[Note: The thoughts below are a new, slightly more developed sketch of the legal institutionalist view of the economy discussed in a 2014 post, “What so few economists know, but all the good legal scholars understand.” For additional context, including my hope that legal institutionalism or “law and political economy” might play a central role in progressive political-economic thought after the Reagan Era, see the previous post, “After Neoliberalism.”]
One of the guiding assumptions of political and economic debate in the contemporary United States has been the idea that we face a choice between government and the market. Either government can centrally plan and direct what economic actors are to do, or economic actors can be given the freedom to choose what to do. In the latter case, economic actors will enter into private transactions for their mutual benefit. To the extent that market failures do not interfere, price signals will coordinate the incentives of these private actors in such a way that their self-interested behavior will, ideally, serve the good of all—as though under the beneficent operation of an invisible hand.
Of course, everyone recognizes that in reality market failures are always present to a greater or lesser degree. All sides in the discussion accept this. There will be information asymmetries, positive and negative externalities, and other market imperfections. As a result, there will be a role for government in the economy. In fact, it often seems in contemporary political debate that the government’s primary role is to correct market failures by intervening in the market, whether through the direct provision of public goods and services, or through regulations.
The rhetoric of “government versus the free market” reflected in the paragraphs above has become so familiar that it may simply seem natural. How else could one speak of economic policy choices? What is the conceptual or rhetorical alternative, assuming that we are not going to lapse into discussion of the kind of radical economic experiment that so often resulted in humanitarian catastrophe in the twentieth century?
It would not be an exaggeration to say that the conceptual opposition between government and the market has been the central organizing principle of political debate regarding the economy in the United States, and to a greater or lesser degree around the world, for roughly the past four decades—the period identified with the rise of Reagan and Thatcher, although its origins precede them, and labelled by critics on the left as “neoliberalism.” The distinction is so central to our politics that the defining disagreement between the Left and the Right during this era has often been seen as the disagreement over the degree to which markets are imperfect and would benefit from government intervention. Partisans on the Left present themselves as seeking a greater role for government in restraining the excesses of the market, as well as attempting to protect various realms of life from market forces; partisans on the Right present themselves as seeking smaller government and more market-based solutions. All seem to agree that the fundamental choice is between government and markets.
Yet one of the puzzling features of the distinction between government and markets, given its ubiquity in public discussions, is that the distinction itself arguably does not make sense. Economic markets in the modern sense are not something that exist apart from government. To the contrary, they are government creations. There are many obvious senses in which this is the case. But the more fundamental point is often neglected.