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Topic
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Hypothesis:
Proximity to Law is the Biggest Predictor of Domination.Through this lens, it is not the practitioners of Law that have Power Over society, but those who shape it, and those who influence the people that shape it.
Counterintuitively, the most power is not held by those with direct access to the creation and re-shaping of law, but rather by those with influence over the law-makers.
We can theoretically measure this by assigning a kind of heat index to legislation and regulation and policy. The hotter a specific legal structure is, the more important indirect contact is for attaining power through that legal structure. Those having direct access easily get burned (sacrificed like a scapegoat) in order to spare the influential entity from the heat. For the colder legal structures, influencers are far more likely to attempt more direct access in shaping the legal structures.
This is an avenue of inquiry that I don’t know how to pursue yet, but I am very interested in seeing how to investigate the hypothesis and comparing it to real-world data to see if it has any merit.
Any suggestions on where to begin would be greatly appreciated.
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Counterintuitively, the most power is not held by those with direct access to the creation and re-shaping of law, but rather by those with influence over the law-makers.
In our CasP work, we tend to start with capitalized power — a concept whose magnitudes, we argue, are readily observable through differential capitalization, earnings and risk — and then correlate changes in this capitalized power with its alleged determinants, including policies/legislation.
Your notion of ‘proximity to law’ could be useful in this inquiry, because, in capitalism, the law is often a far more effective regulator of power than convention/influence, violence and illegal action.
The problem is that ‘proximity to law’ doesn’t have an easy-to-measure metric, and that is partly because the very notion of ‘distance’ here is ill defined, if not totally open-ended.
For example, in what sense can we say that legislators of intellectual property rights are ‘closer’ to the laws they draft and vote on than the people, entities and processes whose pressures they are subjected to and whose impacts their actions often mirror?
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Thanks for the response Jonathan.
I understand that this idea has not been fleshed out sufficiently, and the terminology I am using might not clarify my ideas, but I plan on getting stuck into it. I will learn as I go.
To begin with, I will look at the process of law-making. As far as I understand it:
In the US, smaller pieces of legislation can originate directly from a member of Congress, who generally receives receive input from constituents, lobbyists, or staff on a particular issue. The member then directs the staff to take that policy idea to the Office of Legislative Counsel. Where attorneys turn the concept into the proper legislative language.
Both the U.S. House and Senate have Offices of Legislative Counsels. Those Offices have very specific language requirements on how a bill must be written.
From there, the bill language is reviewed by the Congressperson’s office before being dropped in a hopper and given a legislative number.
Then there is the process of the legislation passing through Congress, where it receives direct or indirect support or opposition from members of Congress. Regardless of support or opposition, there are layers of access and influence throughout the process. There are also courts that get to weigh in on the constitutionality of the legislation. There is the executive branch which has the ability to veto or approve the legislation. And then lastly there is the entire justice system that has the right to interpret the legislation in case law.
Larger bills run through essentially the same process but have more staff writing the initial documents, and more lawyers involved throughout the writing process to ensure it is compliant with the required legalese.
So here we have several levels of proximity.
Level 1 – We have direct access represented by the congress member’s staff and the congressperson , and the state organs involved in ensuring “legalese” compliance.
Level 2 – Then we have the influencers during the initial proposal (constituents, lobbyists, advisors, and staff) that are indirectly connected, who are one level removed from access.
Level 3 – Yet another level of influence sits behind these entities. Lobbyists are funded by interest groups, constituents are backed by influence networks, and advisors tend to represent specific schools of thought, which are shared by interest groups and influence networks.
Level 4 – Here we find the ultimate beneficiaries, predominantly these would be comprised of those accumulating capitalized power. But may also represent individuals with varied interests in strategic sabotage that are abstractly linked to capitalized power.
In the framework I am trying to envision here, the power accumulation will tend to occur in Levels 3 and 4, but I am trying not to make too many assumptions until I have had time to review some pertinent literature on the matter. I should also note that the lines here between the levels are not particularly clean or clear. Many congresspeople are the ultimate beneficiaries of capitalized power and can be both, directly and indirectly, related to legislation. Hopefully once I have read enough, I can figure out a better taxonomy for this proximity to power formation.
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Thank you Pieter for the useful clarification.
When they first emerge, ideas and research projects often seem opaque and ‘problematic’, which is only understandable given that they are new.
A thought: perhaps you can think of the relation between capitalized power on the one hand and ‘proximity to legal authority’ (however defined) on the other non-linearly: As proximity decreases capitalized power increases as you describe, but only up to a point. After that point, when we’ve gone past the legislators, pork-barrel interest groups and the big capitalist entities and reached the underling population, lower proximity goes with lower power.
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This is certainly a useful way of envisioning the hypothetical process.
I’m definitely going to have to articulate my hypothesis as clearly as possible before I take on the task of collecting and analyzing real-world data.
And while I do think that this kind of non-linear correlation of capitalized power and proximity to authority would be very likely to match real-world data, I also suspect that the correlation would vary depending on which phase of the legislative process is being assessed. For illustrative purposes, I surmise that the legislative process can be broken up into 3 phases. The Policy Phase is where ideas are still being formulated and fleshed out. The Formalization Phase is where policy ideas are translated to ‘legalese’ and eventually codified. And the Judicial Phase is where legislation is re-structured and/or enforced by contestation within the judicial system.
For instance, the formative “Policy Phase” might have a much higher impact from lower proximity entities than from direct access entities. The “Formalization Phase” would have a much higher impact from direct access entities. The “Judicial Phase” would likely fluctuate in its representative proportionality (of low or high proximity entities). And while these phases should each have their own aggregate non-linear correlations between proximity to authority and capitalized power, I suspect that such an aggregate would hide a differential distribution of power between dominant capital and smaller, less influential firms. So I would need to do an analysis of both the general trend, and a more granular study of individual pieces of legislation and individual corporations and conglomorates.
The more I think about it, the more complicated it gets… which may, or may not, be a good thing
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Pieter,
The legislative process often follows the real decision making and serves only to hammer out compromises. As a former PhARMA lobbyist who helped draft Obamacare once told me, “In Washington D.C., you’re either at the table, or you’re on the menu,” which implies the menu has already been decided and the invites have already been sent well before anyone gets seated at the table to officially kick off the legislative process.
As a starting point, it might be easier to invert your inquiry and measure and test the effect of power on legislation. If more capital equals more power, then one would expect to find that dominant capital gets better legislative outcomes at a lower cost, just as it costs them less to raise capital, for example. This kind of approach would allow you initially to focus entirely on financial data, which is much easier to find and less subject/prone to subjective judgments. With that kind of information in hand, it should become more straightforward to develop your taxonomy based on how capital actually asserts its power in the legislative process.
To be clear, the legislature itself is part of the state of capital, so there needs to be a separate inquiry to measure the power of legislators and how the relative gravity of legislators and donors affects the fortunes of legislators. This is a different way to think of Jonathan’s idea of non-linearity: the interaction of multiple centers of capitalist gravity is what creates the appearance non-linearity.
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As noted above in my response to Jonathan, I have already considered the idea of legislation formation’s “formative phase”, which you describe here as the “menu already being decided”
But I do like the idea of starting an analysis by comparing small and large firms in terms of capitalized power. I may lean quite heavily on Blair Fix’s work on Firming up Hierarchy
A great idea, and one that I will definitely look into.
For now, I need to start building up my reading list.
First additions:
Katharina Pistor’s The Code of Capital: How the Law Creates Wealth and InequalityBerle and Means The Modern Corporation and Private Property
John Commons Legal Foundations of Capitalism
Morton Horwitz’s The Transformation of American Law (both volumes)
Adam Winkler’s We The Corporations
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