The Prison and the Factory

This sphere that we are deserting, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent.

On leaving this sphere of simple circulation or of exchange of commodities, which furnishes the “Free-trader Vulgaris” with his views and ideas, and with the standard by which he judges a society based on capital and wages, we think we can perceive a change in the physiognomy of our dramatis personae. He, who before was the money-owner, now strides in front as capitalist; the possessor of labour-power follows as his labourer. The one with an air of importance, smirking, intent on business; the other, timid and holding back, like one who is bringing his own hide to market and has nothing to expect but — a hiding.
Marx, Capital: Volume 1, Oxford: World Classics, p. 113

Marx here makes the distinction between exchange and production. Notice that Marx places the notion of law and "equality", i.e. the legal form, within the dimension of exchnage, just as Pashukanis does. This perhaps lends credence to the correctness of Pashukanis' position. However, surely, as Marxists, there must be some place for production in law. Indeed there is, if we stretch Marx's metaphor it becomes clear, behind the form, as constitued by exchange, beyond the market, lies the factory. Pashukanis never fully examined the determination of legal content, but this is one place in which production (and therefore class struggle) assumes a more prominent role. Furthermore, several authors (whose names I will mention at some other point), following on from Foucault, liken the prison to the factory. It is here that the standards of production are enforced, and those who conform to the standards of capitalist labour discipline, are released, and those who do not, are punished.