Neoliberalism, Law, and Its Discontents: Three Recent Interventions — Ravi Malhotra

[This post reviews three new books on law and neoliberalism: Honor Brabazon (ed), Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project (Abingdon: Routledge, 2017), Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton: Princeton University Press, 2019), and Astra Taylor, Democracy May Not Exist, But We’ll Miss It When It’s Gone (New York: Metropolitan Books, 2019). It will also appear in an issue of Left History–An Interdisciplinary Journal of Historical Inquiry and Debate later this year.]

Even today, in light of the COVID-19 pandemic, the dominance of market forces continues, as does the market as the central organizing principle of modern society. For decades now, factories have been relocated to locales with lower wages and production costs, and states have imposed austerity budgets that limit spending on human needs such as health, education, and the environment. These transformations have generally come to be known as “neoliberalism”. In these dire circumstances, historians and legal scholars have begun to examine what precisely is meant by “neoliberalism”, and its relationship to law and democracy.

Law offers the possibility of harnessing the regulatory power of the state to challenge neoliberal orthodoxies. It also strengthens market principles and regimes of private self-ordering. Law is never simply about deregulation; it involves the reconstitution and redeployment of the state. The innovative designs of many legal institutions offer the promise of a more just and egalitarian society, one built through wealth redistribution. Yet many such institutions also grant pride of place to a social tool–law–that often reinforces hierarchies, inequalities, and forms of bureaucratic power.

According legal personhood to corporations is a trend that began in the United States in the late nineteenth century, and has had profound implications, around the world, for how wealth and power are distributed. This includes such crucial matters as tax avoidance, which enables many corporations, including some of the largest and most powerful, to pay minimal tax. [1] The law of bankruptcy has enabled corporations to avoid their obligations to many creditors, leaving a wake of disaster and chaos behind them. Meanwhile, derivative traders have successfully lobbied for exemptions from the traditional priority of creditor principles. [2] Intellectual property law, encompassing patents and trade secrets, has allowed corporations to make massive profits for expensive new drugs such as Eli Lilly’s Strattera and Zyprexa, designed to treat people diagnosed with schizophrenia and depression. [3] Liberal models of contract law structure how states like Britain impose workfare contracts, which require individuals to achieve certain objectives in order to maintain their social assistance benefits. [4] And a growing number of municipalities in the United States have reformulated local legal codes in order to deny corporations the status of personhood so as to prohibit fracking. [5] All of this has important implications for how we think about democracy. Ultimately, regulatory codes and standards on a wide range of topics, from product liability to environmental regulation, shape the content of democracy and how we envision it, even as law’s repressive functions frequently undermine movements for social justice and equality.

In this post, I review three recent books that grapple with the relations between neoliberalism, law, and democracy: Neoliberal Legality, edited by Honor Brabazon, a sociologist at St. Jerome’s University, Canada; The Code of Capital, authored by Katharina Pistor, a distinguished professor of corporate, comparative, and property law at Columbia Law School; and Democracy May Not Exist, But We’ll Miss It When It’s Gone, written by filmmaker and public intellectual Astra Taylor. Each of these books addresses the themes of neoliberalism, law, and democracy. Each does so from a different vantage-point and disciplinary tradition. And, ultimately, each leaves the reader with more questions about how we can build a more robust conception of democracy, in a world facing environmental degradation and the ongoing centrality of the market as the governing paradigm.

Neoliberal Legality

Neoliberal Legality is an anthology based on papers presented at a conference that Brabazon organized at the University of Oxford in 2013. Featuring scholars from Britain, Canada, and elsewhere, the essays in this collection consider neoliberalism as a juridical project. It is also the most academic of the books under review here, which is a strength and occasionally also a weakness. Given that this is an anthology, my treatment is necessarily selective. Chapters encompass topics such as law and development, labour law, Indigenous rights, and social policy and law, always through the analytical prism of neoliberalism. In her introductory essay, Brabazon rightly suggests that the literature on neoliberalism has focused primarily on its political and economic dimensions. [6] Yet few scholars have considered the specifically legal dimensions of neoliberalism. As Brabazon suggests, the concepts of law and neoliberalism might be regarded as co-constitutive, as law shapes the regulatory framework of neoliberalism while neoliberalism itself influences the development of law and its interpretation. [7] Accordingly, Neoliberal Legality analyzes what makes neoliberal law distinct as a social category and legal form, the implications of this claim for public policy, and its potential implications for social transformation. 

Brabazon states that neoliberalism has been a dominant ideology since the 1980s, but also acknowledges that there is imprecision and debate as to its exact meaning. [8] One contributor to the volume, Andrés Palacios Lleras, usefully provides a concise definition of neoliberalism: “a doctrine that views free markets as essential for preserving freedom, and that views such markets as the result of active political choices aiming to protect and preserve freedom”. [9] For her part, Brabazon identifies three overlapping strands. First, neoliberalism may be regarded as a normative political theory, developed mainly by the ordoliberals of the Freiburg School and Milton Friedman, Gary Becker, and other economists affiliated with the Chicago School. Viewed in this way, neoliberalism is not simply a set of policy proposals but an articulation of a philosophical perspective actively engaged in responding to the rise of the Soviet Union and its satellite states, Nazi Germany, and, above all, the social-democratic welfare state. It is an intellectual project formulated by intellectuals like Friedrich Hayek, with enthusiastic followers who seek to disseminate its ideas at conferences, policy networks, and in the classroom. [10] Second, building on work by scholars such as David Harvey and David McNally, Brabazon explains that neoliberalism may also be understood as a class-based political project designed by elites to restore the optimal conditions for capital accumulation. [11] Finally, influenced by Michel Foucault and others such as Pierre Dardot and Christian Laval, she contends that neoliberalism may also be conceived as a totalizing rationality that produces neoliberal subjects. [12] The commodification of post-secondary education is a classic example, with the result that many students view their relationship with universities as a market transaction. [13] Brabazon persuasively demonstrates that all three strands need to be acknowledged for a comprehensive understanding of neoliberalism, particularly in relation to law. In my view, one strength of the volume is its consideration of the importance of creating neoliberal subjects who believe they have a real stake in preserving its values for the broader promotion of neoliberalism as an ideology. 

One important concern of Neoliberal Legality is the role of the state. Contrary to claims that neoliberal ideology entails a downsizing of the role of the state, the essays make it clear that a strong state is essential for establishing the conditions for capitalist competition and accumulation under neoliberalism. [14] This is not a novel insight, but it bears repeating and the evidence for it is meticulously marshalled in the volume. For example, Palacios Lleras’ chapter demonstrates that there has been an expansion in the authority of autonomous regulatory agencies in areas such as securities regulation, environmental law, and competition law. By limiting the ability of elected officials to implement policies, states have facilitated capital accumulation by leaving critical decisions to agencies that can be (and often are) pressured by powerful corporations to produce outcomes that are then depicted as scientific, rational, and neutral. [15] This marks a shift in the role of the state, but nonetheless requires competence and capacity on its part to build effective regulatory institutions. 

Similarly, Nicolás M. Perrone’s chapter illustrates a shift in the role of the state in the context of foreign investment. Perrone documents how bilateral investment treaties require disputes between foreign investors and host states to be heard before an international arbitration tribunal, bypassing domestic courts that are more likely to be unfavourable to foreign investors. These tribunals have lent support to doctrines of contract law such as the doctrine of initial or original intent in order to justify a focus on the legitimate expectations of the parties. [16] This marks a shift from earlier legal doctrines that placed greater emphasis on the sovereignty of the host state, as illustrated by the 1952 ruling of the International Court of Justice (ICJ) in the Anglo-Iranian Oil Company case, regarding the nationalization of British investments by a nationalist government in Iran. [17] In response to the nationalization, the United Kingdom had instituted proceedings against Iran at the ICJ. In July 1952, the ICJ held that it had no jurisdiction over the case, because Iran had conceded jurisdiction to it only with respect to treaties concluded after 1932. [18] Little more than one year after this judgment, Mohammad Mossadegh’s government was overthrown by British and American intelligence. [19] While it is certainly true that the role and structure of most states have changed dramatically since that time, I note again that a basic precondition of any investment regime, neoliberal or otherwise, is that there be a state willing and able to conclude a bilateral investment treaty in the first place.   

Brabazon’s anthology also underscores the claim that in many areas of the law, more intrusive legal regulation is a core manifestation of neoliberal legalism. This is evident in regard to the regulation of labour relations, as documented by excellent chapters from Robert Knox, who writes about the transformation of British labour law, and Ntina Tzouvala, who writes about the imposition of legal restrictions on the right to strike in Greece. [20] Influenced by the work of Dardot and Laval, and concerned with how neoliberalism creates neoliberal subjects, Knox shows how neoliberal subjectification has transformed British trade unions in the last thirty years. Whereas once even mainstream bureaucratic unions possessed alternative visions of society in which working-class people had real power, and at least tried to articulate the interests of the entire working class, UK trade unions acquired a much narrower outlook under Thatcherism, focusing on day-to-day policies as legislative amendments to the various British labour law statutes led to precipitous declines in union density rates. [21] Importantly, Knox also identifies a shift from regulation of the labour relationship through collective bargaining between unions and management, which historically was minimally regulated by the state, to a greater role for regulation of the employment relationship through minimum-wage legislation, health and safety laws, and anti-discrimination law. [22] I question whether this phenomenon, which has also occurred in Canada and many other countries, is an entirely negative development. Unions in their Keynesian heyday failed sufficiently to engage with women, racialized people, disabled people, and others. Nonetheless, Knox’s point is a powerful one, is elegantly argued, and warrants further investigation.  

The volume concludes with an engaging chapter by Vanja Hamzić on alegality, which he defines as the “capacity to be neither legal nor illegal, an ability to exist and act in the interstices, or perhaps beyond or outside, the dominant (capitalist) modes of legal production”. [23] Notwithstanding the dominance of neoliberal discourse, Hamzić suggests that legal discourse contains an opportunity to further anti-capitalist struggle. Building on his ethnographic work in the slums of Lahore, he identifies how communities engaged in sex work, ritual dancing, and begging thrive outside or on the discursive and spatial fringes of law. In this environment, an alternative kinship household known as khwajasara, might serve as a family home, brothel, dance studio, beauty salon, and school. State law is largely absent in this context. Hamzić identifies how other forms of resistance take on a purely discursive cast, citing James C. Scott’s ideas of a “hidden transcript” in which subaltern peoples resist the discourse of the dominant. Under some circumstances, such a discourse might fuel a popular rebellion with its own counter-hegemonic discourse. [24] While at times one wonders whether this is simply a repackaged statement of legal pluralism, Hamzić’s sophisticated take on the potential of transcending late capitalism is captivating, a fitting close to Brabazon’s fine volume.

The Code of Capital

While Brabazon may be faulted for occasionally being inaccessible to a non-academic audience, Pistor’s The Code of Capital goes out of its way to try to make its arguments comprehensible to a broad audience. Written in the aftermath of the 2007–9 financial crisis, Pistor’s main argument is that legal coding–exemplified by contract, property, trust, bankruptcy, and other legal “modules”–creates wealth. She identifies four characteristics of legal modules which, she claims, bestow critical attributes on assets, thereby benefitting their owners: priority, durability, universality, and convertibility. Priority refers to how competing claims to the same assets are ranked. In bankruptcy law, certain classes of creditors are typically given priority over others, with dramatic implications for those with less priority. Durability establishes priority claims in time. One would always prefer an asset that is durable in the long term. Universality establishes priority claims across space. An asset that cannot be easily transferred to another jurisdiction without penalty is of limited utility. Finally, convertibility ensures that an asset can be converted into state money on demand. [25] 

Pistor argues that capital is composed of two variables: an asset and the associated legal code. She claims that legal coding is the key behind wealth creation in capital. [26] The book’s various chapters are devoted to illustrating how law codes land, corporations, debt, and intellectual property. For instance, Pistor traces the history of property law in England and colonial America, rapidly condensing centuries of legal history at a dizzying pace to show how land law facilitated the concentration of land ownership in the bourgeois classes. She shows how US courts typically struck down debt moratoria enacted by states to alleviate the burdens of working-class farmers who are vulnerable to fluctuations in commodities markets on the grounds that such reform initiatives violated the US Constitution’s “Contract Clause”. [27] Yet, almost completely absent from her analysis of coding is any deep engagement with class relations and the role of the working class in producing surplus value. 

A chapter devoted to corporate law provides an analysis of the demise of Lehman Brothers. This collapse was a near-fatal heart attack at the core of the global financial system. Pistor shows how Lehman Brothers had hundreds of registered subsidiaries in dozens of countries around the world. This allowed for the legal partitioning of assets because corporate law facilitated the creation of corporations with minimal regulatory oversight. When the parent company could no longer guarantee the debt of its subsidiaries, the entire legal edifice collapsed like a house of cards. [28] Pistor also usefully identifies other aspects of corporate law that allow corporations to prosper. This includes tax sheltering, as when Apple creates subsidiaries in Ireland simply to avoid taxes. [29] Again, though, the focus is on the financial sector, without a solid appreciation of the importance of class to real social and economic relations.

Another chapter traces the history of debt. Again, Pistor frames the issue as a matter of legal coding. She tells the story of NC2, a mortgage originator trust established in 2006. The subprime mortgage tale is widely known, but Pistor adds colour and detail, explaining how assets in NC2’s mortgage pool were tranched and each asset was ranked. Eventually, banks eager for higher returns on their investment were left holding toxic debts. [30] Similarly, she recounts the story of Kleros Real Estate, a company designed to facilitate investment through a complex series of transactions in the least desirable tranches of the mortgage securitization business. [31] Pistor weaves in a history of bills of exchange, noting how they were effective in bypassing anti-usury laws and fostered the expansion of trade. [32] While this history is well-written, it appears to be divorced from an understanding of the global economy as a whole.

A chapter devoted to intellectual property examines the way in which the British and Austro-Hungarian empires used patent policies to cement their industrial policies. Pistor demonstrates how patent policies in the Austro-Hungarian Empire led to the adoption of the 1883 Paris Convention for the Protection of Industrial Property. Eventually, the United States and other countries began to use trade sanctions to penalize states they believed to be infringing on their intellectual property, despite having earlier benefitted from protectionist policies. [33] Pistor is right to emphasize how corporate leaders played a key role in directing US intellectual property policy. She notes how the Intellectual Property Committee, founded in 1986, consisted of leaders from major corporations such as DuPont, IBM, and Johnson & Johnson, among many others. [34] Similarly, TRIPS, the international intellectual property agreement, reflected the interests of advanced capitalist countries and their major corporations. 

While Pistor’s approach allows her to write thoughtfully about how various debt instruments played a role in worsening the 2007–9 crisis, I cannot help but feel that the fundamental thesis of this book is flawed. Pistor manages to write a book about modern capitalism with barely a mention of the role of the working class. This follows logically from the premise that it is the legal code that creates wealth, rather than the exploitation of wage-labourers by capitalists. Teaching at a law school that values social justice, I also cannot help but be skeptical about her self-congratulatory claims that the most creative lawyers are the small minority “trained at elite law schools” who work to design bespoke legal code for corporate deals as “[t]he code’s true masters”. [35] Legions of highly creative criminal, family, and immigration lawyers would be taken aback by this claim.

Democracy May Not Exist

Saving the best for last is Taylor’s Democracy Not Exist. Written for a popular audience by a filmmaker known for her acclaimed documentaries Zizek!, Examined Life, and, most recently, What is Democracy?, this book is an intellectual tour de force. Taylor has written it to explore the meaning of democracy, or power by the people. Taylor structures each chapter around two concepts, presumably in tension with each other: freedom and equality; coercion and choice; conflict and consensus; expertise and mass opinion; the local and the global; and the present and the future. Passionately written in a prose style reminiscent of Naomi Klein, Taylor reminds us of the too-often-forgotten democratic experiments of the ancient Greek city-states, in which decision-makers were selected by lottery. [36] As Coccoma has recently demonstrated, citizen assemblies chosen by this method, known as “sortition”, would have significant advantages. These advantages include greater legitimacy (as democratic institutions accountable to the people), greater effectiveness (through an increase in the diversity of decision-makers), and greater credibility (of a kind that would break down divisions between the elites and the masses). [37] Corporations might also find it more difficult to capture the votes of representatives selected by sortition. [38]

In stressing the advantages of sortition, Taylor encapsulates the overarching theme of the book: strengthening radical democracy. In this sense, she provides a counterpoint to the bureaucratic solutions proposed by Pistor, while supplementing the theoretical corpus articulated by Brabazon and her contributors. Taylor observes that “[s]election by lot may not be the perfect solution to the problems we face, but it suggests that other, radically different ways of structuring political participation and incorporating spontaneity are possible”. [39] Even more impressively, Taylor makes apt allusions to Cornelius Castoriadis’ notion of social imaginary significations, which refers to the central questions a civilization asks about itself, in order to understand the ancient Greek commitment to democracy. The co-founder of the legendary French radical group, Socialisme ou Barbarie, Castoriadis was always concerned with radical democracy and Taylor’s inclusion of his work is entirely appropriate and well-crafted. 

This commitment to radical democracy allows Taylor to make the important point that democracy and social movements go hand in hand. She appreciates that the very meaning of democracy is altered by the demands of social movements. Hence she notes insightfully that the radical disability rights movement in the United States, which highlighted the physical barriers prevalent in American society, paved the way for the passage of the Americans with Disabilities Act in 1990. [40] Taylor’s work dovetails nicely with the idea in Brabazon’s collection that there is a co-constitutive relationship between neoliberalism and law. She also recuperates the lost history of ballot initiatives, referenda, and recall by petition, all ideas that can be traced to the Populist movement’s demands in the 1890s, and also later calls for democratic reform in the face of corrupt party politics. [41]

Radical critique often offers analyses of neoliberal capitalism’s structural dilemmas without offering any solutions to these dilemmas. To her credit, Taylor takes the time to provide some positive examples of how neoliberalism can be challenged. For instance, she describes one of the few cooperatively run factories in the United States, the New Era Windows Cooperative, on Chicago’s South Side. This cooperative was established in the aftermath of the collapse of Republic Windows and Doors during the 2007–9 recession. Taylor examines how under its new egalitarian structure, workers are willing to exchange ideas that enhance productivity, while taking breaks as they wish. While workers were tightly regulated and racially polarized under the private-sector regime, the freedom of a worker-owned cooperative allowed ideas that benefited the company to flourish. Similarly, Taylor discusses the example of Opportunity Threads, a North Carolina cooperative factory that allows workers to share profits equitably. This is in dramatic contrast to comparable private-sector jobs, in which workers are denied sick days or even bathroom breaks. [42]

Ultimately, each of these three books provides different insights into questions pertaining to neoliberalism. Brabazon’s anthology capably addresses the challenges of neoliberal legality in original and insightful ways. Pistor offers a wealth of knowledge relating to legal instruments and their misuse by capitalists seeking to maximize profits. And Taylor offers a tale about the meaning of democracy. Together, these books offer the reader great insight into neoliberalism and how to challenge it. 

Ravi Malhotra is a full professor of law at the University of Ottawa. He has co-authored and co-edited numerous books, including, with Morgan Rowe, Exploring Disability Identity and Disability Rights Through Narratives: Finding a Voice of Their Own (2013) and, with Benjamin Isitt, Disabling Barriers: Social Movements, Disability History, and the Law (2018).

[1] Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton: Princeton University Press, 2019), 71–73.

[2] Ibid., 144–45.

[3] Ibid., 138–39.

[4] Kenneth Veitch, “Law, Social Policy and the Neoliberal State”, in Honor Brabazon (ed), Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project (Abingdon: Routledge, 2017), 82.

[5] Astra Taylor, Democracy May Not Exist, But We’ll Miss It When It’s Gone (New York: Metropolitan, 2019), 277.

[6] Honor Brabazon, “Introduction: Understanding Neoliberal Legality”, in Brabazon (ed), Neoliberal Legality, 1–2.

[7] Ibid., 2–3.

[8] Ibid., 3.

[9] Andrés Palacios Lleras, “Neoliberal Law and Regulation”, in Brabazon (ed), Neoliberal Legality, 62.

[10] Brabazon, “Introduction”, 3.

[11] Ibid., 3–4.

[12] Ibid., 4.

[13] For a discussion of the impact of neoliberalism on disabled students, see Fady Shanouda and Natalie Spagnuolo, “Neoliberal Methods of Disqualification: A Critical Examination of Disability-Related Education Funding in Canada“, (2020) Journal of Education Policy.

[14] Brabazon, “Introduction”, 5.

[15] Palacios Lleras, “Neoliberal Law and Regulation”, 70–71.

[16] Nicolas M. Perrone, “Neoliberalism and Economic Sovereignty”, in Brabazon (ed), Neoliberal Legality, 53–55.

[17] Ibid., 51.

[18] Anglo-Iranian Oil Co. (United Kingdom v. Iran) [1952] ICJ 2.

[19] See Stephen Kinzer, All the Shah’s Men: An American Coup and the Roots of Middle East Terror (Hoboken, New Jersey: John Wiley & Sons, 2008).

[20] Robert Knox, “Law, Neoliberalism and the Constitution of Political Subjectivity”, in Brabazon (ed), Neoliberal Legality, 92; Ntina Tzouvala, “Continuity and Rupture in Restraining the Right to Strike”, in Brabazon (ed), Neoliberal Legality, 119. I focus here only on the example of Knox.

[21] Knox, “Political Subjectivity”, 102–5.

[22] Ibid., 110.

[23] Vanja Hamzić, “Alegality: Outside and Beyond the Legal Logic of Late Capitalism”, in Brabazon (ed), Neoliberal Legality, 191.

[24] Ibid., 198–200.

[25] Pistor, Code of Capital, 3.

[26] Ibid., 12–13.

[27] Ibid., 41.

[28] Ibid., 52–53.

[29] Ibid., 72.

[30] Ibid., 79–87.

[31] Ibid., 98–99.

[32] Ibid., 90.

[33] Ibid., 119–21.

[34] Ibid., 123–24.

[35] Ibid., 162.

[36] Taylor, Democracy May Not Exist, 19–20.

[37] Nicholas Coccoma, “The Return of Democracy by Lottery” 17 (2020) New Politics.

[38] Taylor, Democracy May Not Exist, 194.

[39] Ibid., 196.

[40] Ibid., 165.

[41] Ibid., 179.

[42] Ibid., 156.