Pashukanis is No Traitor Author(s): John N. Hazard Source: The American Journal of International Law, Vol. 51, No. 2 (Apr.

, 1957), pp. 385-388 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/2195714 . Accessed: 11/05/2011 21:57
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or minimize the conflicts. Similar developments are needed here,especially with respectto justice for the person or private entitycaught betweenthe competingsovereignwills. But before this needed work can be done it will be necessaryfor us to clear away some underbrushand to point up our thinkingon issues such as these: (a) Precisely what "international law," public or private or both, are we talking about when we argue that the application of the antitrustlaws to conductabroad is forbiddenby international law? 18 (b) If we are talkingabout international public law, are we talkingabout the necessityof the United States having an internationallyrecognized basis of legislative jurisdiction,as under the territoriality principle, the protectiveprinciple, the nationality principle, etc.? Or are we urging that all national law is required by internationallaw to be confinedto territory or nationality? (e) Is there possibly a problemof denial of justice or violation of the minimumstandard for the treatmentof aliens should the United States under its laws compelthe alien presentbeforeits courtsto act or to refrain from acting outside the United States in circumstanceswhere obedience to the Americancommandwill subject him to civil or penal liabilityunder the laws of the countryof his nationalityor of anothercountryhaving a basis of jurisdictionwhichinternational law recognizes? It is these issues, primarily,which have been avoided in much of the literatureand in many of the judicial decisions,such as those cases which have directedattentionto presence,vel non, of the defendant,to the exclusion of the basis or bases of legislativejurisdictionover him. The listed issues oughtto be faced, not only by courtsfromcase to case, but by international lawyers,legislatorsand administrators. COVEY T. OLIVER
PASHUKANIS IS NO TRAITOR

EugeneB. Pashukanis is no longer an "enemyof thepeople." For the Sovietlegal scholar thisannouncement is as exciting as it wouldbe forthe American if the NationalArchives wereto statethat new evidence had disclosed thatBenedict Arnold was nota traitor. For nearly twenty years the verynamePashukanis had beenso besmirched as to blackenalso the reputation of any Sovietlawyer whohad beenclosely associated withhim or whohad expressed ideas identifiable as similar to his. Pashukanis'case had been something of a mystery sincethatmorning of January 20, 1937,whenan articlein Pravda announced thatthe man whoonlytwomonths before had beennamedto supervise the revision of thewholepattern of Sovietcodesof law had beenfoundto be an "enemy of thepeople."1 No overtact of treachery was disclosed. He was criticizedprimarily forhaving preached a philosophy oflaw which, had it been followed to its conclusions, wouldhaveundermined thefoundations of the
18 Cf. Jessup, Transnational Law (1956), reviewed below,p. 444. 1 For a record of the denunciation and the textsof theprincipal works of Pashukanis and his denouncers, see V. I. Lenin et al., SovietLegal Philosophy (20th Century Legal Philosophy Series,1951).

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Soviet state, and it was hinted that his theoryhad been developed for the purpose of bringingabout the end of the Soviet systemof government. His principal accuser, Andrei Vyshinsky,later became specificand said that Pashukanis had violated an article of the criminal code which required that a personaccused under its provisionsbe found guiltyof crimithe Soviet regime. No public trial was held, hownal intentto overthrow ever,so thatno outsidercould tell what,if any, the actual chargeswere and what, if any, proof other than Pashukanis' own writingshad been introduced against him. Vyshinskyis now dead, and his master, Joseph Stalin, has also died. Both have since been denouncedfor their misdeeds,and new policies have been introducedby theirsurvivingcolleagues to serve as the basis for what has been heraldedas a new attitudetowardthe role of the Soviet state,both in relation to its own citizens and in relation to the foreignstates with which it must conduct its internationalrelations. The rehabilitationof seems to be a part of the reappraisal of Pashukanis, albeit posthumously, Soviet policieswhichhas been developingwithinthe Kremlin since Stalin's death in March, 1953. reversal has yet appeared to explain the momentous Only scantycomment of policy on Pashukanis. In an unsignedleading article in the law review published by the Institute of Law of the Academy of Sciences of the U.S.S.R. in September,1956,2the editorialboard takes to task the one-time editorof thereviewand leading lawyerof the Academyof Sciences,namely, long for writing in 1938 that "for an unfortunately Andrei Vyshinsky, period the directionof our legal science did not correspondto the interest of the buildingof socialism" and forlaying this failureto the consequences of "wrecking" in the fieldof legal philosophy. The editorsof the law review now ask the legal scholars of the U.S.S.R. to restudythe era of the 1920's and early 1930's withoutthe handicap that has existed up to the present of having to avoid any interpretationwhich would have cast Pashukanis in the positionof one who was not a "wrecker." The editors linked with the activinow say that Vyshinsky'scriticismwas incorrectly of Soviet legal science as P. I. ties of "such notable former representatives Stuchka,N. V. Krylenko,E. B. Pashukanis, N. I. Chelyapov and others." Pashukanis is not being given a completelyclean bill of health. The a large number of serious errors,but editors now say that he committed that this fact should not be permittedto conceal his "not insignificant of Soviet legal science and Soviet legislapositive role in the development tion." The charges of harmfulanti-Sovietactivitywhich Vyshinskyhad leveled are specificallydeclared to have been unfounded. The door has been opened, so the editorsnow say, to scholarlycriticismof the views of Pashukanis and his colleagues withoutthe hindrancepreviouslycreated by the labels of "wreckers" hung around theirnecks. Only Pashukanis of the group of four men specificallynamed as im2 "For an authoritative of the scienceof the of the rootquestions reworking scientific i Pravo,No. 6 Gosudarstvo history of the Sovietstateand law" (in Russian), Sovetskoe (1956), p. 3 at p. 10.

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had concerned by Vyshinsky of treason withcharges associated properly first had beenknown law. Krylenko in detailwithinternational himself wereestabas they oflegalinstitutions oftheSovietsystem as an architect Policyin 1922,and thenhe lishedto meettheneedsof theNew Economic as Peoples' and finally as State Prosecutor had gainedwide recognition as thePeoples' hisreputation had achieved Commissar ofJustice. Stuchka werebeginning Sovietcourts in 1918,whenthefirst of Justice Commissar generally. ChelforSovietlawyers and lateras theoretician to function, of law had beenone of theprincipal legal authorities yapovas a professor of theU.S.S.R. adopted of the Constitution chosen to explainthemeaning field, in 1936. The rolesplayedby thesethreemenwerein the domestic will of the crimes chargedagainstthem posthumously and theiracquittal law in international upon Soviet writing have littleinfluence probably and his postwas different, year. Pashukanis'position overthe coming will aequittalmayresultin a seriesof Sovietlegal studieswhich humous outsidethe U.S.S.R. as a delawyers from international attention attract about since 1938 by Sovietauthors whathas been written parturefrom law. international a biblaw,3whichhas become Pashukanis'majorworkon international of mostcopies subjectto raritybecause of the destruction liographical any atin 1937,declaredscholastic Sovietcontrol afterhis denunciation Pashukanis thought law."4 define the "nature of international to tempt of thesubjecthad beentheresultof thecontinuing thatpriordiscussions whichhe said restedupon an legal methodology, of bourgeois influence in accordance withits own of law withsubstance developing association to see thatinternational urgedhisreaders internal principles. Pashukanis in custom and treaties and strengthening law was a meansof formulating between states,and that the variouspoliticaland economic relationships in a struggle law tofurther Sovietinterests U.S.S.R. coulduse international saw no reasonto supposethatin utilizwithcapitalist states. Pashukanis the U.S.S.R. was of international law forits ownpurposes ing principles to live in a worldwhich in an effort its principles thereby compromising classes. Pashuof different interests theconflicting heldstatesdefending amongSoviet discussions upon the lengthy kanis would have frowned law as reauthors the natureof international afterhis deathregarding interwhether whichtriedto determine in the booksand articles flected in nationallaw was by nature"bourgeois" or "socialist" or something to him"scholastic"and of between. This discussion wouldhave seemed
no real help in conductingSoviet foreignpolicy.5

to international The roadwas alreadybeingclearedfora newapproach 1956, of thearticleof September, theeditors before law by Sovietauthors told theirreadersto take a freshlook at Pashukanis'idea. Readersof which Professor articles thisJOURNAL withtheseriesof Sovitet are familiar
8 E. Pashukanis, Law] po Mezhdunarodnomu Pravu [Essays in International Oeherki 4 Idem at 16. (Moscow,1935). see Kelsen, The Communist s For a moredetailed analysisof Pashukanis' position,

Theory of Law 152-156 (1955).

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W. W. Kulski has summarizedfor American scholars.6 The series began after the war to bring about a with Eugene A. Korovin's renewed effort law and of the problempreof the nature of international reconsideration sented in his view that law must to a Marxist be class law, and that interbe classifiableeither as "bourgeois" or "sonational law must therefore in between,since it is espoused by bourgeoisand socialist" or something cialist states in theirrelationships. This series of articleshad ended with an editorial discardingthe attemptto findthe true nature of international that Soviet writers settle down to the more law and a recommendation practical work of exploringthe functionof the various rules of international law so that the U.S.S.R. mightapply themto its advantage. If Pashukanis' view is again to receive favor, there will be less philolaw and more attention sophical writingabout the nature of international to its practical details and their application to the specificproblemswith have to deal. Soviet authors may bewhich Soviet foreignpolicy-makers come pragmatistsin their attitude toward internationallaw and retreat from the spinning of fine theories. Such a position would facilitate the Soviet campaign for "co-existence" between the "socialist" and other camps,for attentioncould be centeredon single problemsand therewould between be no need to talk about the fundamentalproblemof the conflict economicsystems. This policy would be in accord with states of differing Party-Congressin Nikita Khrushchev'sdeclarationat the 20th Communist of war of the inevitability 1956 that thereneed no longerbe consideration betweenthe capitalist and socialist camps. No one who has sampled the large body of Soviet literaturesince Lenin have cast will conclude fromthe new approach that Soviet policy-makers fromtheir minds their hope and expectationeventuallyof spreading the the world, yet under the new policy there may Soviet systemthroughout be less said about the "conflict" than there has been in the years since Pashukanis' death. JOHN N. HAZARD
THE NEW U. S. ARMY FIELD MANUAL ON THE LAW OF LAND WARFARE

The timesof ignoringthe laws of war are over: new treatieshave been concluded concerningthe laws of war, there is a considerableliterature, and states are again issuing Instructionsto their armed forceson the laws of war and neutrality. The United States has recentlypublished new Inon the Law of Naval Warfare1 and now a Field Manual on the structions Law of Land Warfare.2 to the conduct of warfare The Manual is, generallyspeaking,restricted on land and to relationshipsbetween belligerentand neutral states; but
6 Kulski,"The SovietInterpretation Law," 49 A.J.I.L. 518 (1955). of International 1 U. S. Department 1955). of theNavy,Law of Naval Warfare(September, 2 U. S. Department ArmyField Manual: The Law of Land Warfare of the Army, the Field Manual of Oct. 1, 1940, including (July 18, 1956, 236 pp.). It supersedes in ninechaparranged o 1, Nov. 15, 1944. The newManualconsistsof 552 paragraphs, cited as Manual). ters (further