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The Great Leveler: Capitalism and Competition in the Court of Law

by Brett Heino on June 23, 2017
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There are few components of a capitalist society that penetrate as deeply and pro-foundly into the lives of the people as law. Whole swathes of social life, ranging from the labour–capital relationship, the make-up of the family, the regulation of crime and the relationship of citizens to one another and the state (to name a few) are structured and governed by the legal form. Capitalism is, in short, legalized to a degree that is historically unprecedented. Given this reality, it is both surprising and disappointing that sophisticated Marxist analyses of law are uncommon. Many attempts fall apart in the always-difficult exercise of articulating theoretical rigour with empirical sensitivity. Against this backdrop, Brett Christophers’ The Great Leveler: Capitalism and Competition in the Court of Law stands out as a fine example of both the method and the fruits of a successful effort at such an articulation.

Christophers posits from the outset that his book ‘is about the role of the law in mediating  and  managing  the  relationship  between  the  forces  of  competition  and monopoly’. Rebuffing the account of monopoly-capitalist scholars such as Foster and McChesney, Christophers, drawing upon the work of David Harvey, argues that capitalism is characterized by a monopoly-competition dialectic. Far from being separable and mutually exclusive elements within the capitalist mode of production, the organic, interpenetrative relationship of monopoly and competition instead helps constitute it, a reality Marx pithily grasped when he stated ‘Monopoly produces competition, competition produces monopoly’. The relationship between these two dialectically related impulses, however, is a fragile and unstable one, always threatening to throw capital accumulation into peril. There must be provisional efforts, therefore, at introducing stability into a deeply contradictory bond.

Christophers acknowledges that he is not alone in this argument. The true innovation of this book is the way in which the law is posited and studied as ‘the primary, necessarily mutable, instrument’ in the attempt to maintain balance in  the monopoly—competition dialectic. To this end, he studies the historical evolution of the two bodies of law most directly concerned with the monopoly—competition relationship: intellectual property (IP) and competition law respectively. This process of evolution is examined through the lens of two study countries, the United Kingdom and the United States, from roughly the late nineteenth-century until the present day.

Part I of the book (chapters 1–3) serves as the conceptual bedrock, with Christophers expanding upon the notion of monopoly and competition as a dialectically intertwined unity and exploring the ways in which IP and competition law perform the tasks of supporting this fragile unity, their ‘leveling’ work. In this context, he introduces the regulation approach, ‘political economy’s most concerted collective effort to theorize the regularization and stabilization of capital accumulation and growth’. Despite the obvious utility the regulation approach may have in understanding the evolution of the law, however, Christophers argues that this potential is largely untapped, due in no small part to a flaw shared with broader Marxist work: a fixation with production relations and a concomitant marginalization of the study of exchange and the differing configurations of monopolistic and competitive relationships framing it. The result, according to Christophers, is an inadequate account of economic laws, like IP and competition law, the primary interventions of which are precisely in the realm of exchange.

Proceeding on the premise that exchange matters and deserves more focus than simply as a residue of production, Christophers moves to the historical analysis of his book in Part II (chapters 4–6). While acknowledging the different legal, economic and political contexts of the United Kingdom and United States, he sees a broadly similar evolution in the structure of the monopoly-competition dialectic:

  • Late-19th century: sharp declines in prices and profits in both the United Kingdom and United States were at least partially a function of ruinous competitive conditions. The unbalance in the monopoly-competition dialectic thus had to be ‘leveled’ by, among other things, law. This was reflected in the very substantial strengthening of IP law in both countries towards the end of the 19th century, a development that helped buttress and augment monopoly powers. According to Christophers, even the passage of the U.S. Sherman Antitrust Act of 1890 did little to stem this movement; conversely (and perversely), it actually helped foster monopolies through encouraging industrial mergers, which proved much more resistant to the Act than cartel arrangements.
  • Middle of the 20th century: It became clear during and after World War II that the strengthening of monopoly powers had gone too far, creating an excess of monopoly over competition, stifling innovation and seeing labour’s share of income drop. Faced with the prospect of crisis, law once again stepped to the fore. In the United States, antitrust law was beefed up, enjoying a heyday from the 1950s to early Meanwhile, the United Kingdom introduced its first statutory competition law scheme which, despite an effete start, developed real teeth from 1956 onwards. It was now competition’s turn to be boosted through the law, restoring balance to the perpetually unstable monopoly—competition relationship.
  • 1970s to today: Christopher attributes the crisis of advanced capitalist countries in the mid-1970s at least in part to competition law performing its job too well, creating once again an excess of competition. In both the United States and United Kingdom, the response was to essentially defang competition law and once again raise IP law to a position of paramountcy. In this effort, the Chicago school of economics, and its political stablemate neoliberalism, have been key, redefining the purpose of antitrust law as efficiency, rather than the maintenance of competition per se. Unlike the 1890s situation, these recent developments have occurred in the context of the internationalization of IP law, a process unmatched by any similar development with competition law. Despite the fact that once again excessive monopoly power is threatening the stability of capitalism, Christophers opines that the historically observed process of leveling might be stalled once and for all, a reality that would validate the then-premature observations of Lenin about the dawn of monopoly capitalism and imperialism.

Christophers has produced a work that is long overdue, a claim that I am not alone in making (see both Bob Jessop and Erica Schoenberger). Among its many virtues, three are particularly significant. First and foremost, it demonstrates the kind of exceptionally rich work that can be produced from a successful articulation of grand theory with empirical sensitivity. Christophers has created an account of legal evolution that is structured by a fundamentally sound understanding of capitalism as a contradictory, crisis-ridden system, operating according to deeply seated tendencies. He discerns and captures the broad sweep of competition and IP legal history in the United States and United Kingdom, while also appreciating how the unique institutional matrices, path-dependencies and economic structure of the two countries affected the quality and tempo of legal change. Second, it demonstrates the potential for legal study from within the regulationist paradigm, a fruitful union that offers genuine opportunities for developing sophisticated accounts of the role of law within distinct epochs of capitalism. Finally, and perhaps most importantly, this book serves as a signal reminder of the importance of studying law from the perspective of political economy. Just as important as the answers Christophers proffers to the question of the relationship between law and the monopoly—competition dialectic is the act of posing the question. The Great Leveler in this sense presents a fresh opening for a reinvigorated study of law and capitalism, a reality recognized by a recent symposium published in Environment and Planning A.

Despite these many strengths, there are two significant conceptual shortcomings. First, there are the claims of some that his account of the process of legal leveling is essentially functionalist (see, for example, Gary Dymski). These claims are not necessarily fair and Christophers himself has ably defended his position, here. However, Christophers makes himself vulnerable to the claim of functionalism in the first place through the lack of a clear conception of just how law fits within capitalism. Is it something which exists outside the core of capitalism, a logically a priori institution which comes to be linked to the fortunes of this mode of production? Or is it instead a form of capitalist social relations themselves, a juridic structure deeply implanted within capitalism’s DNA? Christophers’ arguments tend to support the first proposition, when it is the latter which would allow him to tackle the charge of functionalism head-on. The contradictions of capitalism would then be the law’s own contradictions; the process of destabilising the monopoly—competition dialectic itself partly legal in origin.

Second, the regulation approach, introduced in some detail in Part I, at times proved marginal to the analysis in Part II. Concepts such as ‘accumulation regime’ and ‘mode of regulation’, discussed early, do not feature in the characterization of the different periods to which the exercises of legal leveling correspond. This is unfortunate, because it is just these concepts that could have more precisely elucidated the architecture of the various epochs and the role of law within it.

These flaws, however, do not detract from what Christophers has achieved. As world capitalism continues to change and evolve, we must understand the roles played in this process by the full gamut of economic, political and cultural institutions, including the law. The Great Leveler stands as a beacon for those of us who have been arguing for law to be taken to the heart of political-economic study.

This review first appeared in Capital & Class

Brett Heino

Brett Heino is a researcher in the Faculty of Law, Humanities and the Arts at the University of Wollongong.

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