“The Code of Capital”
I’ve just finished reading Katharina Pistor’s book, The Code of Capital. Pistor’s argument draws together threads of thinking about how global capitalism is increasing, and perhaps based in, wealth inequality (meaning property, or capital, inequality), but adds a longer view to recent books on the triumph of neoliberalism and economic segregation. Pistor’s view is as a historian (or thinker about the history) of law, specifically “private law” or law developed by lawyers in the course of creating new legal structures of property law, arguing cases, or getting governments to agree to arrangements that governments had little to no hand in making. Her view is accordingly less of reversals of previous controls imposed on or taken off of capitalism, than of the continuous accumulation of protections for capital over centuries, never really reversed, slow, incremental, and almost inexorable.
My own interest in law and property was not much aroused by going through the pains of buying a home, despite the many entry points into the American capitalist system such an experience provides. Like many people, I viewed the experience through the lens of meeting requirements to buy and then going through the process of buying; behind the endless initialing of contracts there was perhaps some mix of learning and cultural reinforcement about the meaning of “being middle class” in America, but I didn’t much regard it.
Last year, however, I bought a Groupon to do the course in California Real Estate required for a license, and after some procrastination, actually finished it and took the exam to prove to myself that I’d learned something. That turned out to be a way to focus my thoughts on the American legal system the way nothing else except serving on a jury has done. And where jury service inspired me with the ways in which reasoning individuals, thinking and debating on a deadly serious matter, can still be part of the American political process, real estate impressed me with the inexorable complexity of the building of the property legal system.
Katharina Pistor’s book clarified my sense of the legal superstructures of property beyond American real estate to all the asset classes worth money in 2019. And in doing so, I think she offered an account of political power in the modern world that is as fundamental as, but improves on, that of Foucault, who traced power’s mutations via the examination in Discipline and Punish so as to parallel his previous accounts of the treatment of madness and epistemology and his later presentations on sexuality, all in a structuralist mode.
In Pistor’s narrative of the intertwining accumulation of power by capital and lawyer’s, unlike Foucault’s, there is a granular account of the activities of creative lawyers, and of the materialization of power, at the same time as capital evolves in the seemingly dematerializing directions of legal forms (trusts and contracts etc.) and new forms of ownership (of intellectual property and genetic code, most recently, along with exotic financial derivatives). The transnational forms of law, in her telling, are a fundamental threat to democracy, but a threat that can be “decoded,” as it were, through an active commitment to dismantling legal forms that have never been subjected to a full democratic review. Her hope links, in my mind, to what I see as the greatest promise of an Elizabeth Warren presidency: a move (I won’t call it a return, though I was tempted to) to democratic control of capitalism both wide and deep.
