The law has a regulative character and is a "rule" not because it commands and proscribes, but because it must first of all create the sphere of its own reference in real life and make that reference regular. Since the rule both stabilizes and presupposes the conditions of this reference, the originary structure of the rule is always of this kind: "If (a real case in point…), then (juridical consequence…)," in which a fact is included in the juridical order through its exclusion, and transgression seems to precede and determine the lawful case. That the law initially has the form of a lex talionis …means that the juridical order does not originally present itself simply as sanctioning a transgressive fact but instead constitutes itself through the repetition of the same act without any sanction, that is, as an exceptional case. This is not a punishment of this first act, but rather represents its inclusion in the juridical order, violence as a primordial juridical fact…In this sense, the exception is the originary form of law.Pashukanis:
The cipher of this capture of life in law is not sanction (which is not at all an exclusive characteristic of the juridical rule) but guilt (not in the technical sense that this concept has in penal law but in the originary sense that indicates a being-in-debt: in culpa esse), which is to say, precisely the condition of being included through an exclusion, of being in relation to something from which one is excluded or which one cannot fully assume. Guilt refers not to transgression, that is, to the determination of the licit and the illicit, but to the pure force of the law, to the law's simple reference to something.[1]
Russkaya Pravda‑that most ancient historical monument of the Kievan period of our history‑consists of 43 articles (the so‑called academic register). Only two articles do not relate to violations of criminal or civil law. The remaining articles either determine a sanction, or else contain the procedural rules applicable when a law has been violated. Accordingly, deviation from a norm always constitutes their premise. The same picture is presented by the so‑called barbarian laws of German tribes. For example, in the Salic Law only 65 of 408 articles do not have a punitive nature. The oldest monument of Roman law‑the laws of the Twelve Tables‑begins with rules defining the procedure for initiating litigation: "Si in ius vocat, ni it, antestamino. Igitur im capito". (If a man is called to court and he does not go, this should be attested, and he should be taken there) …Which links nicely back to the introduction to this blog I wrote over three years ago(!):
Non‑observance of a norm, or violation of it, the disruption of normal intercourse and ensuing conflict: this is the starting point of the most important content of ancient legislation. Conversely, what is normal is not fixed in the beginning as such‑it merely exists. The requirement that the scope and content of mutual rights and obligations be fixed and exactly established, appears when calm and peaceful existence is violated. From this perspective Bentham is right when he asserts that a statute creates rights as it creates crimes. Historically, the legal relationship assumes its specific character pre‑eminently in the facts of violations of law. The concept of theft was defined earlier than the concept of private property. The relationships attending a loan were fixed when the borrower did not want to repay it: "if one tries to recover a debt and the debtor refuses etc." (Russkaya Pravda, Academic Register, Art. 14). The original significance of the word pactum was not that of contract, but pax, peace, i.e. an amicable conclusion to hostility, "peaceful" (Vertrag) supposes the end of "unpeaceful" (Unvertraglichkeit).[2]
[I]n a real sense law only exists with disorder, the normal conduct is only rendered "normal" by the deviation itself. Historically, then, law can only be seen as arising as a material solution to “disorder”, and to act as a corrective. But the continued existence of a law can surely only mean one thing, disorder still exists. Therefore the corollary of the law is not “order” because once one has “order” there is no need for law, law is dialectically generated by the continued presence of disorder. Therefore the fact that law does not extinguish itself also raises many questions as to its efficacy as a method of social regulation.What does all this tell us? Firstly, one wonders why the sole reference I can find in anything Agamben writes to Pashukanis is in State of Exception, where he simply notes the opposition between Vyshinsky and Pashukanis on the question of the withering away on the law. If anyone else can find a reference I would be gratified to see it. Secondly, what I quite like about Agamben is that he actually deals with ‘law’ as a named relation. A lot of people seem to deal with Schmitt as primarily a political theorist. Having read the Schmitt I’ve read I always find this a bit hard to swallow, whilst Schmitt is obviously speaking to politics broadly conceived, there are vast swathes (one might say these swathes constitute the majority of his work) in which he is thinking juridically. This is particularly evident (to me) in – say – Political Theology; I read a lot of people who take Schmitt speaking very narrowly of states of exception. Yet, it seems to me that alongside this Schmitt’s decisionism extended into legal decision-making as such. This depiction of indeterminacy (which McCormick is very good on) is powerful precisely because it totally problematises a central plank of liberal-capitalist ideology the ‘rule of law’ (and not men). The mature Schmitt is even better on this, but it seems few people have read On the Three Types of Juristic Thought – perhaps because it is a much more juridical work.
I think it’s quite interesting to compare the way in which Pashukanis and Agamben approach this. Agamben’s approach seems to be primarily philosophical/theoretical, with some nods towards historical analysis. Pashukanis approaches the question both logically and historically, grounding his logical analysis in historical presentation (although one can hardly call his brief historical considerations an in-depth analysis). What I also find interesting about Pashukanis’ work (and this describes his work more generally) is the way in which he depicts the unfolding of theoretical argument through a historical process.
I’m also tempted to say that Agamben’s lack of an explicit theorisation of the legal form hinders him somewhat (although again I have in no way read his entire oeuvre and so am probably wrong). So Pashukanis doesn’t just argue that law needs disorder etc.; he outlines a specific historical process through which deviations eventually constitute the norm, which eventually gains its legal character. Whereas, with Agamben it’s just kind of there. This of course raises a whole host of other problems – chief among them that inclusive exceptions might be said to operate amongst a whole host of regulative social relations (something which Agamben is happy to acknowledge). However, I think I’ll leave my mediations for now, and return to this at a later point, as all I really want to do is quote Pashukanis at people, this would not be wise, but I would again recommend people read him. I think I’ll also write something a wee bit more coherent at a later time.
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