Die Kritik der marxistischen Rechtstheorie. Zu Paschukanis Begriff der Rechtsform

This book aims to fundamentally change our relationship to law. The first step consists in critically questioning the common beliefs and ideas about law as a regulatory instrument, some of which are deeply rooted in our everyday actions. And it’s certainly true, law does indeed regulate social coexistence in an unclear multiplicity of legal norms that grant us rights and impose duties in regulations, laws, or the Constitution. However, with the help of the Soviet legal theorist Eugen Pashukanis, we are able to reverse this image of law: Law does not stand outside the social sphere, which it retroactively organizes and corrects; rather, law is always already a part of the social itself. Pashukanis states that between modern law and the capitalist mode of production there is a reciprocal conditional relationship: without modern law there is no capitalism, and vice versa without capitalism there is no modern law. Or, to put it differently, law regulates problems that it itself necessarily co-creates. The punch line in this context is the word "necessary", because in it our everyday understanding of law is fundamentally shattered. If law necessarily co-creates the problems of capitalism, that is, exploitation, alienation, social inequality, then those problems cannot be solved by changing the law. But we must be very precise at this point: Changing the law usually refers to the content of law, but not to its form, which remains unaffected by these changes in content. The central thesis of this project is therefore that a dialectic of freedom and domination unfolds within the form of law. What does this mean? Starting from Pashukanis, Marxist legal theory forces us to the contradictory insight that law, quite independently of its content, creates freedom and at the same time obviates it in an endless cycle. It therefore forces us not only to recognize that freedom and domination exist simultaneously in this contradiction, but rather to recognize that freedom and domination exist exclusively through this contradiction. Thus, the critique of Marxist legal theory changes not only our relationship to law in particular, but our general relationship to the concepts of freedom/unfreedom, truth/falsehood, reality/appearance.