The Code of Capital: How the Law Creates Wealth and Inequality

at the frontiers where new capital rights are minted day by day in the offices of law firms, states take a back seat. But states provide the legal tools that lawyers use; and they offer their law enforcement apparatus to enforce the capital that lawyers have crafted.

Many legal scholars have already drawn attention to the fact that the operation of the market hinges on legal institutions that facilitate price discovery.

Because of its ability to shield its assets from all but its direct creditors, even its own shareholders, the corporation has become one of the most enduring institutions of capitalism.

Recognizing that capital is made, and not simply the product of superior skills, shifts attention to the processes by which different assets are slated for legal coding and to the states that endorse relevant legal modules and offer their coercive powers to enforce them.

They can code capital as they choose in domestic or foreign law by opting into another country’s contract law, or by incorporating their business in a jurisdiction that offers them the greatest benefits in the form of tax rates, regulatory relief, or shareholder benefits. Opting out of one and into a different legal regime leaves only a paper or di

The law is a powerful tool for social ordering and, if used wisely, has the potential to serve a broad range of social objectives; yet, for reasons and with implications that I attempt to explain, the law has been placed firmly in the service of capital.

Realizing the centrality and power of law for coding capital has important implications for understanding the political economy of capitalism.

For centuries, private attorneys have molded and adapted these legal modules to a changing roster of assets and have thereby enhanced their clients’ wealth. And states have supported the coding of capital by offering their coercive law powers to enforce the legal rights that have been bestowed on capital.

The most important ones are contract law, property rights, collateral law, trust, corporate, and bankruptcy law. These are the modules from which capital is coded. They bestow important attributes on assets and thereby privilege its holder: Priority, which ranks competing claims to the same assets; durability, which extends priority claims in time;