Banking and Finance Law | Law and Economics
Even American Founders whose views diverged as dramatically as those of Jefferson and Hamilton shared a view of finance and of enterprise that one might call “productive republican.” Pursuant to this vision, financial and other forms of market activity are instrumentally rather than intrinsically good — and for that very reason are of interest to the public qua public rather than to the public qua aggregate of “private” individuals. Citizens are best left free to engage in financial and other market activities, per this understanding, only insofar as these are consistent with sustainable collective republic-making. And the republic — the res publica or “thing of the public” — for its part devotes many of its energies to the task of fostering and maintaining a materially independent republican citizenry. State and citizen are thus mutually constituting and mutually supporting, per this vision, and finance is important primarily in its capacity to nurture that symbiosis.
The productive republican view of finance can be illuminatingly contrasted with another view of more recent vintage, which one might call “liberal.” The liberal view takes market activity to be an intrinsic good, if not indeed a matter of inherent political-cum-moral right. Markets on this view are as it were natural social outgrowths of and aggregated counterparts to inherently “free” individual choices — choices that all of us, in both our individual and our collective capacities, are ethically bound to respect insofar as they don’t impose illegitimate costs upon others. So-called “public” interventions in “private” markets are accordingly fit subjects of suspicion and scrutiny per the liberal view. They are presumptively problematic unless and until proven otherwise, while “proof otherwise” for its part typically takes the form of proof that the intervention protects putatively pre-political freedom itself.
I claim in this article, a solicited symposium contribution, that American financial law, and economic law more generally, were once highly productive-republican in character, and that many financial, economic and, in consequence, political dysfunctions with which we have become familiar in recent decades stem from those laws’ having become steadily more liberal in character over time. I also argue that a number of essays, articles, and monographs published over the last twenty years or so under the rubrics of “banking the poor,” “alternative banking,” or “democratized finance” are, in effect if not self-conscious intention, attempts at partial recovery of the productive republican tradition — at least in the realm of finance. They are in this sense what might be called “post-liberal” in sensibility, if not quite in self-conscious aim. Their project can accordingly be aided, I aim to show, by affording them a form of reflective project-consciousness. That consciousness, however, once attained, will not be satisfied with post-liberal finance alone. It will demand a post-liberal economics.
Robert Hockett, "Preliberal Autonomy and Postliberal Finance," 77 Law and Contemporary Problems 105 (2014)