Neoliberal Legality

Neoliberalism has been studied as a political ideology, an historical moment, an economic programme, an institutional model, and a totalising political project. Yet the role of law in the neoliberal story has been relatively neglected, and the idea of neoliberalism as a juridical project has yet to be considered. That is: neoliberal law and its interrelations with neoliberal politics and economics has remained almost entirely neglected as a subject of research and debate. This book provides a systematic attempt to develop a holistic and coherent understanding of the relationship between law and neoliberalism. It does not, however, examine law and neoliberalism as fixed entities or as philosophical categories. And neither is its objective to uncover or devise a ‘law of neoliberalism’. Instead, it uses empirical evidence to explore and theorise the relationship between law and neoliberalism as dynamic and complex social phenomena. Developing a nuanced concept of ‘neoliberal legality’, neoliberalism, it is argued here, is as much a juridical project as a political and economic one. And it is only in understanding the juridical thrust of neoliberalism that we can hope to fully comprehend the specificities, and continuities, of the neoliberal period as a whole.

This volume addresses the relationship between law and neoliberalism. Assembling work from established and emerging legal scholars, political theorists, philosophers, historians, and sociologists from around the world – including the Americas, Australia, Europe, and the United Kingdom – it addresses the conceptual, legal, and political relationships between liberal legality and neoliberal economics. More specifically, the book analyses the role that legality plays in the dominant economic force of our time, offering both a legal corrective to scholarship in economics and political economy that has paid insufficient attention to legal ideas, and, at the same time, a political economic corrective to legal scholarship that has only recently turned to theorizing neoliberalism. It will be of enormous interest to those working at the intersection of law and politics in our neoliberal age.

Neoliberalism has been studied as a political ideology, an historical moment, an economic programme, an institutional model, and a totalising political project. Yet the role of law in the neoliberal story has been relatively neglected, and the idea of neoliberalism as a juridical project has yet to be considered. That is: neoliberal law and its interrelations with neoliberal politics and economics has remained almost entirely neglected as a subject of research and debate. This book provides a systematic attempt to develop a holistic and coherent understanding of the relationship between law and neoliberalism. It does not, however, examine law and neoliberalism as fixed entities or as philosophical categories. And neither is its objective to uncover or devise a ‘law of neoliberalism’. Instead, it uses empirical evidence to explore and theorise the relationship between law and neoliberalism as dynamic and complex social phenomena. Developing a nuanced concept of ‘neoliberal legality’, neoliberalism, it is argued here, is as much a juridical project as a political and economic one. And it is only in understanding the juridical thrust of neoliberalism that we can hope to fully comprehend the specificities, and continuities, of the neoliberal period as a whole.

The book examines the well-established field of ‘law and development’ and asks whether the concept of development and discourses on law and development have outlived their usefulness. The contributors ask whether instead of these amorphous and contested concepts we should focus upon social injustices such as patriarchy, impoverishment, human rights violations, the exploitation of indigenous peoples, and global heating? If we abandoned the idea of development, would we end up adopting another, equally problematic term to replace a concept which, for all its flaws, serves as a commonly understood shorthand? The contributors analyse the links between conventional academic approaches to law and development, neoliberal governance and activism through historical and contemporary case studies. The book will be of interest to students and scholars of development, international law, international economic law, governance and politics and international relations.

The impact of neoliberal governance on indigenous peoples in liberal settler states may be both enabling and constraining. This book is distinctive in drawing comparisons between three such states—Australia, Canada and New Zealand. In a series of empirically grounded, interpretive micro-studies, it draws out a shared policy coherence, but also exposes idiosyncrasies in the operational dynamics of neoliberal governance both within each state and between them. Read together as a collection, these studies broaden the debate about and the analysis of contemporary government policy. The individual studies reveal the forms of actually existing neoliberalism that are variegated by historical, geographical and legal contexts and complex state arrangements. At the same time, they present examples of a more nuanced agential, bottom-up indigenous governmentality. Focusing on intense and complex matters of social policy rather than on resource development and land rights, they demonstrate how indigenous actors engage in trying to govern various fields of activity by acting on the conduct and contexts of everyday neoliberal life, and also on the conduct of state and corporate actors.

The relationship between culture and the law has become an emergent concern within contemporary Cultural Studies as a field, but the recent focus has been largely limited to the role played by cultural representations and identity politics in the legitimation of legal discourse and policies. While continuing this emphasis, this collection also looks at the law itself as a cultural production, tracing some of the specific contours of its function in the last three decades. It argues that, with the onset of neoliberal or late capitalism, the law has taken on a new specificity and power, leading to what we are calling the ‘juridical turn’, where the presumed legitimacy of the law makes other forms of hegemonic struggle secondary. The collection not only charts the law and cultural policy as they exert their powerful—if often overlooked—influence on every aspect of society and culture, but it also seeks to define this important field of study and demonstrate the substantial role law plays in the production of our social and cultural worlds. In this trailblazing collection of contributions by leading and emerging figures in the field of cultural legal studies, chapters examine various ways in which this process is manifested, such as U.S. legislation and Supreme Court Decisions on gay marriage, immigration, consumer finance, welfare, copyright, and so-called victim’s rights, along with international comparisons from Europe and Latin America. It promises to be a pathbreaking analysis of our juridically-determined conjuncture. This book was originally published as a special issue of Cultural Studies.

"Political economy themes have - directly and indirectly - been a central concern of law and legal scholarship ever since political economy emerged as a concept in the early seventeenth century, a development which was re-inforced by the emergence of political economy as an independent area of scholarly enquiry in the eighteenth century, as developed by the French physiocrats. This is not surprising in so far as the core institutions of the economy and economic exchanges, such as property and contract, are legal institutions.In spite of this intrinsic link, political economy discourses and legal discourses dealing with political economy themes unfold in a largely separate manner. Indeed, this book is also a reflection of this, in so far as its core concern is how the law and legal scholarship conceive of and approach political economy issues"--

This work examines ideas about the role of law and legal reform in the creation of market economies, focusing on the process of post communist transition in Russia. Processes of transition in Russia were guided by a set of very specific neoliberal ideas about the nature of markets and capitalism, about the role of law and the primacy of the economic over the legal and political. These ideas however have come under fire as a result of the Russian experience of transition and the serious problems encountered by reforms. This led to a revision of the original neoliberal ideas, not least concerning the role of law and its relationship to the economic and the political. The result has been the emergence of a much more complex body of ideas about the role law plays in economic transformation. This book aims to close a gap in the literature on post communist transition by offering a theoretical interpretation of Russia’s experience which makes transition reform models comparable to development reform models. Focusing on the role of law and the relationship of economic priorities to law reform, this work offers a critical evaluation of currently dominant theories of economic and legal reform put to use in varied transition and development scenarios. In looking at the ideas which directed and animated reform in Russia, an enquiry is thus made into the wider relationship between democracy, regulation and the market in contemporary capitalism. Neoliberalism and the Law in Post Communist Transition will equip scholars and students of development studies, law, political economy and international economics with a critical guide to transition focused on the often neglected legal aspect of the reforms.