Theory & Figures #1: Evgeny Pashukanis [Withering Away of Law]
Welcome to the first edition of Theory & Figures, a series dedicated to exploring figures and ideas that serve as inspiration for the game, the subject of my previous research, or merely interesting topics to discuss in relation to Withering State. This idea emerged following some great discussions on this subreddit recently, and some users on the discord server expressed interest in a series like this.
I will seek to provide a neutral exposition on these figures and avoid taking a stand on the debates in the Marxist tradition. As such, these figures are not necessarily represented in the game, nor are necessarily representative of my personal views. And as always, discussion, feedback, and even corrections are encouraged!
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Evgeny Pashukanis (1891-1937) was a Soviet Lithuanian jurist and Marxist philosopher who wrote one of the first comprehensive treatments of law from a Marxist perspective, titled The General Theory of Law and Marxism, which supported the idea that law would ‘wither away’ with the abolition of capitalist social relations. His work was unavailable to English readers until 1978, and he thereafter influenced Western Marxism and further treatments of law and Marxism. Legal Form, a site dedicated to Marxist legal critique, recently marked the 100th anniversary of its publication, listing a number of events.^([1]) As any seasoned reader of Old Bolshevik biographies will have now suspected from his death date, Pashukanis died as a result of Stalin’s purges, but was posthumously rehabilitated in 1957.
The General Theory of Law and Marxism
Law has been a problematic subject for Marxists. The trouble emerges when we consider the Marxist theory of ideology. Although not the subject of this writeup, the briefest possible summary in Marx’s own words is that because “the class which is the ruling material force of society is at the same time its ruling intellectual force… The ruling ideas are nothing more than the ideal expression of the dominant material relation.”^([2]) Law—alongside religion, morality, and metaphysics—is included in this realm of ‘ideology,’ which is subordinate to the socioeconomic order that produces it. What some call the traditional ‘reductionist’ account of law sees it as nothing but the expression of the reigning socioeconomic order. On this account, there is little to examine about law but the ways in which it serves the interests of the ruling class.^([3])
Pashukanis is one Marxist who was willing to dignify law with a more comprehensive treatment. Because law can regulate social relations, he reasoned, it is not merely ideological but has material effects. His central innovation was to treat the law not as a distinct social relation but as part of the commodity form, ascribing law’s origin to the regulation of private interests. It follows that with the abolition of capitalist social relations and the commodity form, the legal form, too, will wither away.^([4])
Placing Pashukanis’ insights next to concurrent developments in the Soviet Union is helpful. The New Economic Policy saw the restoration of certain legal institutions to facilitate market dynamics. Pashukanis believed instead that a centrally planned economy could facilitate the withering away of the legal form as the overcoming of market relations would cause the legal form to lose relevance.
Criticism and Death
Pahsukanis’ most consequential critic was Andrei Vyshinsky, who argued that a socialist state would not see the withering away of the law but instead raise law to the highest level of development because law would be the expression of the people’s will.^([5]) Vyshinsky accused Pashukanis of being a traitor, and replaced him in the Soviet law institute after his arrest. Vyshinsky would go on to become the Procurator-General of the Soviet Union under Stalin, heading many prominent trials and later serving in more prominent roles such as Foreign Minister.
Another notable critic of Pashukanis was Karl Korsch, who argued that he turned Marx on his head by viewing law as not merely ideological.^([6]) By entangling law with the political economy and equating it with the commodity form, Pashukanis, in Korsch’s view, erroneously conflated ideology and the economic base.
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^([1]) ^(Legal Form: A Forum for Marxist Analysis and Critique,) ^(https://legalform.blog/pashukanis-100th-anniversary/)
^([2]) ^(Karl Marx and Friedrich Engels,) ^(The German Ideology) ^([1846] in Karl Marx and Friedrich Engels,) *^(Collected Works)*^(, vol. 5.[)^(3]) ^(Holdren, Nate and Tucker, Eric, "Marxist Theories of Law Past and Present: A Meditation Occasioned by the 25th Anniversary of Law, Labor, and Ideology" (2020).)
^([4]) ^(Quintana, F. The Withering Away of Law and Its Discontents: A Prolegomenon for a Reappraisal.) ^(Law Critique) ^(37, 41–64 (2026).)
^([5]) ^(Huskey, Eugene. “Vyshinskii, Krylenko, and the Shaping of the Soviet Legal Order.”) ^(Slavic Review) ^(46, no. 3 (1987): 414–28.)
^([6]) ^(Bernard E. Harcourt | Evgeny Pashukanis & Yakov Staroselsky: On Soviet Legal Thought and Ideology (2024))