Academic journal article Law and Contemporary Problems

Preliberal Autonomy and Postliberal Finance

Academic journal article Law and Contemporary Problems

Preliberal Autonomy and Postliberal Finance

Article excerpt

I

INTRODUCTION

Even American "founders" whose ambitions for their new nation's future were in large measure mutually antithetical seem to have shared certain salient values in common where financial and economic relations, and their connections in turn with political relations, are concerned. (1) Take the two mutual nemeses Jefferson and Hamilton, for example. Notwithstanding their deep differences, these self-described "republican" (2) statesmen appear to have shared a view of the place of remunerative individual endeavor and productive autonomy in an enduring republic and of the place of finance in assuring that both remain always available to productive-republican citizens. (3) This is a view

of finance and of enterprise that I call "productive-republican," as distinguished from "liberal," in what follows. (4) Pursuant to this vision, financial and other forms of market activity are instrumentally, rather than intrinsically, good--and for that very reason are of interest to the public qua public rather than to the public qua aggregate of "private" individuals. Citizens are best left free to engage in financial and other market activities, per this understanding, only insofar as these are consistent with sustainable collective republic-making. And the republic--the res publica, or "thing of the public"--for its part devotes many of its energies to the task of fostering and maintaining a materially independent republican citizenry. State and citizen are thus mutually constituting and mutually supporting, per this vision, and finance is important primarily in its capacity to nurture the symbiosis.

This "productive-republican" view of the appropriate role of financial and other markets in a well-ordered polity can be illuminatingly contrasted with another view of more recent vintage, which I have just called "liberal." The liberal view takes market activity to be intrinsically good, if not indeed a matter of inherent political-cum-moral right. Markets on this view are, as it were, natural social outgrowths of and analogues to inherently "free" individual choices--choices that everyone, in both their individual and collective capacities, are ethically bound to respect insofar as these choices do not impose illegitimate costs upon others. (5) So-called "public" interventions in "private" markets are accordingly fit subjects of suspicion and scrutiny per the liberal view. (6) They are presumptively problematic unless and until proven otherwise, whereas proof otherwise for its part typically takes the form of proof that the intervention protects putatively prepolitical freedom itself.

I argue in this article that American financial law and economic law more generally were once highly productive-republican in character, and that many financial, economic and, in consequence, political dysfunctions that have become familiar in recent decades stem from those laws having become steadily more liberal in character over time. I also argue that a number of important essays, articles, and monographs published over the last twenty years or so under the rubrics of "banking the poor," "alternative banking," or "democratized finance" are, in effect, if not self-conscious intention, attempts at partial recovery of the productive-republican tradition--at least in the realm of finance. They are in this sense preliberal--or, if you like, postliberal--in sensibility, if not quite in self-conscious aim. Their project can accordingly be aided, I argue, by affording them a form of reflective project-consciousness of the sort I aim here to supply.

The works to which I allude do their salutary work of thus far inarticulate republican recovery via the compelling but inherently self-limiting medium of elegy. They are largely nostalgic accounts of the finance-institutional consequences of society's having lost sight of its once-dominant, preliberal, productive-republican view of the role of finance in the polity. …

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