A while ago, Daniel Zamora’s (re)publication of a series of essays designed to say that Foucault ended up embracing neoliberalism caused quite a stir in the blogosphere. As one of those invited to contribute to a forum in An und für sich), I argued that Foucault saw both that neoliberalism realized the need to create markets (as opposed to liberalism’s assumption that they just happened), as well as the need to create homo economicus as a form of subjectification. As I put it then:
“That insight – which treats homo economicus as the central project of neoliberal ethical subjectification – seems to me to have a lot of traction, as it draws attention to, and makes visible some connections between, a diverse set of techniques of governance that would otherwise appear disconnected. For example, the U.S. shift in worker retirement packages from “defined benefit” pensions to “defined contribution” 401(k) plans over the course of the 1980s is an excellent example of the drive to treat workers as entrepreneurs of themselves (as are efforts to transfer risk to individual workers, etc.). But it also coordinates with late 1990’s revisions in copyright law, the effect of which is to enable digital rights management routines that force users to watch advertising and copyright notices prior to seeing a movie, thereby educating those users that they are consumers. It helps us to explain the treatment of higher education in terms of “return on investment” (it should be remembered that Becker’s Human Capital was about education). It also gives us something to say about the appalling disrespect for privacy ensconced in the “click here to accept” models of privacy “self-management,” which are universally presented as how privacy should be understood, and nearly universally acknowledged as failing. It even explains the rise of behavioral economics, as the discipline dedicated to the study of how individuals fail to behave as homo economicus, and how to remedy the situation.”
The other day I read Miguel Vatter’s take on the issue (“Foucault and Hayek: Republican Law and Civil Society,” in Lemm and Vatter, eds., The Government of Life: Foucault, Biopolitics, and Neoliberalism (Fordham UP, 2014). I haven’t read the whole volume yet, but the essays are by first-rate Foucault scholars, and Vatter is a first-rate political theorist). Vatter pursues a novel thesis, and it’s one I’m not ready to endorse in its entirety, but it does a very good job of explaining the evidence on the table: that Foucault is, in essence, defending classical republicanism against (neo)liberalism. Neoliberalism – and here, Vatter follows Hayek’s work closely – stands for the proposition that it is wrong for the state to attempt to move the people (indeed, even to think of a “people” as opposed to a “population”) towards any substantive notion of the good life. For Hayek, suggests Vatter, there’s really two kinds of law: legislative (which is bad, because it tries to impose some notion of the good life on the polis, and/or tries to move the polis in that direction), and judicial (which is good, because it says the polis can’t do that).
So this (this is me, not Vatter) is the deeper philosophical meaning behind the rantings against the Soviet (and British welfare) state in Road to Serfdom, and it’s the normative part of the endorsement of markets. As far as Hayek is concerned, economic freedom is both logically prior to and necessary for all other forms of freedom, and he wants to sound a warning: “we have progressively abandoned that freedom in economic affairs without which personal and political freedom has never existed in the past” (Road, 13). At the same time, markets don’t arise spontaneously, and their creation is the proper object of law: “probably nothing has done so much harm to the liberal cause as the wooden insistence of some liberals on certain rough rules of thumb, above all the principle of laissez faire” (Road, 17). All that rhetoric about the “rule of law” in Serfdom – which, recall, Hayek says in the introduction is more important than the economic efficiency arguments of the earlier chapters – is in a sense, dissembling: “law” for Hayek means the insertion of individuals in markets, where there is no substantive notion of the good applied to them (we will leave aside for now the obvious complaint that the thesis that markets are good is a substantive one!).
Hayek puts these strands of thought together as follows:
“The liberal argument is in favor of making the best possible use of the forces of competition as a means of co-ordinating human efforts, not an argument for leaving things just as they are. It is based on the conviction that, where effective competition can be created, it is a better way of guiding individual efforts than any other. It does not deny, but even emphasizes, that, in order that competition should work beneficially, a carefully thought-out legal framework is required and that neither the existing nor the past legal rules are free from grave defects. Nor does it deny that, where it is impossible to create the conditions necessary to make competition effective, we must resort to other methods of guiding economic activity. Economic liberalism is opposed, however, to competition’s being supplanted by inferior methods of co-ordinating individual efforts. And it regards competition as superior not only because it is in most circumstances the most efficient method known but even more because it is the only method by which our activities can be adjusted to each other without coercive or arbitrary intervention of authority” (Road,36).
In other words, nomos names a very specific formal concept for Hayek, and insofar as it represents a commitment to “freedom” for all individuals, it requires that market normativity extend into all areas of life.
One merit of Vatter’s thesis is that it allows one to draw a very bright line between Hayek and Foucault:
“In Foucault and Hayek, it is life itself (zoe) that provides the norms that constitute the individuality or subjectivity required by the capitalist economy. The difference is that Hayek embraces this rationalization, while Foucault criticizes it. In other words, Foucault’s theory of biopower offers a new basis for the critique of political economy, and it is the only one … which situates itself at the level of the ontology of the economic because it treats the fundamental economic ‘problem’ of the coordination of expectations and its ‘solution’ provided by the free or competitive market” (172).
“The juridical framework of neoliberalism requires that law be understood explicitly in antirepublican terms … in neoliberalism, the law is no longer intended to organize citizens as law-giving subjects into a free people (civitas). Instead, the law favors negative liberty (“free choice” and “pursuit” of self-interest) which, in turn, compels subjects to conduct themselves with respect to each other by following those legal norms that structure the spontaneous order of the free market (societus). This neoliberal conception of law refuses to see citizens as equal members of a people, in accordance with a constitution. Instead, it sees them as nothing more than specimens of a population who are subject to a normative order: a normative order on which they become entirely dependent (alieni iuris)” (178).
In this context, when Foucault says his goal, and the goal of his critique is to be a “governed a little less” and perhaps to “refuse what we are” (“Subject and Power”), the stakes are in part our dependence on the normative order. Perversely, the problem with the neoliberal order is that it demands absolute dependency. You are not allowed to think or act outside its edicts, no matter how many times you are told you are “free.” To take an example from digital rights management in copyright, you are free to watch the DVD you purchase here in the U.S. indefinitely many times. You are probably not free to play it in another country, and you are also probably not free to access the material without looking at a copyright notice (as you can easily do with, say, books).
“Free” becomes a matter of expressing consumer brand preference within a space the contours of which are fundamentally those of markets. In this example, DRM either coerces or nudges market-compliant behavior, where individual users use products in the way their producers prefer. Indeed, one might speculate that this is why parrhesia – the ability, with frank speech, to actually challenge (this is why if it’s not dangerous to the speaker, it’s not parrhesia) that order – becomes so interesting to Foucault in his last lectures. It isn’t liberal free speech as a matter of expressing brand preferences, but trying to think about a space where expression could fundamentally challenge the nomos behind our economic order. To paraphrase Haraway, for Foucault, neoliberal books on freedom are like “Harlequin romances as a marker of radical change in American white heterosexuality: they get it wrong, but they are on the right subject.”