请将“But what is the meaning of those ambiguities? Has Pashukanis really overlooked the sphere of production, the holy grail of Marxism? What are the consequences for law that circulation is mediated by production, or rather that the whole determines the parts? And why in fact does not only surplus-value, but also law, have to systemically arise from the sphere of production?
Andreas Harms objects that the element of mediation that goes beyond equivalent exchange remains alien to law480 ‘Surplus-value may well arise from the sphere of production, Pashukanis does not argue against that either. Law, 
however, only does its concept justice through circulation, precisely because it leaves out production’.181 It must be recognised that the legal form remains limited to exchange, forming a factual abstraction from the social relation of capital.182 He believes that Pashukanis was perfectly aware of the totality of capitalist society and that he equally consciously related law precisely to exchange, because it shares the real abstraction of the exchange process. But what is the consequence of real abstraction? According to Josef Esser, it is specific to the character of capitalist commodity production that the fetish of the legal subject mystifies the underlying class relation, and that the antagonism of the production sphere, along with factual inequality and unfreedom, can no longer be recognised in law.183 In the introduction to the English edition of Pashukanis’ main work, Chris Arthur strengthens this understanding: the objection concerning the sphere of circulation is misleading,
for it is precisely one of the interesting features of bourgeois exploitation that it inheres in economic relations that do not achieve formal legal expression. Formally speaking, Pashukanis is correct to refer law only to social relationships based on commodity exchange ... The monopolisation of the means of production by the capitalist class is an extra-legal fact ...184
Bernhard Blanke also argues that the categories of freedom and equality, which are owed to the simple circulation of commodities, belong constitutively to the concept of capital: ‘They already contain the contradiction between the formal equality of commodity owners and their content of inequality in the production context'?85
The extensive and long-lasting controversy about Pashukanis’ supposed derivation from the sphere of circulation is a classic sign of a dogmatic narrowing of the overall issue, which is exemplary for the impasse Marxist legal theory had reached. For instead of asking the question of how law is connected to myriad social relations (and not only economic ones), a conflict about the relationship of production and circulation rages. This is particularly unfruitful, because circulation and production are only partial aspects of the social reproduction process; this ‘includes both the circulation process proper and the 
actual production process. These form the two great sections of its movement, which appears as the totality of these two processes’.186 Marxist theory’s fixation on production over the last century has led to the most peculiar blunders, and not least that of excluding generative reproductive labour, which in patriarchal societies is predominantly carried out by women.187
The main problem emerging in this discussion lies in the difficulty of grasping antagonistic capitalist society in its totality and thus of conceiving a partial moment such as law so that it contains the determinations of that totality as such, and not only of one moment. It is doubtful that this issue has been satisfactorily resolved in what has been represented thus far. The relationship of circulation and production may have been put into the appropriate perspective. But has the analysis of the legalform really been exhausted, as Karl Korsch demanded?188 A first indication to the contrary is the basic fact that neither Pashukanis nor his successors bothered to develop what was meant by such a form-analysis before going on to describe law’s ‘function’ for or its ‘reflex’ out of the commodity form. Pashukanis’ method itself remains rather more schematic, as he merely juxtaposes the commodity form with the legal form.189 As the following critiques will show, this lack of a form analysis leads to further confusion and reductionism.
2.5.2	Civil Law as Primary Law
Closely connected to the ‘circulation-allegation’ is the critique that was already raised by Hans Kelsen: that ‘all law is private law’ for Pashukanis, and that ‘public law is a mere ideology of bourgeois jurists’.^0 This is no less true for criminal law, whose differentia specifica is not at all developed. Pashukanis has not actually overlooked this possible objection. To the contrary, he took care to note that private law is the ‘ratio scripta of every commodity-producing society’.191 He assumed that it represents at the core ‘law as such’, of which the other areas of law are only variations, for in the commodity-producing society the most diverse relations ‘approximate the prototype commercial relation’.^2 In particular the principle of equivalence becomes generalised, as he aims to show in the case of criminal law. But in this he was not really convincing. Thus Norbert Reich wrote in 1972 that ‘if one wants to truly understand Pashukanis’ work in legal theory, one must not forget that Pashukanis did not really present a general legal theory here, but a theory of civil law’.193 This is due to Pashukanis’ understanding of the relation of commodity owners to each other as the fundamental one - the relation that generates, and is the source of, law. The theory of civil law is thus brought about by the reduction of the legal concept to the commodity form?94 Antonio Negri criticised around the same time the ‘privat- istic mythology’ in Pashukanis’ work. This is the most disappointing aspect of his concept (‘This may well be the case!’). The claim that the idea of subjection to an external norm-setting authority has nothing to do with the legal form, misrecognises that ‘in its highest stage, capitalist development’ brings forth just such a kind of public law - a public law that affords to bourgeois law only a dialectical autonomy.^5 His ‘polemic against state controlled normativity’ overreaches, as it lets the antagonistic rifts of bourgeois society disappear under the organising element of private law: ‘The private is thus exalted in a radicalism of the founding functions of the juridical order that is purely illus- ory’,196 Here the connection of the two points of criticism becomes clear. The state form is for Negri the expression of the fundamental social antagonism. A society based on exploitation cannot only reproduce itself based on the laws of the market and can therefore not be reduced to private law either. In this respect ignoring state law (in the sense of public and criminal law) is illusory.
What leads to this surplus of civil law in Pashukanis? What shines through here is first of all the Marxist notion that civil law is closer to production than public law, because ‘in it the relations and reciprocal demands of materially producing subjects are recorded'.1’’7 In addition one must not forget the historical context here. For a similar, although not Marxist, idea was articulated in 1913 by Eugen Ehrlich, who is considered a founder of the sociology of law, when he responded to Kelsen and legal positivism that legal norms established by the state are insignificant in comparison to ‘living law’, the legal relations of people and the law of jurisprudence.^8 Furthermore, in the methodology of civil law the theory of free law was gaining ground for its doctrine of judicial 
interpretation, which aimed to liberate judges from the fixed letter of the law. This was grounded in the understanding that statutory law as such remained incomplete.
In addition, Pashukanis continued to oppose the rationalist illusion of theories shaped by the Enlightenment: that capitalist societies could actually selfregulate autonomously through the conscious establishment of norms. Ultimately, however, it must be noted that in overestimating the opposite position he fell victim to a widespread cliché, namely that it is possible to separate the public and private sphere, the state and the market, beyond the level of analysis; in this respect one has to agree with Negri. Only in this creation of absolutes, which has to assume a self-regulation of the market, can one area of law have precedent over another. In this historical partition of private and public law into separate legal matters which previously coexisted side by side - as occurred in Prussian Common Law, for example - lies the risk of ignoring their shared context. Thus neoliberal theories already pronounce the ‘society of private law’.199 In this context Klaus Günther pointed out that there are certainly good reasons to read modern theories of natural law and rationality as though ‘private law was there “first”, that is, functionally and temporally before public law as the law of bourgeois society’. Those interpretations, however, stay silent on the fact that private autonomy was, for instance in Kant or Locke, always connected to the force of coercive power.200 This abstraction from the totality of society thus leads not only here, but also in Pashukanis, to a ‘privat- istic mythology’. Furthermore, ignoring public law shows its weaknesses especially in the era of the welfare state. For it is its establishment in particular that has led to an enormous public juridification of seemingly private spheres - one that Pashukanis could not imagine for historical reasons.
The critique, however, clarifies one thing above all: similarly to the problem of the sphere of circulation (significantly, private law is the ideal type of law for the circulation sphere) the lack of a form analysis also shows its negative consequence here. This is also apparent in the next point of critique.”翻译为中文