pashukanis is no traitor

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Pashukanis is No TraitorAuthor(s): John N. HazardSource: The American Journal of International Law, Vol. 51, No. 2 (Apr., 1957), pp. 385-388Published by: American Society of International LawStable URL: http://www.jstor.org/stable/2195714.

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1957] EDITORIAL COMMENT 385orminimize heconflicts. Similardevelopments re neededhere,especiallywithrespectto justice forthepersonor privateentity aughtbetween hecompeting overeignwills. But beforethis needed work can be done itwill be necessaryforus to clear away someunderbrush nd to point upour thinking n issuessuch as these:(a) Preciselywhat international aw, public or private or both, arewe talkingabout whenwe argue thatthe applicationof the antitrustawsto conductabroad is forbidden y internationalaw? 18(b) If we are talking bout international ublic aw, are we talking boutthe necessity of the United States having an internationally ecognizedbasis of legislative urisdiction, s under the territoriality rinciple,theprotectiveprinciple,the nationalityprinciple,etc.? Or are we urgingthat all national law is required by international aw to be confined oterritoryr nationality?(e) Is therepossibly a problemof denial of justice or violation of theminimum tandard for the treatment f aliens should the United Statesunder tslaws compelthealien presentbefore ts courtsto act or to refrainfromacting outside the United States in circumstanceswhere obedienceto theAmericancommandwill subject himto civil or penal liabilityunderthe laws of the country f his nationalityor of anothercountryhavingabasis of urisdictionwhich nternationalaw recognizes?It is these issues,primarily,whichhave been avoided in much of theliterature nd in manyof the judicial decisions, uch as thosecases whichhave directedattention o presence,vel non, of the defendant, o the ex-clusionof thebasis or bases of legislative urisdictionoverhim.The listedissuesoughtto be faced,not onlyby courtsfrom ase to case,butby internationalawyers,egislators nd administrators.COVEY . OLIVER

PASHUKANIS IS NO TRAITOREugeneB. Pashukaniss nolonger n enemy fthepeople. For theSoviet egalscholarhis nnouncements as excitings itwouldbe for heAmerican f theNationalArchiveswereto statethat newevidence addisclosedhatBenedict rnoldwasnot traitor. Fornearly wenty earstheverynamePashukanis ad been so besmircheds to blacken lso thereputationfanySoviet awyerwhohadbeenclosely ssociatedwithhimorwhohadexpresseddeas dentifiables similar ohis.Pashukanis' asehad beensomethingf a mysteryincethatmorningofJanuary 0,1937,when n article n Pravda announcedhattheman

whoonly womonthsefore ad beennamed o superviseherevision fthewhole attern fSoviet odesof awhad beenfound obe an enemyofthepeople. 1 No overt ctoftreachery as disclosed.He wascriti-cizedprimarilyorhaving reached philosophyf awwhich, adit beenfollowedoitsconclusions,ouldhaveunderminedhefoundationsfthe18 Cf.Jessup, ransnationalaw (1956), reviewed elow, . 444.1For a record fthedenunciationnd thetextsof theprincipalworks f Pashukanisandhisdenouncers,eeV. I. Leninet al., SovietLegal Philosophy20thCenturyegalPhilosophyeries, 951).


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386 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 51Soviet state,and it was hinted thathis theoryhad been developedforthepurpose of bringingabout the end of the Soviet system of government.His principal accuser,Andrei Vyshinsky, ater became specific nd saidthat Pashukanis had violated an article of the criminal code which re-quired that a personaccused underits provisionsbe foundguiltyof crimi-nal intent o overthrowhe Soviet regime. No public trial was held,how-ever, o thatno outsider ould tellwhat, f any,the actual chargeswereandwhat, if any, proofother than Pashukanis' ownwritingshad been intro-duced againsthim.Vyshinsky s now dead, and his master, Joseph Stalin, has also died.Both have since been denouncedfor their misdeeds, nd new policieshavebeenintroduced y their urviving olleaguesto serve as thebasis forwhathas beenheraldedas a new attitude owardtheroleof theSoviet state,bothin relationto its own citizens and in relationto the foreignstates withwhich it must conduct its internationalrelations. The rehabilitationofPashukanis,albeit posthumously,eems to be a part of the reappraisal ofSoviet policies whichhas been developingwithin he Kremlinsince Stalin'sdeath in March, 1953.Onlyscanty omment as yetappeared to explainthemomentous eversalofpolicyon Pashukanis. In an unsigned eading article n thelaw reviewpublished by the Institute of Law of the Academy of Sciences of theU.S.S.R. in September, 956,2 heeditorialboard takes to task theone-timeeditorofthe review nd leading awyerof theAcademyofSciences,namely,Andrei Vyshinsky, or writing n 1938 that for an unfortunatelyongperiodthe direction f our legal science did not correspond o the interestofthe buildingof socialism and for aying this failure to the consequencesof wrecking in thefieldof legal philosophy. The editorsof the law re-view now ask the legal scholars of the U.S.S.R. to restudythe era of the1920's and early 1930's withoutthe handicap that has existedup to thepresent of having to avoid any interpretationwhich would have castPashukanis in the positionof onewho was not a wrecker. The editorsnow say thatVyshinsky's riticismwas incorrectlyinked withthe activi-ties of such notableformer epresentativesf Soviet legal scienceas P. I.Stuchka,N. V. Krylenko,E. B. Pashukanis,N. I. Chelyapovand others.Pashukanis is not being given a completely lean bill of health. Theeditorsnow say that he committed large numberof serious errors,butthat this fact should not be permitted o conceal his not insignificantpositiverole in the development f Soviet legal scienceand Soviet legisla-tion. The chargesof harmful nti-Soviet ctivitywhichVyshinskyhadleveled are specifically eclared to have been unfounded. The door hasbeen opened,so the editorsnow say, to scholarly riticism f the views ofPashukanis and his colleagueswithout hehindrancepreviously reatedbythelabels of wreckers hungaround theirnecks.Only Pashukanis of the group of four men specificallynamed as im-

2 For an authoritativecientificeworkingfthe rootquestions f thescience f thehistory f theSoviet tateandlaw (in Russian),Sovetskoe osudarstvo Pravo,No. 6(1956), p. 3 at p. 10.


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1957] EDITORIL COMMENT 387properlyssociatedwithcharges ftreason y Vyshinskyad concernedhimselfn detailwith nternationalaw. Krylenko ad beenknown irstas an architectftheSoviet ystem f egal nstitutionss theywere stab-lished o meet heneedsoftheNew Economic olicy n 1922, ndthenhehad gainedwide recognitions StateProsecutornd finally s Peoples'CommissarfJustice. Stuchka adachieved isreputations thePeoples'Commissarf Justicen 1918,when hefirst oviet ourtswerebeginningtofunction,nd lateras theoreticianorSoviet awyers enerally.Chel-yapov s a professorf aw had beenone of theprincipal egalauthoritieschosen o explain hemeaningfthe ConstitutionftheU.S.S.R. adoptedin 1936. The rolesplayedby these hreemenwere n thedomestic ield,and their cquittal osthumouslyfthecrimes harged gainst hemwillprobably ave little nfluencepon Soviet writingn internationalawoverthecoming ear. Pashukanis'positionwas different,nd his post-humous equittalmayresultn a series fSoviet egal studieswhichwillattract ttentionrom nternationalawyers utside he U.S.S.R. as a de-parture romwhathas beenwrittenince1938by Sovietauthors boutinternationalaw.Pashukanis'majorwork n internationalaw,3whichhas become bib-liographical arity ecause of thedestructionf mostcopies subjecttoSovietcontrol fterhis denunciationn 1937,declared cholasticnyat-tempt odefine he nature of nternationalaw. 4 Pashukanis houghtthatpriordiscussionsfthesubjecthad beentheresult f thecontinuinginfluencef bourgeoisegalmethodology,hichhe said resteduponanassociationf law with ubstance evelopingn accordancewith ts owninternalrinciples.Pashukanis rgedhis readers oseethat nternationallaw was a means f formulatingnd strengtheningn customnd treatiesvariouspolitical nd economic elationshipsetween tates, nd that theU.S.S.R.coulduse nternationalaw tofurtherovietnterestsn a strugglewith apitalist tates. Pashukanisawno reason osuppose hat nutiliz-ing principlesfinternationalawfor tsownpurposes heU.S.S.R. wasthereby ompromisingtsprinciplesn an efforto live in a worldwhichheldstatesdefendingheconflictingnterestsf differentlasses. Pashu-kaniswould have frowned pon the lengthy iscussionsmong Sovietauthors fterhis death regarding henatureof internationalaw as re-flectedn the books nd articleswhich riedto determine hethernter-national aw was bynature bourgeois or socialist or somethingnbetween. This discussion ouldhaveseemed o him scholastic and ofno real help in conducting oviet foreign olicy.5Theroadwasalready eing leared or newapproach ointernationallaw bySoviet uthors eforehe editors f thearticle fSeptember,956,toldtheirreaders o takea freshook at Pashukanis' dea. ReadersofthisJOURNALrefamiliar ith he eries fSovitetrticleswhich rofessor

8E. Pashukanis, eherki o Mezhdunarodnomuravu [Essays in Internationalaw](Moscow, 935). 4 Idem at 16.sFor a moredetailed analysisof Pashukanis'position, ee Kelsen,The CommunistTheory of Law 152-156 (1955).


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388 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 51W. W. Kulski has summarized or Americanscholars.6 The seriesbeganwithEugene A. Korovin's renewedeffort fterthe war to bringabout areconsiderationfthenatureof internationalaw and of the problempre-sented n his viewthatlaw mustto a Marxistbe class law, and that inter-national law must therefore e classifiable itheras bourgeois or so-cialist or somethingn between, ince it is espoused by bourgeois nd so-cialist states n theirrelationships. This seriesof articleshad ended withan editorialdiscarding heattempt o find he truenatureof internationallaw and a recommendationhat Soviet writers settle down to the morepracticalworkof exploringthe functionof the various rules of interna-tionallaw so that theU.S.S.R. might pply themto its advantage.

If Pashukanis' view is again to receivefavor,therewill be less philo-sophicalwriting bout the natureof internationalaw and more attentionto its practicaldetails and theirapplicationto the specificproblemswithwhich Soviet foreignpolicy-makers ave to deal. Soviet authorsmay be-come pragmatists n their attitudetoward international aw and retreatfrom the spinningof finetheories. Such a positionwould facilitatetheSoviet campaign for co-existence between the socialist and othercamps,forattention ould be centered n singleproblems nd therewouldbe no need to talk about the fundamentalproblemof the conflict etweenstatesof differingconomic ystems. This policywould be in accord withNikitaKhrushchev'sdeclaration t the20thCommunist arty-Congress n1956 thatthereneed no longerbe consideration f the inevitability f warbetween hecapitalistand socialistcamps.No one who has sampledthe large body of Soviet literature ince Leninwill concludefromthe new approach that Soviet policy-makers ave castfromtheirmindstheirhope and expectationeventuallyof spreadingtheSoviet system hroughout he world,yet under the new policy there maybe less said about the conflict than therehas been in the years sincePashukanis' death.

JOHN N. HAZARDTHE NEW U. S. ARMY FIELD MANUAL ON THE LAW OF LAND WARFARE

The timesof ignoring he laws ofwar are over: new treaties have beenconcludedconcerning he laws of war, thereis a considerable iterature,and statesare again issuing nstructions o theirarmedforceson the lawsof war and neutrality. The UnitedStates has recentlypublishednew In-structions n the Law of Naval Warfare1 and now a Field Manual on theLaw ofLand Warfare.2The Manual is, generally peaking,restricted o the conductof warfareon land and to relationshipsbetweenbelligerent nd neutral states; but

6Kulski, The Soviet nterpretationf Internationalaw, 49 A.J.I.L. 518 (1955).1 U. S. Departmentf theNavy,Law of Naval Warfare September,955).2U. S. Departmentf theArmy,ArmyField Manual: The Law of Land Warfare(July18, 1956,236 pp.). It supersedeshe Field Manual of Oct. 1, 1940, ncludingo 1,Nov. 15,1944. The newManual consists f552paragraphs,rrangednninechap-ters furtheritedas Manual).

pashukanis is no traitor

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