Blood Feuds

The next post I make is going to be an expansion on the one below, and 2) in my little list of law level, in other words, I am going to outline the basic determination of law's content. Unfortunately this is going to take a while, due to working an awkward shift and the complexity of the subject matter. Just as a filler I thought I'd take a (long) quote from Pashukanis that I like a lot. The reason I like this quote is because it's a great showcase of Pashukanis' methodology, and his wonderful conception of organic change in social regulation:

The origin of criminal law is historically linked with the custom of the blood feud. It is certain that these phenomena are genetically close to one another but a feud becomes fully a feud only when fines and punishment follow it, i.e. even these later stages of development, as is often observed in the history of mankind, explain the intimations included in the preceding forms. If one approaches the same phenomena from the opposite direction, we see nothing but a struggle for existence, i.e. a truly biological fact. For the theorists of criminal law viewing the later period, blood feud corresponds with ius talionis, i.e. with the basis of equal retribution, under which the avenging of an insult by the insulted (or by his tribe) eliminated the possibility of further feuding. In fact, as Kovalevsky correctly points out, the most ancient blood feuds did not have this nature. Internecine wars are transmitted from generation to generation. An insult, although committed in retribution, itself becomes the basis for a new feud. The insulted and his relatives become‑ insultors‑and so on from one generation to another, sometimes until the entire struggling kin‑groups are liquidated.

Feud begins to be regulated by custom and is turned into retribution by the Talic rule "an eye for an eye and a tooth for a tooth". Only then does a system of composition or a monetary fine begin to be established alongside it. The notion of equivalence, this first purely juridic idea, always has its source in the form of a commodity. A crime may be considered as a particular aspect of exchange, in which the exchange (contractual relationship) is established post factum, that is, after the intentional act of one of the parties. The ratio between the crime and the punishment is reduced to an exchange ratio. Therefore Aristotle, in discussing equivalent exchange as a type of justice, divides it into two aspects: equivalence in voluntary and in involuntary actions. Economic relationships such as purchase and sale, loan etc. are classified as voluntary actions; these include various types of crime invoking punishment as an equivalent. The definition of crime as a contract concluded against one's will, also belongs to Aristotle. Punishment emerges as an equivalent mediating the harm done to the victim.

This notion was adopted, as is well known, by Hugo Grotius. However naive these constructs may seem at first glance, they latently contain much more sensitivity to the form of law than do the eclectic theories of modern jurists.

In the example of blood feud and punishment we can observe, with extraordinary clarity, the imperceptible stages through which the organic or biological is connected with the legal. This merger is intensified by the fact that man is not capable of renouncing that to which he is accustomed, i.e. the legal (or ethical) interpretation of this phenomenon of animal life. He involuntarily finds in the actions of animals that which is placed in them, factually speaking, by later development, i.e. by the historical development of man.
E.B. Pashukanis, General Theory of Law and Marxism, p. 112-113

What I love about this quote is how it shows the organic interconnection between different aspects of social life, and shows how forms of regulation grow into new ones. The illustration presented here is a perfect example of how it was that law was constituted as a particular form of social regulation separate from other forms. Pashukanis here shows how the legal character is grounded in other material relations, yet, with the advent of generalised commodity production, comes to serve as a regulator in its own right. This passage alone is a concrete illustration of how it is that law comes to be.

Rather than posit some kind of "break" between law and other forms of violence, or some ridiculous dichotomy between uncivilised violence and "civilised law" Pashukanis shows how the former is the precursor to the latter, and that the law can never truly be separated from its origin in this violence. What this approach does is to demystify the legal discourse that posits law and uncivilised violence as somehow mutually opposed, China Miéville uses this insight so as to rework Marx's phrase '[t]he principle of might makes right . . . is also a legal relation’ into the much more effective 'even club law is law' (C. Miéville, “The Commodity Form Theory of International Law”, (2004) 17 Leiden Journal of International Law 271, p. 290)

(China seems to have a way of putting this sort of thing well, check out his remark about "angels and devils" at Marxism 2003 -you should listen to this in any case, its informative!)