Recorded on December 5, 2023, this Authors Meet Critics panel focused on Impunity and Capitalism: the Afterlives of European Financial Crises, 1690-1830 (Cambridge University Press, 2022), by Trevor Jackson, Assistant Professor of History at UC Berkeley. Professor Jackson was joined by Anat Admati, the George G.C. Parker Professor of Finance and Economics at Stanford University Graduate School of Business, and William H. Janeway, Affiliated Member of the Economics Faculty at Cambridge University. The panel was moderated by David Singh Grewal, Professor of Law at UC Berkeley School of Law.
Co-sponsored by the Berkeley Economy and Society Initiative (BESI) and the UC Berkeley Department of History, the panel was presented as part of the Social Science Matrix Authors Meet Critics book series, which features lively discussions about recently published books authored by social scientists at UC Berkeley. For each event, the author discusses the key arguments of their book with fellow scholars.
About the Book
Whose fault are financial crises, and who is responsible for stopping them, or repairing the damage? Impunity and Capitalism develops a new approach to the history of capitalism and inequality by using the concept of impunity to show how financial crises stopped being crimes and became natural disasters. Trevor Jackson examines the legal regulation of capital markets in a period of unprecedented expansion in the complexity of finance ranging from the bankruptcy of Europe’s richest man in 1709, to the world’s first stock market crash in 1720, to the first Latin American debt crisis in 1825. He shows how, after each crisis, popular anger and improvised policy responses resulted in efforts to create a more just financial capitalism but succeeded only in changing who could act with impunity, and how. Henceforth financial crises came to seem normal and legitimate, caused by impersonal international markets, with the costs borne by domestic populations and nobody in particular at fault.
[MARION FOURCADE] Hello, everybody. Welcome. My name is Marion Fourcade, and I am the Director of UC Berkeley Social Science Matrix. So you all know Matrix as the place where interdisciplinarity is not merely evoked, but we’re actually– it actually happens. But it is a particularly felicitous moment when we can bring together, not only people from across the disciplines, but also from the wider world of practice.
So we are delighted to welcome today one economic historian, one economics and finance professor, one financier and theorist of finance, and one legal scholar and political scientist to discuss how financial impunity arose during the long 18th century in Europe.
In the brilliant book that will be discussed today, Trevor Jackson combines aspects of regulatory history and financial history to narrate how, during this period of political anger and economic upheaval, financial crisis went from being understood as crimes to become naturalized as disasters. And then we will have, of course, a conversation between the present and the past with these wonderful panelists.
Today’s event is part of our Author Meets Critic series. We would like to thank our cosponsors for these events, the Berkeley Economy and Society Initiative, and the UC Berkeley Department of History. As always, I will mention our last upcoming events of the semester on Friday. Elizabeth Joh will close our programming for the semester with a talk on the use of algorithms by police. And then you can already look forward to our next semester.
Julia, who’s right here in the front, and who I must thank for putting together our entire events program this semester, she’s also been hard at work, and we have a lot of fantastic panels to look forward to in the spring. So I apologize my voice is a little broken. We will return on January 19 appropriately, actually, with a discussion of a very Berkeley topic, The Unnaming of Kroeber Hall, and the title, of course, of a recent book by linguistics Professor Andrew Garrett.
So now I will introduce our moderator, David. David Singh Grewal is Professor of Law at UC Berkeley School of Law. He’s teaching and research interests include legal and political theory, intellectual history, particularly the history of economic thought, global economic governance and international trade law, intellectual property law and biotechnology, and law and economics.
His first book, Network Power– The Social Dynamics of Globalization was published by Yale University Press in 2008, and his second book, The Invention of The Economy is forthcoming from our– perpetually forthcoming– we’ll say forthcoming from Harvard University Press. So without further ado, I will now turn it over to David. Thank you all for being here.
[DAVID GREWAL] Thank you, Marion. Let’s see. Is that how– there we go. OK. So I think it’s recording. Anyhow, thank you all for being here. I’m delighted to be able to moderate this session. To my immediate left is Trevor Jackson. He’s an economic historian who teaches here at Cal, as of this year, in both the history and the political economy departments, and we’re really delighted to have him. He researches inequality and crisis, mostly but not exclusively, in early modern Europe. I think he’s developing a side business in modern crisis, and we’ll maybe hear about that in the Q&A.
His first book, which is here available at a fine book seller near you is Impunity and Capitalism– the Afterlives of European Financial Crises, 1690 to 1830, and it was published by Cambridge University Press last fall. His current research interests focus on the problem of gluts, overproduction and overaccumulation since the 17th century, the problems of temporality and finitude in economic thought, and problems in the historical measurement and meaning of capital.
Those of you who’ve had a chance to read this great book will see a lot of those themes resonate with the history he tells. He also has ongoing research interests in the histories of extinction and catastrophe, as well as early modern occupational health. That may be why a gilded– what do they call it?
A gilded guillotine is on the front cover for those interested in occupational health. And to this wonderful list of interests, I hope that he– I think he should add law because there’s a lot of legal thought, legal history in the book. And one of the things that interests me in the book is the way in which it really is, at once, a legal history as well as a financial history. So I’m delighted to be able to moderate.
And the two commentators today are, to Trevor’s immediate left, Bill William Janeway, who is an Affiliated Member of the Economics Faculty at Cambridge University, and he’s the author of Doing Capitalism in the Innovation Economy. He’s a Special Limited Partner of Warburg Pincus, having joined the firm in 1988 and served as head of its information technology investment practice for 15 years.
He’s chair of the board of directors of the Social Science Research Council, and the founder of the Cambridge Endowment for Research and the Janeway Institute for Economics at Cambridge University. He was co-founder of the Institute for New Economics Thinking, which many of us know and some of us have been privileged to work with, and he received his doctorate in economics from Cambridge University where he was a Marshall Scholar.
And to his immediate left is Anat Admati, the George GC Parker Professor of Finance and Economics at Stanford University Graduate School of Business. She’s the Faculty Director of the Corporations and Society Initiative, and a senior fellow at the Stanford Institute for Economic Policy Research, writing and teaching on the interactions of business, law, and policy. Admati is the co-author, with Martin Hellwig, of The Bankers’ New Clothes– Wrong With Banking and What to Do about It. Yes. Cover, please. There we are.
And no one got fat.
Yes. And What to Do about It. And the new and expanded edition is forthcoming in January 2024.
Just got the copy last night.
Oh, very good. So I’m afraid that’s what forthcoming actually means. So I probably should stop putting–
But they did say it’s available already. It’s available in–
It’s available at fine book sellers near you.
Oh, or soon to be.
Online. In 2014, she was named one of Time Magazine’s 100 most influential people, and one of the Foreign Policy Magazine’s 100 global thinkers. She holds degrees from Hebrew U, many degrees from Yale University, and honorary doctorate from Zurich. And so we’re delighted to have both commentators and Trevor. Without further ado, I think, Trevor, would you lead us through the book a bit?
[TREVOR JACKSON] All right, great. Am I audible? Great. Well, thank you, David, for that introduction, and thank you, Marion, for inviting me and for organizing all of this, and to Julia as well. And thank you all for coming out on the end of the term, reading week. I observed more than one person who I know is on leave and is nonetheless here, and so thank you for that.
So I thought what I would do is spend a few minutes talking through the narrative of the book. My publishers tell me, scandalously, that there are, at least, three to five people in the world who’ve not read it. You know who you are. So I thought I would give you a sense of the narrative and maybe belabor the historian points that might not otherwise be evident. And then try to give you a sense of what I thought I was trying to do, and maybe a few things– since this is an Author Meets Critics panel, a few things that I think I didn’t successfully do and meant to do. And so I think that’s the plan.
So the book is about impunity. And I came to impunity, in part, because of an archival disaster, which is to say that I went off looking for something that I thought I would find and didn’t find it, and I had a long, dark night of the soul in Strasbourg in 2014. And I asked myself what I had found, what the sources were telling me, and what they were telling me was a wonderful record of frauds, scams, scandals, mendacity, lies, crimes, and other assorted malfeasance. And I thought, well, perhaps there’s something here that I can historicize.
And so just to lay the groundwork, I came at this as an economic historian. Not many people are economic historians anymore, and especially so in history departments. According to the American Historical Association, fewer than 5% of historians call themselves economic historians. I was trained by one of the last great economic historians Jan de Vries of 50 years at Berkeley, and I was preoccupied by trying to think of how the future of my discipline might look. How might I bring together history and economics in a new way? How might I make it interesting and intelligible to history departments?
And in that dark night of the soul in 2014, I thought to myself, what are the big questions that the field is pursuing? And, of course, 2014 was the year of Thomas Piketty, and everyone was talking about inequality. And I thought to myself, well, maybe there’s a way that I can try to tell a story about inequality that makes it interesting and intelligible to historians. Because I’d already found that when I talk to my historian colleagues about inequality very frequently, the answer that I would get is, do you just mean economic inequality?
And I would usually say, what do you mean just? But is there a way that I can push the concept further, while still hopefully trying to keep it analytically tractable? With ultimately the pitch perhaps unsuccessful, that inequality might be a way of bringing history and economics back together. That if we think about it, maybe inequality is the only thing that all historians work on to some degree or another, given that we’re all concerned with questions of power and different forms of injustice and inequality over time.
So with that in mind, I tried to conceptualize something that I thought would be tractable and applicable to the documents that I had found. And so what I did is try to move a lot of the conceptual framework of impunity as it currently exists in the world of international law, mostly coming since the 2002 founding of the International Criminal Court, which has, as its stated purpose, ending impunity, and so they have a legal idea of what impunity means, and seeing if I could adapt that to the history of financial crisis.
Because I felt like there were similar problems at work. When the ICC tries to prosecute world leaders for mass crimes, they tend to run into a few specific problems. There’s a problem of scale insofar as many legal systems are better equipped to handle individual crimes, say, murder rather than large-scale crimes, there’s a problem of precedent in that, malfeasance tends to exceed existing laws and regulations, and there’s a problem of culpability in that world leaders tend not themselves to be personally guilty of any sort of crime.
And I thought, well, maybe these problems and other attendant problems seem, to me, similar to the problems that I thought I was seeing, specifically, as I was researching the 1720 financial crisis. And so I thought, can I take these ideas, can I apply them to financial crises of the past, and in doing so generate some new way of thinking about economics and inequality? That was the plan.
So the book begins, really, with two related cases in the early 18th century. The first is the bankruptcy of someone called Samuel Bernard, who was the richest man in Europe. He was the personal banker to Louis XIV. And in 1709, for a series of hilarious high jinks that get terribly out of hand, he goes bankrupt. And in doing so, he undercuts the basis of something called the Lyon faire, which was the quarterly clearing mechanism for much of the finance and commerce in southeastern France, through the Rhine corridor, and into Switzerland.
People in an age before, well, bank accounts and a lot of available specie, would keep running tabs with each other over long periods of time, and they would meet, ostensibly, quarterly to clear these tabs, and some relatively small amount of specie would change hands in theory. Very often they would just roll over the outstanding debt and proceed again. But they needed some circulating liquidity to make this transaction work, and Samuel Bernard provided that.
And so when he went bankrupt, the Lyon faire collapsed. Credit dried up throughout this entire arc of Western Europe. This coincided with the coldest winter in half a Millennium, in which, suddenly, the Lyon government found itself needing to provide more support to more hungry people exactly when it didn’t have the tax revenue from the faire, and so there was a social disaster.
Samuel Bernard gets a pardon, and, in fact, his creditors get prosecuted, which was the opposite of the normal procedure in which debtors would be prosecuted and sent to debtor’s prison. He’s the personal banker of the king. He is too big to fail. He has connections to the judicial system. He gets special treatment.
In 1716, following the War of the Spanish Succession, the French government is saddled with a huge amount of outstanding debt, and they have recourse to something called the chambre de justice, the Chamber of Justice. Which was a common legal procedure in old regime France in which the entirety of the French financial community, in the case of 1716, 4,399 people, would collectively be prosecuted in the belief that they must have done something wrong.
And this being old regime France, there’s no presumption of innocence, there’s no right to counsel. Most people would flee. They would pay bribes to not be prosecuted. We generally interpret this as a structured default. Instead of just not repaying the debt, what you do is force the people that you owe to pay you in fines, which makes it easier to repay the debt.
And so this is a moment where the fiscal crisis, the French monarchy is– at least, within the legal system of the French monarchy worked out as though the creditors are all criminals and are prosecuted for that crime. And so that seems a far distant world from the one that we live in today. And so that’s where it begins. In this moment in which financial crises are interpreted through a legal order and the sovereign has the scope to decide who gets prosecuted and who doesn’t.
The book ends with the Panic of 1825, which again, through a hilarious series of circumstances is the first, perhaps, endogenously produced financial crisis in the history of the Western financial system. Meaning that it isn’t necessarily the result of wars, of famines, of some exogenous surprise, it’s generated by the financial system itself.
In the working out of the Panic of 1825, not only is nobody prosecuted, but it never even crosses anybody’s mind. It isn’t even a thinkable, intelligible, meaningful possibility. And so the book tries to explain how we go from the world of Samuel Bernard and the chambre de justice to the Panic of 1825. Or in the tagline of the book, how do we move from a world in which financial crises are understood to be crimes to a world in which they’re understood to be natural disasters? That’s the large arc of the story.
So what I thought this was going to do, or what I intended it to do was a few different things. So one I’ve already alluded to, which was to try to produce new ways of thinking about inequality that might speak to inequality scholars on the economist side of economic history, but also might provide a intelligible point of entry to my historian colleagues. Beyond that, I was trying to historicize what I viewed as a pretty commonly held narrative, which is about the emergence of the economy as a separate sphere of social life, and especially of governance.
I mean, this is almost a classic Karl Polanyi story– I know there are many sociologists in the room– that there was some time before in which economies and economic lives are embedded in social life and political life, and something happens to remove the economy. And I thought maybe this is a way of tracing that emergence of finance, specifically, so that that could confine the scope of what I’m looking at as a separate sphere with its own institutions of governance, its own regulations, its own special norms.
And that even in the case of 18th century European finance, its emergence as, at first, a separate place, because financial markets were physical locations, Exchange Alley in London, the Rue Quincampoix in Paris, where people would go to physically exchange securities. And in the literature of the moment, these were conceived as specific places with their own specific rules and specific people with strange languages and strange procedures.
Nearly every financial crisis that I read about tended to also involve some sort of moral panic about, in the early stages, people across religions doing business with each other. That finance is this place with no rules where Christians and Muslims and Jews might do business with each other. It was a place– because it was unregulated from which women were not yet excluded. And so there was a whole moral panic in the pamphlet literature in English about women getting access to money that other people couldn’t control.
And so I found like this felt like not just the emergence, conceptually, of a separate sphere, but almost socially, politically, that there was something to trace. Not just a teleological emergence, but a contested one in which there’s a possibility of emergence that meets in crisis is then regulated and tamped down on until it emerges again.
Which gets to the second thing that I was trying to do, which is that after seven years of arguing with my fellow grad students about causality, and what is history, and what are agents, what I ultimately settled on was a narrative important that I meant to be genuinely dialectical in the sense of a set of conflicts producing a crisis that has some resolution, the resolution, in turn, sets up and produces the conditions for the next crisis.
And I think we are already willing to think that insofar as we’re very willing to think that regulation is always regulating the previous crisis. And a new crisis tends to be understood given the distorted historical memory of the previous one. And so I wanted to take that seriously even at a material level. What kinds of financial activities were possible given a past set of regulations, and what kinds of ways around them generated new forms of instability?
Which gets to the last thing that I was trying to do which is that although it’s a book about financial crises, and although I would try to claim to be an economic historian, and although it’s got capitalism in the title, fundamentally, the big game that I was hunting was actually about crises of political legitimacy. Because I felt like what I saw again and again in moments of crises following which the public perceives some set of injustice that hasn’t been dealt with, I felt like I perceived, potentially, an escalation to a crisis of political legitimacy.
You see this a bit in the aftermath of the 1720 crisis, much more profoundly in the 1780s and 1790s. Sometimes it’s there, sometimes it isn’t. Again, this isn’t a teleological move towards more or less, but rather different moments in which there are different possibilities of legitimacy crises. And that, especially by the end, after 1825, the idea that the inequalities of the emerging capitalist economic order, or, say, the costs and consequences of financial crises were unevenly distributed.
That although this no longer had a legal implication, I think at the popular level, that the sense that there is an injustice to that world of 19th century capitalist economic life was one of the motivating factors behind most of the large-scale ideologies of the 19th century. That most 19th century political ideologies, in some way, are addressed to the question of like, whose fault are the economic injustices around us?
And perhaps for the nationalists, it’s the foreigners, and for the antisemites, it’s the Jews, and for the socialists, it’s the capitalists. But in general, that most ideologies of the 19th century were trying to deal with this question that was never quite resolved, and that they never quite had the language to deal with. So those were the things that I was trying to do.
There are a couple of things that I think I failed at. I’m going to preempt my critics. We’ll see. So the first is an empirical strategy, which is to say, I needed to choose my cases. And a thing about studying exceptions, mistakes, crimes, violations of laws and orders and so on is that people who break laws and get caught leave archival traces. People who break laws and don’t get caught don’t. People who don’t break laws at all might not leave archival traces. And so it’s very difficult to assess the denominator and the changing prevalence over time.
But I’m in the Social Science Matrix, to use the Social Science term, what I did is I selected on the dependent variable and chose cases, both because there was an archival density and so the sources were talking to me, but cases that left enough of a paper trail of malfeasance that there was a story to be told there. In my mind, the harsher version of this is that I made up a concept and went around early modern Europe saying, oh, there it is. Oh, but it’s not that.
I think there is a truth to that. The more that I read about the construction of economic concepts, the better I feel because, to some extent, I think we’ve maybe all done that. But what I didn’t do is produce some sort of falsifiable, tangible, measurable empirical thing that I could say, this is 10 impunity as opposed to 5. Some way of tracing it across time.
Now, often when I talk to my historian colleagues and I say this, they say, well, look, that’s just what history is like. We can’t know the total set of the past. We know the imperfect record that remains to us, and it’s very difficult to assess the total set of things that we can’t know. And I think that there is a truth to that.
At the same time, though, I think that in an absence of some sort of falsifiable set of claims and a set of cases that may be selected on a selection bias standpoint, then may themselves be epiphenomenal, I’m actually not persuaded that the meta-level story holds up as strong as each individual case. In the end, what I hoped to do was to be either generative or perhaps provocative enough that there might be further studies on differing forms of impunity.
I observe that there are many historians, including my excellent colleague, Puck Engman, who I don’t think is here, but nonetheless is working on transitional justice. Lots of historians are working on transitional justice in different moments and different contexts. And it’s a concept that’s providing a way for us to talk to each other across fields. And I thought maybe impunity is a way to do that. Maybe that’s a way that I thought I could bring historians and economists together to talk about inequality, but maybe, in fact, it’s a way of talking to sociologists and political scientists.
And I’ve been very pleasantly surprised to find professors at law schools turn out to be terrific interlocutors to think about impunity and are very interested in the subject, and so it may have ended up doing something different from what I intended. But that’s what I thought I was doing, and I think maybe what I ended up doing and not doing instead. And so I’ll stop there before I carry on.
[WILLIAM JANEWAY] It may turn out that some of what I have to say may ease your concern, Trevor, about what you failed to do, in part. But first, I just want to begin by saying that this book deeply enriches a domain of scholarship research experience that has historically been underserved. And that is the frontier where the dynamics of the political process meet the dynamics of the market, and particularly, the dynamics of the financial markets.
And this notion of the establishment of the market economy, and particularly the financial markets, as an autonomous domain, a regime that has its own rules and laws, and which is exempt from the broader moral economy is a very powerful concept. And, of course, there’s a resonance from 1825 to 2008/9 when nobody went to jail except one junior banker, who, actually, was a foreigner.
Now, one question that that offers, and I’m going to come back to this, and this is where I think I would give you, at least, a partial pardon, the book, certainly, pushed me to think hard about, what are the conditions under which the moral world reaches out and embraces the financial system, and imposes punishment. Because we do have examples that come after 1825, in fact, in some cases very much, but I’m going to come back to that.
First, I do want to point out one of the other more specific resonances that I found very powerful is the manner in which John Law’s system in France, creating an enormous sea of liquidity in the context of a dysfunctional fiscal system, seems an awful lot like what happened in this country, and in the Western world, but particularly in the United States, in the aftermath and the context of the Great Recession, with austerity descending from what we thought, or perhaps I should say, ascending from a corpse which we thought had moldered away to assert itself across the Western world, and, in fact, across everywhere but China between 2010.
And then under the impact of COVID, the quote, “unconventional monetary policy,” serving as the functional equivalent of John Law’s system in motivating an enormous flood of liquidity into financial markets, into the financial system, which in turn engenders the unicorn bubble, the excesses and extensions of which fully meet the requirements of being resonant with the South Sea bubble. So that, I thought, was a really, really useful connection.
One aspect of this– and I think the discussion in the book of the currency Bullion Controversy in Britain approaching 1825, establishing an intellectual frame in which you have the basis for laissez-faire at a pretty deep level. David Ricardo is a really, really strong thinker and political presence, not unlike a world that your colleague, Brad DeLong, knows better than anybody else in this room, a world in which efficient markets, rational expectations, the notion that markets are self-correcting mechanisms that can be relied upon creates an environment in which we can have the global financial crisis, and then constrain the response to the global financial crisis.
Now, I do want to point out, and for those who are interested in modern, the modern echoes that this book generates. Some things worth taking a look at, what happened to the Baring family in 1890 in the first Barings crisis. They didn’t go to jail, but Barings had been, as demonstrated in the book, in the years up to 1825, the historian of the Barings Bank referred to it as– the title of the book is The Sixth Great Power of Europe.
The Barings partners, most of whom were members of the House of Lords when that was not a way of, as Boris Johnson said, embarrassing people who used to work– people who were in the House of Lords by nominating your 28-year-old personal assistant to be a peer. The Barings were wiped out. They were liquidated in 1890. So something was going on there.
And I do think there’s a linkage– for those who really want to read deeply into this history, there’s a linkage from this book to David Kynaston’s great three-volume, History of the City of London, which is replete with scoundrels, some of whom enjoy impunity, and some of whom wind up in the slammer, having been engaged in financial manipulations and frauds of one kind or another.
But then coming a little more closer to our time, not quite my generation, 1932, ’33, the Pecora hearings are an extraordinary moment in the financial history of the United States. After the Great Crash, after the bank crisis, the Senate Banking Committee, when Hoover was still president with a Republican chair, organizes an investigation of Wall Street. It goes nowhere. There’s no energy in it until Roosevelt becomes president, induces the, now Democratic, chair of the Banking Committee to reactivate the hearings.
An extraordinary lawyer called Ferdinand Pecora, hammer and fist hammer and tongs, goes after Wall Street. Sam Insull, the great entrepreneur of the utility system in Chicago flees the country ahead of the indictment. The chairman of the National City Bank, largest bank in the United States goes to jail for tax evasion. Richard Whitney, the president of the New York Stock Exchange goes to jail for stealing his client’s money. There is no impunity at that moment.
But then even closer to home– and this I remember vividly. In fact, I knew some of the players in this game. In 1990, there was the savings and loan crisis. It was nothing like the scale of the global financial crisis. But under that radical, woke President, George H. W. Bush, 200 bankers, including Mike Milken went to jail. They did jail time for that circle, that crisis within a segment of the American financial system.
In 2000, the meeting– well, the chairman of WorldCom and the then, not quite chief executive, but he became chief executive of Enron were each sentenced to 25 years in jail for their frauds that were revealed in the context of the breaking of the tech bubble. And then, of course, most recently, Sam Bankman-Fried and FTX. I don’t know– we don’t know how long he’s going to jail, but I think we are highly confident he’s going to jail, not with– he has not enjoyed impunity.
So a question is, in this context, is 2008 the anomaly, or was it really the reassertion of a central theme of the book? I think the fact that the book makes one ask those questions is part of its value. So let me just close my two brief remarks. Oh, and I should add, by the way, the other thing that’s going on right now is the question of the immunity of the Sackler family– the impunity of the Sackler family.
I was going to start with.
Yeah. Well, there you go. I turn it over to Admati. But rolling back, one of the themes that emerges in the latter part of the book is how London’s rise to dominance as the financial capital is enabled by the House of Barings and the House of Rothschild being the financiers of sovereigns, including the British sovereign, but by no means only the British sovereign. So I think of– and how they finance, particularly, the British government in the context of the Napoleonic Wars.
And I think of New York Wall Street, the House of Morgan rising to a dominant position in financing the British government in World War I, with the US and New York emerging as the financial hegemon of the last 100 years. And with that, I will end, except to note that this is a plum pudding of a book. You find extraordinary gems.
And the ones that I wrote down, the one I wrote down here, financial crises and financial speculation often come with innovations. And Minister Necker securitized annuities on seven-year-old genevois smallpox survivors on the grounds that they were going to be the most long-lived, and so selling the annuities was going to maximize the return today for a state that was functionally approaching bankruptcy. That’s a great gem to discover with that.
[ANAT ADMATI] OK. Thank you very much. Thank you, Marion, and Julia for inviting me. When I saw the title of this book, I immediately wanted to do this because I’ve been writing exactly on this, except a little bit differently. So in particular, and I brought a few things here, in the new edition of this book, the last chapter is called Above the Law, question mark, and it’s very much about impunity, the word appears.
And so the idea of the narrative of financial crisis as natural disasters, of course, goes back to all these narratives coming from bankers and regulators and others saying, oh, the 100-year flood, it was like an earthquake, nobody could have seen it coming, and all of that, which was completely against other narratives saying there were a lot of people at fault, and then nobody was home to actually prosecute or any of that, so that was that.
But it wasn’t unusual. But really what’s missing for me, I come from the world of corporate finance into banking and back into corporate finance, and then corporate law and law more generally. So my writing, most recently, is really about corporations and the rule of law. And one of the words that I really, really, really missed in the index, there is the word contract law, but the word corporation does not exist.
However, the whole issue happening right now with Purdue Pharma is precisely about corporations. It’s about how the corporation, a legal person with rights, a lot of rights, and with a veil that separates the corporations from all people, is filing for bankruptcy. And the people who benefited from that corporation, who owned the equity of that corporation, who had a lot of control in it, a private corporation, doesn’t have shareholders in the public are not bankrupt and yet want to get impunity out of the bankruptcy of the corporation.
And that’s just one of numerous examples where corporations commit crimes, even though they’re abstract people. I mean, PG&E right in this area pleaded guilty to 84 manslaughter charges, and the headline in Forbes magazine was, PG&E avoids 90 years in jail for not being a person. Because A person would get about a year per manslaughter.
This was 84 manslaughters, and nothing happened. I mean, the fine was ridiculous, like a decimal point for PG&E, and that was a maximum fine. Now they don’t go after PG&E criminally, but they go civilly because they can get more money out of PG&E for that. But this is basically the way it works. So the corporate form is really the way impunity works in capitalism.
And by the time this book starts, we already have the Dutch East India, we already have the key corporations that have become the dominant, almost sovereigns, in our economy, and the ones that give people the impunity that once was given to kings. In other words, Jamie Dimon has impunity, and he will pay a lot of money to hide and pay off the wrongdoings of JPMorgan Chase, and so will Mark Zuckerberg if anything is wrong with what Facebook Meta is doing, et cetera, et cetera. So the corporate form is really key to this.
Now, the book focuses on central banks, and, in fact, in the new edition of the book, we go much more to central banks. The original book was– The Bankers’ New Clothes was about private sector banks. And we still talk about private sector banks. The central banks are the enablers of a really bad financial system, including a bad system by lender of last resorts and bailouts, as we speak right now, of potentially insolvent regional banks that were just offered excessive loans from the Federal Reserve with backing by Treasury.
So you can see a bailout here slightly obscured from public eyes so they don’t have to use that dreaded word bailout. Because after all, Obama promised us no more bailouts, period, and got like two minutes of ovation when he signed the Dodd-Frank Act. So we have impunity galore. I was asked a couple of years ago with a bunch of other economists what has gone wrong with capitalism, and what to do about it by Oxford Publication.
And my essay for that volume was called Capitalism, Laws– to David’s point– and the Need for Trustworthy Institutions in both sectors. We have lost trust in our institutions, and it’s partly because of the way these institutions, basically, create symbiosis that are harming society, and create impunity for everybody involved in the private sector and in government. So when asked what’s gone wrong with capitalism, my answer was, it’s destroyed, undermined, overwhelmed corrupted democracies. And so our democracies are partly in trouble and in crisis in an intertwined crisis with the– whatever people might view is the crisis of capitalism.
And in that essay, I– well, people talk about shareholder capitalism, et cetera, I called it something similar to what you’re talking about, I called it financialized capitalism. So financialization has to do with the way corporate governance works, the maximization of stock price, return on equity, all these accounting metrics, financialized metrics as an objective, and as a way that corporate leaders are– what they’re chasing. And the inability of democratic governments to actually set the rules of the game for these legal persons and to enforce on these legal persons a set of rules.
The legal system has not envisioned corporations. The Constitution has not envisioned corporations. But corporations go to court. And in a book on this called We the corporations, Adam Winkler from UCLA discusses the civil rights movements of corporations all happening in the courts, and receiving more and more rights, including speech rights, religious rights that were intended for human beings, and then using the 14th Amendment and others to acquire more and more rights. But when it comes to piercing the corporate veil for accountability, we are nowhere good.
And Sam Bankman-Fried is the exception that proves the rule. There are extreme cases where a person like him or like Elizabeth Holmes produce a lot of evidence, especially about defrauding investors. In this case there were customers as well, but in the case of– in cases of other wrongdoings, a lot of times the impact people are employees or customers, but shareholders run supreme even in the legal system. When they can claim to be harmed, they can go to court with class action suits and anywhere else. When their lawyers think that the stock price went down, they will sue.
Meanwhile, many customers and employees, except for some new law on sexual harassment, are relegated to mandatory arbitration and don’t even have access to the law even when they are harmed. So in the private law as well as in the public law, we really have lost the battle on corporate impunity, corporate leaders impunity when they are able to do it through the corporation as opposed to be the ones at the top actually uttering the fraud as in the case of Elizabeth Holmes, of Sam Bankman-Fried. Those are extreme cases. But in other cases, the culpability and the diffused responsibility are making it so– and the ability to create legal shields is making impunity a pervasive problem in the economy, and certainly in banking and beyond.
One other final comment, the book is very much about financial crisis, but this problem is not one of crises. Crises are where we see something wrong, but it can be wrong all the time and hidden from view. So I view the entire system as highly distorted and unhealthy, starting with the financial– with the private sector corporation, and continuing to some other corporations in other sectors depending on what they need for good rules of the game and where their rules might be more or less ineffective depending on the sector and the situation.
You have wage theft, you have all kinds of pollution, you have all kinds of agencies and laws that corporations have to comply with. And oftentimes, either they just don’t, or don’t get caught breaking them, or the fines that they pay are not even commensurate with the harm, let alone do anything to the individuals involved because it’s too hard, because it’s too costly.
And there are a bunch of books on this right now, Chickenshit Club, Why the Innocent Plead Guilty and the Guilty Go Free, Too Big To Jail, multiple books about that with those kinds of titles. And we can go on into how the mechanics of corporate settlements is, and we go through a lot of these examples in the new edition of the book for which I have the preface and table of content here enough for everybody in this room. So pick up one.
Give you about 10 minutes to respond to these comments, and then we’ll open it up to have a discussion.
[TREVOR JACKSON] Great. Great. Well, thank you both for that. It’s very stimulating to be read at all, let alone read and responded to, and especially from people outside of my field and discipline. This has been a very useful and generative set of comments. So where to begin.
So on the question of, well, really, our contemporary moment in the post 2008 order, I feel like there were several questions that I might cluster together as being about the world since 2008. And I think it was a deliberate choice to have the book end in 1825 because I felt like that was the first moment in which I thought I perceived something new, which was to say, large scale, what, for lack of a better set of words, I would call, economic harms that are not broadly popularly interpreted as someone’s fault.
Which there is no agential figure, there’s no crime, there’s no law being broken, it’s like a storm. Although, of course, as we historians are increasingly aware of, natural disasters themselves are not necessarily natural disasters, but nonetheless. And that I felt like was new. And so what I was trying to get at wasn’t necessarily that nobody ever gets prosecuted for any kind of economic crime again, clearly not.
Rather, what I found interesting and wanted to trace the origins of was how we get to a world in which poverty, inequality, stagnant wages, unemployment are not perceived– well, perhaps are perceived as moral problems and certainly policy problems, but aren’t perceived as some agential figure’s fault outside of claims of political legitimacy. In a sense that I think that could have gone differently had the late 18th and early 19th century financial crises gone differently. And I think that a person from, say, 1709 would interpret economic policy today in a very different way than what we do. And so that was the particular thing that I was trying to get at.
And so to give you a little more tangible example of the distinction that I want to draw here, although I have found myself writing pretty frequently about cryptocurrency and Sam Bankman-Fried and so on, I do that because I think it’s funny when bad things happen to billionaires, not because I think they fit my cases particularly well.
What Sam Bankman-Fried was doing was just fraud, it’s garden variety fraud. Now, OK, there’s some problems with whether crypto is a security or not, there’s some problems with where– if you’re in corporate in the Bahamas or whatever, but it’s clearly just fraud. He broke some laws. He got caught breaking the laws. He writes in his documents, hello, fellow criminals, let us do crimes. It’s pretty straightforward.
The things that I found striking and I wanted to try to historicize is something more like climate change. That emitting carbon into the atmosphere may well kill all of us, but it’s not a crime, right? It’s not an intelligible agential harm. And, in fact, many corporate officers, you might say, have a fiduciary responsibility to do that because of the basis of their profits and their responsibility to their shareholders. And so that was the thing that I found particularly strange.
That this is something that is likely to be– economists are willing to think of as a market failure, but I thought, can I push that further and historicize how some harm of that scale can take place, be clearly made by people, and yet still exist outside of the same political, moral, normal, legal orders as, say, Sam Bankman-Fried.
On the question of corporations, you’re exactly right, that’s a shortcoming of ending where I do. That, in the cases that I’m looking at, is largely because the creation of limited liability happens after 1825. And in the case of 1825, at least, in English banking, there is unlimited liability. The partners are bailed in.
Yeah, exactly. And so the emergence, a thing that I wish I had done better. And if I had known that I would be read more by legal scholars, I would have– like, there’s a case to be made that a thread that should run through this entire thing is a history of the emergence of liability and how that changes over time. That’s something I came to relatively late, and I just don’t have the legal training to really parse. Do you want to get in on–
[WILLIAM JANEWAY] I just wanted to– actually, Anat mentioned the Dutch East India Company. They were corporations, but they were established by government, they had limited powers. But there was a case that fits right in the middle of your period, I would have been really interested what you made of the Warren Hastings impeachment. The head of the East India Company in India who was summoned back to London and tried and acquitted. And I was thinking that that might have made an interesting bridging example in your book.
[ANAT ADNATI] I mean, the English East India, I mean, read a fascinating book called The Anarchy. That book discusses just this one company that basically was government-like, when they gave them monopoly over the trade routes and all of that. They had armies. They pillaged them. They controlled India until the British government took it away from them. So they were very much government-like, and so the limited liability part, obviously, it came later. It enabled trading in stocks and things that you couldn’t do otherwise.
But the English East India was a joint stock company that was accountable only to its shareholders in London and to nobody else as it went around conquering India, impoverishing people, taxing people, and being violent, too.
[TREVOR JACKSON] Yeah. Well, and it’s, I think, significant that Hastings is prosecuted because of corruption. He has misused his office, which he has because of the British government, not because of, say, the–
All of stuff he did in India, yeah.
–murdering lots of people and so on. And, I mean, another– a case that I do try to draw out is the Bank of England, which is also a private corporation that’s responsible to shareholders until it’s nationalized by labor government in 1946. And they’re doing monetary policy.
And throughout the 19th century, in moments where the gold standard is at risk, they raise their interest rate to defend themselves and defend the gold standard. They know that the cost of that will be imposing unemployment and crisis on the domestic population, they also know that population largely can’t vote, and so they do it. That was the kind of– that was the afterlife of 1825 that I had in mind.
Central banks, yeah.
Yeah. But in some ways, I often wish that I had gone through 2008. It was hard to think of how to deal with the Great Depression. There is a lot that happens in the Great Depression, and I thought, well, that’s–
–that’s volume 2. We’ll see how this one goes over first. Let’s see. On maybe a last and related point about that before I turn it over to our audience, I really loved the sentence that, it isn’t necessarily about crisis. The crisis is when we see something as wrong, but things can be wrong for a long time. And indeed, the book has been plotted around these different moments of financial crisis exactly because crises really concentrate the mind and focus our attention and work as moments where something has to change. They also leave a pretty good archival record, which is helpful.
But my hope is that that’s why there are these interstitial chapters about the attempt to create historical memory around the meaning of the crises, how they worked out the way that they did, who was responsible, how we understand that, and how that feeds into the development of the history of economic thought. Which itself is a body of thought that has very specific and, perhaps, unusual beliefs about responsibility, culpability, morality, normativity, and so on that, I think, emerge in parallel with and in a relationship to the material history of the financial crises themselves.
And so I think that there’s a way that when I ask myself, when is the crisis over? Well, in some ways it’s never over because we’re always relitigating and rewriting the history of our understanding of the crisis. And I think that’s very much true of 2008 today. So I think I’ll wrap up there. I think my publishers would probably be happy if I mentioned that the far cheaper paperback will be out in January.
Some of us have research budgets. I’m not sure your publishers would be happy for–
–is a bit much. It’s under 20.
That was the one thing I tried to negotiate.
I know. Selling.
They just would not move.
[DAVID GREWAL] Wonderful. Well, I won’t abuse the moderator’s privilege yet of asking my questions, but I have a lot of things I could push you on about the history as well, maybe we can–
So especially, folks want to talk about the core history stuff, and we can certainly open out into current events as well. But there’s so much to deal with here, so great. And would you please introduce yourself briefly so we all know each other?
[AUDIENCE MEMBER] My name is Vicki Chang. And so, what I’m getting is that when the sovereign is corrupted by financial interests, then impunity happens for these corruptors, and it seems like the key right now to the destruction of democracy in America is Citizens United. The corporation has the power to secretly give money to anybody in the government, and they do. I mean, I think the–
It’s legal corruption.
It’s legal, and it’s completely– I don’t know– I would really like to hear what your thoughts are on how we can get rid of this because I think the number of lobbyists in Washington DC went from like 50 in 1970 to like thousands now, and it’s just– Washington is just flooding with money, and the Supreme Court is not immune either. They take these secret trips. They benefit. So when the sovereign is corrupted, then the government is not interested in doing the right thing.
[TREVOR JACKSON] I mean, sovereignty is an important conceptual component to the book. And part of what I wanted to argue is that I think there’s a broad acceptance that impunity is a characteristic that often adheres to sovereigns. There is such a thing as sovereign immunity, and that was even part of what I wanted to get at is that as we have emerged into a more constrained democratic vision of politics, that there are still spaces in which this older form of sovereign immunity or impunity continue to exist.
But that still, I want to emphasize, is where I wanted to get to at the end was a kind of idea that the real impunity isn’t breaking the rules and getting away with them, the real impunity is setting the rules. And in that sense, I don’t think that there is– that it isn’t necessarily a question of the corruption of sovereignty so much as it’s a constitutive feature of sovereignty. That that is where law comes from is through some unequal distribution of violence and legitimacy, and that that is something that we can think about being differently distributed and changing over time.
[DAVID GREWAL] Could I ask– interject a question on this point here maybe? So this interested me because the framing of impunity that you borrow from international law is just– it’s just one way that law tries to get at the question of who is subject to liability for what acts by whom, right? And so starting with impunity in international [INAUDIBLE], that’s a pretty high level, pretty far away, not– whereas something just like ordinary tort liability would be much more the heart of it.
And sometimes when you spoke about the harm that’s done by financial crisis, it reminds me of problems of complex causation and tort law, right? Where sometimes there’s not an obvious remedy when you have something that’s like a structural condition to which everyone contributes a very small part, and there’s some process of magnification, and there’s some really disproportionate harms, sometimes we try and hold people liable at the front stage, sometimes we don’t. And how sovereignty fits in is the question about whether sovereignty is corrupt.
It could be that– and then the too big to fail claim, at the heart, I think, is the claim that there are some kinds of systemically relevant activities that you can’t dispense with them and you can’t regulate them in a one-to-one level. And in those cases, the standard argument has been the government has to do those things. Too big to fail means you can’t leave it to the private sector, but it’s not like you can dispense with the activity anyway. So I wanted to hear about a different question. That might be a way in which–
So one view on the corruption would not be the Citizens United. The corruption might be a financial system is a necessary part of a modern polity. It is inherently subject to all of these feedback mechanisms that make it very unstable. Hold on, now, now I get to ask my question. It’s subject to all these loops and the ordinary ways in which we hold people liable in the person-to-person dealings that private law is most accustomed to don’t really scale.
So the corruption might be that we don’t think of this activity as sovereign at all. But if it is sovereign, then maybe sovereign immunity should apply to the banking system if we’re a public system. So, I mean–
Yeah, but it’s publicly owned.
Exactly. So with that as long preface, the question would be, there’s one direction of the book that focuses on the thought that these crises show a problem with not holding people to account. That’s the opinion. But a different angle you could take would be to say, the problem is that we’re allowing certain private actors to control something that is properly regime level. And if it’s regime level, as you say, it’s almost a deduction of legal theory that acts the sovereign can’t be subject to ordinary law because the sovereign makes the law.
And so those are two very different outcomes. One would push to something like public– the banking sector understood as a public utility that’s, in effect, been privatized improperly. The other would point to something like, we need to hold private actors who stay private to account when they engage in systemically relevant harmful activity. And there’s very different valences. One would assume that we can– and the book, ending in 1825, doesn’t deal with Progressive Era legislation on public utility doctrine, fiat currency, and the banking crisis.
But I think the response we often have to financial crises tends to be poised between these two things. We want to hold the bad guys responsible. We know that we can’t because there’s a system that they’re a part of that is bigger than them. So what’s your intuition on that if that’s at all helpful?
[TREVOR JACKSON] That is a very helpful set of questions. So I thought a lot about the tort crime boundary. And it’s a historians book, it’s not trying to be a prescriptive policy book about how we should define what’s on which side of the tort crime boundary. Rather, it’s to say that that isn’t a natural, permanent, inevitable distinction but is something that comes out of a series of crises and contested political moments and could very easily have gone in different directions.
And so if we think to ourselves, well, that’s actually an unstable political thing rather than a feature of whatever natural law, that does open up the possibility that it could go in a different direction. But I felt like I had to establish that, historicizing the distinction first. And I think the way that I would square the two prongs that you speak to is exactly the point about democracy. That we might think that there is some set of, as you say, regime-level powers. The one that I focused on in the book is central bank– that was Fried– is central banking. Which begins as a private set of activities and eventually we recognize perhaps this should be something controlled by the state.
But that returns us to the debate that we have today which is about democratic accountability of central banks. Should they be insulated? Should they not? Should they be responsive to voters? Should they not? And that when I allude to this large scale separation at the end of the book that I tried to get to, I mean, the big implication that I want the reader to come away with is that under capitalism, we distribute wages and profits as like the means of staying alive and continuing to eat through a market mechanism.
Maybe that’s the large-scale thing that should be subject to democratic accountability. And there’s actually a regime level way of organizing society but is something that, through the course of the 18th and into the 19th century, got hived off from the sphere of democracy and moral economy.
I interrupted you [INAUDIBLE].
[ANAT ADNATI] I have something to say because you talked about, Too big to fail and being systemic, the fact of the matter is, OK, we had one case study to basically fall straight into our hands as we were trying to finish the book, which is you may or may not have not followed this, but Credit Suisse in Switzerland.
So that bank, an old institution, very large and I have encountered the Swiss bank CEOs and regulators telling me, No problem, no problem. We got some magic buttons, we’re going to press them, and voila, we’re going to have bail in instead of bail out. And whoops, they didn’t do it. OK. They didn’t do it because actually it doesn’t work and it can’t work, and so we have to question whether we need institutions that are global across the border.
We can ask whether it’s worth it to create these too big to fail institutions. The word systemic, which is where we get to be hostages all of us, because the options are so bad either way, again, is preventable. Right now the word systemic is just a code word for bailouts because they have to use that word in order to provide bailouts. And so all of a sudden it’s, This systemic, and, Signature systemic, and let’s save them because somebody will be harmed and we don’t like that. So we like to appease everybody at the moment.
So the they just blink every single time in banking. So that’s all preventable if they had the guts to actually counter the bad incentives, and we advocate very sensible regulations that they just can’t seem to develop political will to do because of enormous amount of lobbying. So we are bringing them closer to the world of unlimited liability, just a little bit more liability, basic liability for losses.
[WILLIAM JANEWAY] I just wanted to pick up on something that really said, that I was just thinking, we have a nice little historical experiment in America called The Bank Crisis between Biddle and Jackson.
Right. The Bank War.
The Bank War. The US Second Bank of the United States chartered by Congress is up for renewal, and Jackson vetoes it, and the US doesn’t have a central bank. And in fact, it does have an incredibly fragile banking system that is not subject to any underwriting.
And then we have to fight a major war which the government needs to raise an enormous amount of money for, so it improvises until finally, finally, we wind up with the Fed after 80, 90 years of experimentation without a central bank. So it’s an interesting extension of the discussion that you were just having.
[DAVID GREWAL] Great. I realise we only got about 10 minutes left, I wonder could we take two or three questions and comments and then give Trevor the last word? That might be the best way.
[AUDIENCE MEMBER] Hi, I’m Nadar Atassi. I want to ask about your argument about the emergence of the economy as a separate sphere. I feel like scholars love to argue– I mean, sorry, historians of economic thought love to argue about who was the first to come up with the economy conceptually, was it Smith? Was it the physiocrats? Tim Missile says, No, it wasn’t until Keynes actually.
So, I mean, I find your argument about, why don’t we trace this socially and spatially very interesting, but I was wondering because the period you talk about is such a generative period for political economy, how do you view the relationship between that history, and the conceptual history, and conceptual emergence of the economy? Thanks.
[AUDIENCE MEMBER] All right, thanks. I haven’t had a chance to read the book yet, I’m looking forward to getting the paperback. And I wanted to ask about, I guess, from a legal perspective, what laws or what specific rules were found– I mean, were the same or similar laws in place during both of these periods, the period of liability and the period of impunity that you trace, and if so, did you see anything that helps us understand what unwritten rules are being mobilized to decide when we want to actually enforce the laws on the books and when we don’t?
And actually it makes me think about another Supreme Court case from this week, which is the case about the SEC’s internal administrative law judges, and one of the arguments for going to the Article III court system and avoiding the SEC court system is that, Oh, yes, it’s OK to go to an administrative law judge, non-article three judge if the law being–
There’s a Supreme Court case that says, If the law being enforced is one that wasn’t really on the books at the time of the Seventh Amendment and 1791 or whatever, and then the argument they’re making is, Actually, this is very similar to common law fraud that was considered a crime in a civil tort type thing back then.
And so it makes me think of that. And so I’m just trying to think about what– I mean, it seems to me that as a lawyer, you could find stuff to convict people with across all of these crises. So then I think that I’m trying to get a handle on what you were seeing in your documents about how those decisions were being made. Thanks.
[AUDIENCE MEMBER] Thank you very much, so interesting. Extremely interesting the discussion, I think also the book. I have a question, it’s more your opinion. I would like to have your opinion about how you explain the fact that in our time, let’s say popular masses, people, citizens, let’s say there is a kind of social apathy towards impunity.
How you explain that? Maybe the aggressive lobbying, let’s say that we observe plays a role on that, the fact that we have a high-level expertise, legal expertise, that let’s say it’s a kind of immunity for big corporate actors, so they have all the tools to convince people that actually there is nothing to discuss about. So because this is the real problem of democracy why people they don’t react on all these things they know that there is a problem but?
Can I get one more?
Yeah. [INAUDIBLE] trying to answer the question from the beginning.
Yeah, passing the mic is definitely the trickiest part.
[AUDIENCE MEMBER] I guess playing the historian, I wanted to go back to what might be some contributing factors to this emerging notion of impunity, and I’m particularly interested in the late 18th, early 19th century, I’d love to hear how they link up with some of your side interests. In the first instance catastrophe and extinction. When you’re ending this book with this model of new or emergent impunity, it’s also happening at a time where you have changing ideas about natural disaster itself.
And particularly in France and Britain, you see this dialectic between catastrophism and sentimentalism. Without trying to lead you down my rabbit hole, I’d love to hear about what you think new ideas of catastrophe do to the possibility of human agency and accountability? And I also think we should be clear that impunity doesn’t, in this case, mean there’s no punishment, no pain. It’s being dispersed, it’s being displaced.
And I’d be curious about what you think about then who has to bear the brunt and what that says about new ideas of human nature? Really quickly, decolonization.
There’s no way that’s going to be quick.
It’s a question mark, no. But what I would say is this goes to the conversation about sovereignty. Here we’re riding out the first great wave of global decolonization. American, Haitian revolutions, Latin American revolutions, the emergence of a dozen sovereign nation states into the world order.
To what extent then is impunity in investment, in speculation, to what extent is that a sort of a continuation of negotiations about sovereignty? Who’s in charge here? Fundamentally, who controls this global, not just financial order, but moral order?
With five minutes you have–
That’ll be a great test
[TREVOR JACKSON] Yeah, no problem. Those are great questions, and I actually am going to try to get to all of them.
So on the emergence of the economy. I mean, I’m an early modernist, I’m very skeptical of the Timothy Mitchell 20th century story. I am much more willing to think that this comes out of early modern jurisprudence, both spatially and thematically, in the sense of the law of the seas, thinking about–
Sophus Reinert has a terrific article about the difference between imperium and dominion, and how dominion as a space of property law emerges as a separate kind of sphere of law and sovereignty from control over territory. I would put this in the 17th century, but I put nearly everything in the 17th century, so take that for what you will.
And in part, that’s because when I look at the documents and I see people writing about say, The Circulation of the Trade, in my mind metaphorically, that’s not too far off from thinking about the economy. Now maybe these are different discursive worlds and different discursive spaces meaning different things, but that still might be analogous and still in the lineage rather than a completely separate thing. So do I see similar laws before and after?
Well, the thing is that there isn’t really a before and an after, instead– my wife hates this metaphor, but I think it’s a good one– it’s like trying to squeeze a water balloon. Like if you squeeze a part of it squirts out somewhere and you squeeze that and it squirts out somewhere else, that there’s never a before and an after. Rather where impunity is and how it works, changes, and moves, and maybe sediments, and maybe erodes, and is constantly subject to political contestation.
Now, it’s true that very often when I talk to lawyers about this subject they say, Impunity? You mean prosecutorial discretion, which is there in the book a bit because I notice how often that came up. And indeed in the crisis moments that I talk about, there are moments of prosecutorial discretion. Who are we going to prosecute and for what?
But what I felt like was a more interesting story is that the crises and the book are also moments of shifts in the constitutional order itself. So the South Sea directors are prosecuted by a secret committee of the House of Commons that itself had authorized the scheme and creates four laws after the fact to retroactively prosecute the directors on. Now, OK, that’s prosecution, but it’s not quite right. What we have in mind.
The French Revolution is enough of a complicated case, I think you’ll agree that I’m not going to try to get through it in my remaining three minutes but is definitely a space in which what we mean by prosecutorial distinction or discretion is a shifting and very eminently political space. But importantly, by the time we get to 1825, the question is moot. There’s no prosecution for anything because no crime has happened, and so that’s the change over time that I’m trying to get to.
On social apathy, I’m actually slightly skeptical, and here I’m going to get more presentist than I’ve intended to be so far, which is that some reviewers have thought that I wrote this book because I was angry about 2008, and that’s true. But–
Good for you.
–but I’m also angry at George Bush and the Iraq war, which seems to me to shockingly have been largely memory hold in a way that I find as a historian very upsetting, and I have a kind of instinctive sense that’s very hard at a scholarly level to prove that the fact that nobody was held accountable for the large-scale criminality and mass crimes of the Bush years has created a kind of what I’ve elsewhere described inelegantly– excuse me– as a purge-shaped hole in the political imaginary, I think has gotten us to the point where the main thing that many political parties across the world are doing is promising their supporters that they will jail the opponents that they’re against.
Up to and including Donald Trump is up for four different felony prosecutions in four different places. Now, I’m not doubting that he did all those things. I think he probably also did a lot of other things up to and including things that many American presidents do that we’ve long stopped thinking about as in any way criminal, but it seems significant to me that in the 2022 elections, I think I counted 11 different people running promising that they would jail their opponents.
Trump is saying the same things. I mean, we’ve seen that very literally in Brazil, we’ve seen that in a lot of different places. And my sense is that in absence of the legitimate procedures of justice, there is a sense that some terrible injustice has happened and someone has to be held accountable. We just don’t know who, or how to do it. On decolonization catastrophe and accountability–
In one minute. I thought colonial spaces would be more of spaces for impunity than in fact they turned out to be. In fact, the impunity that I felt like I saw there is very similar to sovereign impunity writ large, hence we have cases like Hastings where he’s prosecuted but for violating the laws of the metropole not for the things that he does in the colonial space.
Instead, when there are these weird moments of uncertain sovereignty, that seems to be a fruitful place for impunity to proliferate. And so exactly in a decolonial moment when sovereignty is unclear, that means all sorts of possibilities are up for grabs. And so the example that I use is the case of Gregor MacGregor and the country that he invented, which is in fact, one of many countries that were invented, but he manages to secure a sovereign loan.
Now the interesting thing about that is in 1822, when he gets a sovereign loan in London for a country that doesn’t exist, it’s hard to say that Greece existed. They also get a loa, It’s just that they survived because the sovereignty turns out to be durable in a way that Gregor McGregor’s was not. And so I almost think that the causality runs the other way.
Byron didn’t die for Gregor MacGregor.
Right. No, no, although three boatloads of colonists departed thinking that they were going to get land and had to be rescued from Belize, as you do. But as the last point on catastrophe, a fine place to end. Strikingly, I think once ideas of extinction events are first mooted, which happens after 1796, there’s a guy called Georges Cuvier who’s a kind of sinister figure in France, who–
Sinister in the sense that he’s one of the foundational figures of pseudoscientific racism, but also conceptualizes catastrophic extinction events. One of his main sets of opponents are economists who essentially argue that, Nothing can ever permanently go away, it will just get more and more expensive over time. And so they’re unwilling to think in terms of total finitude.
And that’s the thing that I find as a historian particularly interesting is the possibility of thinking seriously about finitude and whether finitude gives meaning to historical periodization and whether it also gives meaning because of the scarcity implication to not just our time but two material resources. That if things are infinite, then their value is in some ways either nonexistent or immeasurable, and if that’s true of things, it’s also true of time.
And so maybe the emergence of catastrophe is also an emergence of thinking seriously about finitude, and that poses a set of challenges to the newly emerging economic order that then are suppressed. And we have a long 19th century in which we don’t really think seriously about finitude. I urge you all to go home and think seriously about finitude–
[DAVID GREWAL] That seems a timely note to end our time on, so please join me in thanking Trevor and the commentators.