Introduction: Law and Neoliberalism
October 16, 2013
DRAFT: Please do not cite without authors’
permission
David Singh Grewal and Jedediah Purdy*
Although many scholars use the term neoliberalism, often with a sense of
urgency, others worry it is too vague and polemical for responsible use.[1] We believe, to the contrary, that to give up
the term would be a serious intellectual loss.
We gladly acknowledge that neoliberalism
is not conceptually neat, and cannot be defined by a set of necessary and
sufficient conditions for its use – a problem, if it is a problem, that
neoliberalism shares with many other “essentially contested” terms, such as conservatism, individualism, and democracy.[2] We define neoliberalism
instead contextually, with reference
to the situations in which neoliberal claims are prominent, and pragmatically, in terms of what those
claims accomplish.
What
is the context? It is a particular kind
of political and legal conflict, both widespread and long-standing. Neoliberalism
refers to a set of recurring claims made by policy-makers, advocates, and
scholars in the ongoing contest between the imperatives of market economies and
non-market values grounded in the requirements of democratic legitimacy.[3]
Neoliberal claims advance the market side of this contest. The contest is persistent because of demands
that capitalist markets make on the legal and political order: not just for
familiar protections of property and contract, but for a favorable return on
investment and managerial authority (“freedom to manage”). Neoliberalism, like classical liberalism
before it, has also been associated with a kind of ideological expansionism, in
which market-modeled concepts of efficiency and autonomy shape policy,
doctrine, and other discourses of legitimacy.
Democracy, however, makes its own demands. Democratic citizens tend to hold a set of
expectations about economic and political life that go beyond or contradict
market logic: for instance, a reasonable level of economic opportunity, distributive
fairness, workplace security, community and solidarity, and civic equality.[4] When pressed in politics, these popular
expectations become candidates for criteria of democratic legitimacy. Neoliberalism, then, takes it meaning from
this contest between market imperatives and democratic demands; it names a
suite of arguments, dispositions, presuppositions, ways of framing questions,
and even visions of social order that get called on to press against democratic
claims in the service of market imperatives.
In many prominent cases, neoliberalism has
shielded market relations from particular kinds of politicization. Neoliberal
arguments were deployed against economic planning in the middle of the
twentieth century and against constitutional scrutiny of economic inequality in
the US in the 1960s and 1970s.[5]
At other times, neoliberalism has supported the affirmative use of political
power to restructure areas of law and social life along market lines, from
labor relations to universities to the professions.[6] Therefore, the neoliberal position can appear
shape-shifting if one defines it by the immediate goals it serves, both because
policy stakes vary with time and place and because neoliberalism gets put to
work in several postures: defensively, to preserve existing market relations,
but also affirmatively, in support of the roll-out of market-making policies;
and, behind both, at the ideological level, through a redefinition of
government’s purposes that turns neoliberalism into a mode of governance and an
account of legitimacy.[7] This variation is part of the reason for
doubts about the term’s coherence; nevertheless, the coherence becomes clear
enough at a different level of generality.[8]
The
substance of neoliberal positions also varies, but with the consistent purpose
of promoting market imperatives against countervailing democratic ones. Four
overlapping premises mark this neoliberal attitude, and make up much of its
argumentative repertoire. One is an
efficiency-based “market fundamentalism,” the view that strong rights of
property and private contract are the best means to increase overall welfare, with
the sole justification for “political intervention” being to “correct market
failures.” Second is another version of
market fundamentalism, based on the belief that strong property rights best
protect the equal freedom and dignity of individuals, so that a commercial
social order governed by the market is the most decent society we have any
chance of achieving. A third premise is
often a backstop for the other two, a pessimistic denial that democratic politics
and public institutions can successfully shape and discipline economic affairs
– a supposition, in short, that alternatives to the “market fundamentalist”
agenda are futile and likely to backfire, even when a market-fundamentalist
program has failed to deliver on its advertised promise.[9]
The last is the most diffuse, but sometimes the most important: a set of
implicit bounds, ostensibly pragmatic but typically less than fully argued-for,
that defines some policy options (for instance, nationalizing banks) as “off-the-wall”
in respectable and influential conversations, and so form a set of presumptive limits
on political possibility.[10]
A neoliberal, then, is a person who,
in arguments over law and politics, is likely to appeal to, be convinced by, or
presuppose a set of things: (1) technical arguments about economic efficiency
that are implicitly braided with the thought that it provides the primary or
sole measure of governance; (2) a moral vision of the person and of social life
that emphasizes consumer-style choice, contract-modeled collaboration, and an
ideal of individual autonomy connected with property ownership; (3) a pessimism
that there is any meaningful alternative to policies that protect and support
markets; and (4) the obvious inappropriateness, even unthinkability, of
“off-the-wall” changes to existing market relations. Although this is an ideal type, intended
neither to classify individuals one-by-one nor to name the necessary and
sufficient conditions of neoliberalism, we imagine that many readers will
recognize its elements.[11]
Crucially, neoliberalism can never
be a self-consistent and thoroughgoing program, because the market imperative
can never simply “win.” The very idea of
a “market” – who owns what, what they may do with it, how they may contract with
others – has no operational content without a series of prior political
decisions that define and allocate economic rights, such as property and the
power to contract, which in turn depend upon relatively widespread popular
legitimation of one kind or another.[12]
Thus, disputes that are styled (however usefully or unavoidably) as being over
the extent of market commitments must always presuppose the political and legal
framework that forms the market in the first place. More immediately, any form
of responsive governance will face perennial demands to depart from consistent
market discipline, wherever these demands fall on a rough spectrum from simple
rent-seeking to widely shared and articulated democratic commitments. The combination of these two facts means that
the contests in which neoliberal arguments recur concern both the very definition of markets and the question
of who will be subjected to market
discipline. The familiar opposition
between “market” and “state” is nonsensical; what the neoliberal position advances
is not a claim of “market against state” or even simply for “more market, less
state” but rather for a particular kind of state.[13]
The
questions that neoliberalism addresses, then, are not “how much market,” or
“how much governance,” but which interests will enjoy protection, whether as
property rights, constitutional immunities, or objects of special regulatory
solicitude, and which others will be left vulnerable or neglected. These are
unavoidably contests over distribution, of economic claims and privileges, and even of market discipline itself. Skeptics of the term neoliberalism sometimes point out that it is hard to identify an
entirely consistent program to attach to it; but there cannot be such a
program, only a series of partial approaches to it in the face of specific,
countervailing alternatives. The
coherence of these approaches, understood in the context of conflicts between
market imperatives and countervailing democratic demands, just is the coherence of neoliberalism.
Partly for this reason, we focus
this issue of Law and Contemporary Problems
on neoliberalism’s relation to law.
Whether defense or offensive, whether through a “rolling back” of regulation
or a “rolling out” of market-style governance,[14]
neoliberalism is always mediated through law.
The disputes it addresses are embedded in such questions as the scope
and nature of property rights (including intellectual property), the
constitutional extent of the government’s power to regulate, the appropriate
aims and techniques of administrative agencies, and the nature of the personal
liberty and equality that basic constitutional protections enshrine. These, among many other elements, constitute both the sphere of institutions and
relations that we call market capitalism and
the activity of political (and so potentially democratic, or at least popularly
responsive) governance. [At a later
stage, we will refer here to some of our contributors’ topics.] Understanding the impact of this neoliberal
turn on law should concern all those who agree, as Philip Mirowski has recently
written, “that current market structures can and should be subordinate to
political projects for collective human improvement.”[15]
I. NEOLIBERALISM AND CLASSICAL LIBERALISM
Our approach connects neoliberalism
with classical liberalism – another of those seemingly indispensable terms that
turn out to resist clean definition. In
its economic dimension, as the doctrine of laissez-faire, classical liberalism
sought to define an area of social life standing outside of or prior to
political governance and not appropriate for political decision. In the lore of US law, this is often
described as the doctrine of the “Lochner
era,” a reality that is also a simplification.
US law enforced classical liberalism’s state-market boundary in erratic but
important constitutional doctrines of personal economic liberty, as in the
notorious Lochner case, but also in
structural limits on Congress’s power to regulate “commerce.”[16] Just as importantly, US “private” law
maintained a relatively laissez-faire baseline system of labor contracts,
authorized private business-owners and other property-holders to enforce racial
hierarchy (and therefore economic stratification along racial lines) by
refusing to do business with minorities, and otherwise established the
underlying structure of economic power that the constitutional doctrines
intermittently protected from legislative adjustment.[17]
As with today’s neoliberalism,
classical liberalism was not a unified theoretical structure, nor did it take
one unique legal form. Those who defended
market imperatives shifted among welfarist arguments (that markets were good
for everyone because they increased wealth),[18]
fairness arguments (that markets treated all participants unlike, unlike labor
protections and other laws, which were classified as rent-seeking and class
privilege)[19],
liberty arguments (that there really was a natural and/or constitutional right
to pursue careers open to talents, and this implied, for instance, the Lochner doctrine of free contract)[20],
and “anti-utopian” or common-sense arguments to the effect that any other legal
structure of economic activity would be unviable.[21] These argumentative devices parallel those of
today’s neoliberalism.
What accounts for the return of such
arguments and the perspective they crystallize—that is, what accounts for the
arrival of the “neo-”? Much of the
answer lies in the revival of concrete, material conflicts over the
distribution of resources and power, particularly in the advanced industrial
countries. During the second half of the
nineteenth century and the early decades of the twentieth, it was quite
ordinary to recognize that a paradigm of these conflicts, the clash of capital
and labor, was front and center in questions of political economy.[22] The legal doctrines of classical liberalism
typically worked to secure boundaries between the claims of capital and those
of labor.[23] Classical liberalism’s doctrines openly
regulated a conflict that was widely recognized to be basic to modern
commercial societies and inescapably mediated through legal choices. From the
prohibition of labor unions through to the shackling of government regulations,
the ideology of classical liberalism secured the structures and fundamental
relations of early industrial capitalism from collective interventions that
threatened its ideal of “free contract.” But throughout, courts and other
actors were fairly transparent about what they were doing and why they thought
it justified. Conflict over the terms of shared socio-economic life in modern
commercial societies was simply endemic; class divisions were unavoidable, even
productive, and the problem was managing the tensions they produced through
enlightened pedagogy and law.
What
happened to that conflict? In the narrow
internal narrative of law, classical liberalism perished on or about March 29,
1937, with the Supreme Court’s repudiation of classically liberal
constitutional constraints on economic regulation, which removed the last break
on a flood of legislative and administrative adjustment of property, contract,
labor, and the rest of economic life.[24]
These doctrinal changes amounted to a
legitimation of the New Deal in the face of the Depression and massive
Democratic majorities for President Franklin Roosevelt. The doctrinal result was a constitutional
settlement in which the Supreme Court largely left the federal government to
define its own powers to regulate interstate commerce and the states their
power of economic regulation.[25] Constitutional interpretation turned to personal
liberty and equality, while “private-law” topics such as Property
overwhelmingly absorbed the legal-realist view that identified constitutive political
decisions at the base of economic life, particularly in its legal underpinnings.
These
legal developments depended on, at least as much as they helped to specify, the
US version of a trans-Atlantic settlement on the basic terms of a politically
regulated marketplace. The recovery from
the Depression and the end of World War Two brought approximately thirty years
of historically unique prosperity and consensus in the political economy of the
United States and Western Europe. This prosperity was relatively widely shared across
the Western world during the trentes
glorieuses, still remembered as the “golden age of capitalism.”[26]
These prosperous decades had great and continuing intellectual consequence, for
they seemed to many to have settled a basic tension in democratic governance
for the post-war capitalist world. They
achieved, for a time, relative labor peace, widely shared optimism and
increases in prosperity, and a fair amount of consensus on the role of the
state and the scope of democratic choice in economic life. This description leaves out many tensions and
exclusions, and the trentes glorieuses
form no fit object for nostalgia; but this sketch of the settlement, in
practice and as a dominant ideological self-understanding for many in that era,
strikes us as being broadly accurate.[27]
The
experience and impression of this settlement stand in contrast to the more
fraught circumstances and the contests of interest and principle in which
neoliberalism has more recently been established, and those in which classical liberal
doctrines of free contract once held sway. The favored circumstances of the
post-World War Two era obscured the basic and continuing tension between the
two defining imperatives of democratic capitalism that we discussed at the
beginning of the Introduction.[28] Under a series of pressures, both the
settlement and the impression of consensus around it have broken down, putting
the disputes that neoliberalism aims to police squarely back on the agenda.
Our
concern in this introductory essay is to understand the relation of law to
neoliberalism: to identify the ways that neoliberal efforts necessarily rely
upon (and thus must engage) law, but also, more importantly, how apparently
diverse jurisprudential trends show the impact, both subtle and direct, of the
broader neoliberal moment in which we find ourselves. A full examination of
this impact must await the contributions to this issue, as these conceptual
distinctions, when they are useful, are always distilled out of specific
conflicts. We hazard a few summary
sentences here, however, on the question of what the neo- adds substantively, beyond marking out the latest phase of
liberalism. First, in the picture of
economic life that neoliberalism celebrates, the touchstone act of personal
choice is not the employment contract, as it often was in classical liberalism,
but instead the consumer purchase. Equality
in economic life has thus been refocused from the distribution of power and
income in the workplace to equal enjoyment of unfettered consumer choice,
either as a buyer of traditional commodities or in any other activity, such as
education, that can be recast as a form of individual consumption. Because the consumer conception of autonomy
is not tethered to any specific institutional setting, but offers an account of
choice as such, it is easily extended to new areas, not just those such as
education or the professions, where cash changes hands for “services,” but also
voting and politics. Second, and relatedly, neoliberalism proves
compatible with normatively attractive doctrines of personal autonomy and
identity propounded outside expressly economic relations. The self-defining,
self-exploring, identity-shifting constitutional citizen of recent Supreme
Court discussions on race, gender, and sexuality (some tending “right,” some
“left” in the current lexicon) reflects the consumer-citizen model of
neoliberal economic doctrine by contrast with the stolid bourgeois ideal of the
classical liberal subject. Third, the
intensity of governance in a technologically and economically hyper-complex
world makes it inescapably clear that neoliberalism can never be a “hands-off”
anti-regulatory doctrine as classical liberalism purported to be. Neoliberal
governance cannot fall back on the old differentiation of public and private or
to a naturalized domain of “the economy” and expect these ideological formulations
to succeed in securing the prerogatives of capital at present. It must instead work
through active and ongoing choice among ways of shaping social and economic
life and securing consent thereto.[29] Finally, today the politics of debt is as
salient as that of labor solidarity at the start of the twentieth century, and neoliberal
claims have focused on this question in fights over austerity policies and the
political and constitutional status of national debt and spending levels.
II.
NEOLIBERALISM AND THE STAKES OF LAW
Understood in the way we have
developed here, the concept of neoliberalism may be useful in a variety of ways
for analyzing law and legal scholarship.
For one, it can highlight patterns of events across different legal areas. Once we understand neoliberalism as a field
of connected arguments with a single tendency – defining and regulating market
relations in ways that insulate them from democratic governance – it becomes
clear that these patterns include more than the somewhat simple paradigm of
using law to implement “market fundamentalism” in one area or another. In some cases, we may see exactly this – for
instance, in labor-market liberalization, privatization of pensions, withdrawal
of public support for basic needs, insulation of private uses of property from
uncompensated regulation, and so forth – legal changes, that is, that throw
individuals into a situation more closely approximating classical laissez-faire
than where they started.[30] In other cases, however, we may see much more
affirmative uses of government power to create market-modeled relations. Although we regard both roll-back and
roll-out as instances of neoliberal governance, the too-simple idea that
neoliberalism is straightforwardly anti-regulatory can obscure the coherence.[31]
Take, for instance, the way a series
of constitutional doctrines have coalesced around a vision of personal liberty
that centers on individual choice in spending, consumption, and self-expression,
in disregard of the legally constituted structural setting in which these
choices take place. In this kind of
analysis, the concept of neoliberalism ties together the operational effects
and ideological predicates of a series of judgments that work in different
doctrinal areas, such as free speech, equal protection, and substantive due
process. This analysis highlights both the
doctrinal interpretations that the Supreme Court gives to constitutional text
and the ideological predicates of these interpretations, such as which theories
of social and political life they presuppose and which claims, such as
alternative conceptions of liberty and equality, they implicitly reject. Throughout, this analysis focuses on what law
actually does, the specific conflicts
that courts are mediating. Neoliberal
constitutional doctrines have recently extended market-modeled liberty into
areas of law where other versions of liberty have previously been important,
such as in campaign-finance law, or where legislatures have long regulated
market transactions to address distributive concerns, as in transfers of
prescription data for marketing purposes.[32]
Decisions based on neoliberal commitments also cultivate in constitutional
reasoning a habit of ignoring structure, even restricting legislative attention
to it, in favor of exclusive concern with the negative liberty of the choosing
individual or corporation.
Our use of neoliberalism especially
illuminates ideological stakes in areas of law that are not often treated
together these days, notably stakes at the intersection of constitutional law
and the private economy. To simplify,
much of the interest in public law for many decades in the United States has
been in defining and expanding the principles of personal liberty and equal
protection. Contests have concerned new
areas of application for these principles, such as consensual adult intimacy
and marriage equality, and, just as important, over the substance of the
principles, as in the color-blind versus anti-subordination versions of equal
protection and fights over how the state-action doctrine shields economic
relations from constitutional scrutiny.[33] Meanwhile, in private law, efficiency has
played much the same role as liberty and equality in public law. Much legal scholarship has been concerned
with efficiency-enhancing reforms while important deeper debates canvass
various ways in which efficiency might be defined, and essential boundary
disputes engage the question of how non-efficiency values, such as fairness and
personhood should count in these areas.[34] The basic contours of these debates will be
immediately recognizable to anyone who has been awake to these areas of law in
recent decades.[35]
Our view is that this ready
distinction between “public” and “private” law is partly an artifact of the mid-twentieth-century
impression that the relation between capitalism and democracy was settled, and,
in the US, the expression of this idea in the constitutional settlement that
withdrew the courts from review of economic claims. In the period of classical liberalism, when
it was ordinary to take liberty of contract, the acquisition and sale of
property, and federalism-based protections of “liberty of commerce” as features
of constitutional governance, there would have been no such easy
distinction. Of course, classical
liberal doctrines such as liberty of contract worked to define and police the
line between democratic politics and capitalist imperatives; but legal and
political actors who engaged this question moved naturally across “public” and
“private” lines, from tort actions against union boycotts to constitutional
protections of labor contracts. The “public” law foundation for the “private”
law orderings of that era was both obvious and the target of enormous critical
scrutiny from both within and outside law.
If we are entering what one of us
has called an era of neo-liberal Lochnerism,[36]
then scholars may need to find new or revived ways of integrating “public” and
“private” law in terms of some of the questions our contributors address in
this issue. How is market discipline
being distributed – on whom is it imposed, who is exempted from it, and on what
grounds? How is the scope of democratic
prerogatives being defined and policed around the market economy – through
which doctrines, and to what effect, blocking which kinds of lawmaking and
protecting what kinds of existing arrangements?
Where and how is democratic political judgment about public purposes
blocked by market-mimicking lawmaking metrics such as conventional cost-benefit
analysis? In a more ideological
register, which elements of the interlinked neoliberal arguments are deployed
for each move around these questions?
Market versions of liberty, equality, and personal dignity? Efficiency?
Pessimism about the capacities of politics? And through which
channels—judicial opinions, elite legal theory and opinion, political parties,
popular movements and legislation, or transnational governmental institutions—are
these arguments being deployed to practical effect?
Even
the ready assimilation of the corporation to constitutional protection may
reveal something about how the constitutional liberty of individuals is being
imagined here. It isn’t simply that
corporations are expected to act in their economic self-interest, or without
regard for public commitments or obligations; natural persons are expected to
exercise their rights on these motives, much of the time, in the Madisonian
republic.[37]
Rather, what is distinctive is the idea that the pursuit of individual
preferences through spending decisions (including the economic “preferences” of
corporate “persons”) is sufficient as
an account of personal liberty and of the
structural relation of that liberty to a scheme of good-enough government. So, for instance, the Supreme Court praises
unlimited corporate campaign spending as a key contribution to good governance,
because it amplifies the perspective of important and legitimate interests;
and, at the opposite end of the economic scale, the individual decision to
refuse health insurance (or to buy broccoli) is rhetorically cast as
self-evidently a legitimate part of a viable scheme of government, without
regard for the aggregate effects of such decisions.[38]
These
considerations connect neoliberalism with constitutional legitimacy and so with
claims about what “the rule of law” means.
This question became prominent at least as early as the 1980s and 1990s,
given reforms in Latin America and formerly state-socialist Eastern Europe, in
which the rule of law became a way of characterizing market-making reform.[39] This characterization of the rule of law as
an adjunct to neoliberal policy reforms has spread, such that most empirical
studies on the extent of the “rule of law” now emphasize various private law
protections for property and market access as constitutive of the concept.[40]
A different version of the same kind of move is at work in the
constitutionalization of market modes of liberty in the US and the
juridification of an essentially economic conception of European integration.[41] Both developments, in effect, embed certain normative
conceptions of what will count as legitimate legality in the future.
A basically political and
legally-oriented account of neoliberalism can also show what is happening when
lawmakers appear to “betray” a certain version of putatively neoliberal
commitments, exemplarily market fundamentalism.
As we argued above, it is too simple to identify neoliberalism with the
consistent, principled application of market discipline. The ideology
of neoliberalism is much too simple to guide the tasks of market-making and
market-maintenance that are required of the neoliberal state, and which
constitute the governmentality of
neoliberalism.[42]
The question is rather who is to be
subject to market discipline, and on which rationales (efficiency, personal
responsibility, elite agreement that there is no “on-the-wall” political
alternative), and who is being exempted from it. A domestic case in point is the allocation of
federal bailout aid between the bad risks taken by banks and the debt burdens
weighing down homeowners and university graduates. An international case is the imposition of
austerity programs in Europe, premised on the thought that national polities
must be subjected to debt obligations while creditors should enjoy relative
confidence in their repayments. The point
is not that these are departures from market-fundamentalist principles (as
libertarian critics of the US bailouts have observed), but that, in practice,
neoliberal policies are always
distributive decisions, yet ones in which distributive choices get couched in
the neutral-sounding language of efficiency, liberty, and responsibility, or
the pragmatic language of “what works.” What
neoliberal governance distributes is market discipline itself.
In sum, we are inviting an
integrated approach to a set of organizing questions that arise from renewed
attention to the unstable boundary between state and market. We understand the contributions to this
special issue as essays – literally little sallies, probing expeditions – into
what such an approach might generate. In
setting out this fairly ambitious introduction, we do not mean to presume the
last word on this issue, but rather to offer one first word.
We also hope to connect US and
non-US conversations. Despite its global
prominence, the term neoliberalism has had only limited and specialized
currency in the US, particularly in the legal academy.[43] Perhaps this is so partly because of the
familiar American habit of ignoring the rest of the world – a habit that is
especially pronounced in US law and legal scholarship. It may also be that neoliberalism strikes
some Americans as a less distinctive phenomenon than it seems elsewhere
because, in the US, its political expression is less the reincarnation of a
doctrine thought to be abandoned (classical liberalism) than the
intensification of a longstanding “anti-regulatory” politics. In the US, the relation between state and
economy was perhaps never regarded as settled to the same degree as in some of
the other North Atlantic countries.[44]
Be that as it may, US legal scholars
have as much to learn from the concept of neoliberalism as those elsewhere. We hope that, in demonstrating this point, the
present volume will also contribute to Americans’ understanding their local
conflicts in relation to global and long-term contests between market
imperatives and democratic demands from which we are not exempt.
III. THE
HISTORICAL SETTING
The term neoliberalism first appeared in early twentieth-century efforts to
recapture the spirit (if not all the policies) of classical liberalism.[45]
The term saw diverse uses in many settings, before its late twentieth-century sense
was first established in Latin America, where pro-market economists adopted the
term neoliberalismo to describe their
agenda, propelling into the development debate a term that became roughly
synonymous with the “Washington Consensus,” a debt-driven program of privatization
and austerity.[46]
At around the same time, the economic crisis that began in the early 1970s in
the North Atlantic world undermined confidence in what has been called in
hindsight the “post-war Keynesian welfare state.”[47]
Neoliberalism came to the fore in Britain and the United States in the midst of
the electoral victories of Reagan and Thatcher, and the implementation of new
economic policies based on what had been heretical positions, such as
monetarism and supply-side economics.[48]
As argued
at the beginning of this Introduction, these crisis-driven origins of
contemporary neoliberalism need to be understood in relation to long-standing tensions in liberal governance: the
conflict between capitalist market imperatives and countervailing popular
demands pressing on democratic (or, at least, popularly responsive)
governments.[49]
As explained earlier, we treat neoliberalism as one especially prominent effort
to settle terms between the market and broadly democratic politics.
The
impression that neoliberalism might have ended with the recent financial
crisis, which saw the collapse of widespread faith (both popular and elite) in
market ideology and ushered in a new, “pragmatic” moment, seems to stem from confusion
between a specific moment and a larger and longer trajectory. It also reveals a
closely related mistake: identifying neoliberalism with a consistent and (in
some sense) principled theory, such as “market fundamentalism” or a “utopian”
project of perfecting market norms, whereas, as we have already argued,
neoliberalism is as much a mode of governance as an abstract ideology.[50]
In a series of important recent
works, Wolfgang Streeck has argued that the crisis in 2008—a crisis widely
understood to concern neoliberalism, and affecting Anglo-American capitalism
most directly—was the culmination of a more general crisis of post-war
“democratic capitalism.” Streeck defines “democratic capitalism as a political
economy ruled by two conflicting principles, or regimes, of resource
allocation: one operating according to marginal productivity, or what is
revealed as merit by a ‘free play of market forces’, and the other based on
social need or entitlement, as certified by the collective choices of
democratic politics.”[51] This form of political economy is, he
argues, “a condition ruled by an endemic conflict between capitalist
markets and democratic politics, which forcefully reasserted itself when high
economic growth came to an end in the 1970s.”[52]
That
“capitalism” and “democracy” have different imperatives should not be difficult
to grasp; the difficulty is in conceiving a regime that can realize the aims of
both. As Colin Leys explains in his excellent account of “market-driven
politics”: [53]
There
is an obvious conflict between the logic of capital accumulation, which drives
the global economy, and the logic of legitimation, which drives politics in all
states with free elections. The former gives priority to the needs of capital
at the expense of labour, and at the expense of public sector funding on which
most public goods and almost all social services depend; the latter depends on
catering to these other needs as well as ensuring economic growth—or at least
economic stability. In the era of national economies, the conflict between
these two logics was contained, however erratically, by capital’s relative
immobility.
Streeck elaborates
this tension in the context of electoral competition:
Under democratic capitalism,
governments are theoretically required to honour both principles
simultaneously, although substantively the two almost never align. In practice
they may for a time neglect one in favour of the other, until they are punished
by the consequences: governments that fail to attend to democratic claims for
protection and redistribution risk losing their majority, while those that
disregard the claims for compensation from the owners of productive resources,
as expressed in the language of marginal productivity, cause economic
dysfunctions that will become increasingly unsustainable and thereby also
undermine political support.
However, during
the trentes glorieuses, Keynesian
macro-economic planning and a favorable international context reconciled the imperatives
of capital accumulation and democratic legitimacy through sustained and relatively
equitably shared growth. Class conflict was palliated through managerial
capitalism’s success at dealing in workers to a substantial share of the
extraordinary wealth of the post-war recovery. Thus, the tensions inherent in
democratic capitalism were effectively evaded in the immediate decades
following WWII: rising wages and capital accumulation proved mutually compatible
and even allowed for the modest redistribution that the more ambitious welfare
states of the period undertook.
For
reasons that continue to be widely debated, and which we cannot here examine in
any detail, these favorable circumstances ended in the early 1970s.[54]
Certainly, the image of post-war prosperity can be overdrawn; nevertheless, the
end of exceptional growth rates in the advanced industrial countries heralded a
marked shift in the 1970s, whose causes and consequences continue to be debated.
Perhaps the most obvious change was the collapse of the Bretton Woods system
amidst persistent macro-economic imbalances. However, major shifts were visible
as well in the changing organization of work in the advanced economies and in the
rise of new industrial economies in East Asia, all of which was set against the
backdrop of the OPEC oil crisis and the slow American defeat in Vietnam.
On
Streeck’s analysis, what followed, beginning in approximately the mid-1970s was
an effort to replicate the trentes
glorieuses under conditions in which the basic tension in democratic
capitalism could no longer be evaded through historically exceptional rates of
growth. The consequence of these efforts has been a series of debt crises as
governments found new ways to fund the illusion of widely shared post-war
prosperity by borrowing from the future. As he explains: “post-war
‘democratic capitalism’ involved a fundamental contradiction between the
interests of capital markets and those of voters; a tension that had been
successively displaced by an unsustainable process of ‘borrowing from the
future’, decade by decade: from the inflation of the 1970s, through the public
debt of the 1980s, to the private debt of the 1990s and early 2000s, finally
exploding in the financial crisis of 2008.”[55]
Streeck’s
analysis is already receiving critical attention and is sure to attract more—an
indication of the interest and importance of his account. Nothing in our position stands or falls with
the details of his particular account, though we welcome his clear
specification of the tensions in democratic capitalism, and his provocative
thesis on the role of debt in camouflaging tensions that were obvious in the
early twentieth century, and have become newly obvious again. More generally,
nothing in our analysis presupposes a particular conception of how class
structure operated in the North Atlantic after World War Two or takes a stand
on the relative importance of wartime mobilization, expansionary fiscal policy,
or US economic or geopolitical hegemony as causes of post-war prosperity. Nor do we need to assume that the trentes were as glorieuses as we remember (or were told), or that the prosperity
was either fairly shared or sustainable according to one or another normative
account. Our analysis here is compatible with a variety of takes on these and
related questions, so long as they recognize (along with Streeck) the tension
between capitalist and democratic imperatives and the way in which this tension
was substantially muted and softened during the post-war era. Its return to prominence is the context of
neoliberalism’s importance today just as its suppression was the enabling
condition of the widely shared impression that classical liberalism’s claims
had been put to rest in a lasting social and economic settlement.
IV. OUTLINE OF
THE ISSUE
* The authors are, respectively, Associate
Professor at Yale Law School and Robinson O. Everett Professor at Duke Law
School. The two authors contributed
equally to this Introduction. They wish
to thank Corinne Blalock, Stefan Eich, and Jeremy Kessler for valuable comments
and Ariell Friedman and Jane Bahnson for essential research assistance.
[1] Some of the doubt arises from the fact
those who use it are mainly critics of what they call neoliberalism, while few
if any will claim it positively, raising suspicions that it is merely polemical
or denunciatory. Perhaps still more
doubt comes from the fact that neoliberalism
is used to name a variety of policy programs and intellectual positions, a
warning that that it may lack a core definition. On the frequency of the term’s use, see Taylor C. Boas & Jordan Gans-Moore,
Neoliberalism: From New Liberal
Philosophy to Anti-liberal Slogan, 44 Stud.
Comp. Int’l Dev. 137 (2009); Terry Flew, Michel Foucault’s The Birth of Biopolitics and Contemporary Neo-liberalism Debates, 101 Thesis Eleven 44, 44-45 (2012). For complaints about imprecision in the use
of the term, see, e.g., Flew, supra note
16, at 44-45. For a more sympathetic assessment, see Jamie Peck, Constructions of Neoliberal Reason, 15 (2010):
“The tangled mess that is the modern usage of neoliberalism may tell us
something about the tangled mess of neoliberalism itself.”
[2] Other examples include capitalism, socialism, communitarianism,
originalism, realism, liberalism
itself, and arguably law.
“Essentially contested concepts,” as Walter Gallie first defined them, are “concepts the proper use of which inevitably
involves endless disputes about their proper uses on the part of their users”
(Gallie, Essentially Contested Concepts,
Proceedings of the Aristotelian
Society, 56 (1956), pp. 167-198, p. 169).
[3] Of course neither “market” nor
“democratic politics” is a given domain, a natural kind, but as ideal types
they represent competing and potentially opposed principles of social ordering,
as we discuss in detail below.
[4] This list is meant to be exemplary but,
of course, not exhaustive. We do not
intend any technical or strict sense of democracy;
in fact, our use of the term applies to any political and legal order that is
popularly responsive because it needs a robust level of practical widespread
consent to survive. Crises of
“democratic legitimacy,” in our sense, may occur in regimes that are not
formally democratic – and arguably have occurred many times in recent decades,
from Latin America to Eastern Europe to North Africa. (By describing this basic tension, we are not
trying otherwise to offer a unifying interpretation of the dynamics underlying
these different crises.) Indeed, as these examples suggest, democratic
legitimacy may also be in tension with economic regimes of a state-socialist
and corporatist variety; but neoliberalism specifically addresses the relation
between democratic legitimacy and the imperatives of capitalist markets.
[5] See generally F.A. Hayek, The Constitution of Liberty 162-175 (1960);
Lewis F. Powell, Attack on American Free
Enterprise System, Confidential Memorandum to Mr. Eugene Sydnor, August 23,
1971 (on file with the authors and available at
http://law.wlu.edu/deptimages/Powell%20Archives/PowellMemorandumTypescript.pdf)
[hereinafter Powell Memorandum.]
[6] See
generally Colin Leys, Market-Driven
Politics: Neoliberal Democracy and the Public Interest (2001).
[7] On this
transformation in underlying ideas of legitimacy and its effect on governance, see
Colin Leys, The Cynical State, Socialist Register (2006), pp. 1-27.
[8] In this vein, Wendy Brown cautions
that the popular concept of neoliberalism, which equates it “with a radically
free market: maximized competition and free trade achieved through economic
de-regulation” may inadvertently “reduce neo-liberalism to a bundle of economic
policies with inadvertent political and social consequences.” She suggests
instead—following Michel Foucault’s prescient lectures on neoliberalism from
the late 1970s—that students of neoliberalism focus on “the political
rationality that both organizes these policies and reaches beyond the
market.” Without such a focus, we risk obscuring “the specifically political register of neo-liberalism in the First World,
that is, its powerful erosion of liberal democratic institutions and practices
in places like the United States. Wendy Brown, Neo-liberalism and the End of Liberal Democracy, 7 Theory & Event 1 (2003). While they
are not incompatible (and indeed, often combined), it is possible to
distinguish two strands of current interest in neoliberalism, one coming from a
tradition of radical political economy, the other out of Foucauldian social
theory, particularly following the publication of Foucault’s prescient lectures
on the “birth of biopolitics.” Both direct attention to the governing structures
and ideologies of capitalism, but the former does so with greater attention to
the class-dominated nature of those structures and ideologies, whereas the
latter is characteristically concerned with the operations of “governmentality”
and the way that knowledge constitutes a form of generative power in the
construction of a social order. For the former, see, e.g., Harvey, supra note 27, and in a more
comprehensive account, Andrew Glyn,
Capitalism Unleashed: Finance,
Globalization and Welfare (2006); on the latter, see Brown, id; on the distinction more generally,
see Flew, supra note 16.
[9] However logically distinct, these
strands are connected in a variety of ways, coming together in the argument
that has been termed TINA (“there is no alternative”), which was supposedly
coined, and became a catch-phrase of Margaret Thatcher—and has become a
rallying cry for parts of the anti- or counter-globalization movement. Thatcher
used the phrase in many important speeches; see, e.g., the press conference on
monetarism of June 25, 1980, available at: http://www.margaretthatcher.org/Speeches/displaydocument.asp?docid=104389&doctype=1). On the role of TINA in the assessment
of the recent financial crisis, see Philip
Mirowski, Never Let a Serious Crisis Go to Waste: How Neoliberalism Survived
the Financial Meltdown 241-242 (2013). On the rhetoric of reaction in
conservative ideology generally, which is often focused on the alleged
unworkability of alternatives to the status quo, see generally Albert O. Hirschman, The Rhetoric of Reaction:
Perversity, Futility, Jeopardy (1991).
[10] Of course, these limits can and do
change with context. For a suggestion
about how ideas about legal reform can be “on” or “off the wall,” see Jack
Balkin’s recent analysis of health care reform legislation,
http://www.theatlantic.com/national/archive/2012/06/from-off-the-wall-to-on-the-wall-how-the-mandate-challenge-went-mainstream/258040/
[11] In an oft-cited passage, David Harvey
defines the term thus: “We can…interpret neoliberalism either as a utopian project to realize a theoretical
design for the reorganization of international capitalism or as a political project to re-establish the
conditions for capital accumulation and to restore the power of economic
elites.” Harvey argues that “the second
of these objectives has in practice dominated.”
David Harvey, A Brief History of
Neoliberalism 18-19 (2005)
[12] See,
e.g., Robert
L. Hale, Freedom Through Law (1952) (making this argument through
extensive legal example); Amartya Sen, The
Moral Standing of the Market, 1, 13 in
Ethics and Economics (Ellen
Frankel Paul et al., eds., 1985) (making the same case from the point of view
of economists’ account of markets).
[13] As Jamie Peck and Adam Tickell explain:
“Only rhetorically does neoliberalism mean ‘less state;’ in reality, it entails
a thoroughgoing reorganization of
governmental systems and state-economy relations.” Jamie Peck & Adam Tickell, Conceptualizing Neoliberalism, Thinking
Thatcherism, in Contesting Neoliberalism: Urban Frontiers
33 (Helga Leitner, Jamie Peck, & Eric S. Sheppard eds., 2007). As Peck
notes elsewhere: “capturing and transforming the
state was always a fundamental neoliberal objective….Notwithstanding its
trademark antistatist rhetoric, neoliberalism was always concerned—at its
philosophical, political, and practical core—with the challenge of first
seizing and then retasking the state.” Peck,
supra note 1, at 4.
[14] On “rolling back” and “rolling out” as
interrelated modes of neoliberal governance, see Peck supra note 1, at 22.
[15] Philip Mirowski, supra note 1 at 15.
[16] Lochner v. New York, 198 U.S. 45,
(1905); Hammer v. Dagenhart, 247 U.S. 251, (1918); A.L.A. Schechter Poultry Corp.
v. United States, 295 U.S. 495, (1935).
Many scholars have highlighted that the “Lochner era” was never characterized by consistent laissez-faire
doctrine and that much work was done in these cases by changing conceptions of
the state police power, rather than strict personal rights of contract. [Citations: Bernstein, Nourse, etc.,] All of this only enriches the picture of Lochner and other such cases as aspects
of the contest between political regulation and market imperatives.
[17] See
generally Robert L. Hale, Freedom Through Law: Public Control of Private
Governing Power (1952); [some labor law history]; but see Buchanan v. Warley, 245 U.S. 60 (1917) (holding housing
segregation law unconstitutional on liberty-of-contract grounds).
[18] For a classic statement justifying the
wealth-producing inequalities of the modern division of labor in market
societies, see, Adam Smith, Wealth of
Nations 1.i.11 (1991); for a discussion, see Istvan Hont & Michael
Ignatieff, Needs and Justice in the
Wealth of Nations, in Wealth
and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (Hont and Ignatieff
eds., 1983).
[20] There are nice arguments to this effect
in the Slaughterhouse dissents. Slaughter-House Cases, 83 U.S. 36, (1873).
[21] Max Lerner, The Social Thought of Mr. Justice Brandeis, 41 Yale L.J. 1 (1931).
[22] For instance, see Theodore Roosevelt, Address at Osawatomie, Kansas (Aug. 31,
1910) or Abraham Lincoln, State of the
Union Address (Dec. 3, 1861) (where he discussing the conflict of labor and
capital, though also claiming proper liberal rights would shield the US against
the worst class divisions).
[23] For example, Lochner had the effect of invalidating redistributive aims. See,
Sunstein, Cass, Lochner's Legacy, 87 Colum. L. Rev. 873–919 (1987).
[24] West Coast Hotel v. Parrish, 300 U.S.
379 (1937).
[25] Williamson v. Lee Optical; Heart of
Atlanta; Skrupa; Ackerman on the New Deal.
[26] On which, see The Golden Age of Capitalism: Reinterpreting the
Postwar Experience (Stephen A. Marglin &
Juliet B. Schor eds., 1990).
[27] See Tony
Judt, Ill Fares the Land
(2010).
[28] On the tensions in democratic
capitalism, see Wolfgang Streeck, The
Crises of Democratic Capitalism, 71 New
Left Rev., Sept.-Oct. 2011, at 5; and see Leys, supra note 6. The tensions are more extensively discussed below; see
text accompanying infra notes [ ].
[29] [Foucault’s Lectures on Biopolitics.]
The prerogatives of capital in our present networked age require, in fact, the
extension of relatively extensive governance; on this question, see Grewal, Network Power, infra note 46, at [ ].
[30] [citations]
[31] This image of neoliberalism became the
paradigm partly because it maps the impression created by “Washington
Consensus” reforms in developing countries, and partly because it reflects the
market-fundamentalist ideology frequently pronounced by critics of regulation
and public social supports.
[32] [Buckley v. Valeo, Citizens United,
Sorrell]
[33] See
Owen M. Fiss, Groups and the Equal
Protection Clause, 5 Phil. and Pub.
Aff. 107 (1976) (arguing that guarantees of equal citizenship are
undermined by pervasive social stratification and that law should reform
institutions and practices that enforce the subordinate status of oppressed
groups); Louis Michael Seidman, The State
Action Paradox, 10 Const. Com. 379
(1993) (arguing that the definition of state action has done political work in
limiting the scope of claims to equal constitutional citizenship); Reva Siegel,
She the People: The Nineteenth Amendment,
Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947 (2002) (exploring the background of social
movement and constitutional-interpretive politics that generate extensions of
equal citizenship in formal constitutional doctrine).
[34] See
Jedediah Purdy, The Meaning of Property:
Freedom, Community, and the Legal Imagination (2010) 9-27 (outlining the
major perspectives and concerns of private-law scholarship through the lens of
property),111-56 (proposing ways of integrating concerns about welfare with
those of freedom and personhood); See
generally Hanoch Dagan, Property:
Values and Institutions (similarly discussing the variety of motives at
work in private law).
[35] Classic contributions include Richard A. Posner, The Economics of Justice (1981)
(seeing a general efficiency-based theory of law); Richard A. Epstein, Takings: Private Property and the Power of Eminent
Domain (1985) (same, with variations); Gregory
S. Alexander, Commodity and Propriety: Competing Visions of Property in
American Legal Thought, 1776-1970 (1998) (arguing for the importance of
a non-economic approach to private law, rooted in values of community and
citizenship); Frank Michelman & Duncan Kennedy, Are Property and Contract Efficient? 8 Hofstra L. Rev. 711 (1980) (arguing that there is no
independent standard of efficiency from which a political and legal allocation
of rights can be judged).
[36] See
Jedediah Purdy, The Roberts Court v.
America, 23 Democracy J. 46,
[page] (Winter 2012) (characterizing the Roberts Court as neo-Lochnerian), “the
judicial voice of the idea that nearly everything works best on market logic,
that economic models of behavior capture most of what matters, and political,
civic, and moral distinctions mostly amount to obscurantism and special
pleading.”
[37] For more and less friendly views of
James Madison’s expectations of his fellow citizens’ motives, see, respectively, Richard K. Mathews, If Men Were Angels: James
Madison and the Heartless Empire of Reason (1996); Jennifer Nedelsky, Private Property and the
Limits of American Constitutionalism: The Madisonian Legacy and Its Framework (1994).
[38] See
Jedediah Purdy, The Roberts Court v.
America, 23 Democracy J. 46
(Winter 2012) (characterizing the Roberts Court through an interpretation of
its relation to these positions); Jedediah Purdy and Neil S. Siegel, The Liberty of Free Riders: The Minimum
Coverage Provision, Mill’s “Harm Principle,” and American Social Morality,
38 Am. J. L. & Med. 374 (2012) (discussing,
inter alia, the interstate effects of
insurance-market regulations).
[39] For these historical reasons, the
admittedly limited discussion of neoliberalism in American legal scholarship
has come mainly from scholars watching the Latin American reforms; see Owen
M. Fiss, The Autonomy of Law; Roberto Mangabeira Unger, What Should Legal
Analysis Become? 8-10 (1996). For a penetrating account of how, in
spite of a widespread conflation of legal liberalism with neoliberalism, courts
in some post-Soviet countries resisted (successfully and unsuccessfully)
neoliberal austerity drives, see Kim Lane Scheppele, Liberalism Against Neoliberalism: Resistance to Structural Adjustment
and the Fragmentation of the State in Russia and Hungary, in Ethnographies
of Liberalism 44-59 (Carol J. Greenhouse ed.; 2010).
[40] Consider the dimensions of “economic
liberty” of various kinds in the World Bank’s Worldwide Governance Indicator,
the Freedom House indices, as well as those promulgated by USAID and most major
development banks; for an overview and critique, see César
Rodríguez-Garavito, The Globalization of
the Rule of Law: Neoliberalism, Neoconstitutionalism, and the Contest over
Judicial Reform in Latin America, in
Lawyers and the Transnationalization of
the Rule of Law (Bryant Garth & Yves Dezalay, eds., forthcoming), available at
http://www.cesarrodriguez.net/docs/articulos/towardsociology.pdf. For a thoughtful account that does not
conflate the “rule of law” with private property protections, see Jeremy
Waldron, The Rule of Law and the Measure
of Property (2012). See also, Kennedy, cited supra [ ] and Krever, cited supra [ ] on the modes of reasoning
that connect neoliberal governmentality and indexes of legal governance or
‘rule of law’ measures.
[41] On the former, see Purdy’s piece in this
issue [ ]; on the latter, see Wolfgang Streeck supra note 38.
[42] On the concept of governmentality, see the foucault effect: studies in governmentality
(1991).
[43] As Jamie Peck observes, in spite of the
association of neoliberalism with a “distinctively American form of
‘free-market’ capitalism…the term conspicuously lacks purchase in the United
States itself—outside graduate-school seminar room and the organs of the left
intelligentsia,” and “has largely remained a subterranean critics’ word.” Supra note 1, at 1-2.
[44] A combination of libertarianism and
small-business, anti-statist politics persisted throughout the twentieth
century, forming a line connecting resistance to the New Deal, enthusiasm for
the anti-planning arguments of Friedrich Hayek’s Road to Serfdom, and persistent elite mobilization against the
regulatory and welfare states. Burgin, supra
note 20. This last found famous
expression in soon-to-be Associate Justice Lewis Powell’s 1971 memorandum for
the Chamber of Commerce, urging a concerted campaign against “socialism.” Powell Memorandum [see citation above].
[45] The idea of the market system as
self-regulating has deep roots before Adam Smith; see generally, Jean-Claude Perrot, Une Histoire Intellectuelle de l'Économie
Politique: XVIIe - XVIIIe Siècles (1992);
and also the discussion of Pierre de Boisguilbert (perhaps the first theorist
of the self-regulating market) in Gilbert
Faccarello, The
Foundations of 'Laissez-Faire': The Economics of Pierre de Boisguilbert (1999). For recent histories that discuss the relation
of twentieth-century neoliberalism to classical political economy, see Angus Burgin, The Great Persuasion: Reinventing
Free Markets since the Depression (2012); Daniel Stedman Jones, Masters of the Universe:
Hayek, Friedman, and the Birth of Neoliberal Politics (2012). On the
connection between neoliberalism and the earlier German “ordo-liberalism,” see
Foucault, infra note 32; and also
Werner Bonefeld, Freedom and the Strong State: On German Ordoliberalism, 17 New Pol. Econ. 633-656 (2012).
[46] See
John Williamson, In Search of a Manual
for Technopols, in Political Economy of Policy Reform (John
Williamson ed., 1994); After the
Washington Consensus: Restarting Growth and Reform in Latin America app.
26-28 (Pedro-Pablo Kuczynski & John Williamson eds., 2003) (Appendix: The
Washington Consensus). See also David Singh Grewal, Network Power: The Social
Dynamics of Globalization 249-251 (2008).
[47] As with the term “neoliberalism,” the
straightforward delineation of that category remains much contested; on the
character of the post-war Keynesian welfare state, see text accompanying infra notes [ ].
[48] For an early account of neoliberalism in
the context of what was then called “Thatcherism,” see The Politics of Thatcherism (Stuart Hall & Martin
Jacques eds.,1983). It is important to note that the connection between
mid-century German “ordo-liberalism” and the “neoliberalism” of the Thatcher
era was not merely one of ideological affinity; Thatcher was an admirer of the
economic management of the post-war German state. See David Runciman, Rat-a-tat-a-tat-a-tat-a-tat,
35 The London Rev. of Books 13, 18
(2013) (reviewing Charles Moore, Margaret
Thatcher: The Authorised Biography. Vol. I: Not for Turning (2013)): “It
is easy to forget that Thatcherism in its initial phase was a broadly
pro-German project. It took much of its inspiration from the West German
economic miracle, achieved under the philosophy known as ‘ordo-liberalism’ (a
free market in an ordered society).”
[49] In this essay, we follow the widespread
contemporary usage of “democratic” to describe modern political regimes based
on electoral representation of one kind or another, often grounded in
liberal-constitutional orders. From a more careful standpoint, this usage is
imprecise (and probably ideologically naïve); for a more careful history of
modern democracy, see Richard Tuck, The
Sleeping Sovereign (forthcoming 2014). For our purposes here, however,
we are mainly concerned with the responsiveness of the government to underlying
popular demand, whether it comes via electoral representation, direct
democratic sovereignty, or simply a general susceptibility to mass protest. On
this account, even many “non-democratic” (but responsive) regimes will struggle
to reconcile the grounds of their popular legitimation with the conflicting
demands of the market, experiencing in some form the tensions that Streeck has
diagnosed as particularly affecting “democratic capitalism.”
[50] See Radhika Desai, Neoliberalism and Cultural Nationalism, in Neoliberal Hegemony: a
Global Critique 222 (Dieter Plehwe, Bernhard Walpen, & Gisela
Neunhoffer eds., 2006) for an account of neoliberalism that takes the role of
ideas and think-tank agendas seriously, while cautioning “against the idealist
emphasis on ideas and intellectuals to the exclusion of other determinants of
historical change” (p. 224).
[51] Wolfgang Streeck, supra note 15 at 7.
[52] See also his follow-up, Wolfgang
Streeck, Markets and Peoples: Democratic
Capitalism and European Integration, 73 New
Left Rev., Jan.-Feb. 2012, at 63, and the essays that open and close his
recent edited volume on the subject, Wolfgang Streeck and Armin Shafer (eds.), Politics in the Age of Austerity
(Cambridge: Polity Press, 2013).
[53] Leys, supra note 6, at 26.
[54] For the monetary history behind these
changes, see Barry Eichengreen, Globalizing Capital, Chapter 4, esp. pp.
120-135 on the immediate breakdown of Bretton Woods; see also, Leys, supra note 6, at 8-13. Andrew Glyn’s
important book, Capitalism Unleashed
is, in effect, a study of what came after the trentes glorieuses as structural changes in the global economy
“unleashed” capitalism.
[55] Streeck, Markets and Peoples, supra
note 38, at 63-64.
