Is Mainstream Legal Philosophy Capitalist?

Abstract

No. Still, Mainstream analytic legal philosophy is tacitly supporting capital while presenting itself as neutral conceptual analysis. That is the charge of this paper. My charge is not normative, but about methodology. Hart (2012), but also Raz (2009) or Shapiro (2011), argued for what I call an “enabler theory.” It says that law is an empty vessel: a meta-institution (cf. Ehrenberg 2016) that confers powers, enables plans, and coordinates social life, without inherent content of its own, and whose particular contents are conventional. And since the institutions are solutions to coordination problems, then the ultimate function of law is to coordinate social life. I argue that this is an ingenious discovery in legal philosophy, but its consequences are understudied because the method that produced it (static, a priori conceptual analysis) stops exactly where the interesting questions begin. The play stops when the joy begins. In this paper, I enjoy studying the consequences of this legal-philosohpical tenet. The trouble starts where the empty vessel is tacitly filled with non-neutral content. The token forms of law that fill the vessel today are capitalist laws with its manifold private law institutions like contract or private property (Pistor 2019, 2025). Private law, contrary to the received view, is coercive: the property law coerces the propertyless into wage labor, standard-form contracts coerce consumers into one-sided terms, and the rules of adjudication put the state’s coercive apparatus behind private titles. Pace Pashukanis (1978), earlier critique of capitalist law, I do not reduce the law to a mechanism of class struggle in my critique. According to Pistor, the modern capitalist law codes assets into capital through three operative mechanisms: private legal empowerment, decentralized access to consolidated coercion, and legal arbitrage. Each of those mechanisms maps onto a feature that mainstream legal philosophy treats as essential to law (power-conferring rules, secondary rules, and an open texture). A theory that describes the features of an unjust token law as the essential features of the kind law and presents this description as content-neutral naturalizes capitalism. Conceptual analysis taken on its face value, with no historical or comparative inputs (e.g., Tamanaha’s (2017) historical genealogy), is a snapshot of a contingent legal form, and it risks naturalizing the very system it describes.

Keywords: Capitalism, Code of Capital, Legal Philosophy, Positivism, Conceptual Analysis