请将“By ‘totality’ Tuschling understands the contradictory relations of capitalist society, which can be considered as relations of production, as class relations, or precisely as legal relations. Law is thus only ‘a legal aspect of this totality’ or nothing but ‘the same relations of individuals to each other and to the means of production, only seen from a different angle ...’is The relations of production are the totality, which differentiates into ‘relations of production and law’.i9 With regard to form analysis this means that Tuschling understands production as the content and law as its form.20 This content is the basic structure of capitalist society, which represents the natural core of any positive law.21
1.1.2	A Mania for Foundations
Maihofer argues in relation to Negt’s intervention that his theses are nothing but a ‘more precise’ definition of the point from which the origin of law can be derived. How law originates is, however, by no means more precisely defined by this.22 Harms argues similarly: ‘Although he differentiates himself from Pashukanis, Negt’s arguments in this context are similar to Pashukanis’?3 Maihofer’s central objection is directed at how Negt’s particular emphasis on production is a vehicle for the notion that production brings forth all social relations from itself as a, so to speak, godlike source of all social existence.24 Rather, production as socially determined has to always already be thought within particular ways of production, practices and forms of consciousness?5 This critique does not seem convincing with regard to Negt, because he defends the same idea with a different terminology, and Maihofer criticises him for precisely the misconception Negt seeks to clear up. When applied to Burkhard Tuschling, however, the criticism hits the mark. For the specificity of Tuschling’s theory consists in how it brings the critique of Pashukanis - virulent to begin with - to a head. But this also means that the immanent problem of this critique is revealed very clearly: the creation and appropriation of surplus value in production is seen as the crucial element of capitalism; therefore, law also has to be connected, rooted in it. Not only law, all social relations are based upon this fundamental problem, are an expression of the subject ‘capital’. Society can thus not be recognised as multi-dimensional and overdetermined by a diversity of contradictions, but has to be reduced to a ‘fundamental contradiction’?6 from which everything can be derived. Besides the fact that this argument is economistic, it also points to a more basic methodological problem, which is ultimately expressed in economism; to an ontological idea of society: ‘the ... assumption that every conceivable existent thing can be reduced’ to the fundamental?7 What Poulantzas and Maihofer thus label Hegelian thinking of the simple contradiction is no less criticised by the Hegel-following Adorno. He calls such a notion a ‘mania for foundations’28 and means by this ‘the belief that everything which exists must be derived from something else, something older or more primordial’?9 This ‘cult of the notion of originality’ contains the claim that the first and earliest was truer, better, and deeper.30 This original is in Tuschling ‘capital as subject of domination’?1 But from where can it ultimately be ‘derived’ that law regulates the ‘core’ of capitalism? Why not only secondary aspects? Why ‘regulation’ and ‘guarantee’ at all? Those premises are obvious choices, which are only hidden by how they seemingly lead back to the fundamental. But the social is an infinitude, ‘not reducible to any underlying unitary principle’. The idea of an original centre of the social therefore no longer makes any sense.32 In particular when Tuschling himself admits that law precisely abstracts from relations of inequality, the argument becomes contra-dictory, if it is at the same time derived from this particular aspect.33 The aspect that goes beyond the equivalent exchange can just as well remain alien to law, as Harms argues34 Furthermore Tuschling misrecognises the double meaning of simple circulation35 It is not merely the historical precondition of capital, ‘pre-capitalist’; it is likewise the precondition of capital within the bourgeois mode of production.
1.1.3	Totality
In the mania for foundations we encounter yet again a questionable concept of totality. ‘[H]ow this totality can be grasped in one fell swoop, without its aspects being developed out of each other’36 - this remains Tuschling’s secret. This is only possible because Tuschling understands by totality, not diversity and the inherent momentum of its aspects, but simply the examination of a single relationship from all angles. Everything is in principle ‘capital’. ‘Concrete totality’ is rather visible in the mutual dependence of the individual parts, which can differ from each other so much as to even form polar opposites37 Law has its own density and is not only the expression or outward form of production. And it is precisely this claim that Tuschling cannot live up to. While he thus completely denies the independence of its aspects, Neumann on the other hand struggles with the merely abstract totality of their addition. How to understand society as a totality and consider law in relation to it emerges more and more clearly as the main challenge of the various theoretical strands.
1.2	On the Relationship of Law and State
After engaging with those who adhere to the ‘derivation of law’, I will now turn to the ‘school of state derivation’. ‘Pashukanis’ Status as a patron saint of this school is widely accepted, whatever one thinks of the school itself ...’38
1.2.1	The Value Form
The materialist theorists of the state who followed Pashukanis did not succumb to the mania of foundations. Instead of seemingly radicalising Pashukanis at this juncture, they attempted to apply his insights to state theory. The internal changes in function, which emerged with the development of capital, did not change anything about the legal form, as this form is a functional requirement of capitalism and does not simply disappear with the development of class structures. The principle of the equivalent exchange is broken up, but the exchange relations remain in their form relations of equivalence.39
Because of their symbiotic engagement with law and state this representation cannot neglect those authors, although they ‘actually’ wanted to explain the political form and commented on the legal form somewhat in passing. While this always already includes the problem of making mutual dependence a premise that is not historically variable, but a priori given, they nonetheless also contributed - without losing sight of this - a series of important insights to the analysis of the legal form. From the ‘state derivation debate’ - which started with the text by Müller and Neusüß in 1970 and involved amongst others authors such as Elmar Altvater, Joachim Hirsch, Flatow and Huisken or the ‘Projekt Klassenanalyse’ who initiated and developed it - Blanke et al and Esser will here be selected as those authors for whom law, and Pashukanis’s analysis, gained a special significance.40
Their initial thesis was that Pashukanis was the only one to recognise thus far that the ‘primary function’ of the state was concealed in the commodity form41 The separation of politics and economics (and thus the development of politics as a field of its own) had its origin in the commodity42 The commodity form was ‘the specific capitalist form of socialisation’^ Blanke, Jürgens and Kastendiek as well as Esser proceeded methodologically in such a way that they developed the three central forms - value-form, legal form and state form - one after the other and building upon one another. The basic form here is the valueform as developed by Marx, while the legal form comes from Pashukanis. Both approaches want to show in this way how the state ‘has to be explained through particular requirements of capitalist society’.44
The value-form Marx described is characterised by the ‘domination of the purely factual connection’ and the absence of physical force.45 The development of bourgeois society is associated with a gradual ‘depoliticising’ of the economy (giving up rule of force [Faustrechts], robbery, etc.). At the same time, however, it requires an entity which guarantees this process46
The value form becomes the necessary form, because general abstract labour, which makes the social exchange of commodities possible in the first place, cannot present itself as such. It is precisely abstract labour - ‘labor sans phrase’, which according to Marx is the basis of value - which produces a contradiction: because value is something purely social, a result of labour cannot indicate the exchange value it contains. Then it would not be exchangeable. It therefore requires an expropriation, an independent representation. The money form has according to Esser this ‘necessary function’ of expressing the exchange value47 Marx thus discovered that the commodity-producing society makes a particular function necessary, which presents itself in the form of money. But with this, according to Esser, the derivation of the money form is not yet achieved. He addresses the critique of critique of the derivation merely from circulation by distinguishing functions based upon whether commodity production is simple or capitalist. From the moment human labour power itself takes on the commodity form, it produces surplus value in the production process. The money form then transforms into the capital form. In this form, the specific capitalist relations of domination are expressed: the ‘domination of reified capital over value-producing living labour’48”翻译为中文