A common critique of Pashukanis, and a number of other Marxian legal theorists from a Marxist perspective it that such theorists have succumbed to reification. By this it is meant that the Marxists have focused upon a social relation and artificially isolated it from the whole, it is said that such an approach takes capitalist ideological formations as a given. However, I believe this approach is incorrect.
Firstly, I have to say that I do not particular like the term reification (even if I personally often use it), the terms seems to be very amorphous to me, and is seemingly deployed without content. The term was largely popularised by Lukács in his History and Class Consciousness (an excellent, if somewhat dense, work) but Lukács was later to disavow many of the formulations in this book. Furthermore, I do not agree that examining law, as it exists in reality and in bourgeois jurisprudence, is necessarily succumbing to any bourgeois impulse. Rather, I think we are analysing a historically constituted form of regulation as it exists and as it has materially developed, this form has been historically recognised as law, and so when we analyse law, it is necessary to examine it as it has been constituted. Furthermore, the relation of law is not one which is artificially separated from other forms of social regulation but is rather a real historical division. I think that a Marxist critique needs to operate in this way; we examine social forms as they are constituted (and even as they exist in material practice) whilst looking at the underlying social relations that give birth to them. Thus, we don’t call “capitalism” a reified concept, even though some think it one (Andre Gunder Frank certainly did), rather we examine capitalism as it was historically constituted and practised and look at the underlying social relations.
When you examine society it is impossible to truly “separate out” all of the elements. “Discrete” categories interfere with other categories, cause becomes effect, and the numerous interrelations between different elements of the totality seem to make individual analysis impossible. However, what one must understand if that simply because something plays a role in determining another thing, it does not mean that the two are immediately equal. Law can be distinguished from politics on the basis of a specific form, and through its embodiment in specific material institutions. The fact that politics intervenes at different levels of the legal process does not mean that law collapses into politics; by this logic the Marxian project would reduce everything to economics. Yet we know that specific relationships and internal dynamics are capable of rendering a category conceptually distinct from other phenomena. Only in this way can the category be understood as an abstract element, so as to be integrated back into a concrete totality. Even if ultimately legal decisions are based on politics and the legal form is based on economics, we must still understand what precisely the legal form is. Everything reacts on everything, but before we can understand this interaction we must understand the abstractions that make up the whole. This is the brilliance of Pashukanis’ analysis, he allows us to acknowledge the political content of law whilst simultaneously demarcating it from politics, on the basis of its “legal character”.