Journal of Law and Political Economy

In the face of today’s twin crises of inequality and threats to democracy, many are turning to the work of Karl Polanyi and Thomas Piketty. Both have written magisterial volumes on the historical dynamics, social depredations, and risks to democracy endemic to market capitalism. This and a companion article look at each individual thinker and put the two into dialogue, with the goal of generating principles of a new democratic political economy. The dialogue has two axes of inquiry. First, how to explain and deconstruct the social exclusions and dedemocratization institutionalized in the heart of the existing market economy. Second, how to use legal predistributive institutionalism to upend the deep structures of market justice and the outsized legal powers of property and political economic domination. This article addresses these issues by constructing a neo-Polanyian law and political economy and exploring four Polanyi-inspired themes: (1) a bifurcated capitalist order; (2) market justice as capitalism’s moral economy; (3) the economy as a predistributive “instituted process” of law and coercion; and (4) market capitalism’s anti-democratic infrastructure.

In 1850, California joined the United States as a free state. However, one of its first laws, the 1850 Law for the Government and Protection of Indians, legalized the enslavement of California Indians. Drawing comparisons between early Californian and Southern statutes that maintained racialized political economies, we argue that the institutionalized oppression perpetrated against Native Americans in California bears important legal similarities to that perpetrated against African Americans in the South, both before and after Reconstruction. This similarity is not a coincidence; the presence of both African and Native American populations in Southern legislation, the movement of Southerners to the West to participate in California’s development, the regional history of Mexican and Spanish systems of Indigenous enslavement, and a political economy reliant on racialized underpaid or unpaid labor, all created the conditions for California to legally retain de facto systems of slavery in a context of de jure freedom.

Institutional structure––or the rules and laws (both formal and informal) in use informing human interaction––is often held separate from mainstream economic research and analysis. The Legal Economic Performance (LEP) Framework, as developed and utilized by the author (with Eric Scorsones) in real-world extension work, centers on the analysis of human interdependence and its key legal components to consider the impacts of proposed or past changes to institutions. A language of legal relations—Hohfeldian analysis—is used to break down and describe the situation. Through this process, the key issue or issues of interdependence are identified, enabling the analyst to identify the structural options available to address it. Finally, the structural components of the institution, the distributional outcomes they give rise to, and assumptions about human conduct or behavior are considered. This paper introduces the LEP model and its uses by the wider heterodox community, with special attention to its application in the domain of housing rights and roadway congestion management.

This paper introduces the concept of aspirational work to highlight a common trend in the constitution and organization of work in neoliberal capitalism. It argues that aspirational work should be seen both as an example of displaced training and as an example of a form of work from which capital extracts surplus labor, albeit one which is not recognised as work in UK labor law. It goes on to explore the historical and structural factors that explain why aspirational work falls outside legal definitions of work, giving examples from the case law. Through its discussion of aspirational work, the paper highlights the importance of combining these two levels of abstraction in our analysis of contemporary social phenomena, explaining how capitalism gives rise to a particular form of normativity, and that while this varies historically, it nonetheless possesses certain distinctive and persistent features.

This article adapts the concept of the moral economy and applies that adapted concept to UK gambling regulation during the early years (2020-21) of the COVID-19 pandemic. I extend the moral economy concept beyond the eighteenth-century English food riot, and beyond food staples. I also examine the role of law and regulation in the moral economy and highlight charity's importance to moral economy debates. I then consider gambling through a moral economy lens by exploring the pandemic-era regulation of horserace betting, lotteries, and bingo. I show that gambling in some forms (horserace betting and lotteries) was important to pandemic recovery projects and to spectacles of national coming together. Via lotteries, for example, the state sought to adjust customary expectations about the role of volunteers in providing essential services. Although regulators generally ignored bingo, there was a pandemic resurgence in self-organized games that is especially significant for work on the moral economy. I conclude by identifying some broader implications of this study, including on how essentiality is legally constructed, and on charity and volunteering within the moral economy.

There has been a recent resurgence in scholarly work concerned with the economics of human rights. This article builds on this work to develop a conceptual framework of human rights and political economy. It provides a theoretical basis for the turn to human rights and economics, rooted in the increasing micro-management of the economy by liberal states that can constitute the state planning of material distribution within the state. It demonstrates that human rights principles do apply to economic questions and elaborates methods and practices to realize the potential of rights in this arena. The article applies these methods and conceptualizations to state obligations and business responsibilities to excavate current limits and potentials of rights and contextualizes the project within left critiques of rights and “claim right” perspectives.