The ‘Market’ in Criminal Law Theory
| Published date | 01 March 2022 |
| Author | Lindsay Farmer |
| Date | 01 March 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12687 |
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Modern Law Review
DOI:10.1111/1468-2230.12687
The ‘Market’in Criminal Law Theory
Lindsay Farmer∗
The market is central to the political liberalism at the heart of contemporary criminal law theory.
But while it is assumed that we live in a market society, there is little reection on what this
means for criminal law,most criminal law theory barely acknowledging either market crimes
or the market as an institution. This paper makes the case for criminal law theory to engage
with the market and to reect on the ways in which it shapes the role played by criminal law
in a market society. By understanding the market as a form of social ordering it is possible to
think more systematically about its relationship with the criminal law. The paper identies how
the criminal law has been central to the constitution and regulation of markets, before setting
out four areas in which criminal law theory can critically engage with the place of markets in
contemporary society.
INTRODUCTION
‘Often, the market seems to be the ghostly ‘other’ of the institutions political
theorists focus on, something that needs to be tamed and restricted,but not
itself made an issue.’1
The marketisa centralinstitution tomost, if notall, modernsocieties. There
are,to be sure,dierent kinds of market societies, and there is widespreaddispute
over whether the market is a good or bad thing, but the centrality of markets
in oneformoranother istaken forgranted. Indeed, itishardlyanexaggeration
to suggest that the question of the proper role of the market – its impact on
sovereignty,social life,the environment and more – is one of the key issues of
our time.Surprisingly,however,one would scarcely be able to tell that we live
in a market society of any kind from reading works on criminal law or criminal
law theory where references to the market are few and far between. Textbooks
remain focused on forms of interpersonal wrongdoing – crimes against the per-
son and property. Discussions of fraud or nancial crime might acknowledge
the economic impact of some nancial frauds, but these are understood largely
within the dominant paradigm of property crime as a crime against the indi-
vidual. ‘Market’ crimes, suchasinsiderdealingormarketmanipulation, area
∗Professor of Law, University of Glasgow. Funding for this research was generously provided by the
Leverhulme Trust (GrantNo. MRF 2018-075). Thispaperwasrstpresented attheVirtualSeminar
on the Political Turn(s) in Cr iminal Law. I would liketo thank the organisers and par ticipants for their
comments andfeedback. I wouldparticularly liketo thankSarahAr mstrong, Christoph Burchard,
Anna Chadwick, StuartGreen, CerianGriths, ChloeKennedy, Arlie Loughnan, MattMatravers,
Micheal O Floinn, Scott Veitch and the MLR reviewers for their comments on earlier drafts. All
URLs were last visited 20 August 2021.
1L.Herzog,InventingtheMarket. Smith, HegelandPolitical Theory(Oxford: OUP,2013)3.
© 2021 The Author.The ModernLaw Review © 2021 The Modern Law Review Limited.(2022) 85(2) MLR 435–460
The ‘Market’ inCr iminal LawTheory
niche areaof interest, viewedasaformof‘regulatory’ criminallaw, andnot
regarded as either practically or normatively signicant for the wider criminal
law. Criminal law theory is conducted against a reference point of ‘liberal demo-
cratic’ society,as a broad description of the kind of society that we are taken to
live in – or that we might aspire to live in. This also rarely refers explicitly to
the market,though it is fair to assume that the ‘market’,in some form or other,
is taken to be one of the central institutions of that liberal democratic society.
The market, then, hasa ‘taken-for-granted’ quality, occupying spaceintheway
that we think about our social order even if this is not explicitly engaged with.
The nature and scope of the market and its possible relevance for how we think
about criminal law is rarely acknowledged.
This paper argues that criminal law theory needs to engage with the idea of
the market and to reect on the ways that the market shapes the role played by
criminal law in a market society – and that this is necessary even when not ex-
plicitly engag ing withspecic areassuchas ‘market’ crimes.2The aimis, in par t,
to unpack some of the assumptions that underlie much contemporary criminal
law theory to show how the market occupiesspace,even when its presence is
not acknowledged.However,it is also an attempt to develop a broader ‘market-
critical’ criminallaw –to reectontheways thatan e ngagement with, andcr i-
tique of the market,can be made more central to criminal law theory.3The mar-
ket is central to the political liberalism that is at the heart of much contemporary
political theory,seen as a broadly ‘democratic’institution which can act as a bul-
wark against the consolidation of state power. At the same time,though, markets
are also criticised for entrenching social and economic inequalities through the
unequal distr ibution ofgoods andproperty.Whicheverview istaken, criminal
law is seen as one of the social and political institutions which structure and sus-
tain the market in contemporary society. It is thus important to reect on the
way that the operation of the market shapes (and has shaped) liberal criminal law
theory.
Although I will have more to say about the concept of the market later in the
paper,I begin with a brief denition of what I understand by this term. In an
important overview of the literature,Herzog denes markets as: ‘[I]nstitutions
in which individuals or collective agents exchange goods and services.They
usually use money as a medium of exchange which leads to the formation of
prices.’4
2I discuss the concept of ‘market crimes’ below, but in general terms it might be understood as
crimes relating to market conduct.This is sometimes referred to by terms such as nancial cr ime,
economic cr ime,white-collarcrimeorbusiness cr ime, though each ofthese maybe over- or
under-inclusive.
3 The term ‘market-critical’comes from the work of the German criminal lawyer Wolfgang
Naucke.The aim is not to be anti-market as such,but to develop a critical understanding of
criminal law and criminal theory which engages with the impact of markets on social relations.
4L. Herzog, ‘Markets’ in E.N. Zalta(ed), The Stanford Encyclopedia of Philosophy (Fall 2017 Edi-
tion) athttps://plato.stanford.edu/archives/fall2017/entries/markets/. cf P.Asper s andJ. Beck-
ert, ‘Value in Markets’ inP. AspersandJ. Beckert, TheWorth of Goods. Valuation and Pr icing in
the Economy (Oxford:OUP,2011)4: ‘Marketsare arenasofsocialinteractioninwhichrightsfor
goods and services are exchanged for money under conditions of competition.’
436 © 2021 The Author.The ModernLaw Review © 2021 The Modern Law Review Limited.
(2022) 85(2) MLR 435–460
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