Introduction: Imagining Post-Neoliberal Regulatory Subjectivities

Neoliberalism, as an abundantly flexible intellectual scheme and set of governance programs, has dominated governance techniques for close to fifty years. In this time, both the doctrines and their real-world applications have evolved at a rapid pace and moved far beyond the intellectual principles formulated in the 1936 Colloque Walter Lippman, from which the doctrine emerged.¹ Neoliberal doctrine has transformed into an exceedingly variable, opportunistic, and at times, contradictory set of dicta, aspects of which have inverted and reimagined many of its prior intellectual fundaments.² On the level of practical governance program, neoliberalism has metamorphosed “from dogmatic deregulation to market-friendly reregulation, from structural adjustment to good governance, from budget cuts to regulation-by-audit, from welfare retrenchment to active social policy, from privatization to public-private partnership, from greed-is-good to markets-with-morals.”³.

Neoliberal legal regimes⁴ have also taken numerous forms. The straightforward deregulatory programme of early roll-back neoliberalism has been replaced by increasingly intensive, conceptually variegated, pro-market, technocratic and undemocratic re-regulatory interventions⁵, which, conceptually, seem to share little besides a fundamental belief in the power of markets, price mechanisms, and market actors, in various configurations and deployments, to do better than their alternatives.

“New governance” techniques—principle-based regulation, management-based regulation, meta-regulation, risk-based regulation, and enrolment strategies⁶—constitute the bulk of the innovative instruments in the re-regulatory neoliberal legal toolbox. These techniques destabilize the traditional state-centered, binding legal template that dominated the earlier roll-back neoliberal and pre-neoliberal legal regimes. They do so by granting regulated entities a degree of autonomy within loose regulatory frameworks. In the process, these techniques respect and often replicate the practices and norms that regulated entities have developed. They thereby relocate regulatory power from democratic processes to technocratic and often captured bodies, and, typically, encourage the state to recede from its former dominating position.⁷

One underexplored facet of these new governance techniques is their relation to the subjectivity––the internal organization, goals, and cognitive 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 Principles of Corporate Governance stems from a distinctive—and provocative—mechanism. Rather than establishing first-order behavioral duties aligned with the regulatory objectives, these regulatory instruments seek to attain their behavioral goals indirectly, by addressing how their subjects should construct themselves as actors.⁸ To illustrate, what banks are likely to do, for example, will be significantly altered, once they have complied with the Basel Accord rules on the Internal Capital Adequacy Assessment Program.

These regulatory schemes manifest a suggestive phenomenon: law seeks to work by using procedure to implement subject-internal structures that will increase the likelihood of the subject choosing certain courses of action over others. This points to the ways these schemes—engaging legal frameworks—function by purposely and effectively manipulating the agency or—in anthropomorphic terms the subjectivity—of the regulated entities.⁹ This legal impact channel seems novel. Most lawyers and legal scholars are not accustomed to think that law will explicitly aim to change its subjects. To the contrary, a widely accepted philosophy of ex ante rational subjects¹⁰ renders the legal subject as a self-determining entity that legal regulation ought not explicitly seek to penetrate. Of course, law impacts and is impacted by its subjects’ subjectivity as argued by for example, feminist,¹¹ postcolonial,¹² and black¹³ studies inspired by Foucault¹⁴ and Butler¹⁵. These effects, however, have not typically been the explicit purpose of legal regulation, but rather––sometimes convenient––side-effects.

This tentative realization informed a call for papers that went out in June 2014. A shift in the regulatory approach to confront subjectivity seemed 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 a promise of post-neoliberal legal futures.¹⁶ The turn toward this approach presents an...