A lively WIP commenced Thursday with Bernard Harcourt presenting his ongoing project (previously seen as one of Chicago's best ideas) on what he calls "neoliberal penality."
The idea behind neoliberal penality is that as the norm against government intervention in the economy has increased, governmental energies have been channeled instead to an ever-increasing carceral sphere. Neoliberalism argues that the market is naturally ordered, and that government intrusion constitutes a distortion that generally should be avoided. By contrast, the penal arena is seen as an appropriate venue for government to flex its muscles. Consequently, the social forces which might press against increased penality are weakened, as crime and punishment are precisely the areas in which government is seen as having the greatest claim to authoritative legitimacy.
The definitive split between self-ordering markets on the one hand, and governmentally-ordered policing on the other, is of relatively new vintage. 18th century French manuals cross-referenced "markets" to "police". Of course, this era was seen as the epitome of over-intrusive government regulation of the marketplace. But Harcourt argues that there is, in all practical terms, very little difference between how Parisian bread markets were ordered then ("by the state"), and how, say, the Chicago Board of Trade is ordered now ("by the free market"). It is, he says, a mistake to characterize one as "regulated" and the other as "deregulated." What has happened is that the market has been reregulated in a certain way that has certain distributional consequences, but there are no grounds to say government is less implicated in one than the other. The false binary between regulated/deregulated supports creating another false dichotomy between market activity (presumptively deregulated) and criminal behavior (presumptively regulated). By breaking the former, we can hopefully remove the corresponding presumptions accorded to market versus (potentially) criminal behavior.
Much of the ensuing discussion focused on the causal link between the rise of the neoliberal ideal and the carceral state. Everyone agreed that there was not a "hydraulic" relationship; that is, that there is a constant amount of governmental energy floating around, and restricting it in one area (economics) causes it to spill out into another (crime control). But the true cause for the expansion of criminalization was hotly contested. Rosalind Dixon argued that a strong ethos of individual responsibility could result in both a neoliberal economic order (opposing social safety nets and protective regulations) and a strong law-and-order mentality ("do the crime, do the time"). Jonathan Masur wondered how the paradigmatic case of criminal overextension -- the drug war -- could be reconciled with the idea of neoliberal penality, given that the "crime" at issue was essentially a market activity.
At the other end, David Strauss urged Harcourt to link his inquiry to the ideas of Burkean-style conservatives, who likewise warned that with the abolishment of historic methods of social controls, all liberals would be left with were the gallows. The idea of the naturally ordered market taking care of itself is just the tip of the iceberg -- it is part and parcel of a larger social rearrangement that saw the deemphasis of social deference, widespread secularization, and the abolishment of traditional hierachies. The problem, from this vantage point, is less any shift in the view of government's proper scope of authority than it is the need to find replacements for the social ordering mechanisms that had been dismissed as illiberal.