Forget locke? From proprietor to risk-bearer in new logics of finance

Public Culture

Volumn 11, Issue 2, 1999, Pages 47-67

  Maurer, Bill ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0038595658     PISSN: 08992363     EISSN: None     Source Type: Journal    
DOI: 10.1215/08992363-11-2-365     Document Type: Article

References (79)

1. These implications move beyond the realm of property; for instance, one might draw an analogy between the shift identified in this essay and the shift from nineteenth-century sciences of sex to late-twentieth-century Centers for Disease Control risk profiles.
2. I use these concepts in the sense outlined by Michel Foucault in "Governmentality," in The Foucault Effect: Studies in Governmentality: With Two Lectures by and an Interview with Michel Foucault, ed. Graham Burchell, Colin Gordon, and Peter Miller (Chicago: University of Chicago Press, 1991), 87-104.
3. World Bank, From Plan to Market: World Bank Development Report (Oxford: Oxford University Press, 1996), 89.
4. World Bank, From Plan to Market, 89.
5. Charles Mooney, "Property, Credit and Regulation Meet Information Technology: Clearance and Seulement in the Securities Markets," Law and Contemporary Problems 55 (1992): 131.
6. C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Clarendon Press, 1962).
7. John Locke, Two Treatises of Government, ed. Peter Laslett (New York: Mentor, 1960), sec. 27, 329.
8. And Locke did mean men; see chapters 6 and 7 of the second treatise in Locke, Two Treatises; see also Carole Pateman, The Sexual Contract (Stanford, Calif.: Stanford University Press, 1988). In keeping with Locke's gendering of the subject of property, I will retain gendered pronouns when writing of Locke's property-owner.
9. And Locke did mean men; see chapters 6 and 7 of the second treatise in Locke, Two Treatises; see also Carole Pateman, The Sexual Contract (Stanford, Calif.: Stanford University Press, 1988). In keeping with Locke's gendering of the subject of property, I will retain gendered pronouns when writing of Locke's property-owner.
10. Locke, Two Treatises, sec. 27, 328 (original emphasis).
11. Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), 365.
12. On property, person, and the politics of recognition in Hegel, see Seyla Benhabib, "Obligation, Contract and Exchange: On the Significance of Hegel's Abstract Right," in The State and Civil Society: Studies in Hegel's Political Philosophy, ed. Z. A. Pelczynski (Cambridge: Cambridge University Press, 1984); Alan Patten, "Hegel's Justification of Private Property," History of Political Thought 16 (1995): 576-600; and Peter Stillman, "Property, Freedom, and Individuality in Hegel's and Marx's Political Thought," in NOMOS XXII: Property, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1980), 130-67.
13. On property, person, and the politics of recognition in Hegel, see Seyla Benhabib, "Obligation, Contract and Exchange: On the Significance of Hegel's Abstract Right," in The State and Civil Society: Studies in Hegel's Political Philosophy, ed. Z. A. Pelczynski (Cambridge: Cambridge University Press, 1984); Alan Patten, "Hegel's Justification of Private Property," History of Political Thought 16 (1995): 576-600; and Peter Stillman, "Property, Freedom, and Individuality in Hegel's and Marx's Political Thought," in NOMOS XXII: Property, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1980), 130-67.
14. On property, person, and the politics of recognition in Hegel, see Seyla Benhabib, "Obligation, Contract and Exchange: On the Significance of Hegel's Abstract Right," in The State and Civil Society: Studies in Hegel's Political Philosophy, ed. Z. A. Pelczynski (Cambridge: Cambridge University Press, 1984); Alan Patten, "Hegel's Justification of Private Property," History of Political Thought 16 (1995): 576-600; and Peter Stillman, "Property, Freedom, and Individuality in Hegel's and Marx's Political Thought," in NOMOS XXII: Property, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1980), 130-67.
15. G. W. F. Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1991), sec. 56, 85 (original emphasis).
16. Hegel, Elements of the Philosophy of Right, sec. 65, 95 (original emphasis).
17. On extensions of the inalienable rights of personality derived from Hegel into a domain of market inalienability to further a Hegelian conception of human flourishing, see Margaret Radin, "Market Inalienability," Harvard Law Review 100 (1987): 1849-1937.
18. Karl Marx, Capital: A Critique of Political Economy, trans. Ben Fowkes (New York: Vintage Books, 1977), chap. 1, sec. 4, 163-77.
19. Morton J. Horwitz, The Transformation of American Law, 1870-1960 (Oxford: Oxford University Press, 1992), 145.
20. John Lewis, A Treatise on the Law of Eminent Domain in the United States (New York: Collaghan, 1888), 42-43 (original emphases).
21. Old Colony and F.R.R.R. v. County of Plymouth, 80 Mass. (14 Gray) 155, 161 (1859), quoted in Horwitz, Transformation of American Law, 147.
22. Horwitz, Transformation of American Law, 148.
23. Horwitz, Transformation of American Law, 151.
24. Interestingly, John Maynard Keynes similarly critiques the myth of a predictable world in his Treatise on Probability (London: Macmillan, 1957). Keynes carried the critique into his economics when he stated that investment ultimately relies on a "convention," which rests on the assumption that "the existing state of affairs will continue indefinitely" (Keynes, The General Theory of Employment, Interest and Money [San Diego. Calif.: Harcourt Brace, 1964], 152). This assumption, Keynes sought to demonstrate, is a false one and leads to a fetishization of liquidity, see Bill Maurer, "Redecorating the International Economy: Keynes, Grant, and the Queering of Bretton Woods" (paper presented at the Center for Lesbian and Gay Studies, City University of New York, April 1998).
25. Interestingly, John Maynard Keynes similarly critiques the myth of a predictable world in his Treatise on Probability (London: Macmillan, 1957). Keynes carried the critique into his economics when he stated that investment ultimately relies on a "convention," which rests on the assumption that "the existing state of affairs will continue indefinitely" (Keynes, The General Theory of Employment, Interest and Money [San Diego. Calif.: Harcourt Brace, 1964], 152). This assumption, Keynes sought to demonstrate, is a false one and leads to a fetishization of liquidity, see Bill Maurer, "Redecorating the International Economy: Keynes, Grant, and the Queering of Bretton Woods" (paper presented at the Center for Lesbian and Gay Studies, City University of New York, April 1998).
26. Interestingly, John Maynard Keynes similarly critiques the myth of a predictable world in his Treatise on Probability (London: Macmillan, 1957). Keynes carried the critique into his economics when he stated that investment ultimately relies on a "convention," which rests on the assumption that "the existing state of affairs will continue indefinitely" (Keynes, The General Theory of Employment, Interest and Money [San Diego. Calif.: Harcourt Brace, 1964], 152). This assumption, Keynes sought to demonstrate, is a false one and leads to a fetishization of liquidity, see Bill Maurer, "Redecorating the International Economy: Keynes, Grant, and the Queering of Bretton Woods" (paper presented at the Center for Lesbian and Gay Studies, City University of New York, April 1998).
27. Horwitz, Transformation of American Law, 167.
28. Adolph A. Berle and Gardiner C. Means, The Modern Corporation and Private Property (New York: Commerce Clearing House, 1932), 5.
29. Berle and Means, Modern Corporation, 300.
30. Berle and Means, Modern Corporation, 300.
31. Berle and Means, Modern Corporation, 302.
32. Berle and Means, Modern Corporation, 302.
33. Berle and Means, Modern Corporation, 306, 307.
34. Quoted in Berle and Means, Modern Corporation, 304.
35. Adolph Berle, "Property, Production and Revolution: A Preface to the Revised Edition" in Adolph A. Berle and Gardiner C. Means, The Modern Corporation and Private Properly, rev. ed. (New York: Harcourt, Brace and World, 1967), vii-xxvii.
36. Homer V. Cherrington, The Investor and the Securities Act (1942; reprint. New York: Da Capo Press, 1973).
37. Berle and Means, Modern Corporation, rev. ed., xxiii.
38. Berle and Means, Modern Corporation, rev. ed., xxvii.
39. Berle and Means, Modern Corporation, 313.
40. Richard Perry (personal communication) pointed out a parallel here to the earlier substitution of "symbolic" paper money for the "real" worth of precious metals and concomitant worries over the function of the state as an endorser of currency. See Walter Benn Michaels, The Gold Standard and the Logic of Naturalism (Berkeley: University of California Press, 1987), and Patrick Brantlinger, Fictions of State: Culture and Credit in Britain, 1694-1994 (Ithaca, N.Y.: Cornell University Press, 1996).
41. Richard Perry (personal communication) pointed out a parallel here to the earlier substitution of "symbolic" paper money for the "real" worth of precious metals and concomitant worries over the function of the state as an endorser of currency. See Walter Benn Michaels, The Gold Standard and the Logic of Naturalism (Berkeley: University of California Press, 1987), and Patrick Brantlinger, Fictions of State: Culture and Credit in Britain, 1694-1994 (Ithaca, N.Y.: Cornell University Press, 1996).
42. Richard B. Smith, "A Piece of Paper," Business Lawyer 25 (1970): 923.
43. See David Harvey, The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change (Oxford: Basil Blackwell, 1989); Susan Strange, Casino Capitalism (Oxford: Basil Blackwell, 1986); and Eric Helleiner, States and the Reemergence of Global Finance: From Bretton Woods to the 1990s (Ithaca, N.Y.: Cornell University Press, 1994).
44. See David Harvey, The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change (Oxford: Basil Blackwell, 1989); Susan Strange, Casino Capitalism (Oxford: Basil Blackwell, 1986); and Eric Helleiner, States and the Reemergence of Global Finance: From Bretton Woods to the 1990s (Ithaca, N.Y.: Cornell University Press, 1994).
45. See David Harvey, The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change (Oxford: Basil Blackwell, 1989); Susan Strange, Casino Capitalism (Oxford: Basil Blackwell, 1986); and Eric Helleiner, States and the Reemergence of Global Finance: From Bretton Woods to the 1990s (Ithaca, N.Y.: Cornell University Press, 1994).
46. Smith, "Piece of Paper," 923.
47. See Keynes, General Theory of Employment, chap. 12, for a critique of the "fetish of liquidity."
48. Smith, "Piece of Paper," 927.
49. Smith, "Piece of Paper," 927.
50. Smith, "Piece of Paper," 928.
51. See Strange, Casino Capitalism; see also Andrew Leyshon and Nigel Thrift, Money/Space: Geographies of Monetary Transformation (London: Routledge, 1997).
52. See Strange, Casino Capitalism; see also Andrew Leyshon and Nigel Thrift, Money/Space: Geographies of Monetary Transformation (London: Routledge, 1997).
53. Richard B. Smith, "A Piece of Paper Revisited," Business Lawyer 26 (1971): 1774-75.
54. Smith, "Paper Revisited," 1775.
55. See Macpherson, Political Theory of Possessive Individualism.
56. Hegel, Elements of the Philosophy of Right, sec. 65, 95
57. NSCC, "The Clearance and Settlement Process," http://www.nscc.com/about/clearance.html (page visited 26 May 1998).
58. See John P. Caskey, Fringe Banking: Check-Cashing Outlets, Pawnshops, and the Poor (New York: Russell Sage Foundation, 1994).
59. See Philippe Jorion, with the assistance of Robert Roper, Big Bets Gone Bad: Derivatives and Bankruptcy in Orange County (San Diego, Calif.: Academic Press, 1995); Dimitris Chorafas and Heinrich Steinmann, Off-Balance Sheet Financial Instruments: Maximizing Profitability and Managing Risk in Financial Services (Chicago: Irwin Professional Publishers, 1994); and Strange, Casino Capitalism.
60. See Philippe Jorion, with the assistance of Robert Roper, Big Bets Gone Bad: Derivatives and Bankruptcy in Orange County (San Diego, Calif.: Academic Press, 1995); Dimitris Chorafas and Heinrich Steinmann, Off-Balance Sheet Financial Instruments: Maximizing Profitability and Managing Risk in Financial Services (Chicago: Irwin Professional Publishers, 1994); and Strange, Casino Capitalism.
61. See Philippe Jorion, with the assistance of Robert Roper, Big Bets Gone Bad: Derivatives and Bankruptcy in Orange County (San Diego, Calif.: Academic Press, 1995); Dimitris Chorafas and Heinrich Steinmann, Off-Balance Sheet Financial Instruments: Maximizing Profitability and Managing Risk in Financial Services (Chicago: Irwin Professional Publishers, 1994); and Strange, Casino Capitalism.
62. See Group of Thirty, Clearance and Settlement Systems in the World's Securities Market (London: Group of Thirty, 1989), and Organization for Economic Cooperation and Development, Systemic Risks in Securities Markets (Paris: OECD, 1991). I will not review here the 1977 and 1992 changes to Articles 8 and 9 of the Uniform Commercial Code, which simplified the immobilization of paper shares; see Jeanne L. Schroeder and David G. Carlson, "Security Interests under Article 8 of the Uniform Commercial Code," Cardozo Law Review 12 (1990): 557-679.
63. See Group of Thirty, Clearance and Settlement Systems in the World's Securities Market (London: Group of Thirty, 1989), and Organization for Economic Cooperation and Development, Systemic Risks in Securities Markets (Paris: OECD, 1991). I will not review here the 1977 and 1992 changes to Articles 8 and 9 of the Uniform Commercial Code, which simplified the immobilization of paper shares; see Jeanne L. Schroeder and David G. Carlson, "Security Interests under Article 8 of the Uniform Commercial Code," Cardozo Law Review 12 (1990): 557-679.
64. See Group of Thirty, Clearance and Settlement Systems in the World's Securities Market (London: Group of Thirty, 1989), and Organization for Economic Cooperation and Development, Systemic Risks in Securities Markets (Paris: OECD, 1991). I will not review here the 1977 and 1992 changes to Articles 8 and 9 of the Uniform Commercial Code, which simplified the immobilization of paper shares; see Jeanne L. Schroeder and David G. Carlson, "Security Interests under Article 8 of the Uniform Commercial Code," Cardozo Law Review 12 (1990): 557-679.
65. And, to his peers, the most "brilliant" (Schroeder and Carlson, "Securities Interests," 563): Charles Mooney, "Beyond Negotiability: A New Model for Transfer and Pledge of Interests in Securities Controlled by Intermediaries," Cardozo Law Review 12 (1990): 305-427.
66. And, to his peers, the most "brilliant" (Schroeder and Carlson, "Securities Interests," 563): Charles Mooney, "Beyond Negotiability: A New Model for Transfer and Pledge of Interests in Securities Controlled by Intermediaries," Cardozo Law Review 12 (1990): 305-427.
67. James Steven Rogers, "Negotiability, Property, and Identity," Cardozo Law Review 12 (1990): 506.
68. Rogers, "Negotiability, Property, and Identity," 506.
69. Rogers, "Negotiability, Property, and Identity," 508.
70. See OECD, Systemic Risks.
71. Mooney, "Beyond Negotiability," 312.
72. Mooney, "Beyond Negotiability," 312.
73. Mooney, "Beyond Negotiability," 313.
74. See Ulrich Beck, Risk Society: Towards a New Modernity (London: Sage, 1992); see also Jonathan Simon, "The Ideological Effects of Actuarial Practice," Law and Society Review 22 (1988): 771-800.
75. See Ulrich Beck, Risk Society: Towards a New Modernity (London: Sage, 1992); see also Jonathan Simon, "The Ideological Effects of Actuarial Practice," Law and Society Review 22 (1988): 771-800.
76. On the logics of risk and insurance as forms of governing populations and techniques for governing the self, see Daniel Defert, "'Popular Life' and Insurance Technology," and Francois Ewald, "Insurance and Risk," both in Burchell et al., Foucault Effect, 211-33 and 197-210; D. Knights and T. Vurdubakis, "Calculations of Risk: Towards an Understanding of Insurance as a Moral and Political Technology," Accounting, Organizations and Society 18 (1993): 729-64; and Nikolas Rose, "Governing by Numbers: Figuring out Democracy," Accounting, Organizations and Society 16 (1991): 673-92. In general, the work of the so-called Critical Accounting Movement, represented in the pages of the journal Accounting, Organizations and Society, is most helpful here.
77. On the logics of risk and insurance as forms of governing populations and techniques for governing the self, see Daniel Defert, "'Popular Life' and Insurance Technology," and Francois Ewald, "Insurance and Risk," both in Burchell et al., Foucault Effect, 211-33 and 197-210; D. Knights and T. Vurdubakis, "Calculations of Risk: Towards an Understanding of Insurance as a Moral and Political Technology," Accounting, Organizations and Society 18 (1993): 729-64; and Nikolas Rose, "Governing by Numbers: Figuring out Democracy," Accounting, Organizations and Society 16 (1991): 673-92. In general, the work of the so-called Critical Accounting Movement, represented in the pages of the journal Accounting, Organizations and Society, is most helpful here.
78. On the logics of risk and insurance as forms of governing populations and techniques for governing the self, see Daniel Defert, "'Popular Life' and Insurance Technology," and Francois Ewald, "Insurance and Risk," both in Burchell et al., Foucault Effect, 211-33 and 197-210; D. Knights and T. Vurdubakis, "Calculations of Risk: Towards an Understanding of Insurance as a Moral and Political Technology," Accounting, Organizations and Society 18 (1993): 729-64; and Nikolas Rose, "Governing by Numbers: Figuring out Democracy," Accounting, Organizations and Society 16 (1991): 673-92. In general, the work of the so-called Critical Accounting Movement, represented in the pages of the journal Accounting, Organizations and Society, is most helpful here.
79. On the logics of risk and insurance as forms of governing populations and techniques for governing the self, see Daniel Defert, "'Popular Life' and Insurance Technology," and Francois Ewald, "Insurance and Risk," both in Burchell et al., Foucault Effect, 211-33 and 197-210; D. Knights and T. Vurdubakis, "Calculations of Risk: Towards an Understanding of Insurance as a Moral and Political Technology," Accounting, Organizations and Society 18 (1993): 729-64; and Nikolas Rose, "Governing by Numbers: Figuring out Democracy," Accounting, Organizations and Society 16 (1991): 673-92. In general, the work of the so-called Critical Accounting Movement, represented in the pages of the journal Accounting, Organizations and Society, is most helpful here.