Disciplining the Financial Failure: An Exploration of Bankruptcy Law as an Active Discourse in Market Capitalism

Abstract

United States bankruptcy law and court procedures provide a coherent identity for the individual fiscal failure, the "debtor." In the legal bankruptcy field, a "debtor" is a category in the Bankruptcy Code ("Code"), and an identity in bankruptcy legal practice. The role of a debtor is associated with particular beliefs and activities within the legal field. To assume the identity of a debtor under the Code, an individual must subject himself to controlling and transforming forces of the Code and bankruptcy court. The process of transformation from fiscal failure to "debtor" involves rendering the previously unruly, disorganized, and sometimes messy financial life of an individual into a distinct, coherent, organized, recognizable, linear, and legally comprehensible identity. This coherency of the individual's identity through the Code and process allows him or her to enter the bankruptcy legal field and obtain desired results from the practices found in that field.

This article considers the legal categories, structures, processes, and institutions of the bankruptcy legal field as they transform the incoherent fiscal failure into a coherent legal debtor. Part one discusses the definition of a fiscal identity (rational action) and fiscal failure (non-rational action) in American society and culture using theoretical tools from anthropology, sociology, and philosophy. Part two uses the theory of Michel Foucault to describe the disciplinary techniques of bankruptcy law and courts as they work to organize the fiscal failure and realign the fiscal failure with the demands of market utility, efficiency, and productivity. Part three reflects on the results of these practices in the creation of docile bodies for capitalism through the disciplining process found in the Code and bankruptcy court. Part four discusses observations and conclusions about the transformative process.

Keywords: bankruptcy, debtor, Bankruptcy Code, bankruptcy court, fiscal failure, rational action, fiscal identity, Foucault, capitalism, transformative