Code of Capital
* Book: The Code of Capital. By Katharina Pistor.
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No Capital Without Legal Code
"Modern economics is commonly defined as the study of the optimal allocation of scarce resources. It assumes that economics in general and markets in particular are primarily about the allocation of tangible goods, or “stuff” that exists only in limited amounts. Yet, the key resources that fuel economies are money and capital, neither of which is scarce. States (at least states that are sovereign in the monetary sense) can issue fiat money literally without limitation. And capital is not about “stuff”, but about a legally enforceable claim to expected returns. The underlying good is secondary; what matters is the legal coding. Notably, the legal code, or rather the powers it conveys, is not scarce; it can be applied to different claims and be transposed from one asset to another. With respect to intangibles, the underlying “asset” is itself a product of the law. How many promises are turned into tradable assets or ideas into patents is a matter of choice and legal accommodation, not scarcity. Natural systems are bounded, but social systems (including economic systems) are not. This sets the two systems up for a clash with natural systems and this clash has manifested itself in “climate change”, a catch word for much deeper problem: the natural constraints on social systems that seem incapable of self-policing their limitations and their compatibility with the natural environment on which they depend.
It is not a new argument to say that there is more to the production of goods than just the combination of raw material. As Marx noted, surplus is created through a process that allows capital to expropriate value from labor. But this still assumes a zero-sum game. The “Code of Capital” tells a different story; not labor, but state power is the fountain of wealth; it can be retooled to produce and protect the wealth of only a few. The expropriation of surplus is not just from slaves, labor or other oppressed classes, although this is happening as well, but from a common social resource: from law, or government largess in the form of central bank support.
The legal code is not the only code that configures wealth; accounting rules play a critical role as well. Financial assets are created at the intersection of legal, accounting, and tax rules. The double bookkeeping system, which originated in Italy, not in England (the origin of the common law) is key for the ability of banks’ to create money out of thin air; not public but private money, with a call-option to convert this private money into public money. As is well understood, banks do not need depositors to lend them money to lend or invest it. A bank only needs to credit the account of the borrower, debiting its own balance sheet, and credit the bank with a claim against the borrower on its asset side. By the stroke of a pen the balance sheet of the bank was expanded, and magically without any cash inflows. The balance sheet balances, because the outflow is balanced by a promise to repayment, which appears on the asset side even though at this point it is only an expectation. This is where depositors help, because their cash provides the bank with the liquid means to pay cash to its own creditors, including other depositors. But it is not critical for the money creation process as such.
The need for liquidity brings the state back into the picture in the disguise of the issuer of high-powered money that only a sovereign without a binding survival constraint can issue. As Minsky (1986) famously quipped, anybody can issue an “I owe you” (IOU), but not everyone will find a taker. This lesson was learnt the hard way during the era of free banking back in the nineteenth century America, when banks were freely established and expanded the money supply by issuing notes drawn onto themselves with the promise to convert them into silver coins on demand (Sylla, 1982). These banks did not maintain any silver reserves to draw on and certainly lacked the authority to such mint coins themselves. Sovereign or state money (whether metallic or fiat money) is different, because states have the power to force others to pay certain obligations they themselves impose, such as taxes or fines, in their own money (Lietaer & Dunne, 2013). This power play is at the heart of hierarchical organization of money with sovereign money always at the apex. Occupying the apex, however, is not the same as exerting full control over money. Modern money systems have evolved as hybrid systems (Mehrling, 2013); they consist of private and public money. The size of the private money by far exceeds the amount of public money in circulation, forcing the hand of central banks certainly in times of crisis and increasingly on an ongoing basis.
The analogy of the distinction between public and private money to the difference between public and private law (discussed above) is worth noting. Whatever states do, private parties can do too as long as they are backed by state power. For this reason I should have probably said more about state, not only private money in the book, and more about banks, not just about shadow banking. The chapter on “minting debt” (Chapter 4) focuses instead on how law is used to coin not just bank money, but any form that private money can take by grafting the modules of the legal code onto simple promises to pay – from bills of exchange to securitized assets and their derivatives. Every privately minted debt instrument is a bet on the ability to convert the repayment promise into state money on demand.
Incidentally, this applies also to most cryptocurrencies. Recall that convertibility is one of the attributes of capital; it locks in past gains and thereby helps financial assets attain durability. Add to this the simple truth that the debt of one person or entity is always someone else’s credit. This accounting logic leads, in the last instance to the conclusion that most, if not all, private money is a contingent liability on the state. Whether or not a contingent becomes an actual liability depends on the threat a massive default on a given asset class poses for the system as a whole. Not every bank is too big or too interdependent to fail; neither is every asset too toxic to lead to its own demise and that of its current holder. Yet, when the perceived costs for refusing to take the “put” that private actors have placed on the balance sheet of the government or its central bank become too big, the contingent liability will be converted into actual bailout. A possible solution to this problem is to curtail the private-money creation machine. As far as I can see, however, no state has ever been able to completely suppress private money creation, although socialist regimes have come close. There is, however, another aspect of the accounting logic, according to which debt and credit mirror each other, that is worth mentioning. The accounting logic alone says little about whether debt and credit are equal not only in nominal terms, but in the sense of being equally empowered; this question is determined in law, not in accounting." (https://www.degruyter.com/document/doi/10.1515/ael-2020-0102/pdf)
"Power is an elusive concept. In the book, I reduce it to a single dimension: the prospect of enforceability, which stands for the ability to invoke a state’s means of coercion for vindicating and enforcing claims against others. The threat of coercion, I argue, gives capital its comparative advantage over other objects, promises or ideas. In the absence of legal coding, these assets might be respected or admired by others, and in relatively small social settings this is usually enough. However, little will stop actors who do not respond to social sanctions from breaching these norms. Relying on the coercive power of one or more states ensures that economic and social relations become scalable.
In focusing on coercion, I am subscribing to a Weberian conception of the state as the monopolization of the means of coercion. I do not further differentiate state power and how it affects different aspects of law or social life, most importantly private vs. public law, as several contributors have noted with respect to antitrust law or financial regulation as an antidote to the abuse of contract law, as suggested by Matthias Thiemann and Dan Awrey respectively. In effect, Thiemann and Awrey are arguing that there is a state that has the capacity to regulate private activities, including legal coding strategies found in private contracts and assets. The task is to explain when the state chooses to invoke public law to curtail private activities, or not.
I do not dispute the evidence of regulatory activities, or more generally of “the rise of the regulatory state” (Moran, 2001). However, I would depict this as part of a further differentiation of state power. Public and private law are different strategies for accessing and employing the means of coercion as a collective resource. This resource has been institutionalized differently, and critically, without adding up to a complete or coherent system. State power can be institutionalized in a more or less centralized fashion (unitary vs. federal states), and it can afford greater access to different agents, including attorneys, courts, regulators, etc. Power is not a zero-sum game. By strengthening central power, the forces that used to rely on decentralized access to power are not necessarily weakened, but instead might find different access points or channels through which to contest and exert new forms of power. In a similar vein, public law or regulatory constraints do not necessarily curtail private power and its use of private law; often it only channels it into different directions – with the result of an ever more complex, perhaps even ungovernable system. In short, as many political theorists have pointed out, power is a relational concept (a feature it shares not only with capital but with every social institution). It is never unilaterally invoked, but constantly contested and reconstituted, domestically as well as globally. Constitutions seek to constrain public power by elevating individual and collective aspirations to constitutional rights, or by dividing power amongst different branches of government or between a federation’s center and its constituent parts. Further, international law holds that the lawful exercise of this public power is confined to the territorial boundaries of nation states (notwithstanding the extra-territorial character of some domestic law). In contrast, private law is border-less in the sense that private parties can carry it with them and seek to convince agents of other countries, such as courts, to recognize and enforce rules that are foreign to them. This has made private power, and indeed capital, more akin to “roving” than to “stationary” bandits, to invoke Mancur Olson’s metaphor (Olson, 1993).
This relative autonomy from a single source of power has given private power wielders a central role in forging legal rights and privileges that benefit them. In the evolution of property rights it is difficult to find a case where the dispossessed were the primary beneficiaries of zoning and titling programs (the land reforms in Taiwan and Japan after World War II being one of a few examples); in the majority of cases, legal title is instead granted to the de facto controllers (Upham, 2018). For every enclosure movement, of land, knowhow and most recently of data, we find the same pattern: First movers with the goal of monetizing assets secure de facto control rights and then the power of legal ordering for themselves, and in so doing they curtail the possibility of a different order for one simple reason. Any alternative would have to wrestle control rights away from them before starting from scratch. Once private legal rights are recognized, this restricts the scope of private law to modifying and restricting, but leaves little room for re-ordering.
Even data fits this bill, contrary to Shoshana Zuboff, whom Lisa Herzog references when suggesting that “the appropriation of data often does not even seem to require the kind of legal codification as capital that Pistor describes: data are often not held as property, even though the control rights of companies are comparable” (p. 5). Yet, in all of these cases, denying property rights to the obvious contenders, to the commoners, indigenous peoples or the data producers, has been critical for granting secure legal title for the landlords, the settlors, as well as for Big Tech. Data producers who sued tech companies in the US for violating their property rights or tort were denied protection, because they could not show that these data were of any economic value to them. Once they had grabbed and aggregated the data from thousands if not millions of producers, Big Tech companies received legal protection against hackers and copycats with the help of specific legislation (Pistor, 2020). Zuboff misses this point by describing surveillance capitalism as a lawless zone (Zuboff, 2019), when in fact it would have been entirely possible to grant data producers a property right in their own data, just as it was eventually possible to protect the collective use rights of land of the Maya in Belize through property rights protection (as I discuss in the book); not to monetize their data, but to prevent others from doing so. The fact that this was not done at the outset and has been only partly rectified after the fact1 speaks volumes about the power of private agents. It also means that prospects of a data commons, or public trust in data, have vanished. Legally protected private power is difficult to dislodge, because it is protected against state intervention (expropriation remedies!), it can rove, and it can morph. The deeper point is that there is no entity that designs a social order and freely chooses between public and private law. Access to the centralized means of coercion is and has always been diffused, although today it is possibly more so than it has ever been. Not all power is centralized and vested with public agents. In fact, the differentiation between public and private law may be less important than trying to understand the access points that different constituencies have to either. The masters of the code of capital, that is, the private attorneys who fashion different assets as capital mostly in private law also tend to have privileged access to regulators and tax authorities and often vet their coding strategies with them before applying them. Their ability to do so depends in no small measure on the economic power of the clients they represent, which in turn results from the success of earlier coding strategies." (https://www.degruyter.com/document/doi/10.1515/ael-2020-0102/pdf)