The moral regulation of markets: Professions, privatization and the english insolvency act 1986

Both economists and sociologists in the last two decades have pointed to the variety of ways that markets require normative foundations and legitimation. In order to understand better how market morality is constructed through law, this paper examines how Mrs Thatcher's Conservative Government used the 1986 Insolvency Act to produce a reconstruction of market behavior. First, it championed privatization in the administration of bankruptcy and in corporate liquidation and reorganization. To do so required a clean-up of the "unacceptable face of capitalism." It used the insolvency reforms to develop a moral code that distinguished among three types of commercial behavior - mistakes, recklessness, and criminal activity. Second, the Act attempted to "professionalize" some elements of business practice. It did so by developing codes that exposed reckless and criminal company directors to civil actions with strong punitive sanctions, including personal liability and disqualification from management. And third, the legislation created a new occupational monopoly of insolvency practitioners, which was charged with the monitoring of directors' behavior, and reporting recklesssness and the appearance of criminality to government enforcement agencies. The paper concludes that Mrs Thatcher's Government used the ideals and actuality of professionalization as an instrument to define and improve both market morality and efficiency. This linkage between professionalization and market rejuvenation further demonstrates how states may use professions as agents of economic surveillance and enforcers of commercial morality. It raises questions about the conditions under which states will exert their enormous leverage over licensing to compel professions to act as moral agents on the state's behalf. * Earlier versions of this paper were presented at the XIII World Congress of Sociology and the Law and Society Annual Meeting, Philadelphia, 1993. We are grateful for the very detailed and constructive reports of two anonymous referees and for the comments of John Braithwaite, Yves Dezalay, Robert Dingwall, Peter Graham, Lucien Karpik, Scott Parrott, Philip Pink, Dietrich Rueschemeyer and Christopher Whelan. Contact address: T.C Halliday, American Bar Foundation, 750N. Lake Shore Drive, Chicago, IL 60611, U.S.A.