University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2012 The Market as a Legal Concept Justin Desautels-Stein University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Antitrust and Trade Regulation Commons, Constitutional Law Commons, Jurisprudence Commons, and the Law and Economics Commons Citation Information Justin Desautels-Stein, The Market as a Legal Concept, 60 BUFF. L. REV. 387 (2012), available at https://scholar.law.colorado.edu/articles/136. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 60 Buff. L. Rev. 387 2012 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Tue Feb 28 10:03:24 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information ARTICLES The Market as a Legal Concept JUSTIN DESAUTELS-STEINt INTRODUCTION ......................................... 388 I. LIBERAL LEGALISM: THREE STYLES ............... 398 A. The Classic Liberal Style: The Law of Competition. ........................... 398 1. The Passing of English Feudalism.... ..... 401 2. John Locke's "Very Natural Doctrine"...........410 B. The Modern Liberal Style: The Law of Control ............................... 423 1. The Ascent of Trusts and Antitrust...............428 2. "The Ethics of Competition"...............437 C. The Neoliberal Style: The Law of Competition Revisited.. ....................... 444 II. A CRITIQUE OF LIBERAL LEGALISM ............... 459 A. A Critique of the Market/State Distinction.....461 B. A Critique of Propertyand Contract.... .... 465 t Associate Professor, University of Colorado Law School. I received helpful comments from Paulo Barrozo, Hal Bruff, Kristen Carpenter, Amy Cohen, Michael Fahkri, Vic Fleischer, John Haskell, Bernard Harcourt, Peter Huang, Derek Kiernan-Johnson, Steve Medema, Martha McCluskey, Fernanda Nicola, Helen Norton, Jeff Pojanowski, Pierre Schlag, Jack Schlegel, Spencer Weber Waller, Ahmed White, Steve Winter, and participants in faculty colloquia and conferences at American University's Washington College of Law, Boston College Law School, the University of Colorado Law School, and Wayne State School of Law. 387 388 BUFFALO LAW REVIEW [Vol. 60 C. A Critique of Legal Consciousness.... ..... 477 CONCLUSION................................................485 INTRODUCTION Writing thirty-three years ago in the pages of this journal, Duncan Kennedy made the troubling claim that the entire landscape of American Legal Thought was in the shadow of a "fundamental contradiction."' This contradiction was an aspect of the political philosophy associated with thinkers like Thomas Hobbes, John Locke, Immanuel Kant, Jeremy Bentham, John Stuart Mill, and John Rawls,2 and it involved the basic problem of relating individual freedom to a coercive sovereign.3 Liberalism, as that famous philosophy came to be called, had its origins in an epic battle against an ancient theory of justice and social organization, wherein the new believers asserted a kind of autonomy and subjectivity rooted in an idea about individualism.' The foundational liberal move, however, was to argue that this new individualism, and the freedom and equality that would come with it, could only be realized when men were willing to renounce their natural freedoms in exchange for a regulated and ordered life under a 1. Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205, 213 (1979). Five years later, in a piece co-authored with Peter Gabel, Kennedy renounced the fundamental contradiction: "First of all, I renounce the fundamental contradiction. I recant it, and I also recant the whole idea of individualism and altruism, and the idea of legal consciousness . I really see the fundamental contradiction these days as a lifeless slogan .... " Peter Gabel & Duncan Kennedy, Roll Over Beethoven, 36 STAN. L. REV. 1, 15-16 (1984). Almost thirty years later, my own view is that Kennedy has now renounced that renunciation. 2. For two "modern classics" in the spirit of the "fundamental contradiction" and addressing many of these authors, see MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT 52-54 (1989); ROBERTO MANGABEIRA UNGER, KNOWLEDGE & POLITICS 118 (1975). 3. Kennedy, supra note 1, at 213. 4. See, e.g., PIERRE MANENT, AN INTELLECTUAL HISTORY OF LIBERALISM 115- 16 (Rebecca Balinski trans., Princeton Univ. Press 1994) (1987). 2012] THE MARKET AS A LEGAL CONCEPT 389 collective and coercive power.' Consequently, here was the fundamental contradiction: in order to experience a life of meaningful freedom, we have to give up our "natural" freedom to a supreme authority of law.6 Kennedy claimed that all law in the western tradition was dominated by liberalism, and that every legal problem was in a way a kind of liberal problem.' Referring to the liberal contest between individual freedom and state control, Kennedy stated: [I]t is not only an aspect, but the very essence of every [legal] problem. There simply are no legal issues that do not involve directly the problem of the legitimate content of collective coercion, since there is by definition no legal problem until someone has at least imagined that he might invoke the force of the state.8 That is, in Kennedy's view, all law was liberal, and to suggest that some law could exist outside of this tradition, at least in the developed North Atlantic capitalist states, was to suggest a sort of discourse that we might not even recognize as operating in the language of law. Over the last thirty or forty years, "totalizing" claims about the legal system have come in and out of fashion.' 5. See Kennedy, supra note 1, at 211-12. Classic liberal political theorists have offered varying reasons for how and why freedom would be realized in this way. Hobbes, for example, believed that in the natural condition of mankind, human beings possessed an ultimate right of self-preservation subject to no higher authority. THOMAS HOBBES, LEVIATHAN 66 (Dutton 1965) (1651). That is, every individual was free to determine for himself just what was necessary for his own survival, and that such determinations were not moral in any meaningful sense. The problem, as is well known, was that Hobbes saw this all- powerful natural right as the source of social strife, pushing men into a constant state of war and fear. Id. at 67. In order to be truly and actually free, Hobbes argued for a renunciation of that basic natural right of self-preservation in exchange for the order guaranteed by a political sovereign, i.e., the Leviathan. Id. at 89-90. 6. See Kennedy, supra note 1, at 211-12. 7. Id. at 213. 8. Id. 9. Jacques Derrida is representative: Thus it has always been thought that the center [of a totalizing structure], which is by definition unique, constituted that very thing within a structure which while governing the structure, escapes 390 BUFFALO LAW REVIEW [Vol. 60 Critical legal studies bloomed, only to struggle against the onset of rival forms of critical thought,"o and then apparently shrink in the bright lights of a burgeoning law and economics movement," not to mention the ascendance of a new and mighty form of legal consciousness: legal pragmatism. 2 Today, a full generation later, Kennedy's structurality. This is why classical thought concerning structure could say that the center is, paradoxically, within the structure and outside it. The center is at the center of the totality, and yet, since the center does not belong to the totality (is not part of the totality), the totality has its center elsewhere. The center is not the center. JACQUES DERRIDA, Structure, Sign and Play in the Discourse of the Human Sciences, in WRITING AND DIFFERENCE 278, 279 (Alan Bass, trans., Univ. of Chicago Press 1978) (1967). 10. Two examples would include developments within critical legal studies itself, casting skepticism on the notion of the fundamental contradiction, and later, critical race theory. For a sample of the literature on critical race theory, see DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM (1993); CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (Kimberl6 Crenshaw et al. eds., 1995) (explaining developments, early and late, in critical race theory); Ian F. Haney L6pez, "A Nation of Minorities"-Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985 (2007) (discussing the role of race in subordination and the history of colorblindness in law); Athena D. Mutua, The Rise, Development, and Future Directions of Critical Race Theory and Related Scholarship, 84 DENV. U. L. REV. 329, 330 (2006) ("[Clritical race theory . rises, in part,