The Postmodern Legal Ordering of the Economy

Abstract:This article purports to show how the postmodern tenets of particularity, reflexivity, decentralization, and pluralism map on to current legal forms and structures of market regulation. This is the case in the regulatory paradigm of shaping markets "from within," the aspiration of which is to embed public and social values in the operations of private corporate actors, while expanding private corporate actors' regulatory authority and scope of self-governance. As the state attempts to harness the regulatory potential of the social sphere to impose sanctions for corporate misconduct, the role of the law becomes to facilitate the permeability of private institutional structures to the pressures of the market and civil society—in short, law relies on and seeks to facilitate societal self-regulation. This mutation of the function of law reifies the asymmetries of social power in legal arrangements, while it eventually weakens the role of democratic politics as the principle of social ordering. At the same time, such new forms of market regulation do not challenge the structural inequalities encased in the original institutional setup of public and private legal infrastructure and thus fail to reconstitute market dynamics. The article questions the potential of the postmodern focus on particularity and pluralism to provide normative orientation for socially transformative projects against the backdrop of diffused private power, eventually attempting to trace new directions of critique at the intersection of law and political economy.