ABSTRACT
In our time, an amorphous and undertheorized notion of capitalism is the target of jurisprudential antipathy. Capitalism is indicted as the creator of ills and as the inhibitor of equality, freedom, truth, justice, democracy, human flourishing, planetary life, peace, and more. Among natural law and critical legal theorists in the United States, only liberalism rivals capitalism in their hostility.
Still, if one attends a legal theory conference on capitalism, chances are that examples will abound of successful resistance to or overcoming of the ills of capitalism. Instances will be on offer of achievements or promising developments in fields from cooperative enterprises to criminal law reforms to workers collective mobilization to health access to social controls on corporations, and beyond. At the least, such achievements and promise are compatible with capitalism; at the most, they are only compatible with capitalism. Which is the case? How would one know?
If a critical jurisprudence of capitalism is to be viable, it must satisfy considerable epistemic burdens of explanation and normative burdens of evaluation. All this article does is to elucidate some of these burdens. It does so by saying a word about the stages of critique in law: from enchantment to disenchantment to maturity. Next, it offers a condensed theoretical description of capitalism followed by one of modern legal systems. The article then makes salient a jurisprudential angle of approach to the problem of risk, intertwined as it is with capitalism. Following that, a prescriptive image of jurisprudence is offered. In two additional sections, the article presents the burdens of explanation and evaluation separately and then in an integrated manner. The conclusion is mercifully short.
Barrozo, Paulo, Capitalism and Jurisprudence (October 8, 2025). Forthcoming in Law & Contemporary Problems; Boston College Law School Legal Studies Research Paper No 660.
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