Tomlins on "Capitalism as Law"

Christopher Tomlins, University of California, Berkeley  Jurisprudence and Social Policy Program, has posted Organic Poise? Capitalism as Law, which is forthcoming in the Buffalo Law Review:

The “and” that has characterized multi- and inter-disciplinary legal scholarship over the last half century identifies law as, to some determinable extent, a system, structure, discourse, and/or field of its own, coupled with, hence cognitively open to, other such systems – economy, polity, society – but like them manifesting operative closure. Applying the conjunction to law and capitalism represents the two elements under inspection as phenomenally distinct. The application of systems theory seems quite appropriate to the determination of relations among different operative categories of action in any given society – law, economy, and so forth. But “capitalism” is not an operative category of action. It is an encompassing, holistic characterization of a particular type of society that is is both institutionally and ideationally specific. So, although the critique of functionalism is correct to disparage theories of lock-step operative responsiveness between one system (law) and another (economy), it is worth investigating to what extent, just as “‘medieval law looked, smelled, and acted medieval’ … capitalist law looks, smells, and acts capitalist.” Accepting this as a task for legal history, this paper offers preliminary thoughts on how that task might be conceptualized.