Pashukanis on crime and punishment
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Evgeny Pashukanis deservedly is famous as the author of the so-called commodity form theory of law. In his Law and Marxism he postulated that the form of legal relations held the key to the Marxist critique of law and that, in turn, the key to comprehending the legal form lay in its relation to the commodity form. The crucial concept here is the principle of equivalence or the equality postulate, which Pashukanis classifies variously as the “first truly juridical idea”1 or the “juridical soul” of criminal proceedings. Just as commodity exchange pivots upon mutual recognition by commodity owners of one another as equals, so legal exchange stipulates reciprocal acceptance by legal subjects of one another as compeers. Indeed, juridification is the alter ego of commodification, in that the evolution of the legal form tracks the evolution of the commodity form. In a word, Pashukanis theorised the legal form as the homologue of the commodity form, with both delimited in terms of the principle of equivalence. Pashukanis made it clear always that the historical genesis of his general theory lay in private law, specifically the law of contract. It is the branch of law which is both the historical and logical repository of the notion of equivalence.3 By contrast, criminal justice appears to be far removed from the commodity form and the idea of equivalence. This article investigates the relationship between Pashukanism and criminal justice, attempting to prove that the private law derivation of the commodity form theory does not preclude its extrapolation to public law in general and to criminal law in particular. It seeks to convince that the disjunction between Pashukanism and criminal justice is more apparent than real. Pashukanis formulated the commodity form theory as a general theory of law, and the argument herein thus may be read as a defence of that generality.