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Law's Regulatory Relevance?

Property, Power and Market Economies

Mark Findlay

Law’s Regulatory Relevance? theorises how the law should reposition itself in order to help rather than hinder new pathways of market power, by confronting the dominant neo-liberal economic model that values property through scarcity. With in-depth analysis of empirical case studies, the author explores how law is returning to its communal utility in strengthening social ties, which will in turn restore property as social relations rather than market commodities. In a world of contested narratives about property, valuing law needs to ground its inherent regulatory relevance in the ordering of social change.
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Chapter 2: Criminalising property

Property, Power and Market Economies

Mark Findlay

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Whether something will be regarded as property is nothing more, and nothing less, than a conclusion of law.87

Instructed by market mechanisms, the law currently ensures exclusive ownership, protects possession of property and controls pricing. In this way, property commodification through law displaces the societal value of property with a monetary value, allowing property to be dislocated, alienated and transacted as part of the market economy. In the process, law itself becomes commodified as an agent of enforcement, ensuring individualist wealth creation services at a price.

Conventionally, law has operated as a market mechanism delineating property access and possession through private law obligations and public law penalties. In support of exclusionist market apparatus, legal enclosures are constructed around property in terms of rights and obligations (see Chapter 7). The normative framework that once legitimised law as a community resource is largely replaced by disembedded market values.88 In the process, law’s now assailed legitimacy lies with its economic effectiveness in facilitating market conduct, rather than requiring property to perform a social good.

Accordingly, acts that are injurious to the market economy are labelled as illegal/a crime. Criminalisation in the information economy does not require the violation of any normative standard, but depends on an income/wealth distinction that allows access (a legal lending of possession) to those who can (or will) meet the price of possession, while leaving economically marginalised (or resistant) members of society to seek out illegal loan opportunities. Regarding...

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