Relational Work and the Law: Recapturing the Legal Realist Critique of Market Fundamentalism
| Date | 01 March 2013 |
| DOI | http://doi.org/10.1111/j.1467-6478.2013.00611.x |
| Published date | 01 March 2013 |
| Author | Fred Block |
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 1, MARCH 2013
ISSN: 0263-323X, pp. 27±48
Relational Work and the Law: Recapturing the Legal
Realist Critique of Market Fundamentalism
Fred Block*
A global financial crisis seems a propitious time to renew a dialogue
between legal scholarship and the field of economic sociology. In the
1920s and 1930s, legal realist scholars developed insightful analyses
of market processes. But since post-war mainstream legal scholarship
has largely ignored this aspect of legal realism, economic sociology
might be helpful in refocusing legal scholarship on what happens in
actual market settings. One tool is Zelizer's concept of relational work;
that in market transactions, actors must define the nature of their
relationship, what is to be exchanged, and by what media. Relational
work has an enormous impact on the outcomes of transactions, but it is
largely ignored in economic accounts. An empirical study of variations
in relational work across economic settings could provide a strong
foundation for rethinking the relationship between law and economic
activity.
INTRODUCTION
Bringing insights from economic sociology into legal scholarship requires
considerable humility, as legal thinkers have been struggling with the
empirical realities of economic activity for many years, and the ideas of
important sociologists have been part of the background intellectual culture
27
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Department of Sociology, University of California at Davis, Davis,
California 95616, United States of America
flblock@ucdavis.edu
I am deeply grateful to Karl Klare for educating me on key issues in legal scholarship and
for providing extensive feedback on multiple drafts of this article. I could not have
written this without him, but I alone am responsible for the remaining weaknesses. I have
also drawn here on work done with Margaret Somers. Thanks also to Viviana Zelizer for
our on-going conversation and for specific suggestions on an earlier draft. I am also
grateful to the editors for their initial invitation and for their suggestions for strengthening
this article.
of legal thinkers for three or four generations. It is hardly as though law and
sociology have developed in splendid isolation from each other. On the
contrary, some key transformations in legal thinking in the past century and a
half have followed closely shifts in related academic disciplines.
1
Moreover,
for almost half a century, an organized law and society movement has been
working to deepen the connections between legal scholarship and the social
sciences.
2
There is, however, something special about the current moment that
provides a possible opportunity to initiate a new phase in the engagement
between these fields.
3
First, in the same way that the prospect of a hanging
concentrates the mind, there is nothing like a global economic crisis to
accelerate critical thinking about our ways of organizing economic activity.
We have long recognized that the Great Depression of the 1930s produced
enormous intellectual breakthroughs in economic knowledge, and it might
well be possible that the global financial crisis that began in 2008 is similarly
generative.
Second, mainstream legal thinking, particularly in the United States, has
for some time faced a crisis in its understanding of economic activity. This
crisis results from the marginalization of the key insights of legal realist
scholars of the 1920s and 1930s who had developed a theoretically sophisti-
cated analysis of the actual workings of markets. The failure of more legal
scholars to build on the insights of the realists created an opening in legal
academia for a revival of market fundamentalism ± an exaggerated reverence
for market self-regulation that has had huge influence in the courts, in public
policy, and in political debate. This article will argue that ideas developed by
economic sociologists could help legal thinkers to bring the critical insights
of legal r ealism b ack into t he mains tream of l egal deb ate whil e
simultaneously pushing market fundamentalist ideas back into marginality.
Economic sociology is a relatively young field of scholarly inquiry. It
grew up in the United States in the 1980s very much in response to the
market fundamentalism of the Reagan administration and the imperialist
impulses of neo-classical economics. A number of scholars from different
theoretical traditions came together and recognized that what they were
doing could be termed economic sociology, and from there, the usual
activities of building a new academic field were set in motion.
4
Conferences
28
1 See, for example, M. Horwitz, The Transformation of American Law 1870±1960
(1992).
2 L. Friedman, `The Law and Society Movement' (1986) 38 Stanford Law Rev. 763; A.
Sarat, `Vitality Amidst Fragmentation: On the Emergence of Postrealist Law and
Society Scholarship' in The Blackwell Companion to Law and Society, ed. A. Sarat
(2004) 1.
3 To be sure, an interdisciplinary group of law and society scholars have been pursuing
this project of renewal for some time. See, for example, the New Legal Realism
Conversations, at
4 R. Swedberg, `Economic Sociology: Past and Present' (1987) 35 Current Sociology 1.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
To continue reading
Request your trial