By Gordon Hull
It has seemed to me for a long time that one helpful theoretical lens through which to look at neoliberalism is to understand it as a phase (or perhaps a dispositive) of biopower. This is because neoliberalism does not generally rely on juridical rules (or tried to colonize the judiciary), it pushes for the marketization of everything, and involves an elaborate state apparatus to support that marketization. It also functions as an engine of subjectification, actively attempting to turn everyone into instantiations of homo economicus, whether directly by state action, or by way of empowering private actors. Even school students are quietly taught the ropes. The incessant demands for privatization have put enormous pressure on the public sector, both in the starvation of funding cuts and the efforts to privatize it. That, in turn, has led to such monstrosities as private prisons.
That said, today’s neoliberal biopolitics obviously needs to be distinguished from the biopolitics that came before, which was, as Foucault discussed, centered at the population level, concerned with birth rates, longevity, and so on (hence the distinction is readily apparent in health policy). One of the hallmarks of the emergence of biopolitics is the rise of the administrative state; as the state comes increasingly to try to optimize the population, an elaborate administrative apparatus – a large state bureaucracy – emerges to fill these functions. This does not mean that there are no more laws. Indeed, Foucault emphasizes that the biopolitical era involves multiple sites of power, both inside and outside the state:
“We have the economy, population management, law with the judicial apparatus, respect for freedoms, a police apparatus, a diplomatic apparatus, and a military apparatus. You can see that we can perfectly well construct a genealogy of the modern state and its apparatuses that is not based on, as they say, a circular ontology of the state asserting itself and growing like a huge monster or automatic machine” (Security, Territory, Population, 354).
That said, we increasingly see the integration of judicial process into the processes of administration. Thus, one “consequence of this development of bio-power was the growing importance assumed by the action of the norm at the expense of the juridical system of the law” (History of Sexuality 1, 144). At the same time, “the judicial institution in increasingly incorporated into a continuum of apparatuses (medical, administrative, and so on) whose functions are for the most part regulatory” (HS1 144; cf. STP 351-4). Thus, “what is important for our modernity, that is to say, for our present, is not then the state’s takeover of society, so much as what I would call the ‘governmentalization’ of the state” (STP 109). I recite these quotes (more could be adduced) to contextualize what follows; in particular, I think it is important in thinking through Marx’s remarks on bureaucracy, about which more in a moment.
Wednesday, we got to see how the transition from one biopolitical apparatus to another happens. The Senate voted 50-50, with Mike Pence (be afraid of a hypothetical President Pence!) casting the Vice-Presidential tiebreaker, to stop a regulation that ensured consumer access to the courts when their financial institutions behave badly. Instead, consumers will be bound by mandatory arbitration clauses, found buried in nearly all significant consumer interactions with financial institutions. These clauses stipulate that, in the event of consumer complaint, consumers are contractually required to agree to extra-judicial arbitration proceedings (with the arbitrator appointed by the financial institution, of course), and then to accept the results of those proceedings as final. They are contractually prohibited from accessing the judicial system.
That news needs to be set alongside pending litigation at the Supreme Court on the topic of administrative patent rules: the current patent statute (the America Invents Act) establishes an administrative procedure for adjudicating challenges to patents, and has the power to revoke previously issued patents. The plaintiffs on that case are challenging the administrative procedure on the grounds that it takes property without judicial process, in violation of the Constitution. The Supreme Court has been very wary of patents recently, and I think there is plausible reason to believe they will side with the plaintiffs on that one. Let’s assume for the moment that the plaintiffs win in the patent case, and the banks win in the consumer finance rules.
First lesson, and no surprise: the claims of consumers are worth less than those of investors in patents. The latter are “producers” and “innovators,” and their interests almost always win these days. Consumers can be required to consent to a process that patent holders argue, with considerable justification, is intolerably arbitrary. But notice the other point: the administrative procedure – extra-judicial arbitration – is being transferred from the state bureaucracy to private corporations. Here is where I think Marx is instructive. In his critique of Hegel’s praise of state bureaucracy, Marx characterizes the bureaucracy as the state appropriation of the function of a corporation:
“The ‘bureaucracy is the ‘state formalism’ of civil society. It is the ‘state-consciousness,’ the ‘state will,’ the ‘state power’ in the form of a corporation, i.e. of a particular, self-contained society within the state …. However, the bureaucracy wants the corporation as an imaginary power. It is true that the individual corporation wants to maintain its own particular interest against the bureaucracy, but it also needs the bureaucracy against other corporations, against other particular interests. Hence, as the perfect corporation, the bureaucracy triumphs over the corporation as the imperfect bureaucracy. It therefore disparages the corporation as an appearance, or wishes to do so, but at the same time it requires this appearance to exist and to believe its own existence. The corporation represents the attempt by civil society to become the state; but the bureaucracy is the state which has really made itself into civil society” (Early Writings, 106-7).
What we see today is the partial inversion of this state of affairs. Here, the privatization of state functions creates the corporation as the perfect bureaucracy, as it takes over the bureaucratic functions of the state, while still requiring the state’s suppression of civil society as the basis for its power. Notably, this inversion does not eliminate the existence of the state or of state coercion. But it does divide it along class lines (I am not saying this division is new: the rich have much greater access to the state as well, as an examination of the bail system or of the sorry conditions under which public defenders work will attest). Corporate “producers” defeat the bureaucracy in the name of juridical rights, while “consumers” are shunted into the privatized state bureaucracy at the explicit expense of juridical rights. Consumers, then, are directed to deal with the privatized version of administrative procedure. No surprise, arbitration generally favors the corporations who lobbied to defeat consumer protections in the Senate. According to the CFPB (per the NPR report cited above), class actions paid out about 1,000 times more money to consumers overall than consumers got through arbitration. The banks have got to be getting tired of all the winning, no?
Recent Comments