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.