Research Handbooks on Globalisation and the Law series
Edited by Ugo Mattei and John D. Haskell
Chapter 3: The market as a legal concept: classic liberalism, modern liberalism, pragmatic liberalism
This chapter examines three legal conceptions of the ‘market’ as they have been articulated in the very particular idiom known as liberal legalism. The target, in other words, is neither a totalizing conception of the market gleaned from a reading of ‘American law’ or ‘global law’, but is instead the particular image(s) of the market available in the language of liberal legalism – nothing more, nothing less. The method for exploring liberal legal thought is structuralist, though I must leave for elsewhere a fuller account of just what the structuralist method entails. Here it must suffice to say that my use of legal structuralism takes Duncan Kennedy’s work on the history of American Legal Thought and his theorization of the semiotic ideas of langue and parole as the chapter’s point of departure. In so constructing this structuralist image of liberal legalism, I rely upon three very artificial types of distinction: (1) styles, (2) concepts, and (3) rules. As for the styles of liberal legalism, I identify three: classic liberalism, modern liberalism, and pragmatic liberalism. As for concepts, in this chapter I deal with only one: the market. Thus, the discussion focuses on a relatively autonomous legal conception of the market in each of these three styles of liberal legalism. Finally, I employ two ideal types of rules in giving structure to the market as a legal concept. I label these rule-types ‘background’ and ‘foreground’. In the ‘master-grammar’ of liberal legalism, background rules are constitutive of the legal concept.
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