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Neoliberalism: From Law to Resistance


Christine Schwöbel-Patel (@CSchwobelPatel) is an Associate Professor at Warwick Law School.

This is the first of a series of posts on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

9780674979529There are two recurring themes about neoliberalism and law. One of the themes (often voiced by the Right) is that neoliberalism has become a type of bogeyman, standing in for everything privatized, profit-driven, inequality-creating. Another recurring theme (often voiced by the Left) is that neoliberalism has been entirely ignored by lawyers, who believe that what they are doing does not really relate to the de facto inequalities of the global economy. Commentators on neoliberalism therefore either consider it as tediously omnipresent or as worryingly absent. Quinn Slobodian’s recent brilliant book Globalists addresses both of these themes, providing nuance to those troubled by neoliberalism and urgency to those (so far) untroubled by it. Apart from the elucidation of neoliberalism, Slobodian also gently but decidedly points us in the direction of possible routes for reclaiming internationalism from the Globalists.

From Slobodian we learn some vital things about neoliberalism which compel more nuance in the use of the term. It should be said that what we learn does not make neoliberalism more benign, but rather it allows us to pinpoint when and how neoliberalism came to be the dominant project – and with that possible modes of resistance against it. For international economic lawyers who believed that politics and ideology are outside of the discipline’s ‘neutral’ legal structures, the book should be more than simply an eye-opener; it should lead to a profound and devastating revelation of how international economic law is deeply implicated in inequality today.

The strength of the argument lies in a successful, and extremely engaging, methodology: Slobodian places neoliberalism in a particular intellectual history (beginning with the end of the Habsburg empire in the early 1920s) and provides a sharp structural analysis of the relationship between the state and the market. In international law, there has been a growing interest in the people behind concepts and ideas (see for example Philippe Sands’ work); there has also been increased attention to a structural critique of international law, in particular in linking international law to empire and the continuing coloniality which emerges from that (see for example Jennifer Pitts’ recent book). But it is rare to come across work which combines a closer look at the ‘people behind projects’ – to misquote David Kennedy – with a structural global view.

At the centre of the neoliberalism tale are a group of men who Slobodian believes have been under-researched in the origins of neoliberalism. The ‘Geneva group’ includes the more familiar figure of von Hayek and the less familiar, although crucially central, Ludwig von Mises, Gottfried Haberler, and Wilhelm Röpke. For these men, neoliberalism is by no means about the receding of the nation state in favour of a free market.  Instead, the nation state is central for the working of the market due to the recognition that ‘the market does not and cannot take care of itself’ (Slobodian, 2). Provocatively, even blasphemously for some, Slobodian compares neoliberals in this register to John Maynard Keynes and Karl Polanyi. Neoliberalism, then, is not a project to give capitalism a free rein, but rather a project that provides the legal-institutional framework for capital to move across borders, where both nation states and law play a critical role. Neoliberalism is, according to Slobodian, a ‘specific institution-building project’ (Slobodian, 5). International institutions critically protect the market by means of keeping democratic contestation out – the institutional set-up which Slobodian describes as ‘encasing’ the market.

This explains a lot about the international economic order today and it also provides clarifications about the relationship between capitalism, democracy, and law. First, it explains that nationalists can also be globalists, so long as the globalism in question makes capitalism work. Second, it adds substance to the inkling that the economic is decidedly inaccessible to democratic contestation, particularly the type of contestation that seeks redistribution. Third, it makes sense of what comes next, after the account of Globalists ends in the early 1990s, namely, the nascent WTO and the growing appeal of debates around global constitutionalism which attempt to lock in the division of the public and the private on a global scale.

A few themes are omitted or underemphasised in Slobodian’s account, but his book nevertheless points us to them and invites us to understand connections: Hayek, for example, is best known to (international) lawyers for his work on the rule of law. In setting out Hayek’s preoccupation with global order, Globalists strengthens arguments which have tied promoters of the rule of law to capitalism. Moreover, although the book’s subtitle suggests neoliberalism as beginning with The End of Empire, the analysis nevertheless compels one to ask questions about continuations of empire. It is a shame that Slobodian is not more explicit about this. In a similar vein, Slobodian perhaps expresses too much surprise at one of the key neoliberal thinker’s racism (specifically regarding the South African apartheid state) on behalf of capitalism. Even a mere cursory consideration of the legacies of slavery from empire, manifesting in contemporary institutional racism, should indicate the relationship between neoliberalism and racism. Also, notably absent from the account are women – sure, this is the limitation of subject-matter of an intellectural history – but women are also absent in other ways, including in the secondary literature (I am thinking of the work of Claire Cutler, Deborah Cass, and Susan Marks). So although Slobodian does not expressly make this claim, the signs are clear that neoliberalism continued an imperial, racialized, and gendered system by other means.

We learn another crucial thing from Slobodian, namely, small but significant openings for resistance and thinking-otherwise: In Globalists, neoliberalism was, and continues to be, in competition with other utopian projects. Indeed, neoliberalism has taken on the form it has today because of this competition. This allows us to see neoliberalism as an anxious and weakened project. There are concrete signs of this weakness: in the extraordinary 2016 report by the IMF (the most neoliberal of neoliberal organisations) acknowledging that neoliberal policies have failed at tackling inequality; or in the desperate attempts of neoliberal institutions to market themselves – Slobodian cites WTO director-general Mike Moore declaring after the Seattle protests ‘We’ve got to rebrand!’ (Slobodian, 276). Marketing, as the practice of selling a product or service, is mostly employed by non-profit-generating entities when there is an urgent need for legitimation. Finally, the global rise of populism (on the Left and on the Right) indicate the repoliticisation of the economy – something that the neoliberals have tried so hard to suppress.

If we are to think of resistance and alternatives, we might, Slobodian leads us to conclude, look at moments in which neoliberalism was deemed to be under threat or weakened – where the competition became dangerous for the institutional project. We can see this predominantly in events which witnessed a fighting back of democratic impulses, despite being subsequently reined in and suppressed by economic and state institutions, which stepped in for the protection of capital. From Slobodian’s account, we might pick out three important points in history when the neoliberal order was deemed to be under threat due to international solidarity movements: The workers movements of the early 20th century which coincided with universal male suffrage, the New International Economic Order of the 1970s, and the anti-globalization movement of the late 1990s. Organised labour at the beginning of the 20th century, spurred on through the work and legacies of Left radicals such as Rosa Luxemburg and Karl Liebknecht calling for general strikes, reminds us of the power of international solidarity movements. The New International Economic Order teaches us of the potential power which the Global South has if it unites in solidarity against the exploitations of labour and natural resources. Choosing carefully the forum in which one-state-one-vote prevails and a reliance on the dominant language of self-determination highlights the tactics of the many in a strategy of anti-imperialism. And the anti-globalization movement of the 1990s reminds us of projects of politicizing the global economy through self-empowered alliances, particularly grassroots movements.

The key, as was the case in these resistance movements, is to connect the nodes of resistance which already exist and which compete with neoliberalism. Drawing attention to the structural inequalities, and the institutions which uphold it, is an essential element to reclaim internationalism from neoliberals. Given that Globalists is also most convincingly an intellectual history, one is of course ultimately left wondering – and worrying – who is it that might be at the centre of this resistance project to counteract the reforms and rebrands of the neoliberal project and its intellectual leaders? These questions, along with others around the role of law and democracy in resistance remain, and Slobodian has set us up well in moving forward to tackle them.