03/04/2019 Law & Critique: In the service of a total market: the Future of Legal Craft

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Critical Legal Thinking

— Law and the Political —

Law & Critique: In the service of a total market:

the Future of Legal Craft
by Marcus Faro de Castro • 29 March 2019

In
recent years, the growth of financial markets, the spread of information
technology and institutional changes in democracies have often been
associated with
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characterised as transformations resulting from reactions to the deepening
of “globalization”, and the spread of its “neoliberal” ideological Close andand accept
regulatory scaffold through international cooperation mechanisms, have
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03/04/2019 Law & Critique: In the service of a total market: the Future of Legal Craft

incited forms of political radicalism reminiscent of fascist regimes that

flourished approximately a century ago. Alain Supiot[1]has associated these
conditions to what he called “total market”, in which “signs and things can
all be rendered commensurable and be mobilized in the cause of globalized
competition”. In the “total market” things and people maybe “liquidated”, a
term which legally means “making something fungible by converting it into
cash”.[2]In comparing the “total market” of the 21stcentury with 20th-
century Nazism and Real Communism, Supiot remarks that “[t]oday, the
pressure of globalization on all cultures has triggered a powerful backlash
of religious, ethnic, regionalist and nationalist identifications”.[3]

From a practical point of view it is unlikely that such conditions, typical of

21s-century populisms, would have emerged if forms of intellectual control
and attendant institutions leading to “political backlash” had not developed
in tandem with them. If past authoritarian and even totalitarian regimes
came into full existence by an escalation of the appeal to direct and cruel
violence and ultimately total war, “total market” has relied predominantly
on the management of social processes through the production and use of
expert knowledge.[4] Of course, expertise may take different forms, but it is
probably most effective and precise if it incorporates, or is built
from, mathematical knowledge.

It is not hard to understand that mathematical constructs –for example,

knowledge produced with help of statistics or econometrics– more often
than not underlie economic and other policies. Mathematical formulations
are also relied upon in processes by which, in many cases, the private
creation of market rules occur.[5] It therefore should come as no surprise
the fact that lawyers trying to aid the construction of the “total market” –
from which few people and many large corporations benefit – have tried to
legitimise technical expertise and relevant mathematical constructs,
without questioning their impact on the effectiveness of fundamental and
human rights. This is the case of much of the literature on the legal use of
indicators as a technology of global governance.[6] Even macroeconomic
models, which typically result from equations, have tended to be taken at
face value by lawyers.[7]
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Choices made by experts and expressed in mathematical language have
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thus come to determine many things: what events will be compared,
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assembled into statistical aggregates and represented in econometric

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03/04/2019 Law & Critique: In the service of a total market: the Future of Legal Craft

models, how natural or social facts will be measured and built into financial
derivatives, which aspects of reality are going to appear in an indicator, or
how information is to be produced, organized, stored and then physically
processed. All these constructions can themselves be mathematically
compared and become interwoven to functionally sustain the “total
market”.

In light ofthe above, it seems reasonable to expect that in the 21stcentury,

lawyers will increasingly face challenges brought by the growing
pervasiveness of mathematical constructs underlying policies, technologies
and markets. The development of mathematical infrastructures used in
global politics (take the example of the technological infrastructures of
contemporary warfare), global markets (think of the algorithm-based
“high-frequency trading” or “statiscal arbitrage”), and social life channeled
through global internet-based social media have destroyed to a great extent
the capacity of natural language to express competent meanings about the
lifeworld. As a consequence, the various aspects of social life – from online
dating and safe food consumption to coping with climate events and
deciding where to invest – have become increasingly borne up by devices
such as indicators, commodified indices, algorithms, econometric models,
and statistical fact-finding. They are all mathematical constructs,
sometimes coupled with rhetorical devices. In trying to devise what choices
may be available to lawyers confronted with the spread of mathematical
infrastructures used in practical affairs, one may find discussions in recent
legal literature that indicate three different directions in which legal craft
may evolve in the 21stcentury.

The first direction is that by which legal craft becomes increasingly

engulfed in the process of expansion of the “total market”. One example of
this trend is provided by the attempt to advocate the use of quantified
“indicators” as a legitimate tool for legal expertise,[8] without, where
appropriate, clearly denouncing and utterly rejecting their role as a ploy to
undercut rights effectiveness, as is done, for example, by Broome and
Quirk[9] and others.[10] Another example may be found in the fact that
many indices, or the information on which they are built, have themselves
become abstract commodities that tend to remain exempt from any legal
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challenge, given
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updated country data-sets for the assessment of so-called “country risks”, Close and accept
which governments and private companies have an interest in using for
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03/04/2019 Law & Critique: In the service of a total market: the Future of Legal Craft

different purposes, can be purchased online for a few thousand dollars.[11]

The use of this kind of structured information – for example, by so-called
credit rating agencies – may trigger deleterious market swings even when
the information reflects legally defensible or legally binding local realities,
such as financial practices that incorporate the intent to preserve pension
rights in the context of social security reforms.

A further example can be found in the power of such constructs as

algorithms and spinoffs from mathematical logic. They provide the
blueprints for the technological platforms through which massive portions
of possible social relations come into existence: they connect individuals
across the globe and enable organizations, networks, markets and
institutions to become structured and have duration in time. And, as legal
scholarship has shown, online experiences are being to some extent fused
with the offline world through law.[12]

The second direction in which the confrontation of emerging challenges by

lawyers may take is that in which lawyers appeal to past legal doctrines in
order to propose that institutional transformations should be rolled back in
hopes that such nostalgic revival of past institutional conditions will bring
back wider social welfare.[13]

A third direction in which legal craft may advance when facing the
challenge brought by the pervasiveness of mathematical constructs
underling policies, technology and markets is that in which lawyers keenly
criticize the (anticipated or actual) impact of the use of mathematical
devices – as is done by some authors[14] – while also engaging in the task
of amending or reconstructing such devices where necessary, in orderto
preserve or secure the effectiveness of human rights.[15]

This latter direction of the evolution of legal craft in the 21stcentury points
to the need that lawyers come to terms with the fact mathematical
formulations should not be taken as final expressions of eternal
ornecessary truths. After all, early on incommensurability – an instance of
a-logos, or lack of reason – was acknowledged by Greek intellectuals. Much
later, symbolic algebra has attempted to standardize intellectual
procedures byThis
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modern science and different forms of engineering. Certainly, legal craft as
a technique of “constructive reaction to a-logos” will have to find ways toand accept
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03/04/2019 Law & Critique: In the service of a total market: the Future of Legal Craft

deal with incommensurabilities that have been papered over by

mathematical infrastructures of the “total market”.

Incommensurabilities, which are often tied to expressive symbolisms in art,

have to do with existential meanings from which is builtthe moral self-
awareness of individuals and communities. They are not within easy reach
of the epistemologically-oriented mind. With the pervasive use of
mathematical constructions typical of the “total market”, the holistic sense
of human existence in the lifeworld has tended to be lost. One may easily
imagine a not-too-distant future in which global governance indicators,
commodified indices and the global industries that have leading roles in
information technology will concur to stifle the moral self-awareness of
individuals and groups existentially anchored in the cultures, moral
experiences and spoken memories of the of lifeworld. It is certainly
incumbent upon legal craft in the 21st century tosecure that the moral self-
awareness of individuals and communities, tied to authenticity and
toexistential meanings, become reconnected to the mathematical
infrastructuresthat have come toincreasingly govern our lives buthave
tended to destroy notions of self-worth anddemocracies around the world.

The Law and Critique article from which this blog is based can be found
here (link).

[1]A. Supiot, ‘A legal perspective on the economic crisis of 2008’, Int.

Labour Rev., vol. 149, no. 2, pp. 151–162, 2010.

[2] Supiot, 153

[3] A. Supiot, Governance by numbers: the making of a legal model of

allegiance. Oxford ; Portland, Oregon: Hart Publishing, 2017, p. 5

[4]D. Kennedy, A world of struggle: How power, law, and expertise shape
global political economy. Princeton: Princeton University Press, 2016.
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[5]D. A. MacKenzie, An engine, not a camera: How financial models
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shape markets. Cambridge, Mass: MIT Press, 2006.
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