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Fernando Arturo Quintana Carreño

Fernando Arturo

PhD Student

Email: f.a.quintanacarreno@qmul.ac.uk

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Thesis title

On the Withering Away of Law and the State Thesis

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Abstract

This thesis will address one of the questions that has been central to Marxist legal theory: what, if any, would be the role of law in a fully realized post-capitalist society and in the transition towards it? An important strand of Marxist theorists has answered this question with the withering away of law and the state thesis (WAT). The WAT consists in the claim that, since law and the state stem from the specific historical conditions of capitalism, a fully realized post-capitalist society will transcend the legal form. The WAT can be traced to Evgeny Pashukanis’ General Theory of Law and Marxism (1924)
 
Through a textual exegesis, this thesis will first reconstruct Pashukanis’ position, as well as of those Marxist scholars who have formulated opposing points of view. After this textual reconstruction of the debate, I will present my reading of Marx in which I formulate the basis for a new approach to the problem of communism and Law. I conclude my reading of Marx highlighting the necessity of a Marxist reflection on the ethical dimensions of the transition to a post-capitalist society as a necessary complement to the WAT.
 
In the second part of this thesis, I will formulate a new approach. I begin this part presenting Lukács’ interpretation of Marx’s thought and his reappraisal of his critique of alienation. Then, I will show how this reflection on alienation can enrich Marx’s critique of the legal form and provide insights for the ethical dimensions that must be present in a process of transition to a post-capitalist society. Following that, I offer an alternative to two critical concepts in Pashukanis’ formulation of the WAT: democratic and decentralized social planning instead of bureaucratic central economic planning, and communal forms instead of technical rules as the alternative to the legal form.

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