Organic Poise? Capitalism as Law

Legal scholars have long debated whether law and capitalism are distinct systems or mutually constitutive phenomena. Tomlins engages systems theory to argue that law and capitalism must be understood as operationally distinct yet relationally connected. The article challenges functionalist critiques that collapse the distinction between legal and economic systems, asserting instead that history reveals a substantial archive of precapitalist law, establishing law's separate pedigree and its capacity for autonomy. Through analysis of capitalist legal forms—from common law merchant to modern commercial practice—Tomlins demonstrates that capitalism drives price-based exchange but does not determine law's content or structure. Rather, law looks, smells, and acts as itself: a system processing exogenous stimuli according to its own culture and practices. The article employs Luhmannian systems theory to examine how law and economy display operative closure yet remain cognitively open to environmental influences. Tomlins investigates how capitalist property law has evolved while retaining precapitalist legal vestiges and modes of production, suggesting that understanding capitalism requires distinguishing between its institutional manifestation and its ideological character. This approach illuminates why legal history cannot reduce law to capitalist imperatives.

Topics: Legal Theory · Corporate Law · Property

Keywords: systems theory · capitalism · legal autonomy · precapitalist law · operative closure · Luhmann