Abstract
This article introduces a new institutional political economy of capitalism that explains the distinctive dynamics that drive sustained productivity growth, recurring social dislocation, and persistent patterns of exploitation in modern market societies. It then analyzes the role of law in structuring social relations of production in capitalism and legitimating those structures so as to stabilize the asymmetric social relations they create. Law structures social relations of production by allocating control over labor, knowledge, natural resources, and technology, as used for purposes of both subsistence and market-oriented production, as well coordination and cooperation in labor and investment processes, access to means of payment and credit, and the allocation of risk and uncertainty attendant to production. It also differentially constrains access to labor roles, training, and credit along lines of gender and race, leveraging gendered and racialized class relations for profit and reinforcing atavistic status subordination under a veil of juridical equality. Law in capitalism legitimates these relations through the social role of the legal profession as a distinct social formation within the professional and managerial class, one that is produced through training and practice-based habituation and asserts specialized knowledge acquired through this socialization process. The legal profession produces internal profession-wide acceptance of legal decisions by adhering to internal professional modes of reasoning that have recurred since the 17th century as the primary modes of legal argument and legitimation. It produces broad elite and public acceptance by communicating that acceptance as its members operate transversely in profit-seeking, political-military, and meaning-making social formations. The article ends with implications of this new institutional political economy and its relation to law in capitalism for the design and justification of a post-neoliberal regime.
Citation
Yochai Benkler,
Structure and Legitimation in Capitalism: Law, Power, and Justice in Market Society,
88 Law and Contemporary Problems
1-47
(2025)
Available at: https://scholarship.law.duke.edu/lcp/vol88/iss1/2