To explore these tentative diagnoses and conceptualizations we called for papers engaging different aspects of law\u27s subjectivity turn. A selection of papers that map the possible genealogies for the emergence of post-neoliberal law, address the implications of anthropomorphic corporate regulation, or analyze transformations in sovereign subjectivities is now published in this symposium issue. The papers take up and make salient an array of the big questions of our day.
While overlapping, the papers can be broadly divided into two categories. The first category consists of papers that explore the internal make-up of legal and regulatory subjectivities. Drawing on history, queer theory and regulation studies, among others, the papers explore the most pertinent questions about the interaction of law with those it regulates.The second category of papers probes into the composition of the post-neoliberal order. Grounding the analysis in investment law, human rights, and contractual regimes, the papers expose a number of techniques through which the contours of post-neoliberal world[s] are shaped and contested

Kastner, Tal

Rajavuori, Mikko

Viljanen, Mika, Dr

English

Indiana University Bloomington Maurer School of Law

Indiana Journal of Global Legal Studies Volume 23 Issue 2 Article 1 Summer 2016 Introduction: Imagining Post-Neoliberal Regulatory Subjectivities Mika Viljanen Dr University of Turku, mivevi@utu.fi Mikko Rajavuori University of Turku, mijora@utu.fi Tal Kastner Princeton University, talkastner@gmail.com Follow this and additional works at: https://www.repository.law.indiana.edu/ijgls  Part of the Comparative and Foreign Law Commons, Economic Policy Commons, Legal Theory Commons, and the Political Theory Commons Recommended Citation Viljanen, Mika Dr; Rajavuori, Mikko; and Kastner, Tal (2016) "Introduction: Imagining Post-Neoliberal Regulatory Subjectivities," Indiana Journal of Global Legal Studies: Vol. 23 : Iss. 2 , Article 1. Available at: https://www.repository.law.indiana.edu/ijgls/vol23/iss2/1 This Symposium is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Journal of Global Legal Studies by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact rvaughan@indiana.edu. Introduction: Imagining Post-NeoliberalRegulatory SubjectivitiesMIKA VILJANEN, MIKKO RAJAVUORI, AND TAL KASTNERNeoliberalism, as an abundantly flexible intellectual scheme and setof governance programs, has dominated governance techniques for closeto fifty years. In this time, both the doctrines and their real-worldapplications have evolved at a rapid pace and moved far beyond theintellectual principles formulated in the 1936 Colloque Walter Lippman,from which the doctrine emerged.1 Neoliberal doctrine has transformedinto an exceedingly variable, opportunistic, and at times, contradictoryset of dicta, aspects of which have inverted and reimagined many of itsprior intellectual fundaments.2 On the level of practical governanceprogram, neoliberalism has metamorphosed "from dogmaticderegulation to market-friendly reregulation, from structuraladjustment to good governance, from budget cuts to regulation-by-audit,from welfare retrenchment. to active social policy, from privatization topublic-private partnership, from greed-is-good to markets-with-morals."3.Neoliberal legal regimes4 have also taken numerous forms. Thestraightforward deregulatory programme of early roll-backneoliberalism has been replaced by increasingly intensive, conceptuallyvariegated, pro-market, technocratic and undemocratic re-regulatoryinterventions5, which, conceptually, seem to share little besides afundamental belief in the power of markets, price mechanisms, andmarket actors, in various configurations and deployments, to do betterthan their alternatives.1. DANIEL STEDMAN JONES, MASTERS OF THE UNIVERSE (2014).2. Manuel B. Aalbers, Neoliberalism is Dead... Long Live Neoliberalism! 37 INT'L J.URBAN REGIONAL RESEARCH 1083, 1083-1090 (2013); Mitchell Dean, RethinkingNeoliberalism, 50 JOURNAL OF SOCIOLOGY 150-163 (2014).3. Jamie Peck, Zombie Neoliberalism and the Ambidextrous State, 14 THEORETICALCRIMINOLOGY, 104, 106 (2010).4. David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77LAW AND CONTEMPORARY PROBLEMS 1 (2014).5. Aaron Major, Neoliberalism and the New International Financial Architecture, 19REV. OF INT'L POL. ECON. 536-561 (2012).Indiana Journal of Global Legal Studies Vol. 23 #2 (Summer 2016)© Indiana University Maurer School of LawINDIANA JOURNAL OF GLOBAL LEGAL STUDIES 23:2"New governance" techniques-principle-based regulation,management-based regulation, meta-regulation, risk-based regulation,and enrolment strategies6 - constitute the bulk of the innovativeinstruments in the re-regulatory neoliberal legal toolbox. Thesetechniques destabilize the traditional state-centered, binding legaltemplate that dominated the earlier roll-back neoliberal and pre-neoliberal legal regimes. They do so by granting regulated entities adegree of autonomy within loose regulatory frameworks. In the process,these techniques respect and often replicate the practices and normsthat regulated entities have developed. They thereby relocate regulatorypower from democratic processes to technocratic and often capturedbodies, and, typically, encourage the state to recede from its formerdominating position.7One underexplored facet of these new governance techniques istheir relation to the subjectivity-the internal organization, goals, andcognitive frames and processes-of the regulated entities. For example,the regulatory impact of some of the Basel banking regulation rules,the ISO 26000 Guidance on social responsibility or the OECD Principlesof Corporate Governance stems from a distinctive-and provocative-mechanism. Rather than establishing first-order behavioral dutiesaligned with the regulatory objectives, these regulatory instrumentsseek to attain their behavioral goals indirectly, by addressing how theirsubjects should construct themselves as actors.8 To illustrate, whatbanks are likely to do, for example, will be significantly altered, oncethey have complied with the Basel Accord rules on the Internal CapitalAdequacy Assessment Program.These regulatory schemes manifest a suggestive phenomenon: lawseeks to work by using procedure to implement subject-internalstructures that will increase the likelihood of the subject choosingcertain courses of action over others. This points to the ways theseschemes-engaging legal frameworks-function by purposely andeffectively manipulating the agency or-in anthropomorphic terms thesubjectivity-of the regulated entities.9 This legal impact channel seemsnovel. Most lawyers and legal scholars are not accustomed to think thatlaw will explicitly aim to change its subjects. To the contrary, a widely6. See e.g. Julia Black, Paradoxes and Failures: "New Governance" Techniques andthe Financial Crisis, 75 MOD. L. REV., 1037, 1037-1063 (2012).7. Id.8. See e.g., Christopher Carrigan & Cary Coglianese, The Politics of Regulation: FromNew Institutionalism to New Governance, 14 ANNUAL REV. OF POL. SC., 107, 114 (2011).9. See John McMahon, Behavioral Economics as Neoliberalism: Producing andGoverning Homo Economicus, 14 CONTEMP. POL. THEORY, 137, 137-158 (2015), onimplications on behavioral economics and nudging.INTRODUCTIONaccepted philosophy of ex ante rational subjects'0 renders the legalsubject as a self-determining entity that legal regulation ought notexplicitly seek to penetrate. Of course, law impacts and is impacted byits subjects' subjectivity as argued by for example, feminist,"postcolonial,12 and black13 studies inspired by Foucault14 and Butler'5.These effects, however, have not typically been the explicit purpose oflegal regulation, but rather-sometimes convenient-side-effects.This tentative realization informed a call for papers that went out inJune 2014. A shift in the regulatory approach to confront subjectivityseemed to be underway, portending to pose challenges to legal theory.Despite an initial, instinctual anxiety over the ethical implications,purposeful regulatory shaping of subjectivity seemed to carry with it apromise of post-neoliberal legal futures.16 The turn toward thisapproach presents an ironic conceptual twist given its origin in theneoliberal regulatory agenda. The homo economicus neoliberalisl7-however boundedly rational and imperfectly informed-that hadresided at the center of the conceptual structure of legal neoliberalism,seemed radically denaturalized. The transformation seems to expose thefree, self-sufficient individual as the product of contingent technologicalassemblages, rationality practices and dynamics of power. Thedenaturalization of the archetypal neoliberal subjectivity-challengingthe presumption of identity, desire, ethical inclinations, free will, amongothers, as arising from within a bounded legal subject-opens a newspace for ethical struggles. Once we begin to explicitly reimagine thebounds of the self, the privileged position of neoliberal subjectivitybegins to unravel as a design. As a result, the playing field isfundamentally levelled: regulation becomes a battlefield of multipleethics and the concomitant assemblages of markets and, mostimportantly, subjectivities.10. Robert Baldwin, From Regulation to Behaviour Change: Giving Nudge the ThirdDegree, 77 MOD. L. REV. 831,831-857 (2014).11. See, e.g., Nicola Lacey, The Constitution of Identity: Gender, Feminist Legal Theory,and the Law and Society Movement, in THE BLACKwELL COMPANION TO LAW AND SOCIETY471-486 (Austin Sarat ed., 2004).12. EFRtN RIVERA RAMOS, THE LEGAL CONSTRUCTION OF IDENTITY: THE JUDICIAL ANDSOCIAL LEGACY OF AMERICAN COLONIALISM IN PUERTO RICO (2001).13. Kimberl6 Williams Crenshaw, Race, Reform, and Retrenchment: Transformationand Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331-1387 (1988).14. Michel Foucault, Technologies of the self, in ETHICS: SUBJECTIVITY AND TRUTH 223-252 (1997).15. JUDITH BUTLER, THE PSYCHIC LIFE OF POWER (1997).16. Damien Cahill, Beyond Neoliberalism? Crisis and the Prospects for ProgressiveAlternatives, 33 NEW POLITICAL SCIENCE, 479, 479-492 (2011).17. Clive Barnett et al., The Elusive Subjects of Neoliberalism: Beyond the Analytics ofGovernmentality, 22 CULTURAL STUDIES, 624, 624-653 (2008).INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 23:2To explore these tentative diagnoses and conceptualizations wecalled for papers engaging different aspects of law's subjectivity turn. Aselection of papers that map the possible genealogies for the emergenceof post-neoliberal law, address the implications of anthropomorphiccorporate regulation, or analyze transformations in sovereignsubjectivities is now published in this symposium issue. The paperstakeup and make salient an array of the big questions of our day.While overlapping, the papers can be broadly divided into twocategories. The first category consists of papers that explore the internalmake-up of legal and regulatory subjectivities. Drawing on history,queer theory and regulation studies, among others, the papers explorethe most pertinent questions about the interaction of law with those itregulates. The second category of papers probes into the composition ofthe post-neoliberal order. Grounding the analysis in investment law,human rights, and contractual regimes, the papers expose a number oftechniques through which the contours of post-neoliberal world[s] areshaped and contested.Situating the impacts of the subjectivity turn in the present, theissue begins by confronting the past. In her contribution, Tara Helfmanweaves a compelling historical narrative detailing the emergence of thecorporate subject in the Anglo-American judicial tradition and, in doingso, develops a suggestive notion of corporate conscience. Focusing onbureaucratic regulatory subjects, Mika Viljanen and Jacob Schemmelshed light on the formation of novel subjectivity regulation schemes.While Viljanen maps the intrusive framework of the Basel Accords,Schemmel uses the ESA-Guidelines, a curious soft law instrument, asan analytical lens through which lawmakers approach "substantiveprogramming" of regulated bureaucratic organizations.Shifting the focus to the level of the individual subject, ChantalNadeau, relying on Roberto Esposito's notion of immunity, traces thetectonic changes in the construction of queer subjectivities, suggestingthe emergence of the "Global Gay" as a useful analytical category. In asimilar vein, Tal Kastner makes salient the ways American andEuropean consumer contract regimes engender distinct consumersubjectivities. Finally, grounding her narrative in disaster assistanceschemes, Susan Sterett analyzes emotional subjectivities. Identifyingbureaucratic documents as the site of many people's encounters withlaw, Sterett examines how these documents elicit and bracket offemotional responses by recognizing people's connections to home.Against the backdrop of this rich discussion of the formation andmaintenance of individual and collective subjectivities, the contributionsby Nicolds Perrone, Joe Wills & Ben Warwick, Mikko Rajavuori, andJaakko Salminen focus on the techniques through which post-neoliberalINTRODUCTIONorders could be shaped. Surveying changes in the internationalinvestment regime, Perrone argues that the oft-suggested "balancing"adjustments to the investment system are extremely unlikely todisplace the paradigm of neoliberal legality. Wills and Warwick, on theother hand, analyze the potential and limitations of socioeconomicrights in shaping the "post-neoliberal" order. Along similar lines,Rajavuori sheds light on the extent to which contemporary business andhuman rights governance identifies the market as the most efficientmedium for the human rights enterprise. Stepping away from the realmof public international law, the article by Salminen discusses contractboundary spanning governance mechanisms as a key potential key leverin the governance of global production. Collectively, these contributionsdemonstrate the deep reliance on neoliberal techniques in contemporaryglobal governance.Finally, as an intervention transcending the subjectivity/techniquedivide, David Wishart, unsatisfied with the notion of subjectivity,explores alternative ways for construing legal persons.True to the initial call, the papers in this issue confront what itmeans to be a human subject and what the bounds of the human subjectare. As they do so, they also take on the issue of the non-human subjectand the implications for the regulation and welfare of human beings asa result (see, e.g., contributions by Viljanen, Nadeau, and Helfman). Inthe process, the papers raise questions about the bounds betweenprivate and public and between the local and the regional, as well as therelation of a subject to a legal regime more generally (see, e.g.,contributions by Nadeau, Perrone, and Rajavuori). In this context, thepapers also confront the forms that law takes, and the ways these formsimplicate or are implicated by power and efficacy (see, e.g.,contributions by Salminen, Willis & Warwick, Schemmel, and Perrone).The papers pursue the questions of how these commonly-invokeddistinctions and categories are constructed in connection with law andhow these categories facilitate, undermine or otherwise impactexperience, human interaction, the exercise of power, and thedevelopment of identity (see, e.g., contributions by Sterett, Kastner, andNadeau). Moreover, the papers take up the question of how we mapthese categories. In other words, what is the space/place of law and arethe phenomena of our era something new in time (see, e.g.,contributions by Perrone, Wishart, and Sterett)?By considering the function of post-neoliberal regulation, we arealso necessarily raising the question of value and values: What are thegoals of regulation or of interventions in markets? What other ways dowe or can we imagine value? How does law in different contexts define,impose, impact, or reflect value (or values) in a global framework? To382 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 23:2what extent and by what processes does/can law regulate value--or doesvalue drive law? Moreover, how does value in this framework shape thesubject or vice versa? In this context, considering regulation andsubjectivity, these papers address the questions of who is acting andhow they act. In doing so, the papers trace the channels of power thatenable the action. More fundamentally, these papers collectively posethe question of whether the subject-and/or subjectivity--can beunderstood independent of law. All of which leads back to the importantquestion the papers individually and collectively take up: How do we-whether as scholars, regulators, social architects, or leaders-and howought we define these terms, and what impact does or should a globalperspective have on how we do so?Independently, these questions have been engaged by legalthinkers, theorists, and social scientists. This collection however putsthem in conversation across disciplines and regional perspectivesdemonstrating the richness of the endeavor to understand subjectivityin legal context in the current post-neoliberal and global age.

Introduction: Imagining Post-Neoliberal Regulatory Subjectivities

https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1616&context=ijgls

Introduction: Imagining Post-Neoliberal Regulatory Subjectivities

Abstract

Similar works

Full text

Available Versions

Indiana University Bloomington Maurer School of Law