Towards a Critique of the Vulnerable Subject: Pashukanis and Public Protection

Abstract

This paper sets out some elements of a historical theory of the contemporary securitization of criminal law and expansion of state surveillance. I begin by demonstrating that recent criminal legislation permits the state to punish those identified as dangerous. Following Jonathan Simon, I argue that this legislative policy of public protection arises from the idea that the victim of crime is the representative subject of law, and that the vulnerability of potential victims provides the normative justification for coercing and punishing persons for their dangerousness. I then investigate why Evgeny Pashukanis, in the final chapter of his General Theory of Law and Marxism, explicitly excluded the possibility that penal law might be used to punish the dangerous. I argue that his account of the legal relation between the subjects of commodity exchange is one-sided. Correcting this one-sidedness demonstrates that the vulnerability of the subject is an inherent aspect of commodity exchange relations. On this basis I sketch a historical account of how the legal ideology has been inverted, displacing the abstractly free individual subject of classical legal ideology with the abstractly vulnerable individual subject of public protection. I consider the implications of this ideological reversal for abolitionist criminal law theory, and conclude by identifying the methodological error that led Pashukanis to his one-sided account of legal relations.