20 public-spirited lawyers could change the world

There are two prominent traditions through which social and economic research is married to the critique of capitalism. The first is critical theory, in which knowledge and judgement are turned upon the conditions and practices of domination, following in the tradition of Marx. The second is liberal republicanism, in which knowledge of alternative, non-dominating institutions is collected and publicised, following in the tradition of (say) Mill. But I wonder if we can add a third: the analysis of the surprising frailties of dominant institutions.

David Graeber's recent articles have got lodged in my mind, as examples of social science optimistically down-playing the power, durability and authority of the status quo. Graeber highlights the fact that contemporary capitalism is so lacking in authority or hegemony, that a huge amount of resources are diverted towards simply propping it up. This inverts the perspective of critical theory, which, by contrast has traditionally viewed power as totalising and suffocating (I guess Graeber has the benefit of an anarchist tradition, which has long committed to playfulness and laughter). Luc Boltanski's departure from critical sociology occurred in a parallel way, focusing on the unlikeliness of sustained institutional domination, rather than its inevitability.

In this vein, I have a proposition: twenty public-spirited lawyers could change the world. Capitalism, as a political-economic system, is an attempt by certain individuals - entrepreneurs and financiers - to dwell in the future, through a system of promises and plans. Its durability derives partly from the fact that, by the time the rest of us reach next week, it has already been occupied by those who were parcelling it up the week before. Capitalism is the German beach towel that we find already laid out on the sunlounger at 9am.

But what is it that allows this conversion of future promises and plans into a lived reality, that the rest of us have to abide by and view as 'real'? It is pieces of text, backed up by the sovereign state - contract backed by law. Without law, without lawyers, entrepreneurs and financiers would be nothing but a throng of Big Lebowski's, pledging and scheming, but never getting anywhere. "Hey, dude, I totally thought of that idea first." "Look, man, you totally promised me you'd obey me". As anarchists might agree, it's all somewhat laughable.

Napoleon said that "an army marches on its stomach". Nye Bevan said that the NHS would need to "stuff the doctors' mouths with gold". And is it any surprise that lawyers are so handsomely paid, when they occupy a pivotal position in the enforcement of a future that few of us have had any say over. Imagine if they went on strike! 

Law is a form of symbolic and discursive violence. Through the foggy complexity and uncertainty of a modern society, law enables individuals and institutions to send laser beams (of varying quality, depending on cost) from one point in time and space to another, saying "this is what will take place; this is what we agree has happened; this is what must happen; these are the conditions of co-operation". Law, more than the media, allows money to be converted into publicly-agreed and enforceable statements.

Imagine if this capacity were diverted to alternative ends. Imagine a lawyer - and not simply a civil rights or legal aid lawyer, as noble as those are - who was not interested in getting rich. We obsess over 'social' entrepreneurship, but entrepreneurship only determines particular qualities of capitalism, whereas law determines its general form. This, potentially, is a far more potent object of innovation and reform. This is exactly what the ordoliberal lawyers in Freiburg realised during the 1930s, 40s and 50s (for some excellent research research on this, see Werner Bonefeld's ESRC project and papers). They hoped to reform the very basis and form of capitalism, not through tinkering with economic policy-making, and less still through economics, but through drawing up a new blueprint for its rules. This blueprint was instrumental in the design of the German social market economy, albeit following wartime devastation and then Allied reconstruction.

The area that I've witnessed this critical-legal potential most closely is in an area where I've done some work in the past, namely ownership and control of firms (my work on this is collected here). Last summer I had the pleasure to work closely with Cliff Mills, a lawyer who has become an integral part of the co-operative and mutuals movement in the UK, and on whom a large number of existing 'public service mutuals' depended for their advice and constitutional design. Cliff and I did much of the drafting of a document for the International Co-operative Alliance, offering a Blueprint for a Co-operative Decade.

What I found enlightening about this experience was the discussions we had about core instruments of capitalism - equity, voting rights, debt, share, audit - and how far they can be tweaked in various directions, before they become something else. In the process, one starts to imagine a wholly different economy, simply through considering how freedoms, powers and responsibilities might be combined differently, via subtly redesigned legal instruments. This discussion is the necessary accompaniment to Erik Olin Wright's Real Utopias project, which seeks to categorise institutions in terms of their distribution of social and economic power, and Will Hutton's 'stakeholder capitalism' agenda, which aimed to bring German corporatism to Britain. (Stuart White and Martin O'Neill recently wrote an interesting piece about what it would mean for the Labour Party to revive these concerns.) Multiple levels of abstraction are needed in tandem. Models of political economy are all very well, but I've rarely heard such a nuanced take on the nuts and bolts of capital as I got from Cliff.

But for the most part, Cliff is on his own. Another lawyer, Graeme Nuttall, carried out a review of employee ownership for the government last year, and no doubt there are others scattered around. Though I understand that some people are tired of his messianic demeanour (or is it just his disciples that bother people?), Lawrence Lessig has also shown what an individual with a political critique and a legal training can achieve. What we need is something like a new ordoliberalism (which is not so far from saying we need a new neoliberalism...), that is, a group of lawyers intent on transforming the framework of capitalism and non-capitalism, through a concerted, not-for-profit effort.

Governments and policy-makers are now more ready to admit how little can be done to transform the fabric and norms of society, beyond the state. The 'Big Society' meant far more as a negative category than a positive agenda: these are the areas of social improvement that government can't really help with. Entrepreneurs are expected to pick up some of the slack, through personality and charisma alone. Why not lawyers? If economics 'performs' markets, as Michel Callon has argued, it's only a slight exaggeration to say that law 'performs' society. Written rules are one necessary ingredient of a society that hangs together in a certain way. Coming up with alternative rules, making them available to the public, giving them plausibility, is one path to an alternative future. As much as anything, this would highlight the contingency and exoticism of the status quo, which we deem unmovable but is in fact just the practical work of the professions which slavishly - or make that, lucratively - repeat it, year after year.

Comments

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[alice]

Ha. This reminds me of something a colleague once said about needing to mobalise retired accountants as a driver for social reform.

Also, have you read Black Jacobins? The first 3rd in particular includes some interesting points about the role of the bourgeoisie as revolutionaries.

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