As I have previously noted, I have developed in interest in the work of Carl Schmitt. One thing I find interesting is the way in which Schmitt's critique of liberal-legalism parallels Pashukanis' critique of the legal form. So when I was reading On the Three Types of Juristic Thought (2004, Praeger Publishers) (an important Schmitt text which is often overlooked) I was interesting to come across this passage:
It is, of course, possible to imagine the calculable functioning of human traffic relationships as a mere function of predetermined, calculable, general rules. The smooth running, standardized, and orderly process of such traffic then appears as "order." There is an area and a sphere of human life in which such a fixed-functionalistic order concept is meaningful. In the framework of scheduled railroad traffic, for example, one can say that here not the personal choices of men, but the impersonal matter-of-factness of the timetable "rules," and this scheduled regularity is "order."
p.54
Here Schmitt is arguing that liberal attempts to conceptualise the law as a series of 'rules' which are seamlessly applied to disputes are always inadequate. Such a conception makes sense in the context of railroad traffic, but not elsewhere. For Schmitt therefore, law and dispute are interlinked, law springs up and operates around a series of conflicting interests. Further to this is Schmitt's argument in regards to indeterminacy. Since the law is dealing with 'the personal choices of men' rather than 'impersonal matter-of-factness' the law is not able to form of system of rules in advance which is able to deal with such disputes. Instead law is characterised by indeterminacy. Classically Schmitt had argued that legal decisions were therefore 'made' by the personal, individual decision of the judge, but here Schmitt turns to 'institutionalism', whereby he argues that the particular institutional context is the determining factor in any judgment. What I find interesting in the way in which Pashukanis' (Selected Works) work mirrors this approach:
Finally, even in bourgeois society such things as the organization of postal and railroad services, military affairs etc. may be assigned entirely to legal regulation only upon a very superficial view which allows itself to be deceived by the external form of laws, charters and decrees. A railroad schedule regulates the movement of trains in a very different sense than, say, the law on the liability of railroads regulates the relationship of the latter with freight shippers. Regulation of the first type is primarily technical; the second primarily legal. The same relationship exists between the mobilization plan and the law on compulsory military service, between the instructions on the investigation of criminals and the Code of Criminal Procedure.
p.59
The thing that immediately caught my attention was the reference found in both Schmitt and Pashukanis to railroad schedules. Although, Pashukanis uses slightly different language to Schmitt the implications are pretty similar. It is difficult to class the railroad schedule as a paradigm example of the law precisely because it is not concerned with a series of conflicting private interests. Beneath the rhetorical harmony of liberalism lies its deeply conflictual heart, which is reflected in the indeterminacy of the law. What I think is interesting here though is the implications these observations have for the idea of a post-legal order. If we are to have a life without the law does this mean we are to have a life that is like a railroad schedule? A world without dispute? In some ways this is the typical critique of Pashukanis, it is often argued that in his attempt to equate technical regulation with a lack of dispute he reproduced the politics of 'Stalinism'.
Well what do we say to this? Well, firstly, I tend to dispute the idea that Pashukanis equates the law with dispute resolution – the key for Pashukanis is the notion of private interests. When you read this in line with the rest of Pashukanis' work what you basically end up concluding is that the law is there is deal with a specific kind of dispute, that entailed by the commodity form (around which our current societies are structured). On this reading non-legal forms of social regulation are still there to encompass dispute. Indeed if Pashukanis argues that law only reaches its zenith with capitalism, then it must be the case that he doesn't envisage law as the only method for regulating 'the personal choices of men' – presumably pre-capitalist societies had disputes too. The question obviously then becomes what social forms we can imagine in place of the law. Here Pashukanis is (infamously) silent, aside from his comments of 'technical regulation' (which we cannot endorse in their entirety) we are left in the dark. Questions to ponder indeed.
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