Pashukanis and public protection

Through a critique of Evgeny Pashukanis’s Marxist theory of criminal law, this chapter seeks to identify the historical conditions for the emergence of the victim as the key normative figure in criminal justice policy. It argues that the vulnerability of subjects defined as victims provides the normative foundation of the contemporary laws of public protection. This represents a reversal of the classical legal ideology of the abstract legal subject. Pashukanis explicitly ruled out the possibility of laws of the contemporary type, and exploring his error on this point exposes a one-sidedness in his presentation of the commodity form theory of law. Vulnerable subjects are defined by their dependence on other subjects and the basis of this vulnerability can be found in the exchange relations between commodity owners. The historical reasons for this reversal of the classical legal ideology are described and the implications for abolitionist criminal law theory considered.