Capitalism vs. Freedom


This article touches upon one of the most disputed concepts in philosophy and legal theory: the concept of freedom. While there is a broad consensus that freedom is one of the most important ideals that every society must seek to achieve, there is much disagreement on the question of what freedom is. This article aims to point out that the understanding of freedom in the U.S. legal system is too narrow. While the legal system very extensively protects the aspects of freedom that fall into the narrow perception of this concept, it often disregards other significant aspects of freedom.

Many scholars have observed that U.S. legal thought is profoundly influenced by capitalist ideology. Much less has been written about the nature of that influence, and this article attempts to fill the gap. The essence of capitalist ideology lies in the idea that the state should provide individuals with the best possible means to pursue their own financial gain. Capitalism is thus based on two major values: individualism and materialism. This article will demonstrate that the U.S. legal system displays a significant tendency toward these two values. Individual and pecuniary interests are often favored over nonpecuniary and collective ones. To give one example, courts consistently undermine legislative attempts to restrict advertising of alcohol, tobacco, and gambling games. In so doing, they prefer to protect the private commercial interest in selling those products over the public noncommercial interest in reducing their consumption.

This article aims to offer a contextual perspective on the U.S. legal system, combining phenomena from various fields of law into one picture. I will demonstrate that such diverse legal practices as denying standing to environmental groups, striking down bans on racist speech, granting broad protection to trademarks, and invalidating affirmative action programs, can all be explained in terms of capitalist ideology.

Capitalism is traditionally perceived as an economic system promoting freedom. This article will reveal the erroneousness of this common wisdom by showing how capitalist ideology reduces freedom to one aspect: the freedom to act as a private market player. Inspired by this vision, the U.S. legal system puts great emphasis on securing one’s freedom to pursue one’s own pecuniary gain. The freedom to pursue one’s non-pecuniary and collective interests—such as a clean environment, the humane treatment of animals, or social equality—often has deficient legal recognition.

While capitalist ideology perceives people as exclusively self-interested and economically motivated actors, human personality has various aspects. Philosophers have long recognized the significance of non-egoistic motives for human actions. Empirical psychological research has similarly demonstrated that people are sensitive to fairness over and above its consequences for material gain. A legal system wishing to provide its citizens with meaningful freedom must take into account the diverse aspects of human nature. To be free means something broader than the capitalist conception; it means having the freedom to develop a harmonious and flourishing personality. It means being free as a real person, not as a fictional legal character motivated solely by selfish pecuniary interest.

This article will adopt a broader concept of freedom, as reflected in the writings of Hannah Arendt and Joseph Raz. These philosophers attribute crucial importance to aspects of freedom that lie outside the private economic sphere, such as the ability to lead one’s life according to morally sound goals, or the ability to participate in public life and realize social interests such as equality, justice, and solidarity. I will use these insights to show how specific legal rules disregard important aspects of freedom.

This article proceeds as follows: Part II outlines the ideological dimension of capitalism. Part III explains how capitalist ideology envisions freedom and offers alternative understandings of the concept. Part IV illustrates the influence of capitalist thought in various fields of law. It shows how this influence results in restricting significant aspects of freedom. Part V concludes the discussion, observing that the legal focus on capitalist values may impede the development of social morality, which is one of the most important goals of our society.

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