Book Review: The Great Leveler: Capitalism and Competition in the Court of Law by Brett Christophers

Abstract

Brett Christophers The Great Leveler: Capitalism and Competition in the Court of Law, Cambridge, MA: Harvard University Press, 2016; 335 pp.: ISBN 9780674504912 There are few components of a capitalist society that penetrate as deeply and profoundly into the lives of the people as law. Whole swathes of social life, ranging from the labour-capital relationship, the make-up of the family, the regulation of crime and the relationship of citizens to one another and the state (to name a few) are structured and governed by the legal form. Capitalism is, in short, legalized to a degree that is historically unprecedented. Given this reality, it is both surprising and disappointing that sophisticated Marxist analyses of law are uncommon. Many attempts fall apart in the always-difficult exercise of articulating theoretical rigour with empirical sensitivity. Against this backdrop, Brett Christophers' The Great Leveler: Capitalism and Competition in the Court of Law stands out as a fine example of both the method and the fruits of a successful effort at such an articulation. Christophers posits from the outset that his book 'is about the role of the law in mediating and managing the relationship between the forces of competition and monopoly' (p. 6). Rebuffing the account of monopoly-capitalist scholars such as Foster and McChesney, Christophers, drawing upon the work of David Harvey, argues that capitalism is characterized by a monopoly-competition dialectic. Far from being separable and mutually exclusive elements within the capitalist mode of production, the organic, interpenetrative relationship of monopoly and competition instead helps constitute it, a reality Marx pithily grasped when he stated 'Monopoly produces competition, competition produces monopoly' (p. 10). The relationship between these two dialectically related impulses, however, is a fragile and unstable one, always threatening to throw capital accumulation into peril. There must be provisional efforts, therefore, at introducing stability into a deeply contradictory bond. Christophers acknowledges that he is not alone in this argument. The true innovation of this book is the way in which the law is posited and studied as 'the primary, necessarily mutable, instrument' (p. 15) in the attempt to maintain balance in the monopolycompetition dialectic. To this end, he studies the historical evolution of the two bodies of law most directly concerned with the monopoly-competition relationship: intellectual property (IP) and competition law respectively. This process of evolution is examined through the lens of two study countries, the United Kingdom and the United States, from roughly the late 19th century until the present day. Part I of the book (chapters 1-3) serves as the conceptual bedrock, with Christophers expanding upon the notion of monopoly and competition as a dialectically intertwined unity and exploring the ways in which IP and competition law perform the tasks of supporting this fragile unity, their 'leveling' work. In this context, he introduces the regulation approach, 'political economy's most concerted collective effort to theorize the regularizado!! and stabilization of capital accumulation and growth' (p. 65). Despite the obvious utility the regulation approach may have in understanding the evolution of the law, however, Christophers argues that this potential is largely untapped, due in no small part to a flaw shared with broader Marxist work: a fixation with production relations and a concomitant marginalization of the study of exchange and the differing configurations of monopolistic and competitive relationships framing it. The result, according to Christophers, is an inadequate account of economic laws, like IP and competition law, the primary interventions of which are precisely in the realm of exchange. Proceeding on the premise that exchange matters and deserves more focus than simply as a residue of production, Christophers moves to the historical analysis of his book in Part II (chapters 4-6). …