A parallel to some of these ideas can be found in the writings of Robert Lee Hale, who I gather was important in the development of legal realism. Consider:
"But a careful scrutiny ... will demonstrate that the systems advocated by professed upholders of laissez-faire are in reality permeated with coercive restrictions of individual freedom, and with restrictions, moreover, out of conformity with any formula of 'equal opportunity' or of 'preserving the equal rights of others'. Some sort of coercive restriction of individuals, it is believed, is absolutely unavoidable ... Since coercive restrictions are bound to affect the distribution of income and the direction of economic activities, and are bound to affect the economic interests of persons living in foreign parts, statemen cannot avoid interfering with economic matters, both in domestic and in foreign affairs...Warren Samuels, well-known as an institutionalist economist, has studied Hale's ideas.
...Meanwhile, let it be kept in mind that to call an act coercive is not by any means to condemn it. It is because the word 'coercion' frequently seems to carry with it the stigma of impropriety, that the coercive character of many innocent acts is so frequently denied.
What is the government doing when it 'protects a property right'? Passively, it is abstaining from interference with the owner when he deals with the thing owned; actively, it is forcing the non-owner to desist from handling it, unless the owner consents... The non-owner is forbidden to handle the owner's property even where his handling of it involves no violence or force whatever. Any lawyer could [tell] that the right of property is much more extensive than the mere right to protection against forcible dispossession. In protecting property the government is doing something quite apart from merely keeping the peace. It is exerting coercion wherever that is necessary to protect each owner, not merely from violence, but also from peaceful infringement of his sole right to enjoy the thing owned."(Hale 1923).
References
- Hale, Robert L. (1923). "Coercion and Distribution in a Supposedly Non-Coercive State", Political Science Quarterly, V. 38, N. 3 (Sep): 470-494.
- Samuels, Warren J. (1973). "The Economy as a System of Power and Its Legal Bases: The Legal Economics of Robert Lee Hale", University of Miami Law Review, V. 27 (Spring-Summer): 261-371.
- Samuels, Warren J. (1984). "On the Nature and Existence of Economic Coercion: The Correspondence of Robert Lee Hale and Thomas Nixon Carver", Journal of Economic Issues, V. 18, N. 4 (Dec): 1027-1048.
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