and as the independence of the self-valorisation of capital (Marx 1990 [1867]: 163; on the concept of self-valorisation, see, for example, Arthur 2004: 25, 33, 58, 103–104; Mau 2019: 45; Smith 2014: 29–35). Moreover, while the value of the commodity ‘is nothing but the definite social relation between men themselves which assumes here, for them, the fantastic form of a relation between things’ (Marx 1990 [1867]: 165), ‘the social relations between their private labours appear as . . . socially valid, and therefore objective’ (Marx 1990 [1867]: 166, 169). Because of the social validity of commodity fetishism, the social relations exist ‘in the mode of being denied’ (Richard Gunn quoted in Fraser 1997: 95; see also Clarke 1991: 10).

Similarly, according to Pashukanis (2009 [1924]: 114, 117), in the context of the capitalist mode of production, the ‘. . . economically active subject acquires . . . a will, juridically constituted, which makes him absolutely free and equal to all other owners of commodities like himself . . .’. Thus, the

. . . social relations of production assume a doubly mysterious form. On the one hand they appear as relations between things (commodities), and on the other, as relations between the wills of autonomous entities equal to each other – of legal subjects. (italics added, Pashukanis 2009 [1924]: 114, 117)

In the same way as ‘the product of labour becomes a commodity and a bearer of value, man [also] acquires the capacity to be a legal subject and a bearer of rights’ (Pashukanis 2009 [1924]: 112). In this case, then, instead of being the starting point for the analysis, the legal form is comprehended as an appearance of a social relation that logically precedes its legal form.

Moreover, as said, the concept of legal fetishism also entails that the legal form is understood as a function of the circulation of commodities. Thus, Pashukanis (2009 [1924]: 112) affirms the way in which Marx writes that the guardians of the commodities

must place themselves in relation to one another as persons whose will resides in those objects, and must behave in such a way that each does not appropriate the commodity of the other, and alienate his own, except through an act to which both parties consent. (1990 [1867]: 178)

Again, the legal form is asymmetrically related to another category, which is seen as logically primary.

The concept of form: levels and modes of abstraction

On first sight, the legal subject cannot at the same time be theorised as prior and posterior to its relation to capital and labour power, on one hand, and to its functional connection to circulation, on the other hand. Resolving this apparent paradox necessitates a more thorough examination of Marx’s procedure with a specific focus on the distinction between levels and modes of abstraction.

According to an early and persistent tradition of interpretation, Marx began Capital by investigating a stage of ‘simple commodity production’. This supposed model of a pre-capitalist historical case of circulation of commodities is characterised by the absence or limited development of capital (for a critical discussion, see, for example, Arthur 1996: 179–187, 2022: 17–18; Callinicos 2014: 42; Heinrich 2021: 158–159; Mau 2019: 155–156). If this interpretation were accurate, it would imply that Marx employs a mode of abstraction of the time order in Capital.

In contrast, I align my reconstruction of the concept of the legal form with an interpretation that maintains that Marx in Capital begins by addressing the capitalist mode of production as an existent historically specific whole (see, for example, Arthur 2004; Heinrich 2004; Ilyenkov 2013 [1960]; Moseley & Smith 2014; Murray 2016). Moreover, the simplest category is that of the commodity, which represent the ‘elementary form’ through which wealth, as an immense collection of commodities, is pivotal to societies in which the capitalist mode of production prevails (Marx 1990 [1867]: 125). The individual moments are arranged in a manner that allows for the identification and prioritisation of the most abstract or simplest moment to be investigated first (Hunter 2021: 194; see also Reuten 2014: 244–245). Transitions from one category to another, such as moving from the commodity to the difference between use-value and exchange-value, or from simple circulation to the hidden abode of production, are accomplished through the reconstruction of the current totality. Reconstruction becomes necessary when a category under examination is found to be limited, contradictory, or incapable of comprehending itself. Although a particular moment, such as the commodity or the legal subject, may initially appear independent, further analysis may reveal its dependence on additional moments (Arthur 2004: 7, 24–27, 66–67, 83, 120; Murray 2016: 438; see also Arthur 2022: 10; Lange 2021: 30–33).

In this manner, Marx deconstructs the commodity by analysing it as a constituent element of a broader and more concrete totality. By temporarily abstracting the moment under examination from the encompassing totality that shapes its existence, we come to realise that the preceding moments are inherently limited and inadequate only afterwards. Consequently, the relationships between these moments become progressively more intricate and determined as transitions within the argument are carried out (Arthur 2004: 7, 24–27, 66–67, 83, 120). The level of abstraction is raised, while the mode of abstraction initially and provisionally remains the same.

Coming back to the concept of the legal form, it cannot a priori be granted an asymmetrical status with respect to the economic form. In this case, the argument would assert that while the initial moment of the commodity and subsequent economic forms of circulation are granted the status of independent and socially valid abstractions, the legal form is deemed empty, merely representing a distorting abstraction that is dependent on the abstractions of the economic forms and content through and through. If this line of reasoning is adopted, a singular difference between economic form and content would be sustained, favouring instrumentalist analyses. In addition, it would perpetuate the prevailing perception that Marxism categorically rejects notions of right, rights, and law (for a critique of the mainstream perspective, see Wilén 2019).

The concept of form: four moments of concretisation

Proceeding from here, instead of simply ‘adding’ the legal form to the economic form or combining formalism and instrumentalism, my reconstruction of the concept of the legal form implies four successive moments of concretisation. The first three moments all belong to an abstraction of the logical order of the legal form in the capitalist mode of production. The fourth moment entails two alternatives, constituted by a complete or partial shift from logic to history. Without the fourth moment, my reconstruction would run the risk of being perceived as an argument built either on an opposition or a parallel between logic and history.

To be sure, to offer a full account of the logical relation between the legal form and the capitalist mode of production or with respect to more specific histories and questions would require much more in terms of concretisation than what is needed in the present context. Nonetheless, the four moments of concretisation are sufficient to move beyond the formalism–instrumentalism spectrum and at the same time tackle major objections to Pashukanis.

First, the initial moment of the legal form is the most abstract. Here, I find support in the text of Pashukanis (2009 [1924]: 85) when he describes his project as a parallel to Marx’s Capital: societies in which the capitalist mode of production prevails appears, on one hand, as an immense collection of commodities, and on the other hand, as an endless chain of legal relations. Moreover, I lean towards Pashukanis’s (2009 [1924]: 45, 93, 109) argument that posits that the analysis should begin with the legal subject since it is the simplest and therefore irreducible element or cell-form of legal theory.

In this context, it is important to remember that the act of abstraction involves separating and excluding certain elements (Cassegård 2021: 42–43). In the case of the most abstract moment of the legal form, anything other than the legal subject, as a bearer of equal rights and as possessing a free will, is omitted from consideration. Moreover, it is through its equal rights and free will that the legal subject demonstrates its independence and neutrality in relation to economic, legal or social content of any kind. Importantly, thus, according to its most abstract moment, the independence and neutrality necessarily extends not only to the history of emergence of its content, its logical relation to production and the relation between labour power and capital, but also to its logical relation to circulation and the forms of the commodity, money and value.

Second, as we ascend to a slightly higher level of abstraction and examine the moment of circulation, the form of the legal subject in terms of equality and free will endures two distinct transformations, both of which establish a basis for the phenomenon of legal fetishism. On one hand, in its formal relation to the economic forms of circulation, such as commodities, money, and value, the form of the legal subject attains and offers social validation, which verifies that it cannot be reduced solely to a narrow definition of ideology or to the content of production, interests, or power in a broader sense.

On the other hand, the legal form also assumes the role of a function of the economic form (compare Norrie 1982: 426). Without referring to the guardians or possessors of commodities we cannot understand how they can arrive to and be active on the market for exchange. In the market, these guardians of commodities must behave in such a way that guarantee the equality, free will and consent of each party (Pashukanis 2009 [1924]: 112–113). In other words, Pashukanis affirms Marx’s argument that the commodity form encompasses the appearance of an abstract legal subject characterised by equality and free will. Still, without the original abstract moment of independence and neutrality of the free will and equality of the legal subject, the form of neutrality and independence would fail to serve the bearer of the commodity on her way to and within the market. Simply put, if the legal form were to be exhausted as a mere function of circulation from the very beginning, it would not retain its independence and neutrality, as critics of Pashukanis have been quick to point out (I will come back to these critics below). Thus, my reconstruction of the concept of the legal form emphasises that its logical relation to circulation follows an even more abstract moment, which turns out to be socially validated by and validate, no less than serving as a function in, the circulation of commodities.

Third, when raising the level of abstraction of the legal form once more, we shift from form to content. At this point, the legal form enters into a relation with the content of production and the relation between labour power and capital. Thus, the exchange between two specific legal subjects – the guardians of labour power and capital, respectively – represents a relation that, in hindsight, as the analysis becomes more concrete, proves to be always-already mediated by production and marked by contradiction. Just as beginning with the relation between the legal form and circulation would undermine its appearance of independence, the same would be the result if we started with production and then theorised the legal form as an appearance of a prior relation. Thus, while it is necessary to begin with the isolated theorisation of the legal subject at a low level of abstraction, the successively more concrete determinations result in a tripartite distinction, according to which economic and legal forms mediate each other and the content of production.

Fourth, when considering content other than the relation between labour power and capital, my reconstruction needs further concretisation, including a complete or partial shift to abstractions of the time order part. Here, two alternatives are compatible with my reconstruction.

According to the first alternative, the shift towards abstractions of the time order is complete. Therefore, the specific content of the historical abstractions depends on methodological and empirical considerations. During the transition from logic to history, we can only perceive that the legal form not only mediates the circulation of commodities and the logical relationship between capital and labour power but also encompasses legal, economic, political, and social content at a more concrete level of abstraction. This may or may not include legal and economic institutions, such as citizenship, labour regulations or the state, as well as specific social relations of power and distribution, such as those related to class beyond the logical relation between labour power and capital, or to gender and race.

According to the second alternative, the shift towards abstractions of the time order would only come after an additional analysis based on the logical abstraction of the legal form, including other content than the relation between capital and labour power. For instance, one could argue that power relations based on race and gender necessarily are entangled with the totality of the capitalist mode of production, either as a result of the origins of capitalism or structurally, which would mean that they also ought to be included into the investigation of the ideal average of the legal form at this stage. The same goes for the capitalist state.

With respect to both alternatives, it is necessary to sooner or later move beyond perceiving the logical and historical modes of abstraction of the legal form as mere opposites or parallels. Without such a shift, the reconstruction runs the risk of reproducing a model-like argument based on a rigid opposition between logic and history, and of disguising that the two modes of abstraction presuppose each other, even if they can be distinguished provisionally. In any case, the endpoint of the successive concretisations and the shift from logic to history is not fixed or predetermined. The specific way in which logic and history are to be related cannot be settled beforehand, as it depends on more concrete concepts and on specific questions, claims and historical material of different cases and studies.

To summarise, the first moment of concretisation is made up by the simple equality and free will of the legal subject as such, which then encounter the circulation of commodities in the second moment and the relation between labour power and capital in the third moment, as well as increasingly concrete determinations, including a complete or partial shift of mode of abstraction from logic to history according to the fourth moment. When moving the concept of the legal form through these four moments of concretisation, the way in which equality and freedom make possible the appearance of neutrality and independence of the legal form is successively stated in the first moment, validated and invalidated in the second and negated, superseded and preserved in a higher and more concrete unity in the third and fourth moments (on these concepts, see, for example, Liedman 2018: 146–7; see also Hegel 1969 [1812–1816]: 107). Thus, the neutrality and independence of the legal form are never fully erased. If the legal form would be entirely negated, it could not mediate the relation between labour power and capital, nor any other relation. The abstract equality and freedom of the legal subject represent a ‘disappearing moment’, which become preserved in a more ‘concrete unity’ with its seemingly opposite moments, such as production, inequalities of distribution or class interests, to borrow the language applied by Evald Ilyenkov (2013 [1960]: 139) in his interpretation of Capital (see also Arthur 2004: 7, 24–27, 66–67, 83, 120).

Despite the fact that Pashukanis is ambivalent, my reconstruction of the connection between the most abstract moment of the legal subject as the initial starting point for theorisation and the tripartite distinction between legal form, economic form, and content aligns with the spirit of his intervention. Simultaneously, it allows for the resolution of tensions that exists at the textual level of Pashukanis’s argument. Most importantly, the shift from a dichotomous relation between form and content to a threefold distinction, starting with a focused examination of the legal subject’s form as such alongside the isolated consideration of the economic form of the commodity, paves the way to transcend the fertile ground that nurtures oscillations between formalism and instrumentalism. Failing to acknowledge the initial moment of independence and neutrality undermines the ability to effectively refute instrumentalism, while neglecting the concretisation that exposes the one-sidedness of the legal form’s independence and neutrality allows formalism to evade critique more comfortably. Moreover, at the most abstract level of the ideal average of the legal form in the capitalist mode of production, circulation is excluded from consideration as much as production. Ultimately, these distinctions are superseded as the economic and legal forms prove to mediate, rather than either being dependent on or independent of, the content of production, as well as logical or historically variable economic, legal and social content.

Before moving on to the objections against Pashukanis, it should be noted that while the reconstruction offered above paves the way for theory, analysis and critique beyond the formalism–instrumentalism spectrum, it cannot answer every question. Instead, my reconstruction demonstrates the ways in which Pashukanis moved in the right direction, what he was right about, and in which instances he was less clear or even contradictory. Moreover, far from being a catch-all solution, my reconstruction of the concept of the legal form matters because it steers away from the formalism–instrumentalism spectrum at a low level of abstraction of the ideal average of capitalism. Moreover, by implication, it also results in regulative conditions for theory and research at a more concrete level of abstraction and according to abstractions of the time order of specific research objects.

More precisely, this means that even if the content of rights connected to citizenship in, say, the mid-19th century even in the most developed parts of the capitalist world may imply that the legal form appears as a contingent distortion of the actuality of formal exclusion as well as informal inequality, there must be conceptual room left for its independence and neutrality, if exclusively in a minimal version. That is, the legal form need not, similar to how Ellen Wood (1978: 229; see also Wood 1986: 147) has written about the limits of liberal democracy under capitalism, give rise to the most developed form of rights and democracy. ‘If equality and freedom of a very limited and ambiguous kind are essential and common to all capitalist social formations’, Wood (1978) continues,

liberal-democratic political institutions have not been equally common and are certainly not essential to capitalism – even if they have been most conducive to capitalist development under certain historic conditions. The nature of the relation between capitalism and liberal democracy must, therefore, be further specified with due consideration not only to general structural links but to the particular realities of history. (p. 229).

Differently put, it is one thing to argue that a minimal moment of the most abstract shape of the legal form ought to be located at the same level and within the same mode of abstraction as the commodity form and the relation between labour power and capital. It is an altogether different thing to argue that equality and freedom in a developed form are historically necessary. As the nature of the connection is specified on a more concrete level, we also must shift swiftly from logical necessity to historical contingency, but without erasing the moment of logical necessity altogether. That is, whereas a concrete space in a specific time can be characterised historically by the commodity form and the absence of the legal form, my account of how these forms turn out to be mutually dependent on each other according to a low level and general mode of abstraction is not contradicted. Likewise, whereas the state may be more important than the market when the issue of the legal form is studied according to an abstraction of time, it does not change the fact that circulation is logically prior to the category of the state.

Defending Pashukanis

Due to limited space, I have opted to focus on three major lines of confrontation with Pashukanis. These confrontations are about the legal form and (1) the relation between circulation and production in capitalism, (2) its apparently limited space for ideology, agency, politics, emancipation and processes and (3) its narrow boundaries that appear to exclude inequalities of race and gender. Thus, even if my reconstruction would have clear consequences for other important debates related to Pashukanis, such as those about law under communism (e.g. Miéville 2005; Shoikhedbrod 2019), the political form and the state (e.g. Holloway and Piciotto 1978) or the distinction between private and public law (e.g. Shoikhedbrod 2019), the present article cannot harbour them.

The first confrontation unites theorists as diverse as Karl Korsch 1978 [1930]: 194–195), Oskar Negt (1973: 14, 15), Robert Fine (2002 [1984]: 155–169), Nicos Poulantzas (2001 [1978]: 51), and Igor Shoikhedbrod (2019: 107–108). They are concerned about the derivation of the legal form from the sphere of exchange rather than from production – ‘in some ways a pre-Marxist position’, as Poulantzas (2001 [1978]: 51) comments (see also Warrington 1980: 105).‘It is not the general fact that all owners of commodities have to consider each other as equal in their economic transactions and recognise each other, that bourgeois law is based upon’, Negt (1973: 14, 15) argues. Instead, what matters is the relation of exchange between two specific owners, between labourer and capitalist. Exchange is always-already mediated by production. Others have objected to Pashukanis’s apparent prioritisation of circulation by stating that circulation and production are un-separable or dialectically related (see, for example, Buckel 2020: 95; Negri 2017 [1973]: 46).

Arthur (2009 [1978]: 30), Norrie (1982: 425), Miéville (2005: 101) and Dimick (2021: 128–129) have answered the critique of the ‘pre-Marxist’ or – to use Negri’s (2017 [1973]: 16) phrasing – ‘Smithian’ position implied by the derivation of the legal form from circulation by observing that ‘one of the interesting features of bourgeois exploitation [is] that it inheres in economic relations that do not achieve formal legal expressions’ and that it is by virtue of its very neutrality that the legal form ‘maintains capitalist relations’. While my own reconstruction of the concept of the legal form builds upon the argument about the logical priority of circulation offered by Arthur, Norrie, Miéville and Dimick, I hold that it must be radicalised. It is too close to a notion of the legal form as a mere function of the circulation of commodities, which would grant too much space to a singular distinction between economic forms and content.

Instead, I maintain that the legal form from the very beginning ought not to take its own beginning as a side-show to the vantage point of the commodity form and circulation. If the legal form initially instead were allowed to begin with the vantage point of itself, it would not appear as a logically subordinated category to the commodity form and to circulation, but rather as neutral, independent and latently symmetrical with the commodity and circulation according to an abstraction of the capitalist mode of production. That is, it seems as if Pashukanis’s defenders have not taken the art of abstraction far enough. They jump directly to what I posit as a second moment of concretisation, in which the legal form encounters the circulation of commodities.

The radicalised defence of Pashukanis means that the objections focusing either on production or on the inseparability of circulation and production are mitigated. The first and most abstract moment of the legal form neither recognise circulation nor production. It is only because of the subsequent analysis that functional and non-functional connections and homologies between the legal form and the commodity form appear, according to which they prove to be connected and thus appear as dependent on each other. Also, as the independence and neutrality of the legal form are transformed into dependence and partiality when giving due weight to the content of the logical relation between labour power and capital and other logical or historically variable content in the third and fourth moment of concretisation, the meaning of the distinction between circulation and production is transformed. Consequently, with respect to the reconstruction of the concept of the legal form proposed here, the objections that stresses the centrality of production or dialectical inseparability are ineffective since they share the inability to allow for the most abstract category of the legal form. In turn, they cannot make intelligible my proposition that the form of equality and free will of the legal subject are successively stated, validated, negated and preserved. Ultimately, these objections cannot but encourage an instrumentalist return to the formalism–instrumentalism spectrum.

The second line of confrontation consists of a ‘Franco-Italian theory strand’ built on theoretical resources stemming from Antonio Gramsci and Louis Althusser (on the Franco-Italian theory strand, see Buckel 2020: 131–134). It came to full fruition with the arrival of Nicos Poulantzas (see, for example, Poulantzas 1967). The Franco-Italian critique accuses Pashukanis’s General Theory for being reductionist, instrumentalist and economist, which leave little room for ideology and politics. Moreover, Franco-Italian themes have been reactivated, either through proposals of a synthesis that can account for interpellation and subjectivation in terms of both homogeneity and difference, like the ones penned by Sonja Buckel (2020: 136, 215, 219–222) and Rose Parfitt (2019: 37–41), or through more extensive and independently articulated critiques of Pashukanis for being a ‘crude materialist’ or for failing to consider processes and agency, as presented in different ways by Hugh Collins (1982: 108–111); see also Bolton 2023: 14) and Maïa Pal (2020: 198, 2021: 13, 70–74; see also O’Connel 2021: 470; Sypnowich 2021: 514).

In this context, it is crucial to observe that my reconstruction of the concept of the legal form departs from the schema of base and superstructure, which typically relegates the legal form to the superstructure and portrays it as an instrument and function of the base. Instead, I employ the distinction between levels and modes of abstraction and emphasise the four moments of concretisation. Therefore, to a substantial degree, accusations of functionalism, economism and instrumentalism lose their meaning. As my reconstruction move beyond the terrain where it is meaningful to establish the exact location of the legal form in one or the other domain and their causal connection with each other, any accusations about reducing the legal form to the economy or the material base are simply ruled out. Indeed, in this sense, the Franco-Italian theory strand emerges as a via media between formalism and instrumentalism, as noted by Koen (2011: 112/351). Unlike my reconstruction, which avoids ‘vaguely causal’ connotations (for this formulation, see Dimick 2021: 132), the Franco-Italian concept of relative autonomy maintains, rather than supersedes, the significance and relevance of a debate about the relationships between causes and effects, as well as the specific degrees and determinations of the independence, neutrality, and autonomy of the legal form in its relation to the economy or the material base.

The same qualifications apply to the objections to the concept of the legal form that takes it to represents a structuralist and ‘consequentialist approach to history’ that, in contrast to a processual–agentic approach, contains a presentist bias that abstracts, generalises and projects attributes of the legal form of today backwards in time in a first step and then, in a second step, writes the history of emergence of the legal form in a teleological vein that takes for granted capitalism as a predestined end (see, for example, Pal 2020: 198, 2021: 13, 70–74). While it is correct that the legal form must be understood as a consequence of history according to an abstraction of the logical order of the capitalist mode of production, what is at stake is not a choice a priori between the economic level, structure, functions and consequences, on one hand, and agency, processes and relative autonomy on the other hand. Instead, what is in the balance is whether analyses according to abstractions of the logical order are to be allowed at all. If yes, the vantage points of agency, causality and processes must be provisionally suspended in the context of the logical mode of abstraction, since they belong to the historical mode of abstraction.

Simply put, the logical mode of abstraction considers consequences in terms of historical results, but not in the sense of causation leading to consequences in a temporal sequence, which would be a prerequisite for a teleological account. The terms consequentialism and relative autonomy have, as it were, smuggled in a more or less explicit language of causality that does not directly apply to the distinction between abstractions of logic and time from the very beginning. Instead, a focus on causality would represent a specific vantage point, which certainly can be warranted, only not at the lowest levels of abstraction within a logical mode of abstraction of the capitalist mode of production.

Indeed, when recontextualised on the basis of the distinction between logic and time, the relation between agency, processes, relative autonomy and structures becomes more – as opposed to less – interesting, meaningful and complex. Far from representing a reduction to the material or structural base or the economy, the concept of the legal form demands that we more ardently make clear the claims of our analysis. We are asked to extend, complicate and immerse rather than to curtail and depreciate the meaning of critique, as Jameson (2020: xvi) has written about ideology critique.

The third confrontation that highlights the specificities of my reconstruction consists of a critique of the narrow limits of the abstract moment of the legal form, which seem to exclude other differences than those based on class. Again, Marxists of various affiliations belong here, such as Robert Knox (2016: 100, 108–212), Brenna Bhandar (2014: 205, 2018: 96–100, 105; Bhandar and Toscano 2015: 8, 14), Sonja Buckel (2020: 219–222, 240) and Ruth Fletcher (2013: 142–143). For instance, Knox (2016: 109, 112, 126) and Bhandar (2014: 205; Bhandar and Toscano 2015: 8, 14) see a close link not only between the commodity form and the legal form, but also with processes of racialisation. Knox (2016: 100, 108–109) calls the counterproposal a ‘stretched Marxism’. The abstract form of equality emerged between white and European subjects only. Law is structurally rooted in both capital accumulation and racialisation (see also Parfitt 2019: 153). Buckel (2020: 219–222, 240) has reached parallel conclusions: differences of class, gender and race intersect with each other, at the same time as they coexist with a process of homogenisation by means of legal subjectivation.

With respect to the proposals of a stretched or intersectional Marxism, my reconstruction of the concept of the legal form does not imply that inequalities of race and gender are disregarded. However, the distinction between abstractions of logic and time implies that specific limits of a specific whole as such and of its most abstract moment have been presupposed.

That is, the claims of my reconstruction are not concerned with the bourgeois society and state in general. Instead, they have been narrowed down since the legal form is related to the capitalist mode of production as a totality, rather than to the capitalist or bourgeois society as a totality, or as it has unfolded historically (see, for example, Cassegård 2021: 40–44; Heinrich 2004: 13). Again, it is decisive to not stretch the narrow limits of the abstract point of departure that begins with the legal subject as such after the observation of the immense chain of legal relations present in the capitalist mode of production, since the moment of independence and neutrality of the legal form would be undermined. Indeed, the narrow limits should be kept narrow not only with respect to race and gender at this level and mode of abstraction, but also with respect to class – regardless of whether class refers to the logical relation between labour power and capital in production, or according to more concrete conceptual combinations that involve distribution of resources, status, experience or identity. The vantage point of the legal subject and the commodity ought to be grasped initially according to their own form alone.

Still, I have also argued that my reconstruction is compatible with two distinct alternatives with respect to power relations based on race and gender. Granted that the three initial moments of the legal form – the legal form as such, in circulation and in production – are allowed for, class beyond the logical relation between capital and labour power, race and gender can either be included into or excluded from the logical abstraction of the legal form (in the former case, one could find different kinds of support from Fraser 2016: 166–173: Arruzza 2015; Post 2023; for the latter, see, for example, Heinrich 2004: 13, 95; Mau 2019: 122–131; Meiksins Wood 1995: 259). Ultimately, the difference between these alternatives consists of a position that either argues that capitalism is compatible with social conditions without power relations of race and gender or that these relations are an essential part of the capitalist mode of production. With respect to a historical abstraction of the legal form, in parallel with a thick concept of class, power relations of race and gender would surely be central.

Conclusion

Against the tendency to apprehend Pashukanis’s critique of instrumentalism and formalism either in terms of differences or similarities, in conformity with too specific definitions, or with definitions lacking in detail, I have sought to demonstrate that the concept of the legal form should be theorised as an alternative to a spectrum. Moreover, I have reconstructed the concept of the legal form to move beyond the very premises of the formalism–instrumentalism spectrum, and to reconsider three major objections against Pashukanis in the literature on the General Theory.

Importantly, I have tried to establish that if one fails to appreciate the most abstract moment of independence and inequality of the legal form in its logical shape before circulation, production, and inequalities in general, the bulwark against the spectrum of instrumentalism and formalism is undercut by a premature injection of concretisation. That is, to leap directly to concrete conclusions about the dependence and partiality of the legal form on capitalism or on inequality more generally erases the disappearing moment according to which legal form proves its independence and neutrality by addressing the legal subject in terms of equality and freedom. Nonetheless, since the principal goal of critique is to supersede the most abstract moment of the legal form that proves to be untrue when recontextualised in a more concrete totality (compare Lange 2021: 52–53), local insights from the critique of Pashukanis are invaluable. These insights can shed light on the ways in which the legal form relates to circulation, agency, processes, the state and ideology. They can reveal how the legal form mediates and is contradicted by the relation between capital and labour power, as well as inequalities of gender, race, and class. And they are necessary to enable successful attempts to relate logic to history more generally.

Footnotes

Correction (February 2024):

Article has been updated to correct minor grammatical errors.

ORCID iD

Carl Wilén

1.

The author would like to thank the anonymous reviewers for excellent comments, as well as the participants of a workshop on Pashukanis in Sundsvall, Sweden: Katarina Giritli Nygren, Johans Grahn, Magnus Granberg, Tor Hammer, Emelie Larsson, Hugo Lundberg, Hedvig Lärka and Anders Ramsay. Thanks also to Carl Cassegård for challenging comments on my work on Pashukanis in various settings.

Author biography

Carl Wilén is a postdoctoral fellow at the Division of Human Rights Studies, Department of History, Lund University, Sweden. In his postdoctoral project, Wilén theorises the relation between the legal form and the Haitian Revolution. Recent publications include: Wilén C (2023) Remarks on the Sceptical Turn in the Historiography of the Haitian Revolution: Lessons from the Art of Abstraction. Distinktion: Journal of Social Theory 24(1): 111–132; Wilén C (2023, e-publication ahead of print) Rethinking the Haitian Turn: Beyond the Universality Paradigm and Its Enemies. Global Intellectual History.

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