European Constitutionalism: The Neoliberal Drift

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Alexander Somek

9780674979529We have not yet seen the full story of “law and neoliberalism”, even though a number of legal scholars have written on related subjects from slightly different angles. Duncan Kennedy, for example, has repeatedly attempted to tease out and to distinguish periods of globalized legal scholarship. Herb Hovenkamp recently presented a sweeping account of the imprint that Darwinism and marginalism left on American law. As early as in the 1970s and 1980s, proponents of the critical legal studies movement, such as Roberto Unger or Mark Kelman, pointed out that the modern legal system as such lends expression to the values of liberal individualism (again, it is Kennedy to whom we owe important contributions in this context). Inadvertently, Kelman’s penetrating critique of Chicago school style law and economics, in which he was joined by many others, turned out to be the first critique of typically neoliberal legal thinking, even though it had grown out of the attempt to expose the pathologies of “liberal legal consciousness” tout court.

What we have now seen with the publication of Slobodian’s Globalists, is how, and in which respect, economic neoliberalism has fed into the emergence and growth of global and regional transnational legal institutions. As Slobodian artfully demonstrates, this connection is by no means accidental, it is, indeed, a consequence of the belief in the existence of a world economy. If the economy is in fact an entity of global expanse, the old liberal demand that the state not unnecessarily interfere with society has to be extended to external relations. States must not pursue protectionist policies nor affect adversely the interests of foreign investors. What is more, integrating the decentralised national regulators of the world economy into some international federal system promises to wipe out redistributive social policies in the long haul owing to intense economic pressures of regulatory competition.

In what follows I would like to underscore the importance of Slobodian’s contribution, for it allows us to perceive more clearly the relevant differences between the US American and the European variety of legal neoliberalism. I would also like to add an example for how the European version reinforces constitutional constraints on national democracies in practice.

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