The Politics of Legality in a Neoliberal Age

227 Pages·2017·2.477 MB·English

by  Ben Golder (editor), Daniel McLoughlin (editor)

The Politics of Legality in a
Neoliberal Age
Thisvolumeaddressestherelationshipbetweenlawandneoliberalism.Assembling
work from established and emerging legal scholars, political theorists, philoso-
phers, historians, and sociologistsfrom 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,thebookanalysestherolethatlegalityplaysinthedominanteconomic
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.
Ben Golder teaches courses on law and social theory, on public law, and on the
politics of human rights in the Faculty of Law at the University of New South
Wales. He is an associate editor of the journal Contemporary Political Theory, a
memberoftheEditorialCommitteeoftheUK-basedjournalLawandCritique,a
memberoftheEditorialBoardoftheAustralianJournalofHumanRights,anda
memberoftheEditorialBoardoftheradical,openaccesspublisherCounterpress.
His most recent book is Foucault and the Politics of Rights (Stanford University
Press, 2015).
Daniel McLoughlin is Senior Lecturer in the Law School at the University of
New South Wales. He is the editor of Agamben and Radical Politics (Edinburgh
University Press, 2016) and has published extensively on theories of sovereignty,
biopolitics and government in journals including Theory & Event, Law and
Critique, Law, Culture and the Humanities, and Angelaki.
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The Politics of Legality in a
Neoliberal Age
Edited by
Ben Golder and Daniel McLoughlin
Firstpublished2018
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Contents
Acknowledgements vii
Notes on contributors viii
An introduction to the politics of legality in a neoliberal age 1
BENGOLDERANDDANIELMCLOUGHLIN
PARTI
The law and legality of neoliberalism 17
1 Transformations of the rule of law: legal, liberal, and neo- 19
MARTINKRYGIER
2 Thatcherism as an extension of consensus 44
MICHAELGARDINER
3 Foucault and Becker: a biopolitical approach to human capital and
the stability of preferences 64
MIGUELVATTER
PARTII
Constituting neoliberalism 83
4 Constructing ‘privatopia’: the role of constitutional law in Chile’s
radical neoliberal experiment 85
JAVIERCOUSO
5 The rise of juridical neoliberalism 97
THOMASBIEBRICHER
6 Neoliberalism as legalism: international economic law and the rise of
the judiciary 116
NTINATZOUVALA
vi Contents
PARTIII
Human rights and neoliberalism 135
7 A powerless companion: human rights in the age of neoliberalism 137
SAMUELMOYN
8 An unlikely resonance? Subjects of human rights and subjects of
human capital reconsidered 161
ZACHARYMANFREDI
9 Articulating human rights discourse in local struggles in a
neoliberal age 184
ZEYNEPKIVILCIM
Index 206
Acknowledgements
This edited collection sprang from a symposium held at the University of New
South Wales Law School, under the auspices of the Gilbert + Tobin Centre of
Public Law’s ‘Public Law and Legal Theory’ project (of which the editors of this
volume are the joint Directors), on 1–2 August 2014. We are incredibly grateful
totheCentrefortheirmaterialsupportoftheevent,aswellastheFacultyofLaw
itself, which financially supported both the event itself (through the provision of
Workshop Support Scheme funding) and the publication process (through pro-
viding research assistance). We especially thank all the participants in that original
symposium (many of whom are represented in the present volume), as well as
those who attended it, for making it such a vibrant and productive event. Lastly,
we are indebted to the editors (David Singh Grewal and Jedediah Purdy) and the
publishers (Duke Law School) of the journal, Law and Contemporary Problems,
fortheirpermissiontorepublishinthisvolumethefollowingwork:SamuelMoyn,
‘A Powerless Companion: Human Rights in the Age of Neoliberalism’ (2014) 77
Law and Contemporary Problems 147. Finally, Zeynep Kivilcim’s chapter is dedi-
cated to Turkey’s 2212 Academics for Peace who are currently facing prosecution
for terrorist propaganda for signing a petition for peace in Turkey.
Ben Golder and Daniel McLoughlin
Notes on contributors
Thomas Biebricher is a Professor of Political Theory and Philosophy at the
Goethe-UniversitätinFrankfurt.Heiscurrentlycompletingabookmanuscript
on The Political Theory of Neoliberalism. His most recent publications
include an edited volume, Der Staat des Neoliberalismus (Nomos, 2016) and
‘Neoliberalism and Democracy’ (2015) 22 (2) Constellations 255–266.
Javier Couso is a Professor of Law and Social Sciences at Universidad Diego
Portales (Chile). His work focuses on comparative law and courts, with an
emphasis on the interplay between constitutionalism, the rule of law, and legal
cultures in new democracies. After graduating in law in Chile, he received a
PhD in Jurisprudence and Social Policy from the University of California, Ber-
keley. He is the author of dozens of academic articles and books, including
Constitutional Law in Chile (Wolters Kluwer, 2011), and (with Alexandra
Huneeus and Rachel Sieder as co-editors), Cultures of Legality: Judicialization
and Political Activism in Latin America (Cambridge University Press, 2010).
Professor Couso has been a visiting professor at several academic institutions
worldwide, including the University of Wisconsin-Madison; Melbourne Uni-
versity; Leiden University; Utrecht University; the University of California,
Berkeley; the Instituto Tecnológico Autónomo de México (ITAM); and
Bocconi University. Furthermore, he serves on theeditorial board of a number
of academic journals, such as Law and Policy, International Journal of Law in
Context, Journal of Law and Courts, Constitutional Court Review, and Griffith
Law Review. Lastly, he is currently an associate member of the International
Academy of Comparative Law, after having served on the Board of Trustees of
the Law and Society Association and on the Executive Committee of the
International Association of Constitutional Law.
Michael Gardiner is Professor in the Department of English and Comparative
Literary Studies at the University of Warwick. He writes for a number of
online journals including openDemocracy and Bella Caledonia, and his books
include The Cultural Roots of British Devolution (Edinburgh University Press,
2004), From Trocchi to Trainspotting: Scottish Critical Theory Since 1960
(Edinburgh University Press, 2006), The Return of England in English
Notesoncontributors ix
Literature (Palgrave Macmillan, 2012), The Constitution of English Literature
(Bloomsbury Academic, 2013), and Time and Action in the Scottish
Independence Referendum (Palgrave Pivot, 2015).
Ben Golder teaches courses on law and social theory, on public law, and on the
politics of human rights, in the Faculty of Law at the University of New South
Wales.Heisanassociateeditorofthejournal,ContemporaryPoliticalTheory,a
member of the Editorial Committee of the UK-based journal, Law and
Critique,amemberoftheEditorialBoardoftheAustralianJournalofHuman
Rights, and a member of the Editorial Board of the radical, open access
publisher, Counterpress. His most recent book is Foucault and the Politics of
Rights (Stanford University Press, 2015).
Zeynep Kıvılcım is an Associate Professor of Public International Law. She is
currently a Kosmos Project Fellow at Humboldt University and also a guest
professor at Gottingen University. She received her MA and PhD degrees in
PublicInternationalLawfromUniversityParisII(Panthéon-Assas).Shetaught
law and gender, international human rights law and critical approaches to
public international law at Istanbul University between 2000 and 2016. She
worksonsocialmovements,humanrightsandrefugees’rightswithagendered
and critical perspective. Her most recent work is the book A Gendered
Approach to the Syrian Refugee Crisis, co-edited with Jane Freedman and
Nurcan Özgür Baltacıog˘lu (Routledge, 2017).
MartinKrygierisGordonSamuelsProfessorofLawandSocialTheoryattheUni-
versity of New South Wales, Honorary Professorat RegNet, Australian National
University, and recurrent visiting professor at the Graduate School of Social
Research,Warsaw,andtheInternationalInstituteofSociologyofLaw,Onati.He
isafellowoftheAustralianAcademyofSocialSciences.Hismostrecentbookis
PhilipSelznick.IdealsintheWorld(StanfordUniversityPress,2012).In2005,he
published Civil Passions: Selected Writings (Black Inc, 2005), a selection of his
essays on matters of public debate. Between Fear and Hope. Hybrid Thoughts on
Public Values (ABCBooks, 1997) isbasedon his Australian BroadcastingCom-
mission 1997 Boyer lectures. He has edited and contributed to Spreading
DemocracyandtheRuleofLaw?(SpringerVerlag,2006),RethinkingtheRuleof
Law after Communism (CEUPress, 2005),Communityand Legality: TheIntel-
lectual Legacy of Philip Selznick (Rowman & Littlefield, 2002), The Rule of Law
after Communism (Ashgate, 1999), Marxism and Communism. Posthumous
Reflections on Politics, Society, and Law (Rodopi, 1994), and Bureaucracy: The
Career of a Concept (Edward Arnold, 1980). Apart from academic writings, he
contributestojournalsofideasandpublicdebate.
ZacharyManfrediisstudyingforaJDatYaleLawSchoolandisaPhDcandidate
intheDepartmentofRhetoricatUniversityCollegeBerkeley.AtYaleheserves
as president of the American Constitution Society and participates in the
Worker and Immigrant Rights Advocacy Clinic. His research interests include