请将“The starting point for Pashukanis’s derivation is Marx’s observation in Das Kapital that commodities cannot themselves go to market and perform exchanges in their own right: they must be committed to circulation through the intervention of subjects who enter into voluntary contractual relations in their capacities as owners of those commodities. Thus Marx concludes that the economic relation between commodities must be complemented with a juridical relation between wilful subjects (Marx, C1, pp. 88-89). Pashukanis also traces the emergence of the legal subject as the bearer of rights to the emergence of the commodity as a bearer of exchange-value and argues that the logic of juridical concepts corresponds to the logic of the social relations of commodity-producing society. For it is only with the full development of such production that every person becomes man in the abstract, every subject becomes an abstract legal subject, and the legal norm assumes the pure form ofabstract universal law. This occurs because the circulation of commodities not only necessitates the emergence of legal subjects corresponding to all manner of goods but also because the constant circulation of commodities facilitates a clear differentiation between the bearer of rights and the objects in which alienable rights are held. Thus, while the pre-capitalist legal subject was a concrete individual with specific customary privileges, the legal subject of bourgeois society is the universal abstract bearer of all manner of claims. The kernel of the legal subject is the commodity owner but the formal attributes of freedom and equality rooted in the economic sphere are readily generalised to other areas of civil society and the state (Pashukanis, 1929, pp. 109-133 and passim).

It is in this context that Pashukanis attempts to derive the form of the bourgeois state as an impersonal apparatus of public power distinct from the private sphere of civil society. He argues that the legal form of the Rechtsstaat characteristic of bourgeois societies is required by the nature of market relations among formally free and equal individuals. These must be mediated, supervised, and guaranteed by an abstract collective subject endowed with the authority to enforce rights in the interests of all parties to legal transactions. However, although the state authority introduces clarity and stability into the structure of law and underwrites the operation of juridical relations, the material base of the specific form of bourgeois law and the legal subject is still rooted in capitalist relations of production. In turn this implies that law and the state will both die off when their common basis in bourgeois relations of production and/or distribution is ended (Pashukanis, 1929, pp. 134-150, 63-64, 80, 94, 104, 188, and passim). This pioneering attempt at a logical derivation of the necessary form of bourgeois law has been variously appropriated in recent work on law and the state under capitalism. It has also endured much criticism (e.g., Arthur, 1976; Binns, 1980; Hirst, 1979, pp. 106- 122; Kinsey, 1979; Poulantzas, 1967; Redhead, 1979). But, rather than looking at the difficulties in this early text, we shall consider how it has been used in subsequent Marxist analyses. There are many such studies which follow Pashukanis in asserting an essential correspondence between the commodity form and the legal form (a good example is found in Balbus, 1977) but few that add significantly to this argument. It is with some of the latter that we are concerned in the following commentary.

Burkhard Tuschling argues that law as a specific system of social relations between individuals emerges only with the full development of capitalism. Previously law had been limited to certain categories of individuals and their relations in particular spheres but capitalism results in the legalisation of all social relations, the birth of the legal subject, the growth of a specialised legal apparatus, and the consolidation of law as an organisational principle of the total social order. The critical factor in the rise of such a legal system is not the growth of the commodity form as such but its generalisation to the exchange of labour-power with capital. Tuschling insists that it is the commodification of labour-power which permits the rule of law to be established among formally free and equal citizens as well as requiring such a legal order to justify, systematise, and regulate its exchange with capital. In short, while Pashukanis merely links the legal form to the circulation of commodities and ignores their specific qualities and origins, Tuschling emphasises that it is the capitalist organisation of the labour-market and labour process that provides the key to the legal order and concludes that law must be understood in terms of the overall articulation of production, distribution, and exchange (Tuschling, 1976, pp. 12-29; cf. idem, 1977, pp. 270- 271).

Tuschling then considers how capitalism determines the form and function of law. He argues that law plays a crucial role in mediating the contradiction between the formal equality of the individual owners of various commodities (including labour-power) and the substantive inequality of class exploitation within capitalist production. Thus it is essential for law to abstract from substantive differences among commodity owners in mediating and guaranteeing the sphere of exchange relations. But, at the very same time as it thereby offers a formal guarantee for the appropriation and disposition of property rights via the mutual exchange of equivalents among formally free and equal commodity owners, law also underwrites the appropriation of surplus-labour without equivalent in the capitalist labour-process and provides the legal framework within which the concentration and centralisation of capital can occur at the expense of the petit bourgeoisie and less efficient capitals. It is this last function that explains why law cannot be the private concern of capitalists. For, not only must it be enforced against labour and other subordinate classes but it is also used to uphold the expropriation of individual capitals. The administration of law must therefore be handled by an apparatus that is distinct from the various economic agents within capitalism and this task falls to the Rechtsstaat as an autonomous legal subject endowed with a formal monopoly of force and empowered to implement the law in all spheres of society (Tuschling, 1976, pp. 30-38, 43-58; cf. idem, 1977, pp. 271-278).

Indeed Tuschling argues that the capitalist state is essentially ‘rechtsstaatlich’ in form (i.e., based on the rule of law) and that this affects how the state operates in all areas and not just in its guise as the guarantor of a legal order. For the contradictions between different moments of the total circuit of capital and between different economic agents and classes are reproduced within the legal system; and the various preconditions of capital accumulation therefore find themselves expressed and mediated through legal forms rather than impressing themselves directly on the attention of the state. This implies a certain indeterminacy in its interventions relative to economic imperatives and opens up a space for political struggle within the bourgeois form of law. There can be no absolute guarantees that the Rechtsstaat will secure the reproduction of capital. Instead the effects of its actions on accumulation depend on how the regularities or laws of motion of capital are reflected in the balance of political forces. The state is an ‘ideal collective capitalist’ only to the extent that its pursuit of currently dominant particular interests coincides with the imputed needs of ‘capital in general’ (there is no real collective capitalist) and this depends upon a complex system of mediations among the economic process, political class struggle, and the legal-political and/or economic activities of the state. Nonetheless Tuschling implies that the distinctive forms of law and the state in capitalist society do favour the accumulation of capital and he continues to maintain the fundamental and quintessential correspondence between capitalism and the dominance of a legal order (Tuschling, 1976, pp. 47-51, 60-87, 97-113; cf. idem, 1977, pp. 277287).

Blanke, Jürgens, and Kastendiek also attempt to derive the form of the state from the sphere of commodity circulation as one moment in the overall circuit of capital. Their initial explanandum is the necessity under capitalism for extra- economic forms of reproduction (such as law and politics) to complement the operation of economic forces (such as value, exchange, price, and money) (Blanke et al., 1974, pp. 74-75; idem, 1975, pp. 110, 130). They argue that the circulation of commodities presupposes subjects who engage in exchange; that these subjects must severally and reciprocally recognise rights to private ownership and to freedom and equality in exchange; that their relations must be fixed in legal forms such as private property and contract; that an extra-economic force (not yet, be it noted, a state in the form of one sovereign republic among others) is required to guarantee the operation of the law; that this force needs both to formulate the content of legal norms (to exercise a legislative function) and to administer them (to exercise an executive and judicial function); that the form of law and its mode of enforcement must be adequate to the commodity form; and that this condition can be met if legal norms are impersonal, general, and public and are formulated and administered in a constitutional or rechtsstaatlich manner (Blanke et al., 1974, pp. 76-79; idem, 1975, pp. 122-124). Thus it is the twin task of formulating and enforcing law in conformity with the requirements of capitalist reproduction that determines the necessity of an institutional separation between the economic and political and that also conditions the form of the state as an impersonal public authority standing above private legal subjects. The result is a ‘doubling’ (or duplication in different forms) of bourgeois domination into the economic compulsion of market forces in the process of valorisation and realisation and the political compulsion of subordination to an abstract, universal, public power. This ‘doubling’ is reflected in the separation of private law, organised around the right of private property, from public law, concerned with the maintenance of political order and the tasks of government. For Blanke et al. this means in turn that the basic form of politics is conflict over the creation and/or implementation of legal relations governing the private and/or public sphere of bourgeois society (Blanke et al., 1974, pp. 79-81; idem, 1975, pp. 125126).”翻译为中文