A especificidade da forma jurídica como relação ou norma: a teoria jurídica materialista de Pachukanis e sua crítica ao normativismo de Kelsen

Abstract

The specificity of the legal phenomenon is a lasting debate in the field of legal philosophy. In his materialist theory of law, Pashukanis found the specificity of law in the realm of social relations. The legal form, Pashukanis argues, is the form of a specific social relation: it developed directly out of the exchange of commodities in the capitalist market place. Thus, the legal form is an inherently bourgeois phenomenon. In a society in which social relations appear as an endless chain of legal relations, the legal subject is a fundamental element, as it is a necessary abstraction for the grasping of law as a concrete totality. Kelsen gives precedence to the legal norm as the element able to make a relation into a legal relation, as he conceives law as a coercive order: this, for Kelsen, is the specificity of the legal phenomenon. With a legal science that disregards the historical determinations of its object, Kelsen – the most notable among neo-Kantian legal philosophers – has reached the complete split between “is” and “ought”, separating normativity from reality, and thus law from social life. Insofar as Kelsen’s pure theory of law represents the most complete theoretical expression of an autonomised modern law, apprehended by its superficial movement, the dialogue with the Marxist critique of law by Pachukanis is a prolific field of reflections on the complexity and the contradictions of the legal phenomenon. This dissertation is an attempt to revive the theoretical contribution by Pashukanis by following his critique of Kelsen's legal science. To do this, we are going to use mainly Pashukanis’ and Kelsen’s main work, respectively: The general theory of law and Marxism, 1924; and Pure the of law, in its second German edition, 1960. Also, the criticisms directed to one another, regarding the core of their legal theories, will constitute a primary source for this research.