Gordon Hull is Associate Professor of Philosophy and Director of the Center for Professional and Applied Ethics at The University of North Carolina Charlotte. His Hobbes and the Making of Modern Political Thought was published by Continuum in 2009.
The conceptual core of Daniel Zamora’s “Can We Criticize Foucault,” in which he argues that Foucault’s late writings end up advocating the same things neoliberalism does, seems to me to be the proposal that Foucault “seemed to imagine a neoliberalism that wouldn’t project its anthropological models on the individual, that would offer individuals greater autonomy vis-à-vis the state.” In a follow-up piece, Zamora concludes that Foucault “doesn’t advocate neoliberalism, but he adopts all of its critiques of the welfare state.” That’s clearly a problem, though I am aware that I’ve got the benefit of a generation of hindsight about neoliberalism. I also don’t know many of the writings in question, and so I’m reluctant to say anything about the (for lack of better terms) sociological and biographical questions at play.
However, I have no trouble saying that if Foucault thought neoliberalism wouldn’t project its models of subjectivity onto individuals, he was mistaken. I’m also not sure he (consistently) thought that: the Birth of Biopolitics lectures emphasized that one of the main innovations of neoliberalism over classical liberalism was precisely the awareness that markets weren’t natural, and had to be nurtured by the state (Bernard Harcourt underscores the point here), and he emphasizes entrepreneurship of the self as a neoliberal vision of subjectivity. Whatever he thought about social welfare programs, phrasing things this way allows us to focus on the important question: Foucault says that “writing only interests me to the extent that it is incorporated into the reality of a battle.” Does Foucault’s writing offer any weapons against neoliberalism, even if he didn’t realize it?
If we focus on the late 1970s texts (avoiding the vexed questions about Foucault’s move to “ethics” in the 1980s, though I’m going to put things in a way that gestures to them), I find the work on biopower – which Zamora barely mentions – consistently very productive, with one significant caveat. When Foucault discusses biopower in History of Sexuality I, it’s to propose that techniques of population management and of disciplinary power are two halves of the same biopolitical coin, and that this kind of governance is emerging at the expense of older juridical models of power. In later interviews (e.g., “Subject and Power”), Foucault makes the claim that he’s always been concerned with how subjects come to be formed. That claim has been treated as an about-face away from power, but it’s not hard to see that the production of certain kinds of subjects – “insane” or “abnormal” or “docile” – was a central focus of nearly all of Foucault’s theoretical work on power.
This gives us a path forward: in the Birth of Biopolitics course, it seems to me that what Foucault achieves is an understanding of neoliberal theory as evidencing a shift in biopower away from older, public health models (social security, sanitation projects, etc.), to more nuanced efforts to mold individuals directly. Nikolas Rose has the authoritative book on this shift in medicine generally, and you can see it in individual cases like smoking cessation programs. It also emerges quite clearly in Foucault’s discussion of Becker and crime: following neoclassical microeconomics, Becker rethinks crime as a matter of balancing incentives. From this angle, neoliberalism needs to be thought as a dispositive of biopower, one that presents a new “truth” for the biopolitical subject, who is supposed to instantiate homo economicus, and when he or she does not, is to be nudged in that direction by adjustments in penality or other social policies (I am not the first to make this sort of point; see, e.g., here and here).
That insight – which treats homo economicus as the central project of neoliberal ethical subjectification – seems to me to have a lot of traction, as it draws attention to, and makes visible some connections between, a diverse set of techniques of governance that would otherwise appear disconnected. For example, the U.S. shift in worker retirement packages from “defined benefit” pensions to “defined contribution” 401(k) plans over the course of the 1980s is an excellent example of the drive to treat workers as entrepreneurs of themselves (as are efforts to transfer risk to individual workers, etc.). But it also coordinates with late 1990’s revisions in copyright law, the effect of which is to enable digital rights management routines that force users to watch advertising and copyright notices prior to seeing a movie, thereby educating those users that they are consumers. It helps us to explain the treatment of higher education in terms of “return on investment” (it should be remembered that Becker’s Human Capital was about education). It also gives us something to say about the appalling disrespect for privacy ensconced in the “click here to accept” models of privacy “self-management,” which are universally presented as how privacy should be understood, and nearly universally acknowledged as failing. It even explains the rise of behavioral economics, as the discipline dedicated to the study of how individuals fail to behave as homo economicus, and how to remedy the situation.
The caveat is that Foucault’s work here doesn’t say enough about law: he tends to downplay the continuing importance of law in general, and the juridical system – the courts – in particular. However, the current regulatory and political environment clearly displays complex interactions between both juridical and biopower, including inside the courts. This matters partly because neoliberal biopower often relies heavily upon statutory or juridical regimes (Exhibit A: “Obamacare”). Indeed, as Duncan Kennedy noted, law sets the “framework of ground rules” where social interactions and bargaining can take place, “including such basic rules as that corporations can ‘own’ factories, that no one ‘owns’ the ocean, that you have no legal obligation to help a starving stranger, that workers can sell their labor and must refrain from taking its product home with them” and so forth (86).
For this sort of reason, Foucault’s tendency not to think of the role of law in subjectification is a significant gap, even if it’s something that neoliberalism tries to hide behind an exoteric libertarianism. We need a lot more analysis of the regulatory state and administrative law, how they have (or have not) become more biopolitical over the last fifty years, and what that means for all of us as subjects. The need for this analysis in the U.S. context is particularly acute, as the Constitution establishes a series of juridical rights. Because these are expressed as juridical rights, and because the Supreme Court legitimates current decisions in part with reference to previous ones, the dynamics of power in the Court don’t cleanly map a juridical/biopolitical dimension. My own, initial forays into this topic, which look at things like the relation of law, juridical and sovereign power in state surveillance; the willingness of courts to use juridical law to achieve biopolitical results in the case of wife-beating laws; and a recent death penalty case; indicate a very complex relation that really has not been studied in the depth it deserves. But the model of subjectivity presupposed by juridical power is not at all like the one presupposed by neoliberal biopower, and it often comes to the courts to negotiate between them.
An und für sich 
I do this here with a degree of ignorance to some of the sources at hand where Foucault makes the claims about “dependency” but could it not be argued that saying welfare makes people dependent upon the state, in a disciplining manner, is not necessarily a right wing thing to say?
For example, rather than the unemployed worker being able to protest, she is tied to a disciplining structure (for example, punitive monitoring) that occupies all her time. This sort of critique then leads some (and I am talking in the UK context here) to argue that welfare “bought off” the working class – while to their real material advantage it de-toothed their potential for truly radical action by integrating them into the system itself, in a similar manner that vast debt pacifies people today. This isn’t to say the welfare state is a “bad thing” or something that but that, within capitalist society, as with anything, it is a rather complex reality.
To use a historical document, even at the time of the Beveridge Report, the socialist press was saying that “The Report is mistakenly referred to as a measure of insurance for the workers against the evils of capitalism. It would be more accurate to see it as a measure of insurance for the capitalists against the (for them) desperate evil of working class discontent with capitalism”.
Yes, absolutely – this is something I alluded to in a comment on Verena Erlenbusch’s post – I don’t think a critique of the social welfare system (as oppressive, or statist, etc.) requires one to then advocate neoliberalism – the notion that your only options are the social(ist) welfare state or neoliberalism is itself a neoliberal argument.
And, yes to the second half, too: the argument that the social welfare state basically is an exercise in creating opportunities for bourgeois opportunism, designed to co-opt enough of the working class that truly radical reform becomes impossible, dates at least to Lenin’s critique of the German Social Democrats. I think a variant of it is in writers like Negri, who talk about the compromise/stalemate between organized labor and the capitalists that enabled the post WWII welfare states; one of the things that neoliberalism tries to do is undermine that compromise by undermining class solidarity among the workers.
Thanks, Gordon. Could I bother you to say a little more about the law and biopolitics, which you do briefly address in the final two paragraphs? On the one hand, as you say, MF downplays the law. On the other hand, the few examples that you give seem to be good very illustrations that MF might have used had he been alive in the US in 2014.
So I’ve been slowly accumulating material on law and biopolitics, and I’ve got enough to say a little and to appreciate how difficult the question is (I think because there’s going to turn out to be a lot of ways). A lot of what I’ve encountered I’ve blogged about – those are the links above. I am (in theory) writing a book on intellectual property as a form of biopolitics, which will say a lot about this. But IP is, at the least, a property regime that is generally justified on biopolitical grounds (good for health, culture, and other aspects of living well), but which is substantially enforced in the courts.
It was difficulty in thinking through that larger project that prompted me to try to do a little more on the “Foucault and Law” topic. That’s led to a conference paper on school desegregation. I don’t feel comfortable with the depth of the research on that one yet, but what I think I’m finding is that the Supreme Court repurposed common law “equity” as a way to basically give district court judges a seat at the policy-making (=biopolitical – reading policy as the inheritor of Polizeiwissenschaft) table. In the original Brown v. Board, the Court treated integrating the schools as a matter of the psychological health of students, even citing an academic article. My understanding is this is the first time they did that, at least on race questions. In Swann v. Mecklenburg, which was the decision saying the judicially mandated busing was constitutionally permissible, the court says that although inflexible insistence on a “mathematical ratio” of white to minority students was an error, target ranges of population distribution were an appropriate “starting point in the shaping of a remedy,” and that the District Court had therefore “frame[d] a decree that was within its discretionary powers, as an equitable remedy for the particular circumstances.”
The clearest expression of this way of thinking – biopower important but subordinate to the 14th Amendment – was in Brown II:
“In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner.”
There’s a lot more to be said, and this is also the topic that got critical race theory started (Derrick Bell especially is important to where I think the argument is going), so I’m very aware of the amount of research I need to be reading, but that’s where I am at the moment…