Technical Form of Regulation

= "a form of regulation appropriate to a situation in which all parties are seeking the same goals in a non-antagonistic and co-operative fashion".

Discussion

Robert Fine:

"Pashukanis analysed the `technical form of regulation', which he saw as replacing law under Communism, as having roots within capitalist society - in the relations between doctor and patient, in the internal organisation of the workplace, in the co-ordination of trains and perhaps in the administration of the state. He defined technical regulation as a form of regulation appropriate to a situation in which all parties are seeking the same goals in a non-antagonistic and co-operative fashion.

Pashukanis seems to have believed that this form of regulation was becoming stronger in the Soviet Union in the 1920s with the growth of the state sector and the state bureaucracy. In 1929 he accepted Stalin's pronouncement that communism was being achieved with the introduction of the First Five-Year Plan and then with the assault against the peasantry. Pashukanis drew the naive conclusion that `the role of the pure juridical super-structure, the role of law, is now diminishing and from this one can infer the general rule that technical regulation becomes more effective as the role of law becomes weaker and less significant'. In the 1930s, however, the tide turned against Pashukanis as the consolidated stalinist regime turned toward the celebration of what it called `socialist legality'. Pashukanis was viciously attacked by leading stalinist officials, notably Vishinsky, for his doctrine of the `withering away of law'. Finally in 1937 it seems that Pashukanis was murdered by the stalinists without even the legal formality of a show-trial.

Pashukanis`s theory suffered from a superficial and one-sided critique of the fetishism of law. Tracing the roots of law to exchange rather than production, he saw only the negative side of exchange (private interest, indifference, competition) and ignored its positive side (independence, freedom, equality, etc.). He ignored the different production relations which underly exchange and the different form and content assumed by the law as production relations change. In his critique of legal formalism, he saw nothing of the democratic advance represented by the historical development of law in bourgeois society nor of the democratic functions of law in socialism. In his celebration of technical regulation, he substituted one fetish for another, technicism for law, thereby legitimating the subsumption of law to the bureaucratic arm of the state. By positing the withering away of law before the withering away of the state, he opened up a Pandora`s Box of authoritarian statism." (http://www2.warwick.ac.uk/fac/soc/sociology/staff/robertfine/home/teachingmaterial/humanrights/lecturepodcast/pashukanis_text.pdf)