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Published as Chapter 1 in Integrity, Risk and Accountability in Capital Markets: Regulating Culture, Justin O'Brien & George Gilligan, eds.

The 19th century legal historian Henry Maine famously defined progress, and by extension, liberal modernity, as the substitution of relations based on status (especially family and title), to relations based on contract, especially trade and employment. The article suggests that Maine's assertion, however comforting as a political matter, simply does not hold with regard to the credit relations central to contemporary society. Credit transactions, even retail transactions, are based on trust and interlocking webs of obligation across agents (until recently called, in the law, servants). In short, the contemporary economy may be imagined in neo-feudal as well as neo-liberal terms. In light of the nature of contemporary finance, as well as rising and at present intractable inequality, a neo-feudal imagination may indeed seem more apposite. A neo-feudal imagination of finance implies "custodial regulation" of financial regulation: privilege and power (inequality) is recognized, but accompanied by personal obligation. The public/private distinction is thus largely effaced. In this view, the crisis of politically significant institutions should lead to the personal ruin of managers even when government intervention is deemed necessary. Conversely, the end of a crisis should not signal that those who run institutions on which society depends may claim to be private citizens. Viewed as a problem of leadership, substantive financial regulation is achieved through negotiation among various elites as to what constitutes prudent action within, a financial world far too complex to be modeled by rules. Thus the indeterminacy (unworkability) of contemporary financial regulation is determined (resolved) through the sorts of conversations that contemporary anthropologists call "paraethnographic." Whether or not this can work is open to serious question.

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Hart Publishing



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financial regulation, anthropology, finance, ethnography, central banking, social capitalism, political economy


Law | Law and Economics

The Culture of Financial Institutions: The Institution of Political Economy