Towards a Legal Theory of Price

1. Introduction

The analysis of prices is an activity that has traditionally taken place within the domain of Economics, and legal scholars have had very little to say about how prices are formed or how they behave. Yet (as the impacts of price spikes for resources like oil or gas, the effects of long-standing inequalities relating to the terms of international trade, the contentious practice of pricing of sovereign debt, or the current cost-of-living crisis all underline), prices have significant implications for a matter with which some lawyers do purport to be concerned, which is social justice. Pursuant to neoclassical price theory, which constitutes the analytical backbone of mainstream economic theory and its modelling initiatives, the optimal mechanism for the creation of wealth and the allocation of resources in society is understood to be a decentralized ‘price mechanism’ that affords no particular actor—be it government or corporations—too much power to set prices. It is now widely acknowledged by mainstream economists that prices can be ‘sticky’, at least in the short-to-medium term, and that most markets are not ‘perfectly competitive’. Nevertheless, the latent-but-potent potential of the price mechanism as the means to achieve an ‘efficient’ distribution of resources and to coordinate economic activity ‘democratically’ continues to have a significant influence over policy-making and the popular imagination. As institutionalist economist Tae-Hee Jo notes, the price mechanism is so influential in the capitalist society that even ordinary people are in the habit of looking at economic issues through its lens.^[1] ‘The price mechanism seems to be an unbreakable habit of thought’, he determines.^[2]

Since the 1970s, the hypothetical capabilities of a decentralized price mechanism have informed processes of political reform and legal restructuring that have significantly advanced processes of privatization and marketization in the economy in line with the neoliberal policy agenda. The failings of these policy programmes are now a matter of public record. In the aftermath of the global financial crisis of 2007–08, the claims of economists to be able to accurately ‘price’ and model financial risk were revealed to be false. The accuracy and future-taming potential of financial calculus grounded in neoclassical modelling were instrumental to the processes of legal restructuring (commonly dubbed financial ‘deregulation’) that curtailed the power of state regulatory agencies, on the basis that risk could be managed through contractual instruments such as mortgage-backed securities and derivatives. In practice, these legal instruments operated to systematically distribute risks associated with poorly collateralized loans around the global financial system. Decades prior to the global financial crisis, populations in countries in the Global South experienced an earlier wave of reform grounded in neoclassical ideas about the virtues of the price mechanism. Before ‘structural adjustment’ policies were introduced in the 1980s in furtherance of the ‘Washington Consensus’, many countries in the South had price controls, trade subsidies, and foreign exchange rate regulations in place. Policy-makers in the South were enjoined to recalibrate their political economies in order to ‘get the prices right’, which meant removing government ‘distortions’ in the marketplace to enable prices to reflect true ‘supply and demand’ conditions.^[3] Far from improving inequality, policies of structural adjustment implemented by the World Bank and IMF ‘turned out to be the greatest single cause of poverty in the twentieth century, after colonialism’.^[4]

The coherence of neoclassical price theory has been strenuously challenged. Scholars working in heterodox economics and economic sociology have used historical analysis and gathered evidence from the pricing practices of corporations to demonstrate that prices are not formed and do not behave in line with neoclassical axioms. These disciplines emphasize the role played by social networks, trust, power, technologies, institutions, and the state in shaping markets, and they arrive at very different conceptualizations of the price ‘system’ to the neoclassical price ‘mechanism’. With the important exception of the Marxist tradition, however, the contributions of heterodox disciplines working on price theory have remained predominantly in the register of critique: if there ‘is anything that all institutionalists have in common it is dissatisfaction with orthodox price theory’, but ‘one of the most important lacunae in institutionalist thought is exactly the absence of a theory of price, or value theory’.^[5]

Legal institutions are increasingly understood by both economic sociologists and institutionalist economists to be of critical importance to processes of price formation. Importantly, however, there has been no systematic attempt to understand the role of law in the production of prices in a market economy. That is not to say that legal scholars have been completely absent. In 2018, Robert Hockett and Roy Kreitner took up the historical debate about the concept of the ‘just price’. Contesting the presentation of prices arising ‘spontaneously’ in a market economy, they argue that prices are, in fact, ‘legally engineered’.^[6] A similarly strong claim about the centrality of law to processes of price formation is advanced by Joaquim Reyes in his work on just price theory. Reyes argues that prices are legal institutions, and that ‘the relationship between wealth inequality and market prices is contingent upon a regrettably pervasive but by no means inevitable design’.^[7] Taken together, the work of these scholars suggests the need for a fundamental reconceptualization of prices that departs from the recognition that prices do not emerge spontaneously from the interactions of individuals in markets, but are instead the products of processes of political and legal ordering that constrain the choices and opportunities of some social groups as they enable and empower others. Potentially game-changing questions are invited by their reframing: if we can understand the legal engineering of prices, does this mean that it is possible to develop a legal theory of price that has explanatory power? Could legal analysis be used to model and predict the behaviour of prices in the political economy? And would doing so give us any inroads into making the prices that seem to ‘inhere’ in the objects around us any more just? I return to some of these questions in Section 5.

In this article, I build the case for the development of a new research programme that investigates the role of law in processes of price formation in the global political economy. I further aim to substantively advance both recent legal scholarship on price formation and institutionalist economics by problematizing the presentation of the roles played by law and the state in this body of work. I put forward several interrelated arguments about the relationship between law and capitalism that seek to qualify the engineering metaphor that is central to contemporary legal writing on prices. First, drawing on Regulation Theory (RT), I argue that the development of a legal theory of price with explanatory power requires a conception of legal institutions that appreciates their role in structuring what scholars of RT call ‘accumulation regimes’.^[8] On this account, processes of price formation are not directed by willing and unconstrained sovereign states, as suggested by the engineering metaphor. Instead, price formation takes shape in the context of a broader, historically specific accumulation regime which is crystallized over time through institutionalized compromises among an array of different actors including labour unions, firms, banks, and governments. States are one actor among many on this reframing, and they are not necessarily the actors with the greatest influence over the formation of market prices.

Despite the centrality of a vocabulary of ‘regulation’ to their work, RT scholars have not paid significant attention to the specific role of legal institutions in shaping accumulation regimes. My second intervention is to return to insights from Old Institutional Economics (OIE) and Legal Realism to reflect on the fact that the institutional compromises that RT scholars regard as being critical to the governance of processes of accumulation are produced in societies in which social relations are pervasively juridified. The work of theorists including John R Commons,^[9] Robert Hale,^[10] and Warren Samuels^[11] suggests that prices emerge from the deeper structure of legal rights in society: a structure that reflects a long-standing historical process in which some actors use law to ‘coerce’ others into inegalitarian economic exchanges. From this perspective, the actors that comprise the ‘mode of regulation’ governing accumulation in RT are operating in accordance with a deeper institutional grammar: they are seeking to advance their property rights in order to realize higher levels of profit. On the one hand, stressing the centrality of the legal configuration of property rights to structuring accumulation regimes can help to identify concrete sites and specific struggles through which broader dynamics of accumulation are being operationalized. On the other hand, this perspective points to the considerable constraints on state agency that inhere in the deeper legal constitution of capitalism.

My third argument is perhaps the most significant for my longer-term objective of initiating a new programme of research on the role of law in price formation. Both analysis of ‘accumulation regimes’ in RT scholarship and of the ‘sphere of mutual coercion’ in which social actors are struggling to advance their property rights in OIE and Legal Realism have focused predominantly on the national level. Crucially, however, as Rosa Luxembourg argued,^[12] and as Nancy Fraser^[13] and Brenner and Glick^[14] have more recently underscored, capitalism has to be understood as a totality: as a global system. It is impossible to understand how prices are formed in the global ‘centre’ without considering what is happening in the economic ‘periphery’, and how those relationships are legally configured, and how they have been legally configured historically. Contra the dominant analytical bent of OIE and Legal Realist scholarship, processes of pricing within capitalism cannot be understood without turning attention to how it is the lack of legal entitlements and protections of and for populations and resources, specifically in the global South, and the legal interactions between states as opposed to within them that shape processes of pricing in the global political economy. In order to develop a legal theory of price with explanatory power, we need to understand how the ‘structure of rights’ in society and ‘system of mutual coercion’ that OIE and Legal Realist scholars show to be central to the formation of market prices operate on the global scale. This working model can then be complemented and enriched through dialogue with more specific, focused engagement in studying ‘legal-economic ’nexi’^[15] that lead to the formation of specific market prices.

My arguments in this contribution speak to broader theoretical debates about the role of law in capitalism, and to important questions of methodology for the future ‘modelling’ of pricing dynamics. Contemporary legal scholars writing about price formation have leaned heavily on a view of the political economy and its ‘constitution’ by underpinning legal institutions that resonates with what critical legal scholar, Roberto Unger, famously termed ‘false necessity’: an understanding that insists on the role of contingency, agency, and politics in shaping the development of laws and policies, and thereby broader processes of social change.^[16] By elucidating the path dependencies and constraints on the engineering power of the state that inhere in the socially sedimented legal constitution of capitalism, my analysis underscores the important argument made by Susan Marks in reply to Unger about the need to avoid ‘false contingency’ when seeking to uncover the politics and agency behind the operations of economic and social structures.^[17] In her words, ‘While current arrangements can indeed be changed, change unfolds within a context that includes systematic constraints and pressures’.^[18] My intervention here is to confront the possibility that law operates as a ‘systemic constraint’ and a ‘determinant’ that shapes and constrains individual and collective agencies on both the national and international levels. The implications of this are manifold, but one stands out: states cannot ‘re-engineer’ prices in line with alternative visions of social justice without tampering with the legal regimes that are foundational to capitalism as a ‘juridical order’—legal regimes that ‘constitute’ capitalist states.^[19]

Regarding methodology, I contend that developing a convincing legal theory of price formation will require combining elements of ‘deduction’ from a stylized model of global capitalism as a juridical order with ongoing engagement and insights derived from more ‘inductive’ place and context-sensitive approaches. In doing so, a research programme on the role of law in price formation could bridge the gap between the deductive and overly formalistic but generative and system-wide approaches of neoclassical economics, and the historically specific, evidence and observation-based ‘inductive’ approaches of economic sociology and institutionalism that are descriptively convincing but often lack broader explanatory or predictive power. Of course, the global approach that I am advocating for here is one that is highly ambitious and, therefore, theoretically untidy. Such a model will never be complete or entirely convincing. Models, like theories, inevitably analytically prioritize some ‘variables’, and hence politicized priorities, over others. Analytically prioritizing legal entitlements—both in terms of paying attention to who states are empowering to set or influence prices, and how states are operationally constrained by dynamics that emerge from the deeper legal constitution of global capitalism—is one way of repoliticizing the academic discourse about prices, which I hope can serve broader emancipatory ends.

The remainder of the article is structured as follows: In Section 2, I briefly present neoclassical price theory, and I discuss alternative accounts of price formation that are found in the traditions of CPE, institutionalist economics, and economic sociology. In Section 3, I critically analyse recent writing by legal scholars on prices that contests neoclassical price theory, aiming to elucidate how these scholars understand the relationship between law and processes of price formation in the political economy. I return to insights from heterodox economics and RT to problematize one of their core arguments: that prices are ‘legally engineered’ by the state. Next, in Section 4 of the article, I draw together insights from RT, OIE, and Marxist economics to offer a more dynamic account of the role of law in price formation. I argue that any attempt to understand processes of pricing in the political economy from a legal perspective must depart from an understanding of capitalism as both a juridical order and as a world system. I offer some concluding reflections in Section 5, where I sketch out some possible directions of travel for a new research programme on the role of law in price formation, and I reflect on how the methodology for such a programme might evolve.

2. Neoclassical Price Theory and Its Antagonists

The school of neoclassical economics emerged in the aftermath of the Marginalist Revolution of the 1870s. In the earlier tradition of CPE, the source of economic value was understood to be labour, and the market prices of goods were thought to primarily reflect the costs of producing those goods. Market prices were further thought to gravitate around ‘natural prices’, which were seen to be in dialogue with ‘natural laws’, such as the relationship between the fertility of the soil and the level of population growth. Breaking with this perspective, Marginalist economists argued that value is subjective: it exists in the perception of the consumer of the utility of the good in question. More specifically, value is determined at the margin: by the additional utility gained or lost from acquiring one more unit of a good or service for the consumer. British economist, Alfred Marshall, subsequently synthesized the marginalist focus on demand with the emphasis of CPE on costs of production. He pioneered the approach of using supply and demand curves and graphs to plot the prices of commodities as interactions between the ‘forces’ of supply and demand.^[20]

According to neoclassical price theory, competition amongst willing buyers and willing sellers generates market-wide ‘equilibrium prices’ that provide economic actors with vital economic coordinates around which to organize production and exchange. Prices also perform the task of ensuring an efficient allocation of resources in society by equating an exogenously given quantity of supply for goods traded in the market with the demand for those goods, ensuring ‘that there is neither excess production nor shortage, maximizing “total surplus”’.^[21] Prices on this account operate as indexes of the overall scarcity of a good or service (given its best production technology) relative to the market demand for it.^[22] Marshall’s approach to modelling ‘equilibrium’ prices was confined to demonstrating the existence of ‘partial’ or single market equilibrium. Several decades earlier, one of the pioneers of marginalism, Leon Walras, laid the foundations for a bigger claim. Through a process he termed ‘tâtonnement’, he argued that prices in all markets are constantly adjusting, creating knock-on effects in other markets, and tending towards a state of equilibrium in which supply equals demand in all markets simultaneously.^[23] Building on Walras’s work, in 1954, two economists, Arrow and Debreu, developed a mathematical model that they claimed ‘proved’ that all markets can achieve a state of ‘general equilibrium’, albeit under a very particular set of operating conditions.^[24]

The assumptions underlying the work of Arrow and Debreu and the wave of formalist theory that came after it are acknowledged to be so strong that the resulting models bear little resemblance to real-life markets. Entire sub-fields of economic thought have emerged that are founded on the recognition that these assumptions do not hold. For example, the schools of behavioural economics and game theory contest the foundations of rationality and methodological individualism from which the neoclassical approach departs; the Austrian school of economics posits that markets are never ‘perfectly competitive’; and environmental economics and institutional economics grapple with issues relating to externalities, sticky prices, and public goods. Nevertheless, neoclassical price models continue to be utilized as tools for analysing and forecasting the behaviour of prices, and for advancing policy arguments. As Blaug notes, ‘general equilibrium theory continues to be regarded as the fundamental framework for theoretical discourse and the basis of computable macroeconomic models’ and remains integral for contemporary approaches to modelling how economies respond to under ‘shocks’ through ‘dynamic stochastic general equilibrium’ (DSGE) models.^[25] DSGE models continue to be relied on by central banks and governments to predict the outcomes of policy decisions, such as what happens to inflation and economic output if the central bank raises the interest rate.^[26]

The extent to which neoclassical axioms maintain a grip over the economics profession and over policy and lawmakers today is disputed. Jo insists that ‘the theoretical core of mainstream economics’ has remained constant over the past 120 years.^[27] He highlights developments such as the neoclassical synthesis in the 1940s and the rise of monetarism and new classical economics to underscore that neoclassical ideas now inform not only microeconomic analysis of prices but also analysis of broader macroeconomic dynamics.^[28] Colander takes a different view and argues that there has been an ‘increase in the analytic and statistical sophistication’ of the economics profession, meaning that economic models are now better able to reflect complexity.^[29] These debates notwithstanding, developments in neoclassical theory, notably the concept of ‘Pareto efficiency’ and its formalization in the two theorems of Welfare Economics, and the ‘efficient market hypothesis’,^[30] have been significant in the fortification of a strong normative prescription regarding the role of law and the state in the political economy. According to this influential vision, governments should confine themselves to providing the legal and institutional structures to bring the operating conditions of markets as close to those of ‘perfect’ competition as possible, and, if desired, reallocate endowments to ensure greater equity. They should not seek to intervene in the operations of markets by ‘planning’ or directing their operations, such as by setting production targets, price ceilings, or implementing other laws that ‘distort’ the signals that prices send to market actors.^[31]

On the academic front, the neoclassical price theory has been strenuously challenged by alternative schools of economic thought and by contributions from economic sociologists. Economic sociology has tended to offer rich micro-portraits of the social dynamics of pricing in particular industries,^[32] also drawing attention to system-wide trends, such as the ‘performativity’ of economic theory,^[33] and the ‘embeddedness’ of individual economic actors in social relations and cultural norms that inculcate ‘economistic’ reasoning.^[34] Economic sociology has also stressed the powerful work that technologies and mathematical formulae do in producing prices by enabling human actors to calculate in specific ways.^[35] As opposed to emerging from the voluntary interactions of economically rational individuals, sociological studies understand prices as being produced by social agents interacting in institutionally structured and culturally conditioned market ‘fields’: ‘it is the structure of the field, that is to say, the structure of relations of force (or power relations) among firms that determine the conditions in which agents come to decide (or negotiate) purchase prices (of materials, labour, etc.) and selling prices’.^[36]

Economic sociology has demonstrated in myriad contexts that markets do not operate according to the prescripts of neoclassical economics, even the more qualified version of it that anticipates imperfect competition. Nonetheless, there are some key limitations of this field in terms of building an alternative account of price formation. First, much of the work is focused on the micro-level and is so specific that it is hard to draw broader conclusions about price formation in the political economy. Second, a lot of the new economic sociology is apolitical and ahistorical in its approach. As Beckert underlines, there is a ‘general reluctance of the new economic sociology—with the exception of historical studies in the field—to study the role of state influence on regulating the economy’.^[37] Beckert’s own work is a notable exception to this anti-institutional trend, and he in fact identifies numerous mechanisms through which legal institutions impact prices, such as by enhancing or reducing competition through immigration laws or competition law, and externalizing or internalizing costs through environmental rules or labour standards.^[38]

Heterodox and institutional economists tend to take a more macro-view than economic sociologists. Significantly, in contrast to the neoclassical paradigm in which prices emerge from market exchanges, many heterodox economists underline that prices emerge from the sphere of production.^[39] The study of capitalism by OIE scholars evinces a fundamentally different perspective on the nature of the political economy to the neutral and democratic portrayal of market exchange in the neoclassical vision. As Jo underscores, for many institutionalist economists, ‘economic activities are organized by coercion, aggression, and control by one segment of society over the rest of the population by a way of creating and operating through non-neutral institutions’.^[40] In 1921, Thorstein Veblen argued that the price system is not decentralized and democratic but is controlled by financial elites, who deliberately limit output to maintain scarcity and maximize profits.^[41] Another leading OIE figure, John R Commons, took a more favourable view of capitalism than Veblen, but nonetheless also argued that prices were the result of power struggles between different social factions.^[42] In contrast to Veblen’s strong emphasis on culture and the social structure of employment relations in shaping economic behaviour, Commons argued that it is ‘the historically accumulated system of legal rights, duties, and obligations’^[43] that shapes social interactions and ultimately leads to the formation of market prices. I will return to the insights of Commons in Section 4.

OIE scholarship casts prices as fulfilling fundamentally different functions to the roles that they play in the neoclassical account. Those roles are allocating scarce resources to their most efficient ends and facilitating the coordination of economic activity. An influential vein of institutionalist work has demonstrated that businesses are not ‘price takers’; rather, businesses set prices in line with other considerations, above all, the need to make profits and to reproduce the business as a ‘going enterprise’.^[44] Recent work in Management Studies has corroborated the arguments of OIE scholars empirically, demonstrating that pricing is a ‘capability’ that requires significant investment in technologies, human resources, and pricing processes and strategic decision-making.^[45] Firms engage in forms of planning in order to try to calibrate their output based on uncertain levels of demand and attempt to achieve a particular level of profit. For example, private capital is not moving into the sphere of renewables in the energy sector despite the falling cost of producing renewable technologies. This is because profitability, and not price or cost alone, is what governs investment under capitalism.^[46]

As opposed to being an index of scarcity, ‘price’ for institutionalist economists is ‘an index of difficulty of production in a society with particular technology and social institutions that determine the functional distribution of income’.^[47] I now turn to law as one of the social institutions that determines the functional distribution of income in society, and, thereby, plays a significant role in shaping the formation of prices.

3. Legally Engineered? Exploring Recent Legal Scholarship on Prices

A. Planned Prices and the Structural Injustice of Neoclassical Price Theory

In their important work on retheorizing the ‘just price’, Hockett and Kreitner rigorously challenge the ‘unplanned’ character of prices in the neoclassical paradigm, arguing that prices do not emerge from the horizontal exchanges of individuals but are instead ‘legally engineered’. The authors begin by highlighting the view of social relations and government that inheres in the neoclassical account of price formation. ‘The charm of the price system is that everyone confronts it in formally equal terms’, they write, and ‘no individual directly coerces anyone else. The system is unplanned, and thus requires no collective decision-making’.^[48] The first line of argumentation that they advance to contest this presentation builds on the work of Legal Realist scholars, and emphasizes that markets are at their foundation ‘constituted’ by the political ‘collective’ of the state, which assigns some social actors greater legal power to influence economic process than others. Foundational rules of property and contract law ‘shape both the contours and the values of entitlements’,^[49] they argue. In addition to the distributive effects of regimes of private law backed up by the coercive powers of the state in shaping price formation, the authors highlight the relevance of a much broader range of legal regimes in materially impacting the trajectory of prices. As they write:

changing background rules make all the difference in pricing many of the most important market interactions. It is hard to imagine pricing pharmaceuticals without patent law; impossible to make sense of real estate prices without local zoning ordinances; incoherent to consider the price of medical care without insurance law.^[50]

Hockett and Kreitner further undermine the idea that prices emerge spontaneously through voluntary exchanges by repeatedly stressing the very active role that governments play in setting and administering key prices in the political economy. ‘Organizational decisions play a central role in manufacturing and moving prices’, they insist.^[51] ‘Obvious examples of price steering activities are those of public employment and procurement’, which ‘effectively benchmark prices for some of the most important goods and services in the putatively privately ordered economy’.^[52] However, there are many other examples of the centralized coordination of prices through practices of ‘market making, market moving, market levering, and backstopping’.^[53] In earlier work with Saule Omarova, Hockett advanced the concept of ‘systemically significant prices’, arguing that ‘prevailing wage and salary rates, certain energy and commodity prices’, and borrowing rates such as the Libor play a critical role in steering the economy towards particular distributive outcomes.^[54] In addition to the recognized role of central banks in steering price formation by setting interest rates, these authors insist that ‘entire sectors of the economy including education, energy, and health care are dominated by prices with heavy engineering aspects, as are markets in some of the most important commodities’.^[55] In contravention of the presentation of the price mechanism as being ‘decentralized’ and egalitarian, these interventions involve comparisons of utility, and mean that prices in particular areas of the economy are designed to privilege the interests of some groups above others. The authors use the example of a sweetener to elaborate their claim about planned prices, noting that because of lobbying initiatives, ‘sugar farmers enjoy a tariff, so the price of sugar is high’, meanwhile, ’corn farmers enjoy a subsidy, so the price of corn syrup is low’.^[56] The effect is ‘to lead producers, say of soft drinks, to prefer corn syrup’ even when ‘the health effects of producing with corn syrup rather than sugar are apparently disastrous’.^[57]

In addition to stressing the fundamental roles that background legal regimes and systemically significant prices play in legally engineering the price mechanism, Hockett and Kreitner build on the work of Christine Desan to stress that ‘the price system cannot actually circumvent inherently contestable valuation, because money itself is disseminated and managed via centralized decisions that directly affect prices’.^[58] By treating money either as a commodity or technological device rather than a creature of law and governance, Desan argues, neoclassical theory fails to account for the power relations and distributional consequences embedded in monetary design. Desan uses historical analysis to demonstrate that money is fundamentally a public credit medium, and that sovereign credit monies have always been created in line with projects of public significance, such as mobilizing for wars.^[59] ‘The way money enters circulation influences production, distribution, and prices’, she argues.^[60] Drawing together the various strands of their argument, Hockett and Kreitner characterize the price system as ‘an immense engineering project’.^[61] Their analysis leads to a striking normative conclusion: the fact that ‘the price system is always a mix of public and private action should give us more confidence in designing normatively attractive modes of pricing’ they surmise.^[62]

The normativity inherent in neoclassical price theory is directly problematized in the work of Joaquín Reyes in his ‘reassessment’ of just price theory. The key point that Reyes labours to demonstrate is that the allocation that so-called efficient ‘market’ prices effectuate in society is one that structurally reinforces economic inequality. He points out that it is not only the preferences of market actors that shape their trading behaviour: their ‘reservation prices’^[63] are materially constrained by their financial circumstances, which are a function of underlying legal regimes.^[64] ‘Private’ entitlements are a function of powers conferred by the state, and empower some actors in society to exert control over others.^[65] Reyes further challenges the equity of the price mechanism by countering neoclassical claims about the epistemic benefits of market prices. He draws on empirical work in behavioural economics and anthropology to argue that ‘market prices are typically unable to disentangle information about scarcity-related factors from non-scarcity related ones’.^[66] Citing the example of labels sewn into Primark clothes decrying conditions of modern slavery, he contends that the neoclassical presentation of prices as reflecting information exclusively about scarcity ‘conceals from view the background conditions of exchange, including any underlying injustices in the chain of production and distribution’.^[67] Hockett and Kreitner also point to the long-range knock-on effects of unjust prices, and use the example of child labour in rubber plantations to ask how far ‘the contamination of such exchanges’ runs.’^[68] Does it undermine the legitimacy of the price of automobile tires produced by large commercial actors like Firestone, they ask. ‘Does it undermine the legitimacy of the price of Firestone stock?’.^[69] Stressing that the character of the political economy is a result of processes of legal ordering, Reyes argues that ‘Like money, taxes, and private ownership, prices are creatures of the law. Indeed, prices are one of the most—if not the most—paradigmatic case of institutional facts.’^[70]

Recent scholarship by legal authors dismantles the central axioms that underpin neoclassical price theory, and considerably enriches our understanding of the role played by states in helping to produce ‘a vast array of prices through complex interactions of public and private action’.^[71] I share the concern of these authors to stress the political nature of prices and to push for the advancement of an alternative legal architecture that can generate more egalitarian social outcomes. Nevertheless, I will now return to insights from CPE and heterodox schools of economic thought to register some limitations of their accounts of the role of law and the state in ‘engineering’ prices.

B. False Contingency: Beyond the Engineering Metaphor

Legal scholars have demonstrated that the neoclassical portrayal of prices emerging through the voluntary interactions of market actors reacting to signals from equilibrium prices is deeply unconvincing. Yet the dominant presentation of price formation in the analysis of Hockett and Krietner is one in which states send their own price signals into the market in order to adjust the price-making decisions of other actors, such as when we learn about the role of the state using public employment and procurement to ‘benchmark prices’ in the economy,^[72] and when we are told that it is impossible to imagine ‘pricing pharmaceuticals without patent law’.^[73] From the perspective of CPE and contemporary heterodox economists who study pricing, this is only a very partial answer to the question of how market prices are formed. Whilst government interventions of the kind highlighted by these scholars steer price directions in markets, the purchase of certain resources by governments, or the granting of a patent on a new drug, are not interventions that fully explain how prices are produced, why the general price level increases or decreases over time, or why some goods and services are more expensive than others. For CPE scholars and heterodox economists who maintain that market prices reflect costs of production and attempts by firms to calibrate levels of profit in conditions of competition and uncertainty, it would be necessary to consider how the cost of all of the inputs—from the resources, the energy sources, the labour, and the cost of finance—that go into making a drug like paracetamol, or a new cancer drug, impact the market price. Institutionalist scholarship and empirical work from economic sociology have confirmed that while large corporations do ‘set’ prices, they do so based on prevailing costs of production with a mark-up for an amount of profit that they regard as being realistic to achieve under extant and future market conditions. Hence, a more holistic perspective on price formation from a legal perspective must necessarily ask, how does law influence the prices of all of the inputs and labour costs that go into producing a commodity, and how does law shape the market forces of competition that determine average rates of profit?

Hockett and Kreitner criticize the neoclassical perspective as representing prices as being ‘[s]et in distant, disorganized, and seemingly unfathomable processes of aggregation’.^[74] Yet their own account neglects the question with which CPE authors and more recent work by heterodox economists are concerned, which is how and why prices aggregate in the way that they do, and what drives those processes of aggregation. To give one important example, the founding father of the neo-Ricardian school of heterodox economics, Piero Sraffa, draws on CPE and its critique in the work of Karl Marx to argue that prices are both relative and interdependent, and emerge from a complex process of production in which ‘commodities are made by means of commodities’.^[75] There is a fraught debate concerning the meaning and full significance of Sraffa’s price theory. But whilst Sraffa’s interventions into price theory are complex and contested, one foundational aspect of his analysis is the impossibility of understanding the price of pharmaceuticals only by looking at how market actors interact to price drugs, or to understand the price of soft drinks by looking at tariffs on sugar, as the account of Hockett and Krietner implies. Instead, the prices of goods in one industry are significantly affected by objective changes in technologies and modes of production that impact inputs, to the extent that industries should be understood as a ‘singular interconnected animal’.^[76]

Another key insight from CPE and later heterodox scholarship is that some prices are not regulated or set by powerful actors, be it the state or corporations, but in fact regulate and constrain those actors. CPE analysed the role of ‘natural’ and ‘production’ prices as regulating prices around which market prices produced through market interactions ‘gravitate’.^[77] CPE scholars had diverging theories of the causal mechanisms involved; nevertheless, they coincided in seeing certain dynamics emerge from the fact that some key inputs to production, such as land, are not reproducible, and that capitalists were trying to carry out production in dialogue with complex objective realities such as the availability of labourers, as well as dynamics of social reproduction. For some contemporary heterodox economists, ‘production prices’ are ‘long-run end positions of a gravitation process driven by the competition among capitalists’.^[78] ‘Others hold a “snapshot interpretation,” according to which production prices express the instantaneous conditions of reproduction of a capitalist system at a specific moment’ in time.^[79]

The upshot of the argument here is that no single state or corporation can control prices over extended periods of time, because they cannot control all of the variables involved in the broader process of reproducing capitalism, and nor do they fully control the dynamics of intra-capitalist competition. Governments can seek to steer markets by intervening through adjusting minimum wages, tariffs, patent laws, or interest rates, but their interactions will provoke responses from a range of market actors who can derail their interventions.^[80] Importantly, from a perspective that stresses the role of legal institutions in constituting markets, the dynamic responses of these market actors are also taking place within permissive legal frameworks and can be traced back to enabling regimes of law.^[81] To take the example of the price of money, in contrast with the presentation of Hockett and Krietner of interest rates being ‘determined and managed by central banks,’^[82] central bankers are, as I have argued elsewhere, constantly battling against legally constituted market ‘forces’—and in particular against the appraisals of global finance—to maintain their preferred interest rates.^[83] In the realm of commodity production, price signals sent by states will provoke dynamic reactions from firms and corporations who are struggle to realize profit in a context in which there are both objective limits to their activities, such as available workers and resources, and in which they must compete with other producers and sellers of commodities who are struggling to realize profits in a context shaped by factors such as inter-firm competition, costs of essential inputs, and labour costs. CPE authors would represent these ‘long-run’ dynamics as being natural laws of the economy; Marxist economists would discuss them as forming part of the ‘law of value’ and the economic ‘laws’ of capitalism. An institutionalist framing would resist these naturalistic and deterministic portrayals. Nevertheless, the interactive and networked nature of market prices makes the task of the institutionalist scholar substantially more complex: they must seek to understand these manifold relational and dynamic interactions in institutional terms. From a perspective that stresses the importance of legal institutions to the formation of prices, the question then becomes what role do legal institutions play in ‘constituting’ costs of production and dynamics of competition between internationally dispersed capitalist firms, and how do the operations of these legal regimes interact with, and even impede, the ability of states to set systemically significant prices in the political economy?

Some respondents may protest that my arguments here essentially replay the neoclassical emphasis on market ‘forces’ from an institutionalist perspective. Do costs of production still play a significant role in influencing the pricing practices of large corporations? Is price formation not better explained by the dominance of financial markets in influencing pricing by expectations-based trading, or by the institutionalization of accounting conventions that condition future investment decisions, such as the discounted profit rate?^[84] Existing literature is amiguous on these important questions, intimating the need for further investigation and research. Nevertheless, my arguments in the next section of the article suggest that whilst all of these dynamics are important for understanding processes of price formation, profit-based price setting by corporations and speculative investment by financial market actors is nonetheless not fully independent of processes of production that rely on raw materials, labour, and other inputs.

A further significant limitation of the work of legal scholars working on price formation is the way in which these authors present the agency of the state. The accounts of both Hockett and Krietner and Reyes tend to blackbox the state as a unitary actor capable of directing the economy through a ‘pervasive’ ‘intelligent design’. Whilst sovereign states have the formal legal power to redesign legal frameworks at will, the ability of elected governments to advance economic policies in line with redistributive agendas is considerably constrained by legal rules on the domestic, international, and transnational levels that empower ‘markets’, and powerful actors within them, to resist interventions that would impact negatively on profitability. Relatedly, while Hockett and Krietner acknowledge that there are ‘certain consistent features’ in the ‘established system of prices’, they see considerable scope for diversity arising from changes to institutional frameworks.^[85] These scholars do not appear to conceptualize capitalism and the system of market prices through which it operates as a global and interconnected totality. This leads them to imply that whilst some market exchanges are clearly unjust, and that the impacts of those changes have long-run impacts, other prices in the global political economy are not contaminated by what they term ‘offending exchanges’.^[86] To return to their example of child labour in rubber plantations, the authors discuss the impact of this on tyres and the stock of corporations like Firestone, but another perspective would suggest that ‘offending exchanges’ run through the entire gamut of market prices in capitalist political economy because all market prices arising in capitalism are a function of exploited labour in the economic ‘periphery’.

Legal scholars have thus far tended to side with the perspective on law and social change famously articulated by CLS scholar Roberto Unger in his work on ‘false necessity’.^[87] Unger stressed the role of politics and choice in shaping social structures in contravention of more deterministic accounts of society, arguing that social reality as being characterized by ‘permanent incompleteness, perennial conflict and inescapable choice’.^[88] Echoing Unger’s interventions, Hockett and Krietner argue that the theory of price and value in neoclassical economics involves assumptions that ‘are yet more heroic in such a world that is transparently of our own making and potential improving’.^[89] A similar disposition is evident in Reyes’s argument that ‘price normativity dependent upon the kind of value or values that the political community wants to see realised in its institutional arrangements’.^[90] In fact, whilst Hockett and Krietner stress the space for politics—and thereby diversity and contingency—in the legal design of the economy, their own writing points to the existence of deeper structural dynamics. As they write:

if central elements of a society’s productive capacity are held monopolistically or oligopolistically …then not-yet-justified disparities in price-making power among market participants will not be mere “bugs” or anomalies in existing price systems; they will be “features,” fully as inherent to those systems as the property arrangements that they presuppose.^[91]

The authors also resist attempts by defenders of current market structures to characterize working in sweatshops as a choice that can be superior to unemployment, noting that the capacity for agency is undermined in a world that is ‘long since “enclosed”’.^[92] I will reflect further on the possibility that there may be pervasive regularities in processes of price formation that stem from the impacts of the particular legal institutions that configure capitalist social property relations in the next section of the article.

Recent legal scholarship places too much emphasis, I have suggested in this section, on the active legal engineering of prices. Revisiting the work of Susan Marks, on false contingency, supports this critique. Marks takes issue with the prominence given to the role of agency and politics in shaping social and economic development in the work of Unger, but she also seeks to nuance more deterministic accounts of historical materialism in some Marxist scholarship. She suggests that it might be more productive to shift from ‘from determinism (the belief) to determination’^[93] when trying to appreciate the relative influence of necessity or contingency in shaping the course of history. Determination refers to the ‘process of settling disputes, ascertaining facts, resolving upon actions, and conditioning outcomes’^[94], which helps to create ‘determining conditions (or ’determinants’)’ that shape the space for both individual and collective agency.^[95] For Marks, the task of the scholar is to investigate, in particular circumstances, ‘what relation is established between structure and agency’ given that ‘the world works as an organic totality’.^[96] Like Unger, Marks is keen to understand what space exists for resistance within constructed social ‘realities’. In contrast to Unger, she argues that in order for resistance to be effective, ‘you need to know what the structure is that can be resistantly defied’.^[97] This is ‘the burden of false contingency’, she concludes.^[98] I will return to the significance of Marks’s insight for my project of approaching global capitalism as a juridical order and as a totality when developing a legal theory of price in Section 5.

4. Prices and the ‘Structure of Rights’ Global Capitalist ‘Society’

Drawing on scholarship from RT, OIE, LPE, and Marxist Economics, I will now suggest that, as a long-standing mechanism in capitalist society for resolving ‘disputes, ascertaining facts, resolving upon actions, and conditioning outcomes’, law may be one of the ‘determinants’ that Marks describes. Applying this insight to the role of law in price formation, I argue that prices emerge from the historically sedimented structure of rights in capitalist society. This structure should be understood as an outcome of both long-standing struggles between competing social groups who use law as a means to determine the outcome of disputes, and from path dependencies that result from processes of structuring relations of production and exchange in global capitalism around unequal interactions between formally sovereign-but-constitutionally-constrained nation-states.

A. Insights From Regulation Theory

RT is influenced by both Marxist economics and by institutionalist economics, and emerged out of the study of the dynamics of accumulation in French and American capitalism over the long durée. The project of RT scholars is to understand how ‘networks of institutional forms’ have impacted or even modified the dynamics of capital accumulation during successive historical eras.^[99] Processes of accumulation in different junctures in history are postulated to be governed by a set of interacting institutions that produce a ‘mode of regulation’ that stabilizes a particular ‘accumulation regime’. These institutions encompass capital–labour relations, dynamics of competition, monetary and credit relationships, forms of the state, and the mode of state insertion into the international political economy.^[100] RT scholars regard capitalist accumulation as being ‘a constant in all societies’.^[101] However, unlike more ‘structuralist’ Marxist accounts that emphasize underlying dynamics of production, such as technological development, accumulation for these scholars depends much more intimately on the active work of more ‘superstructural’ agencies and institutions. Accumulation regimes are understood to configure capitalist production over relatively long periods of history, and to shape and constrain the agency of institutional actors, including the state. On this account, processes of price formation are not directed by willing and unconstrained sovereign states; instead, prices are influenced by the broader accumulation regime, which is the result of a mode of regulation that is crystallized over time through institutionalized compromises among a broader array of actors, including labour unions, firms, financial markets, and governments.^[102] Adopting an RT perspective would suggest that governments are not able to legally engineer prices in the longer term, as they cannot manage the ‘fractious’ character of capitalism as a mode of accumulation. Indeed, history is replete with examples of states losing control over market prices, be it through inflation, appreciating or depreciating currency rates, or the devaluation of their sovereign debt or terms of international trade.

RT does not tend to engage in depth with the analysis of legal institutions specifically. On one hand, adopting a legal perspective recentres the agency of the state in processes of price formation. It does so by underlining that the state formally creates the other institutional actors that populate RT, through underpinning regimes of law that enable the formation of corporations, or that permit lawyers to fashion new financial assets out of an existing register of legal modules.^[103] On the other hand, as I will shortly go on to demonstrate, OIE and Legal Realist scholarship would imply that elected governments enter into power in a political environment that is constrained by the forms of agency and institutional compromises that have resulted from struggles in earlier historical eras between competing social factions, creating a deeper, socially sedimented structure of legal rights that constrains the agency of governments and that shapes the operations of particular accumulation regimes. The institutional structures that govern accumulation on the RT account result from social struggles that for centuries have been mediated by legal institutions, notably courts, and in which different factions are seeking to advance the recognition of their legal rights, and, more specifically, their property rights. The actors that comprise the ‘mode of regulation’ governing accumulation in RT are thus operating in accordance with a deeper institutional grammar: they are seeking to advance their property rights in order to realize higher levels of profit. ‘Orthodox’ Marxist scholars, Brenner and Glick, allege ‘an insensitivity of the Regulationists to the distinction between the effects on the pattern of capital accumulation that they attribute to different institutions within capitalism and the effects attributable to the broader framework of social-property relations’.^[104] The authors use several examples from the periodization of accumulation regimes in RT to demonstrate that ‘paths of industrial development can be expected to vary fundamentally according to whether they are framed by fully capitalist or non-capitalist agrarian social-property relations … even in the presence of roughly similar capitalist institutions’.^[105] This would suggest that while processes of price formation are shaped by the broader character of historically and geographically specific accumulation regimes, the character of those regimes is in turn influenced by how more elemental social dynamics have been configured historically: namely, whether labouring populations are able to subsist and reproduce themselves without relying on market mechanisms.

I will now build on the work of OIE and Legal Realist scholars to suggest that particular pricing dynamics do emerge from the fact that we live in a world that is ‘long-since enclosed’, to return to the phrasing of Hockett and Krietner.^[106]

B. Incorporating the OIE and Realist Perspectives

With the publication of his widely acclaimed book, Legal Foundations of Capitalism, Commons generated ‘a revolution in economics’ by proclaiming ‘an institutional economics based on legal rights’.^[107] Commons identified three central institutional relationships that form the motor of change within capitalism: the ‘wage bargain’ in which capital and labour struggle over wages; the ‘rent bargain’ between owners of land, natural resources, and property and non-owners; and the ‘price bargain’ between buyers and sellers of commodities.^[108] Out of each of these bargains, different types of property rights emerge and come to structure future interactions in capitalist production and exchange.^[109] Commons argued that it is the legally constituted distribution of the social surplus brokered by courts trying to improve capitalism that gives rise to market prices, not interactions between ‘willing’ buyers and sellers’.^[110]

Common’s contemporary, Legal Realist scholar Robert Hale, also stressed the foundational role of property rights in structuring economic bargains that lead to the formation of market prices, but he took a less favourable view of the legal foundations of capitalism than Commons.^[111] Hale argued that the protection of private property rights of some groups in society by the state creates an economy that should be conceptualized as a sphere of ‘mutual coercion’ in which some actors have greater bargaining power than others.^[112] Significantly, Hale had a dynamic conception of the role of property law in influencing market prices. He conceived of the economy as a diffused and complex process of bargaining in which struggles are ’not a struggle against the employer alone but against the consumer as well. The consumers include labouring men in other industries.^[113] Hence, the interconnected and dynamic processes of pricing described in the work of heterodox economists like Sraffa are reframed in Hale’s work as a complex network of bargaining struggles that are, at root, a function of legal regimes, and, more specifically, of property rights.

RT scholarship encourages an understanding of prices that focuses on the macro-configuration of the political economy. This scholarship would imply that prices emerge from a confluence of broader institutional configurations, including the relative power of capital and labour, the shape of monetary regimes, and dynamics of competition between firms on the national and international levels. The OIE and Realist perspective turns attention to the more micro-level of legally structured bargains between different social factions. On this view, market prices emerge through a process in which capitalist firms and businesses battle through the courts and the legislature to achieve profit specifically by expanding the scope of their property rights, and, correlatively, by weakening the legal entitlements or protections afforded to other social groups and public interests. Significantly, from this perspective, stronger legal protections for social and economic human rights would be likely to have significant impacts on profit margins and market prices, with a range of knock-on effects throughout the economy, as Moudud has recently underscored.^[114] Going forward, developing a legal theory of price will require greater consideration of how these two institutional perspectives intersect. What role do legal institutions specifically play in shaping the operations of macro-level accumulation regimes? And to what extent is the operation of those macro-level regimes influenced by the foundational, even ‘original’, role of law in constituting capitalist social property relations? For now, my ambition is more modest. I will now build on these insights to qualify the engineering metaphor that stands at the centre of contemporary legal writing on prices.

Hockett and Kreitner and Reyes acknowledge the foundational role of property rights in shaping the value of market entitlements, but they underweight the fact that the foundational institutional grammar of capitalism described by Commons and Hale places significant limitations on the price-setting power of sovereign states. Commons stresses the role of collaborative political decision-making in ‘fashioning’ the legal architecture of capitalism; nevertheless, his account is also one that points to the role of law in creating constraints for future generations of both market actors and lawmakers. Commons represents the state as just ‘one of many going concerns’,^[115] and as operating through ‘the working rules of the discretionary officials of the past and present’,^[116] which create limitations on its agency. As Sabine Frerich underlines, his account ‘acknowledges the weight of the past, which includes the slow evolution and sedimentation of rules, on present action as well as public and judicial opinion. This is social structure, and not simply the state, or government’.^[117] Significantly, Commons positions law as a force that progressively starts shaping, limiting, and potentially even determining collective social action and individual agency. As he writes, ‘The law, or working rules of society, take over, as best they can, the inducements of violence and thereby eliminate, as best they can, other unethical inducements’.^[118]

Warren Samuels, the last in the line of the OIE scholars, articulates in clear terms the alternative view of the role of law in pricing that emerges from a deeper consideration of the contributions of OIE and Realist scholars. For Samuels, the analysis of economic phenomena has to depart from the recognition that ‘economic activity—prices, costs, outputs, risk, income, wealth’, etc are not natural phenomena, or phenomena that respond to economic laws but are ‘determined by the structure of rights that exists in society, with the levels of and changes in each of these variables being in part a function of rights, and hence of the legal structure and legal change over time’.^[119] This work suggests that prices do not emerge as a result of the state mechanistically commanding the political economy through its interventions and legal frameworks, but from a longer-standing processes of the juridification of social relations that, over time, leads to the sedimentation of a particular structure of legal rights in capitalist society. This structure is one that is both intrinsically relational and dynamic, but that also exhibits certain regularities owing to the way that social property relations and state authority have been institutionally configured over time. Two critical questions that remain unanswered are, first, how is the ‘structure of rights in society’ described by Samuels to be understood? And, second, if changes in the levels of and changes in prices are only in part a function of rights, what other factors are at play? OIE scholars, including Samuels, did not offer satisfying answers to these questions. I cannot claim to conclusively resolve these challenging issues in this contribution either. Nevertheless, drawing on scholarship from LPE and Marxist economics (broadly conceived), I will now offer some reflections on how this ‘structure’ should be understood.

C. LPE and the Legal Constitution of Global Capitalism

The first point that I would like to make concerning how the structure of rights in capitalist society should be understood relates to the matter of scale. The analysis of prices emerging out of a relational dynamic wherein property owners and firms battle to expand their rights and to create value by restricting the rights and claims of others in OIE and Realist scholarship is persuasive, but these authors conceptualize ‘society’ on the national level. Moreover, despite the mode of insertion into the global political economy being a stated feature of the mode of regulation, RT work has also been largely focused on capitalism in specific countries or regions, and the international element has been neglected. However, as scholarship from Marxist theorists, notably Rosa Luxembourg,^[120] and more recently Nancy Fraser^[121] and Brenner and Glick underlines,^[122] capitalism is, and has been since its inception, a global order: a totality. Scholarship on Dependency Theory^[123] and World Systems Theory,^[124] and, in more recent years, work on ecologically unequal exchange^[125] and global value chains^[126] has underlined the centrality of processes of extraction and the exploitation of labour in the economic periphery as being foundational to capitalist accumulation in successive historical eras. The historical development of capitalism has been premised not only on interactions between rights-bearing subjects within sovereign states in the global centre, as is suggested by OIE scholarship, but also by the exploitation of populations and resources in the periphery through the failure to recognize their rights, or the downgrading of their rights as compared to the entitlements of better-protected constituencies.

An analysis of prices with explanatory power thus needs to consider how the rightless or the legally devalued fit into the picture, and how the sphere of ‘mutual coercion’ described by Hale operates on the global level. Two important possibilities emerge from the extension of the conception of the ‘society’ in which rights holders interact to produce market prices by trying to strengthen and weaken their property rights on the global level. First, the historical and contemporary role of cheap racialized and gendered labour forces, notably in the global South, but also in the global North as migrant labour, and the creation of ‘cheap’ land and resources through the operation of legal frameworks can be theorized as legal dynamics that set the price floor price for the prices of all commodities and services available to consumers in capitalist political economy. Second, this would further imply that prices are not in the first instance legally engineered by single states but are created through legally structured interactions between sovereign states. It is this interaction that needs to be analytically prioritized when trying to develop a legal theory of price, I would suggest.

The second point that I want to make on the understanding of the structure of rights in capitalist society speaks to the issue of path dependence, and, more specifically, of path dependencies arising out of property relations. The centrality of processes of enclosure and propertization to the development of capitalism has been discussed in a now substantial academic literature. In a piece in which he underlines that capitalism must be understood as a juridical order, David Singh Grewal underlines that the transition to capitalism originated with the removal of price controls on two key markets: those for grain and for labour, which entailed ‘liberating’ grain prices from restrictions inhering in the moral economy of feudalism, and instituting mass wage labour through processes of enclosure and the creation of a workforce dependent on market mechanisms for survival.^[127] In other words, for societies in Europe to become capitalist, capitalist social property relations had to be instilled, to return to the phrasing of Brenner and Glick. The transition to capitalism involved the creation of a social fabric in which ‘formally equal’ juridical subjects became the only actors legible to the institutional actors responsible for organizing social life and adjudicating disputes: legislatures and the courts. These ‘juridical equals’ were held to be contracting voluntarily to access the means of social reproduction under the new legal order but lived in social and economic conditions that forced them to enter into disadvantageous bargains with property owners, who could, as Hale demonstrated, effectively starve them into compliance. The other central feature of this new legal order was the establishment of new ‘revolutionary’ legal frameworks ‘predicated on the distinction between “sovereignty” and “government”’, which enshrined a separation between public and private law and placed ‘limits on the ability of the people to radically revise the legal rules underlying commercial society’.^[128] These changes, Grewal argues, produced ‘The “constitution of capitalism,” understood in a double sense as the constitutional order that most capitalist societies have adopted historically and the legal foundation of the social processes that constitute the economic system of capitalism’.^[129]

Grewal’s intervention reinforces an argument found in the work of other scholars: that the social fabric of capitalist political economy has a texture to it—not a pattern that is fully predictable, or determinate—but a foundational unevenness that gives rise to certain ‘logics of process’, to use the term of EP Thompson, which extend from the fact that land and productive resources in society have been historically controlled by social elites.^[130] The protection of private property rights in law, and the consequent control over land and productive resources that was institutionalized at this time, produced a class of legally empowered property owners who could sway governments, whose authority now depended on respect for the ‘rule of law’ and private property, to further protect their rights and interests. Processes of expanding enclosure and enhancing property rights to facilitate accumulation through the development of other proprietary forms, such as the joint stock company, or by fashioning new ‘financial’ assets out of the existing modules of private law,^[131] have not been linear. As Commons emphasizes, these developments emerged out of social struggles leading to the institutionalization of ‘bargains’ like the wage bargain.^[132] Yet, while historically the development of specific property relations has been varied in time and place, as Paddy Ireland has shown, there is nonetheless an ‘ever-present logic’ to those ‘historically specific sets of property relations’ that ‘gives history shape, notwithstanding its specificities and notwithstanding human agency’.^[133] This makes it possible to see the historical development of capitalism as ‘a structured process rather than as a rigidly structured whole or as a series of random events’.^[134] In addition to a logic of property ownership, we also find a further feature of the structure of rights in society in the account of Grewal, which is that elected governments formally possess the capacity to re-engineer prices by redesigning the legal architecture of their economies, but they are constrained from doing so by their own constitutions, in many cases, and by the legally constituted ‘economic power’ and ‘market power’ of particular social constituencies that those constitutions legitimize and reinforce.

In addition to operating on a global scale, then, the structure of rights in capitalist society should be conceptualized as exhibiting certain regularities owing to the way that social property relations and state authority have been institutionally configured over time. Nevertheless, if it is clear that dynamics of propertization are central to capitalism, it is also clear that the structure of rights in society is dynamic. As leading critical scholars of law, Yochai Benckler^[135] and David Kennedy have both recently illustrated, capitalism exhibits a high degree of change, evolution, and contingency. Legal concepts and categories are under-determined, if not ‘indeterminate’, and whilst judicial precedent restricts the room for manoeuvre of subsequent decision-makers, the legal rights and entitlements of corporations, labour movements, financial institutions, and governments have gone through substantial changes over time, and differ between jurisdictions. As Benckler and Kennedy both independently illustrate, however, law does shape and constrain social struggles in important, if not fully determinate ways. As Kennedy argues in his analysis of these dynamics in the field of International Economic Law,

When legal materials register those outcomes as entitlements, they provide a baseline for the next round of struggle. Law seems to have a kind of social power to legitimate the operation both as a whole and in its particulars. As a result, we can read in legal norms and institutional arrangements both sediment of past struggle and the tools available for new projects.^[136]

This formulation is ambiguous: entitlements are a ‘baseline’ for the next struggle, but legal norms can be ‘tools’ for new projects. Kennedy argues that it is politically useful to pursue ‘a midlevel focus on struggle to capture gains’, as this ‘has much to contribute to our understanding of law’s implication in the dynamics of inequality’.^[137] However, he also notes that ‘legal arrangements structure patterns of interaction between rich and poor in a variety of ways that encourage the compounding of gains’.^[138] We can also, therefore, ‘conceptualize global political economy, not as an endless series of struggles among people and groups, but as a biased system or structure’.^[139] Indeed, his broader framing points to a role for law in acting as a ‘determinant’ in shaping future social trajectories.

Kennedy stresses that there has also been a long-standing struggle over constitutional governance at the international level. ‘At stake are not only economic gains’, he underlines, ‘but the power to allocate in the next round’.^[140] Here we encounter a further feature of the ‘structure’ of rights in society, and in accordance with my argument, an element of the ‘structure’ that Marks enjoins us to identify in order to contemplate possibilities for resistance. Scholarship on the development of International Law from TWAIL scholars and scholars of Law and Development has underlined that in spite of the formal equality of sovereign nations under International Law, the ‘authority to allocate gains and secure privileges’ is distributed very unevenly based on the historical development of the rights of nations.^[141] The architecture of international economic governance features ‘baked in’ inequalities in term of the allocation of decision-making power at international economic institutions; the institutionalization of inequality through the legal prohibition of the use of measures that industrial nations used to develop their own economies by ‘developing’ states today; prohibitions on government measures that would redistribute control over land and resources enforced through a system of private international courts adjusticating on International Investment Law; and a ‘monetary design’ that confers considerable power to influence the global macroeconomy on the global ‘hegemon’, the USA. In the international realm too, then, social struggles exhibit long-standing dynamics of ‘juridification’ in the sense that they largely consist of different social groups trying to acquire or expand the legal protection of their proprietary interests through international legal institutions that register their interactions as relations as ‘voluntary’ interactions between ‘juridical equals’, overlooking the vast material inequalities that inform these interactions.

Owing to pervasive dynamics of juridification, social disputes are increasingly articulated as conflicts between rights holders and are mediated by legal institutions. Legal institutions on this account play a formal institutional role in ‘settling disputes, ascertaining facts, resolving upon actions, and conditioning outcomes’, to recall the phrasing of Marks. The creation of legal entitlements, and in particular property rights, as Realist scholars and others have shown, furnishes some social actors with greater material power than others, enabling them to capture future economic gains that can further advance their cause. By functioning as a ‘baseline’ for the next struggle, law bestows upon some actors significant discursive and ideological power, as their interests already benefit from recognition by the institutional actors with authority to adjudicate social disputes. Interests and claims that do not fit as easily into recognized categories of legal entitlement face a higher threshold in terms of recognition by these authorities. Law thus begins to operate as a ‘determinant’ of social processes in a deeper, ideological sense, shaping social struggles in line with its categories and criteria. Benckler offers a summary of this process: The law ‘structures’ social relations ‘in the immediate sense that most people most of the time adjust their plans, expectations, behaviours, and sense of justice of their rewards, entitlements, and vulnerabilities vis-à-vis others based on these regularized social interactions to which they become habituated’.^[142] To recall Commons, law ‘takes over’.^[143]

Drawing these lines of analysis together, it becomes clear that global capitalism should be theorized as both a juridical order and as a totality. Law is one of the social institutions that determines the functional distribution of income in global capitalist society, and it thereby plays a significant role in shaping the formation of prices. Prices are not produced by market actors entering into voluntary exchanges, but nor are they accurately described as being legally engineered by lone states. Rather, prices emerge as a result of complex, interrelated, and dynamic processes of legally structured bargaining that lead, over time, to the sedimentation of a particular structure of rights. This structure is global, dominated by logics of propertization, and is dynamic but also fundamentally constrained owing to the way that property relations and state authority have been legally configured over time. As a result of this analysis, we can see that market prices are made of other prices: from the prices of raw materials and inputs, including wages, that are the result of processes of bargaining that have become socially sedimented, crystallizing into institutional forms that have been built on particular social and historical foundations that have taken a legal form. Social struggles are increasingly waged through legal institutions and are articulated as claims to expand rights, which means that social struggles are mediated by institutions that prioritize formal juridical equality and background material inequalities. The relative prices of different goods on this reading are the result of actors trying to expand and constrict their property rights, trading in historically contingent market ‘fields’ that are shaped by ‘legacy institutions’ from colonial eras,^[144] which are embedded in a broader international regime characterized by the legalized dominance of nations in the global North over nations in the global South. The ‘accumulation regimes’ of RT operate within this broader context. These legal regimes are to a significant extent oriented to facilitate private actors in exercising control over productive resources and accumulating capital—a process that occurs by denying the rights claims of other social groups, and by failing to afford legal protection to environmental and public interests. Under contemporary conditions of financialized capitalism, pricing practices in many markets may be increasingly dominated by financial institutions trading in instruments like derivatives—institutions that are battling with states for control of systemically significant prices in the macropolitical economy. Nevertheless, these dynamics, too, are enabled through and influenced by the development of legal institutions and reflect the processes whereby the capacity of governments to set or even steer prices is curtailed by elaborations of the founding legal institutions (property rights; freedom of contract) of its political economic constitution.

5. Concluding Reflections: Towards a Legal Theory of Price?

Recent legal scholarship recasts prices as ‘legal institutions’ that result from an interplay between foundational regimes of private law, deliberate processes of market building, and price administration that confers price-making power on some actors and not others in line with a political agenda that prioritizes profit-making above other values, such as social justice. None of the legal scholars with whom I have engaged here has sought to advance a legal theory of price, though they all suggest that if prices are creatures of legal design, alternative legal and institutional arrangements can make prices more just. My intervention has been to problematize the engineering metaphor that informs their vision, because it underweights the constraints on state agency that inhere in the deeper legal constitution of global capitalism, which restricts the ability of elected governments to ‘legally engineer’ prices for the social good.

I have argued that states should be understood as being ensconced within the operations of broader global ‘accumulation regimes’ that are formed through interactions and struggles between different social forces. These interactions are, however, iterated through and institutionalized via legal processes, meaning that the ‘modes of regulation’ that govern accumulation processes in different historical junctures emerge from longer-standing processes of the juridification of the social fabric. If there is a concern to make pricing more socially just, there is a need to pay attention to this deeper patterning of social relations and the legal institutions that sustain it, as the historically specific wage-bargains between capital and labour and the monetary and financial governance regimes of particular accumulation regimes foregrounded by RT scholars are shaped and influenced by social property relations, as Brenner and Glick underscore. OIE and Realist scholars persuasively demonstrate that prices emerge as a result of interactive processes of bargaining in which different social actors seek to secure legal recognition of their property rights (broadly understood). However, capitalism is a global system; thus, in order to understand the role of law in processes of price formation, we need to understand how the structure of rights and sphere of mutual coercion described by these authors operates on a global scale.

To return to some of the questions articulated at the outset of the article, could legal analysis of how the sphere of mutual coercion operates on a global scale be used to model and predict the behaviour of prices in the political economy? Would doing so give us any inroads into making the prices that seem to ‘inhere’ in the objects around us any more just? A first point to note is that trying to conceptualise capitalism as a global system is one that may seem hopelessly broad. The world works as ‘an organic totality’,^[145] and indeed this totality is not just social: it is material and physical. The earth and its ecosystems are all intrinsically interconnected and in a delicate dialogue, as we have learned too late in light of the imminent threats of man-made climate change. To recall a formulation from Beckert, who is drawing on Bourdieu, ‘It is not prices that determine everything’, as per neoclassical price theory, ‘but everything that determines prices’.^[146] But how does one model ‘everything’? Clearly, grasping the world as an organic totality and modelling it accurately is an impossible task. Indeed, it was precisely such a perspective that informed Friedrich Hayek’s convincing argument that government should not attempt to plan the economy as they could never grasp its complexity, and that they should, therefore, aim only to create the institutional conditions that facilitate competition as a discovery procedure so that social actors could ‘find out’ what prices should be.^[147] Hayek overlooked the point that the foundational laws that he considered to merely enable voluntary exchanges are instead legal institutions that, by virtue of their social and historical function and operation, consistently privilege the interests of some social constituencies over others. We see a similar bias in the arguments of economists today, who suggest that if we inflate the rights claims of marginalized groups this will lead to a host of economic ills that worsen conditions in the economy overall: inflation will erode the value of investments, including retirement income; the prices of goods will rise because the increased demand for them will drive up prices in conditions of scarcity, etc. This framing assumes that the rights of more powerful social constituencies should continue to be prioritized over the rights claims of other, less fortunate social groups, obscuring the reality that what current legal institutions institute is a widespread dynamic of exclusion and expulsion from access to basic social goods and resources via prices that reflect the political prioritization of profit-making.

As Tiago Camarinha Lopes has noted, the choice of what a theory of value is supposed to measure is always a political intervention. Marx’s choice of labour as his basis for analysing value was the result of his commitment to the liberation of the working classes, not necessarily because it was the only convincing way of conceptualizing value.^[148] Similarly, ‘doing’ price theory will always be a case of choosing a frame—of analytically prioritizing some questions above others for purposes that are irreducibly political. As Box has argued, though perhaps for different purposes, ‘all models are wrong, but some are useful’.^[149] My purposes are similar to those of Hockett and Krietner, and Reyes. By choosing to centre the role of legal entitlements in conferring price-making or price-influencing power on some actors as opposed to others, it is my hope that a legal theory of price could help to denaturalize dynamics that appear natural or inevitable. Indeed, by stressing the dimension of the global, which has been underweighted in the two bodies of scholarship that offer the most significant advance on theorizing prices from a legal perspective, I try to counteract the ‘eurocentrism’ of RT and OIE. These disciplines have unconsciously placed the analytical spotlight on populations in the global North, underweighting how the devaluation of populations in the South through frameworks of International Law is foundational to understanding pricing dynamics, both historically and in the contemporary period. By qualifying the argument of legal scholars that states can legally engineer prices and arguing that there is a need to pay closer attention to the strictures inhering in the legal constitution of capitalism, I am in dialogue with Marks’s project of stressing that while space for resistance does exist within constructed social realities, we need an accurate appreciation of what the structure that we are trying to defy is in order to resist it more effectively.

A project of trying to model prices through legal analysis may look far-fetched. However, it is important to note that there are promising precedents. The work of Nobel Prize–winning economist, Amartya Sen, on the role of entitlements in the causation of famines was precisely a modelling of how the entitlement claims of different social groups resulted in different types of economic access, meaning that some sectors of society having plenty and others going hungry even when food was not in scarce supply. Sen concluded that hunger and famine ‘reflect legality with a vengeance’.^[150] More recently, Van Huellen and others have drawn on the work of Commons to study pricing dynamics in the cocoa sector in Ghana, and their work demonstrates that ‘the institutional structures that underpin pricing in the cocoa sector were created during colonial times and have been maintained by powerful stakeholders (large commodity trading houses) who have continuously benefited from this arrangement’.^[151]

A new programme of research exploring the role of law in processes of price formation could take many different directions. As I have already suggested, there is an evident need to understand how the macro-institutional perspective of RT and the more micro-legal institutionalist perspective of OIE and Legal Realist scholars interact. Other avenues for future research could include trying to identify the specific legal rights and regimes that empower particular actors to influence prices in discrete markets, and tracing the legally mediated social struggles that concretized the price-making power of those actors. Of equal importance will be an inquiry into the role of legal instruments in enabling pricing dynamics within financial markets, and an analysis of how financial market pricing interacts with other legally constituted pricing dynamics in markets for underlying commodities. An important line of research that seeks to capture the intrinsically interconnected and dynamic nature of pricing in the global political economy would try to understand the role of law in generating ‘production prices’ that serve as inputs to a broader gamut of market prices in which ‘commodities are produced by means of commodities’.^[152] The perspective that I have advocated for in this article would require starting this work by looking at the interaction between economies in the Global South and economies in the Global North, which would suggest the need to consider, inter alia, how rents on agricultural land, wages, energy prices, and interest rates in the South may function as a baseline that shapes trajectories of price formation in ‘core’ economies.

On the methodological front, a research programme investigating the role of law in processes of price formation should simultaneously operate at two levels. There should be an ongoing collaborative effort to develop an understanding of how global capitalism operates as a juridical order that is carried out in dialogue with, and that is necessarily corrected by, insights from ‘deep dive’ studies into the legal drivers of pricing dynamics in specific markets, in particular places, and during distinct historical periods. The aim should be to bridge the gap between the deductive and overly formalistic but generative and system-wide approaches of neoclassical economics, and the historically specific, evidence and observation-based ‘inductive’ approaches that are descriptively convincing but often lack predictive power.

1. Tae-Hee Jo, ‘What If There Are No Conventional Price Mechanisms?’ (2016) 50 J Econ Issues 2, 331. ↑

2. Ibid. ↑

3. Dani Rodrik, ‘Goodbye Washington Consensus, Hello Washington Confusion? A Review of the World Bank’s Economic Growth in the 1990s: Learning From a Decade of Reform’ (2006) 44 J Econ Lit 973, 979. ↑

4. Jason Hickel, ‘The Development Delusion: Foreign Aid and Inequality’ (2017) 1 Am Affairs 3. ↑

5. Dimitris Milonakis and Ben Fine, From Political Economy to Economics: Method, the Social and the Historical in the Evolution of Economic Theory (Routledge 2009) 162. ↑

6. Robert C. Hockett and Roy Kreitner. ‘Just Prices’ (2018) 27 Cornell J Law Pub Policy 3. ↑

7. Joaquín Reyes, Just Price Theory: A Reassessment (Hart Publishing, Bloomsbury 2023) 177. ↑

8. Michel Aglietta, A Theory of Capitalist Regulation. The US Experience (Verso 1979). ↑

9. John R. Commons, Legal Foundations of Capitalism (Macmillan Company 1924). ↑

10. Robert Hale, ‘Coercion and Distribution in a Supposedly Non-Coercive State’ (1923) 38 PSQ 3. ↑

11. Warren Samuels, The Legal-Economic Nexus: Fundamental Processes (Routledge 2007). ↑

12. Rosa Luxemburg and Nikolai Bukharin, Imperialism and the Accumulation of Capital (Allen Lane, The Penguin Press 1972). ↑

13. Nancy Fraser, Cannibal Capitalism: How Our System Is Devouring Democracy, Care, and the Planet – and What We Can Do About It (Verso 2022). ↑

14. Robert Brenner and Mark Glick, ‘The Regulation Approach: Theory and History’ 1/188 NLR July–August 1991. ↑

15. Samuels, supra n 11. ↑

16. Roberto Unger, False Necessity (2nd edn, Verso 2004). ↑

17. Susan Marks, ‘False Contingency’ (2009) 62 CLP 1. ↑

18. Ibid 2. ↑

19. David Singh Grewal, ‘The Laws of Capitalism’ (2014) 128 Harv L Rev 626. ↑

20. Harry Bloch, ‘The Language of Pluralism From the History of the Theory of Price Determination: Natural Price, Equilibrium Price and Administered Price’ (2022) 73 Metroeconomica 4, 61. ↑

21. Daniel Gottlieb, ‘General Equilibrium Theory’, EC 441: Microeconomics for MRes Students <https://personal.lse.ac.uk/GOTTLIED/publications/GE_Notes.pdf> ↑

22. Carlo D’Ippoliti, ‘Theories of Prices and Alternative Economic Paradigms’ in Tae-Hee Jo, Lynne Chester and Carlo D’Ippoliti (eds), The Routledge Handbook of Heterodox Economics: Theorizing, Analyzing, and Transforming Capitalism (Routledge 2019) 115–6. ↑

23. Leon Walras, Elements of Pure Economics (translated by W Jaffé from the Edition Définitive [1926] reprinted in 1977, Augustus M Kelley). ↑

24. KJ Arrow and G Debreu, ‘Existence of an Equilibrium for a Competitive Economy’ (1954) 22 Econometrica 265. ↑

25. Mark Blaug, ‘The Formalist Revolution of the 1950s’ (2003) 25 JHET 2, 151. ↑

26. M Argia and others, ‘Policy Analysis Using DSGE Models: An Introduction’ (2010) 16 FRBNY Econ Policy Rev 2. ↑

27. Jo, supra n 1, 330. ↑

28. Ibid 330. ↑

29. David Colander, ‘What Economists Teach and What Economists Do’ (2005) 36 J Econ Edu 3, 250. ↑

30. Eugene Fama, ‘Efficient Capital Market: A Review of Theory and Empirical Work’ (1970) 25 JOF 382. ↑

31. For a discussion of the ongoing influence of this perspective in the public arena, see Zephyr Teachout, ‘Sometimes You Just Have to Ignore the Economists: Kamala Harris’s Proposed Price-Gouging Ban Might Irritate Academics, But It Makes Sense to Everyone Else.’ The Atlantic (Washington DC, 22 August 2024). ↑

32. ‘Towards a Sociology of Prices: An Interview With Fabien Eloire and Jean Finez’ (2022) 24 Econ Sociol 1, 7. ↑

33. Donald MacKenzie, Do Economists Make Markets? On the Performativity of Economics (PUP 2008). ↑

34. Mark Granovetter, ‘Economic Action and Social Structure: The Problem of Embeddedness’ (1985) 91 Am J Sociol 3. ↑

35. See, for example, Alex Preda, ‘Socio-Technical Agency in Financial Markets: The Case of the Stock Ticker’ (2006) 36 Soc Stud Sci 5. ↑

36. Jens Beckert, ‘Where Do Prices Come From? Sociological Approaches to Price Formation’ (2011) 9 Socio-Econ Rev 4, 759. ↑

37. Ibid 780. ↑

38. Ibid 767. ↑

39. Jo, supra n 1, 332. ↑

40. Ibid 335. ↑

41. Thorstein Veblen, The Engineers and the Price System (Martino Fine Books 2012). ↑

42. Commons supra n 9. ↑

43. LF Tauheed, ’A Critical Institutionalist Reconciliation of “Contradictory” Institutional Institutions: What Is an Institution? (2013) 47 J Econ Issues 147, 154. ↑

44. Frederic S. Lee, ‘Post-Keynesian Price Theory: From Pricing to Market Governance to the Economy as a Whole’ in Geoff C Harcourt and Peter Kriesler (eds), The Oxford Handbook of Post-Keynesian Economics (OUP 2013) 467. ↑

45. Shantanu Dutta, Mark Zbaracki and Mark Bergen, ’Pricing Process as Capability: A Resource Based Perspective (2003) 24 SMJ 7, 615. ↑

46. Brett Christophers, The Price Is Wrong: Why Capitalism Won’t Save the Planet (Verso Books 2024). ↑

47. D’Ippoliti, supra n 34, 116–7. ↑

48. Hockett and Kreitner, supra n 6, 781. ↑

49. Ibid 782–3. ↑

50. Ibid 783. ↑

51. Ibid. ↑

52. Ibid. ↑

53. Ibid 789. ↑

54. Robert Hockett and Saule Omarova, ‘Systemically Significant Prices’ (2016) 2 JOF 1. ↑

55. Hockett and Kreitner, supra n 6, 789–90. ↑

56. Ibid. ↑

57. Ibid. ↑

58. Ibid 783. ↑

59. Christine Desan, ‘The Key to Value: The Debate Over Commensurability in Neoclassical and Credit Approaches to Money’ (2020) 2 LCP 1, 16. ↑

60. Ibid 17. ↑

61. Hockett and Kreitner, supra n 6, 772. ↑

62. Ibid 790. ↑

63. The reservation price is the maximum price a consumer is willing to pay for a good or service or the minimum price a seller is willing to accept. ↑

64. Reyes, supra n 7, 100–1. ↑

65. Ibid 105. ↑

66. Ibid. ↑

67. Ibid 102. ↑

68. Hockett and Kreitner, supra n 6, 787. ↑

69. Ibid. ↑

70. Reyes, supra n 7, 70. ↑

71. Hockett and Kreitner, supra n 6, 789. ↑

72. Ibid 783. ↑

73. Ibid. ↑

74. Ibid 772. ↑

75. Piero Sraffa, Production of Commodities by Means of Commodities: Prelude to a Critique of Economic Theory (CUP 1960). ↑

76. Ajit Sinha, ‘Piero Sraffa’s Price Theory Without Equilibrium’ New Economic Thinking, <https://www.youtube.com/watch?v=DLSkTtitwcs> ↑

77. Harry Bloch, ‘Price Theory, Historically Considered: Smith, Ricardo, Marshall and Beyond’ (2020) 75 HER 1. ↑

78. D’Ippoliti, supra n 34, 118. ↑

79. Ibid. ↑

80. Jamee Moudud, Legal and Political Foundations of Capitalism: The End of Laissez Faire? (Routledge 2025). ↑

81. Ibid. ↑

82. Hockett and Krietner, supra n 6, 790. ↑

83. Anna Chadwick. ‘Rethinking the EU’s “Monetary Constitution”: Legal Theories of Money, The Euro, and Transnational Law’ (2022) 1 ELO 3. ↑

84. See Marzal for an insightful analysis of the centrality of discounting to the calculation of damages in International Investment Law. Toni Marzal, ‘Conjuring Markets: Valuation in Comparative International Economic Law’ (2024) 27 JIEL 2. ↑

85. Hockett and Kreitner, supra n 6, 771. ↑

86. Ibid., 786. ↑

87. Unger supra n 27. ↑

88. Ibid xxix. ↑

89. Hockett and Kreitner, supra n 6, 781. ↑

90. Ibid 11. ↑

91. Ibid 775 (Emphasis added to original). ↑

92. Ibid 786. ↑

93. Marks, supra n 28, 7. ↑

94. Ibid 7–8 ↑

95. Ibid 8. ↑

96. Ibid 9. ↑

97. Ibid 12. ↑

98. Ibid. ↑

99. Brenner and Glick, supra n 14. ↑

100. Robert Boyer, ‘Technical Change and the Theory of “Regulation”’, in Giovanni Dosi and others (eds), Technical Change and Economic Theory (LEM 1988) 71–5 <https://econpapers.repec.org/bookchap/ssalembks/dosietal-1988.htm> ↑

101. Brenner and Glick, supra n 14. ↑

102. Ibid. ↑

103. Katharina Pistor, The Code of Capital: How Law Creates Wealth and Inequality (PUP 2019). ↑

104. Brenner and Glick, supra n 14, 106. ↑

105. Ibid. ↑

106. Hockett and Krietner, supra n 6. ↑

107. Geoffrey M. Hodgson, ‘It Does Exactly What It Says on Its Cover: Commons’s Legal Foundations as an Inspirational Text for Legal Institutionalism’ (2024) 58 J Econ Issues 1100. ↑

108. Commons, supra n 9, chapters VIII, VII, and VI. ↑

109. Sabine Frerichs, ‘The Place of Law in Political Economy: J.R. Commons’ Legal Foundations of Capitalism at 100: A Retrospective Article’ (2024) 43 CPE 37, 49. ↑

110. Commons famously took a favourable view of the courts, representing them as agents of the public will striving to achieve what he termed ‘reasonable value’. As he wrote, ‘The desirable customs were selected gradually by the courts, the undesirable customs were progressively eliminated as bad practices, and out of the whole came the existing economic process, a going concern, symbolized by a flux of prices’. Commons, supra n 9 377. ↑

111. Hale, supra n 10. ↑

112. Warren Samuels, ‘The Economy as a System of Power and Its Legal Bases: The Legal Economics of Robert Lee Hale’ (1973) 47 U Miami L Rev 342, 343. ↑

113. Hale, Book Review, 31 Colum. L. Rev. 916 (1931) cited in Samuels, ibid 304. ↑

114. Moudud, supra n 95, 82. ↑

115. Commons, supra n 9 149. ↑

116. Ibid. ↑

117. Frerichs, supra n 131, 54. Emphasis added to original. ↑

118. Commons, supra n 9, 387. Emphasis added to original. ↑

119. Nicholas Mercuro and Steven G Medema, Economics and the Law: From Posner to Postmodernism and Beyond (PUP 2006), 227, paraphrasing Samuels (1971). Emphasis added to original. ↑

120. Luxembourg, supra n 12. ↑

121. Fraser, supra n 13. ↑

122. Brenner and Glick, supra n 14. ↑

123. Andre Gunder Frank, The Development of Underdevelopment (Monthly Review Press 1966). ↑

124. Immanuel Wallerstein, Charles Tilly and Edward Shorter (eds), The Modern World-System: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century (Academic Press 1974). ↑

125. Alf Hornborg, ‘Towards an Ecological Theory of Unequal Exchange: Articulating World System Theory and Ecological Economics’ (1998) 25 Ecol Econ 1. ↑

126. The IGLP Law and Global Production Working Group, ‘The Role of Law in Global Value Chains: A Research Manifesto’ (2016) 4 LRIL 1. ↑

127. Grewal Singh, supra n 31, 655. ↑

128. Ibid 655–6. ↑

129. Ibid 656. Emphasis added to original. ↑

130. EP Thompson, Whigs and Hunters: The Origin of the Black Act (Allen Lane 1975). ↑

131. Pistor, supra n 120, 105. ↑

132. Commons supra n 9, ↑

133. Paddy Ireland, Property in Contemporary Capitalism (BUP 2024) 244. ↑

134. Ibid. ↑

135. Yochai Benkler, ‘Structure and Legitimation in Capitalism: Law, Power, and Justice in Market Society’ (26 October 2023) <https://ssrn.com/abstract=4614192> ↑

136. David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (PUP 2018) 171. ↑

137. Ibid 199–200. ↑

138. Ibid. ↑

139. Ibid. ↑

140. Ibid 186. ↑

141. Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (CUP 2012); John Linarelli, Margot E Salomon and Muthucumaraswamy Sornarajah, The Misery of International Law: Confrontations with Injustice in the Global Economy (OUP 2018). ↑

142. Benckler, supra n 163, 20. ↑

143. Commons, supra n 9. ↑

144. Sophie. van Huellen and others, ‘The Political Economy of Pricing and Price Risk in Ghana’s Cocoa Marketing System’ (GDI Working Paper No. 2024-074, 2024). ↑

145. Marks, supra n 28, 9. ↑

146. Beckert supra n n 49 citing Pierre Bourdieu, ‘Principles of an Economic Anthropology’ in Neil J Smelser and Richard Swedberg (eds) The Handbook of Economic Sociology (PUP 2005). ↑

147. Friedrich Hayek (tr Marcellus Snow), ‘Competition as a Discovery Procedure’ (2002) 5 QJAE 3. ↑

148. Tiago Camarinha Lopes, Law of Value and Theories of Value (Haymarket Books 2023) 90. ↑

149. GEP Box, ‘Robustness in the Strategy of Scientific Model Building’ in Robert Launer and Graham Wilkinson (eds), Robustness in Statistics (Academic Press 1979). ↑

150. Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (Clarendon Press 1981). ↑

151. Van Huellen and others, supra n 173, 4. ↑

152. Sraffa, supra n 88. ↑