The revolutionary role of law and the state

Image: Michelangelo Pistoletto


Preface to the newly edited book by Piotr Stutchka

Law, politics and social power in socialism

The writings of Pyotr Stutchka,[I] the first Soviet jurist, are one hundred years old. They are not, however, entirely a “document”. Of this aspect they certainly already have a lot – and it will not be necessary to warn the reader that the omnipresent theoretical battle against right-wing social democracy (the social-betrayal) was finally resolved with its condemnation –; however, to be definitively converted into a document, these writings still lack the essential: that the solution be practically consummated for the set of problems that underlie them: the problems of socialist legality, of the effective participation of the person in the power that builds socialism, that of the guarantees of his private sphere.

And the problem of articulating the block of forces that makes the qualitative change of these evil entities, the law and the State, converting them into a relative evil (or into a relative “good”, but the term of the relationship being another here) during the period in which the second has not yet been progressively reabsorbed by society, nor transformed the first into rules of social behavior.

A practical solution, in fact, to these problems was alluded to. Because there is something essential in theory: that law and the State are entities “to be extinguished” – and this has been happening… since the “modern French”, according to Marx; since a hundred years! –; However, the persistence of obstacles that make it difficult and sometimes block progress towards the practical solution of these problems has also made itself felt as a theoretical difficulty, and the delay or theoretical paralysis has left ideology (“ideology”) free. in the bad sense, a false representation of reality – unscientific and uncritical – which closes the way to its true knowledge).

The fundamental preoccupations of the soviets after the October Revolution were certainly not preoccupations with problems of law. “I fear” – writes Piotr Stutchka in 1921, in the preface to the first edition of his The revolutionary role of law and the state – “that without this, no one will read, in highly revolutionary times, reflections on subjects as 'counterrevolutionary' as those of law”. The observation, which – like many other analogues that the reader will be able to find throughout his writings – reveals both the multiple and urgent demands of the circumstances and the necessary attitude of its author, forced to start on the defensive in his fight with the law and the socialist legality, is reproduced, however, in substance almost a decade later, in 1930, when Stutchka describes how in assemblies of Soviet judges and prosecutors, that is, of the high officials of the legal machine of a State with thirteen years of existence behind his back, “the majority of those gathered considered the flag of revolutionary legality as a survival, or even as a right-wing deviation”.

That counterrevolution, survival or right-wing deviation, with or without quotation marks, persist as recurrent Soviet valuations of concern for the question of law means, for the time being, that contempt for these matters cannot be rooted exclusively or fundamentally in “urgencies” of circumstances. ; and some of the inconveniences that cannot be saved for the most benevolent of Piotr Stutchka's readings suggest that even he is not alien to the underlying reasons for this recurrent contempt.

Discomfort gives rise, for example, to the generic identification, which appears time and time again in these pages, of the bourgeois conception of the world with “the legal conception”. And the equally generic condemnation of the latter is not just a didactic or rhetorical concern for differentiating the legal forms of the class rule of the proletariat from the legal forms of the class rule of the bourgeoisie. With regard to this differentiation of forms, with which, in the final analysis, one must agree, today it is urgent to ask whether differentiation in forms is the primary thing, or whether the primary thing, in this sense, is something prior to the forms of power. , not directly “the economy”, but the region of relations between men that differs from the region of economic relations and the region of political relations, of public power: the organization of the popular masses; but on this point will also be returned later.

The generic condemnation of the “legal conception” as a bourgeois conception goes beyond the reaffirmation of the Marxist thesis that all law is unequal (and, in this sense, even “socialist rights” are “bourgeois”, proletarian rights are unequal): it arrives to affirm that “law is the last refuge of bourgeois ideology”, or, with Friedrich Engels, that “our only opponent on the day of the crisis and the day after it will be pure democracy, around which all reaction will rally”. as a whole”. These statements overlook, in my view, tendencies of late capitalism, of monopoly and imperialist capitalism, already theorized by Marxist thought at the time.

This is a very essential involution of capitalism: an involution incompatible with the regrouping of reaction around "pure democracy": the tendency, with the transition to monopolies, to abandon one by one what in other times were civil conquests. of the bourgeoisie and the people in general and which can be summed up in democratic rights and freedoms (“take the ladder after you have climbed it”). Law and legality will no longer be a refuge of bourgeois ideology, but the center of the regrouping of the popular masses when the pointed tendency of the dynamics of capitalism is added to the crisis opened in its midst by the emergence of the first State of workers and peasants and takes place the radical turn. Not political democracy, which for being insufficient in itself used to be called formal, but fascism, the regression to the Middle Ages, and this as a general trend both in power and in an economy whose stagnation prevents only non-economic factors.

Thus, behind the recurrent Soviet contempt for legal concerns, we already find ideology, a false representation of reality. And we also find it, despite everything, in Pyotr Stutchka himself: that discomfort in his reading that was alluded to earlier originates his ambivalence, the contradictory nature of his own effort, because from his ideological perspective – unsatisfactory from a scientific point of view – law and legality as such dissolve.

It is true that Piotr Stutchka's writings effectively reflect his enduring concern to interest the citizens of the young Soviet republic in the problems of law. It is about facilitating access to the law, “simplifying the machine” to make its collective management possible. This basic concern – which definitely refers to the participation of the masses, since only they can sustain the transition to socialism and reabsorb the institutions erected above society –, regardless of the validity or invalidity of the proposed means to serve it, is the most problematic alive; is – with all the inadequacy perceived today – the Leninist problematic (“each cook must be able to govern the State”). It is important, however, to see what happens to the legal issues.

The essential elements of Piotr Stutchka's theorization of law appear in a “definition” of this object previously elaborated, in 1918, by an organ of the People's Commissariat for Justice. The meaning of the text was mainly due to Piotr Stutchka – who would later give it several accessory variants – and if we are interested here (despite the sterility of this type of defining formulas) it is for presenting in abbreviated form the fundamental theme of his reflection specifically legal, a theme around which, as we shall see, Soviet reflection revolved until the end of the period of capitalist siege: “law is a system (or an order) of social relations corresponding to the interests of the ruling class and protected by its force. organized (i.e. of that class)”.

The question centers, therefore, on social relations, and it is a matter of seeing whether this category – despite the systematization precisions, correspondence to the interests of the ruling class and guardianship by the organized force of that class – is sufficiently strict. Piotr Stutchka identifies the specified social relations according to the indications that are mentioned with economic relations, more specifically with production relations, and carries out a reading of Marx in which “production relations” and “property relations” are identified. Marx's observation that property relations are merely the legal expression of production relations is understood as if property relations were a way of naming (expressing, not legally expressing) production relations (what is denoted by the phrase "relations of production"). production").

This interpretation tends to identify law with the relations of production, the main consequence of which is to lose sight of the specificity of law precisely where Marx points it in its genesis, it also originates a “Platonization” of Marx himself: thus, Piotr Stutchka writes that “Marx distinguishes the idea of ​​'property' from the idea of ​​protecting it by means of justice, the police, etc.” as if the different forms of property (slavery, feudal, capitalist) were something different from the specific mode of protection through “justice”, “police”, etc., of certain specific production relations (of slavery, serfdom, salaried work).

It is not surprising that Piotr Stutchka was, in his time, the object of criticism regarding this substantial knot of problems (and the polemic is recognized in these writings). The biased identification of legal relations with economic relations, their conception as an aspect of the latter – no longer as qualitatively distinct relations, whose genetic roots are in production relations – makes norms, that is, the formal element characteristic of law, non-essential. . In Stutchka's thesis, class interest manifests itself fundamentally in concrete ("legal") economic relations, while abstract norms fulfill only the function of hiding, of covering up class interest. Norms therefore differ from the will of concrete relationships and exclude the internal contradictions that manifest themselves in these.

The function of the ruling class itself, on the other hand, seems to be exhausted in the configuration of production relations (without the law being relevant for that!) and in the non-essential task of “disguising” exploitation, the only terrain in which the determination of your will is taken into account. From all this it does not follow, however, that Piotr Stutchka does not collect any aspect of the theorized object. On the contrary, something cannot go unnoticed, and it is the radical denial of the “naive” point of view of legal science – only moderately tempered at that time already by Ihering – which warns precisely of the will as the configuring element of legal relations.

“Three rectifying words from the legislator turn entire libraries into rubbish”, wrote Kirchmann. Stutchka's work – like Pachukanis's – criticizes the privileging of the moment of expression of the will implicit in approaches such as the one cited, applying Marx's general ideas on the genesis of relations and social products to this field. The “lawgiver” remains in the realm of necessity. Your "rectification words", his will, are in any case subject to it. But if this type of consideration dissolves the traditional ideological figuration of jurists, it is no less certain that the moment of will remains in Piotr Stutchka's work more than poorly explained.

“Class interests” directly qualify production relations; norms do not alter nor interests, norms; the subject class itself of these interests is consequently defined by objective elements – the only ones that are taken into account – impoverishing itself of its subjectivity, and thus finally the entire subjectivity – and a large part of political power, which is not a minor aspect of it – disappears from the scope of legal questions; it is – once again – non-essential for them. This legal theory – like, in different ways, that of Pachukanis, also insufficiently attentive to the normative moment of law, even though better oriented to arrive at theorizing it – was too fragile to resist the tensions to which it would be subjected until the 1930s. from XNUMX.

For the habits of thought of different speculative conceptions, perhaps this mundane intrusion of forces, passions and political tensions in the presumably unpolluted universe of theory is only the confirmation of an alien servitude: that of legal theory to Soviet power, more than insinuated by Kelsen. But the speculative conception neglectfully forgets its own useful tasks, such as converting the subordination of the analysis of reality to ideological production into a guiding criterion for theoretical elaboration, or even pure and simple silence, serenely advocated by Ihering, a jurist aware of the bourgeoisie (“I would forget the character of the public I address if I said just one more word”), when its truth threatened to become dangerous.

It was precisely the subjectivity, the political and social strength of the Soviet people, to which this “political half of socialism” that was the workers' and peasants' State needed to resort in order to build its other “half”, its industrial base, in the third decade of the twentieth century. century. This had to be done under the conditions imposed by the capitalist encirclement, by the defeats of the proletariats of the industrialized European countries between 1921 and 1923 – the consequence of which tended to be to identify their interests and in general of the entire revolutionary movement with those of the industrialization of the USSR – , and from an extraordinarily reduced Russian proletariat – far more than decimated for production by revolution and civil war – to the magnitude of the task that awaited.

Under these conditions, the initiative to industrialize the USSR resulted in enormous tensions in that still largely medieval society. Construction – socialist edification – absorbed a high fraction of social energy, without always having enough for the control of the political apparatus and even less for its management by the social power, and not by a secret and specialized group. As for the mistakes – but there were not only mistakes – a characteristic of the socialist revolution can also be recalled here, which differentiates it from bourgeois revolutions: the class that leads the latter accedes to political power, taking already acquired a baggage of experience in the economic organization of society – the bourgeoisie directed production before directing the State, while the proletariat needs to conquer the State beforehand in order to direct production.

Thus, with very little theory, Soviet state power was to become the essential instrument for realizing the purpose to which the expression of the will of the people applied; an inexperienced State, ignorant of the economic and social effects of the law of value in socialism, weak in the face of threats to an initiative that would have to be carried out at all costs before the conjunction of very concrete imperialisms occurred.

Soviet law in the 1930s could not limit itself to “reflecting” the economic relations of socialism; these did not exist and that would be an instrument to create them; nor, in the beginning, did Soviet law - although this is another story - why "cover up" the class interest of the proletariat: the product of the latter, not the commodity, but capitalist society, would dissolve the antagonism of the classes and thus open the way to a new society, certainly differentiated, but in which the division into classes will not have to exist.

This brought to the foreground the element whose most obfuscated function remained in Piotr Stutchka's theory of law: will, subjectivity. And perhaps nothing better explains the new imposed perspective than Vychinsky’s new “formula”, which would mark the scope of Soviet legal elaboration in this period: “law is a set of rules of conduct that express the will of the ruling class, established by law, and customs and rules of community life sanctioned by state power, whose application is guaranteed by the coercive force of the state to protect, sanction and develop social relations and other social arrangements that are advantageous and convenient for the ruling class”.

Kelsen could confirm it (with no other substitution than that of “class” for “group”, to save the soul, and the elimination of some redundancies). The change with regard to Piotr Stutchka's approach is fundamental: in the characterization of law, production relations are displaced from the privileged place they occupied, replacing them with norms, an exclusive product of the will of the ruling class, a will that also sustains the correspondence of production relations to class interests, previously considered independent of it. In substance, immediate identification of law with politics and rejection of the non-essentiality of the objective causal genesis of the first from the relations of production, since the linking of law to relations of production remains established by the will of the dominant class. (It might be added that the theory reinforces the series of consequences by which the will of the ruling class was replaced in the Soviet state at the time by the will of the ruling group in the State and in the Party, however much the latter coincided with the main objective interests of the class. dominant, the people and the revolutionary movement).

What is most interesting within the reduced scope of questions on which these pages move is to point to the characteristic shared by the two great theoretical lines of Soviet jurisprudence, or, what is the same thing, its most general characteristic during a long period: the partial capture of its object, with its reduction of law to production relations, in Stutchka, and reduction of law to politics, in Vychinsky, lacking in both cases the materialist historical explanation of the concrete content of legal norms. The causal links that lead from concrete, historically determined relations of production to the concrete and historically determined legal relations that express the former are only partially collected.

It is clear that in Soviet reflection some of these links are captured – class interests, state power, political will… – but they appear formally, ignoring the phases and hierarchy of their internal causation referred to some given legal relations. This translates, in short, an insufficient mastery of this social product that is the law and allows a possible degradation of it as an instrument of the construction of society in which it will finally no longer be caused and will be extinguished.

This degradation manifests itself in the very practice of Soviet jurisprudence at the time of reference and can range from the directive given to judicial activity, from proving the “verisimilitude” – and no longer the truth – of the accusation, to the identification of the theoretical insufficiency with the political betrayal: think of the accusations of “saboteur” and “spy” that Vyshinsky dedicates to Pashukanis[ii] (an inclination, no doubt, not exclusive to the Stalinist courtier, otherwise embryonicly manifested already in Stutchka; see his critique of Goikhbarg, in which the attitude of the scientist and that of the political leader are mixed – on the assumption that there is a way to differentiate them). los).

A degradation that undoubtedly takes place in a context of overcoming the limited horizon of bourgeois law, of which institutions such as the arbitration court prove, not obliged to decide, like bourgeois courts, according to the particular claim of a or another of the parties to the dispute, but capable of seeking – regardless of the parties' claims – the optimal solution to the same from the point of view of the interests of the new society (ground that capitalism forbids the goddess Justice even with blindfolds!), or even the elimination of the diminished legal status of the foreigner, a terrain in which not even the bourgeoisie had managed to overcome tribal law.

The insufficiencies of the theory of Soviet law certainly translate substantial deficiencies – perceived with anguish and somewhat desperately by Lenin at the end of his life – in the juridical-political organization created by the power of the workers and peasants. Lenin's anguish to get to know, theorize and correct the functioning of the new state apparatus did not find an echo: Pyotr Stutchka postponed time and time again his reflection on public power, confidently referring to The State and the Revolution, Lenin's pre-revolutionary work, which theorized… like Marx, the Paris Commune.

This, no doubt, could not be a sufficient foundation: electricity, since then, replaced steam, and electrification, with all subsequent history, would give itself an epoch technically and socially more complex than the one susceptible of being governed simply by means of the principles discovered by a workers' and popular insurrection of the XNUMXth century. In the USSR, with the circumscription of political life within the revolutionary group in this accumulation of conditions, even the main principle of the internal struggle within it, democratic centralism (rejected externally for being a decisive factor in the regeneration of the group), was suffocated, and this with the whole series of ensuing upheavals that have not yet been mastered (from the “chains of transmission” at the bottom to the problem of replacing the ruling groups at the top).

On the theses of the “chains of transmission”, the subordination of social organizations to the apparatus of power (State and party, with the particularity that it is the State of the soviets), which did not remain in theory either, provides the key to all this degeneration . For it is not in the socialist production relations, in the “economic base”, where the main deficiencies originate: on the contrary, it is this “base” that provides a line of force around which progress and rationality crystallize. Nor does the political apparatus in itself seem to be a sufficient reason for that (nor, as Della Volpe optimistically believed[iii], the socialist constitutional guarantee is enough for regeneration: if I may be allowed a counterexample, I would say that neo-Stalinian refinement likes to replace the concentration camp with the asylum, that is, to move repression to lands alien to the juridical).

It is the effectively organized social power, the conscious and voluntary social articulation, the real mediator between the base and the public apparatus: what were originally the soviets, or acquired from the factory, or what in all mouths runs. This non-public power was converted into a “transmission chain” in the XNUMXs. What remained, however, was the mythical adhesion of the masses – to Stalin; today to Mao Zedong –; became inarticulate or disjointed. There must be a lot of truth, a lot of rationality in the socialist relations of production to resist the replacement of consciously organized social energy by ideological myth.

This shows that it is not strictly in the legal field where the fight for a rational and free society can be exhausted. Law, politics and social power are closely linked. The insufficiency of its critical understanding makes room for the myth, even if it happens to be finally vain to ask for its acceptance by the men who manipulate the technological apparatus of the second half of the XNUMXth century. At least where this apparatus exists, the Prince can fabricate new ideological representations. Nor to affirm – new myth – the translation without mediation of the ideal into reality. But he can urgently call on new officials to organize – based on the only possible alternative: conscious and voluntary social articulation – the referendum permanent that was already talked about, no doubt, in darker times than ours.

*Juan-Ramon Capella is retired full professor of philosophy of law at the University of Barcelona. Author, among other books, of forbidden fruiteditorial prank).


Pyotr Stutchka. The revolutionary role of law and the state. general theory of law. Translation: Paula Vaz de Almeida. Organization and technical review: Moisés Alves Soares and Ricardo Prestes Pazello. São Paulo, Contracurrent, 2023, 398 pages (


[I] Pyotr Ivanovich Stutchka was born in Riga in 1865. He studied at the University of Petrograd. In 1903, he joined the Russian Social Democratic Party, soon joining the Bolshevik faction. His first legal work dates back to 1889 and there were numerous works that he wrote throughout his life. He was the first People's Commissar for Justice after the October Revolution, later holding other posts in the new power, including President of the Supreme Court of the RSFSR. The target of Vytchinski's accusations, he was removed from all public functions. He died in 1932 and was buried under the Kremlin walls.

[ii] Cf., for example, VYSHÍNSKI, Andrei Y. The Law of the Soviet State. Trans. Hugh W. Babb. New York: Macmillan, 1961, p. 54.

[iii] DELLA VOLPE, Galvano. “The socialist legality”. Marxist critic, Rome, PCI, year II, no 1, Jan./Feb. 1964, pp. 148 and ff.

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