Lawyers as Constructive Ideologists of Corporate Capitalism: The Legal Framing of Software
| Published date | 01 August 2024 |
| DOI | http://doi.org/10.1177/09646639231200420 |
| Author | Sol Picciotto |
| Date | 01 August 2024 |
| Subject Matter | Articles |
Lawyers as Constructive
Ideologists of Corporate
Capitalism: The Legal
Framing of Software
Sol Picciotto
Law School, Lancaster University Law School, UK
Institute of Advanced Legal Studies, University of
London, UK
Abstract
The study of law as a social process should combine an analysis of structures from a
political economy perspective with a sociological focus on the practices of lawyering in
mediating social relations and conflicts through the formulation and interpretation of
legal texts. This approach is applied here to software, which has become the oxygen of
the world economy, powering the digitalisation that has transformed economic activ-
ities and social life. The forms this has taken have been moulded by lawyers, battling
over intellectual property rights in computer programs, enshrining them in nat ional
law and international standards, as well as devising the international tax avoidance
strategies t hat have helped prop el the giant digital-tech transnational corporations
to global domi nance. Thes e contests have taken p lace through proc esses of formu la-
tion and interpretation of the legal concepts that both reflect and shape social strug-
gles over economic and political power, mediated by law, in contemporary corporate
capitalism.
Keywords
Lawyers, software, copyright, intellectual property, international tax, corporate
capitalism
Corresponding author:
Sol Picciotto, Email: s.picciotto@lancs.ac.uk
Article
Social & Legal Studies
2024, Vol. 33(4) 526–555
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639231200420
journals.sagepub.com/home/sls
Lawyering Practices in Corporate Capitalism
A socio-legal understanding of law in the economy should combine a perspective from
political economy on the historical development of legal principles, structures and con-
cepts, with an actor-centred sociological approach focusing on the contestations that
shaped these changes (Miola and Picciotto, 2021). I suggest that this should focus par-
ticularly on the practices of lawyering: in particular how lawyers do what they do.
These are too little examined by sociologists who are concerned with social positions
and roles, while for those trained in law, its techniques are taken as natural. While critical
legal scholars have become adept at dissecting the rhetoric of law, particularly as a cul-
tural practice, they generally neglect both the political economy context and a socio-
logical perspective on lawyers’roles and practices.
Such an approach is particularly important in considering the role of law in construct-
ing what Pistor has called the ‘code of capital’(Pistor, 2019). Starting with the emergence
of large-scale industry in the late 19th century, a rising class of business lawyers built on
the foundational forms of private law governing markets –property, contract and delict –
to create the key institutions and concepts that shaped the transformation into large-scale
corporate capitalism (Hovenkamp, 1991). The main legal forms they fashioned have been
business organisations particularly the corporation (Roy, 1997), the increasingly complex
and abstruse credit instruments mediating accumulation in financialised capitalism, and
the intellectual property rights that facilitate the commercialised exploitation of technical
innovation and cultural creativity. In parallel, lawyers moulded the key interfaces
between corporate capital and states through changing forms of public law, notably the
fiscal framework, and the myriad forms of regulatory law, originating early in the 20th
century that came to the fore from the 1980s in neo-liberal post-industrial capitalism
(Picciotto, 2011).
Lawyers mediate between the interacting realms of political and economic power,
through the formulation, interpretation and application of texts that legitimise and regu-
larise patterns of social and economic relations of power. Lawyers both formulate and
interpret legal concepts and principles, and their practices mediate between the political
realm, which provides the necessary underpinning for the normative system based on
monopolising legitimate coercion, and the real-world of social and economic activities.
Business lawyers in particular are ubiquitous and can move strategically between differ-
ent sites where authoritative norms are formulated, such as legislatures, regulatory
authorities, and international bodies, and those where they are interpreted and applied,
such as enforcement agencies, tribunals and courts. In some fields, especially those
involving specialised technical knowledge, the career trajectories of actual individuals
move through the ‘revolving doors’between the private and public spheres (Seabrooke
and Tsingou, 2021). More widely, there is always an interdependence between public
officials and private professionals, and their close interactions create ‘epistemic commu-
nities’in the many arenas where the purpose and meaning of legal and regulatory regimes
are debated and common understandings are shaped. Theorists of regulation have come
to understand that regimes develop over time, through recursive or dialectical processes,
and that the domination of private over public interests through regulatory capture takes
place not only through direct material means (various kinds of corruption), but more
Picciotto 527
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