Introduction: The market and the law

The modern capitalist market is a realm of contracts and property rights, that is, a realm of law. In a capitalist society, to say “market” or “business” is to say “the law.” As capitalist market relations develop, the law tends increasingly to permeate society, not only the public sphere of legislation and administration but also the private sphere of day-to-day relations in and out of the market. In proportion as market relations mature, the law displaces religion, just as the courts displace the church, and lawyers and judges, the clergy, in the regulation of everyday life. In the American vernacular as early as the mid-seventeenth century, the people go from God to cod. Hence, to understand property, to understand market relations, to understand politics, in a capitalist society and especially in a capitalist republic such as the United States, it is not sufficient, but it is certainly necessary, to understand the law – or, more precisely, the interrelations of property, class, the market, and the law.

There can be no modern capitalist market, as a sustained and stable system of social relations essentially coterminous with society as a whole, apart from the complex development and the certainty of the law. The law is the Latin of the market, just as the language of money and prices is the Vulgate. Certainty, here, does not mean changeless rigidity, but a consistency of logic and reasoning, which, though rooted in precedent, may also depart from it in adapting to, or providing for, changing conditions. Certainty means, in other words, a logic, whether instrumentalist or formalistically rational, that yields a reasonable predictability in both the constancy and the variability of the law.