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+Reform within the corporatized university is impossible – the university is built to make speech seem effective, when in reality the university plays a central role in the knowledge is turned into a commodity. Only a direct and unflinching critique of class can solve. The critique turns the case - Monzó 14 |
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+Monzó, Lilia D Chapman University, California, United States. "A critical pedagogy for democracy: Confronting higher education’s neoliberal agenda with a critical Latina feminist episteme." Journal for Critical Education Policy Studies (JCEPS) 12.1 (2014): 73-100. |
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+In this contradictory version of Freirian thought, praxis becomes civic engagement that focuses¶ solely on reforms that increase opportunities within the existing capitalist system. Such efforts¶ alone obfuscate the role of class and unwittingly support the existing structure by treating¶ capitalism as a proverbial and impermeable reality or suggesting that minimizing inequalities is¶ both possible and sufficient to creating a just society. Within this liberal agenda, terms such as¶ liberation and freedom index narrow political conceptions such as freedom of speech and¶ freedom of the press – ideologies associated with “democratic” advanced capitalist societies that¶ while important do not address the most fundamental human right – the freedom from necessity¶ and from alienation. A socialist democracy that emphasizes freedom and participation among all¶ citizens, regardless of gender, race, or other social positioning is untenable within a capitalist¶ economy. The extreme and widening gap between the wealthy and the poor, the focus on labor¶ power as opposed to real power, the extortion of surplus value off the poor to maximize profits¶ for the wealthy, the relegation of poverty and a hyper exploitation of racialized communities and especially women of color in the U.S. and across the world, and the alienation experienced by all¶ human beings are incompatible with a democratic way of life.¶ Revolutionary critical pedagogy as developed by Paula Allman, Peter McLaren, and others¶ reinserts a fundamental Marxist emphasis on interrogating and transforming the totalizing nature¶ of capitalism that engulfs humanity through not only political economy but social and cultural¶ relations. These scholars reject and critique the liberal trend to reform, recognizing these as¶ unable to stop the destruction that is inherent in the labor capital social relation calling instead¶ for creating the conditions for revolutionary change that would transform the forces of¶ production outside of capital’s value form. Revolutionary critical pedagogues call for a¶ “collective struggle” across racial, ethnic, gender, and national lines (Darder, 2014). They¶ understand that while racism and patriarchy must be fought these struggles alone will not end¶ human suffering and exploitation. As Darder and Torres (2004) argue, as long as there exists a¶ need for a mass of exploited workers as is needed under capitalism, these will undoubtedly be¶ made of predominantly racialized minorities who have been made thus in order to preserve the¶ dominance of an elite white transnational capitalist class. Racism is not an accident but an¶ orchestrated material reality that hides the role of the capitalist class and sets up workers of “said¶ working class and middle class sectors” to compete with each other for presumed less¶ exploitative jobs, educational opportunities, and a myriad of other social and economic resources¶ all the while the capitalists who own the bulk of the worlds resources are rarely considered in the¶ equation, must less confronted. Likewise, struggles against patriarchy cannot be forged without¶ forging a struggle against capitalism since the exploitation of women in the U.S. and across the¶ world is an important source of capital accumulation of transnational corporations. Thus, while I¶ champion struggles that confront racial and gender oppression and also work to mitigate¶ conditions of exploitation, I also argue that these struggles must be simultaneously accompanied¶ by and conjoined with broader struggles against the capitalist class that aim to transform existing¶ social relations of production. I reject the domesticated version of critical pedagogy discussed¶ earlier in favor of a Marxist revolutionary critical pedagogy that is based on developing clarity¶ rather than charity in which human beings are liberated from wage slavery through a process that¶ necessitates – demands – revolution (Freire, 1970). According to Freire (1970), the oppressed are tasked with forging this revolution because they¶ have insights into the nature of oppression that are necessarily hidden from the dominant group.¶ Thus, the participation of non-dominant groups in the decision-making of our society is a critical¶ component of advancing democracy. If democracy embodies the notion that the diverse¶ perspectives of different individuals and groups add to our collective understanding of society¶ and to moving us forward as human beings, then we must recognize the need to bring the diverse¶ epistemes of women, people of color and other marginalized groups into the spaces that¶ legitimize knowledge – specifically, the university. The university plays a central role in the production of legitimate knowledge. While some have¶ celebrated its historical role in the “advancement” of society through teaching and scholarship,¶ others have called it an “ivory tower” espousing to a presumed superior Eurocentric episteme¶ and positioned outside the sphere of the commons (Basole, 2009). Miller (2009) points out that¶ the university, since inception, has been complicit with the state in promoting cultural¶ imperialism and supporting research that responded to the state’s economic and political ends.¶ Yet in so far as its rhetoric of “academic freedom” must be maintained in order to suppress its¶ relationship to capital interests, it provides the spaces for dissent among faculty and students.¶ Indeed one of the fundamental functions of the university is social critique. University students,¶ energized by their newfound critical acumen, have often been the first in society to vociferously¶ exclaim their outrage in protests and other rebellions (Zill, 2011).¶ The rise of neoliberalism, however, has led to the corporatization of the university and to what is¶ being called “knowledge capitalism,” which has strengthened existing ties between universities¶ and capital interests and dangerously undermining the role of the university as the context with¶ the greatest potential to address social problems and equality. Mike Peters (2011) points out that¶ universities are increasingly clamoring to join the game of marketization, selling themselves to¶ students and investors with consequences to program development, curriculum, and research.¶ Indeed many university presidents now sit on boards of corporations, which could mean conflicts¶ of interest with respect to what the university’s goals are in terms of either advancing the ideals¶ of democracy or corporate interests. It would seem that the latter is winning out. Rather than a social service to society, education is increasingly seen as a highly lucrative commodity¶ purchased by students at grotesquely huge tuitions that will leave students in debt for years to¶ come. Students are, thus, seen as a large source of revenue for banks and other financial¶ institutions.¶ The neoliberal emphasis on privatization, standardization, and accountability is increasingly¶ witnessed at both structural levels and in programmatic and curriculum planning. Similar to the¶ dehumanizing ethic of many transnational corporations that have moved their factories to the so¶ called “third world” to maximize their profits through cheap labor, a number of U.S. universities¶ are seeking new markets for exploitation in the “developing” world where local faculty are often¶ hired at very low wages and as part timers without job security (Ross, 2009). While some may¶ argue that providing university education to students in these countries is a moral imperative, an¶ important concern is how this “offshoring” may result in further distribution of western¶ knowledge systems in non-western countries. In a similar vein, we are also seeing fewer tenure¶ line positions and an increase of poorly paid adjunct positions in U.S. campuses.¶ Faculty research and other scholarly projects are increasingly being reshaped to become more¶ palatable to the business community or boards of trustees. Further impacting faculty are the¶ increasing demands for increased productivity in the form of publications in specialized¶ academic journals, closely tied to tenure and promotion decisions. This increased output and¶ competition are creating a proliferation of journals and articles for consumption that do not¶ necessarily strengthen quality and instead put tremendous pressure and increased workloads on¶ faculty. The standardization of productivity that facilitates accountability has led to a narrowing¶ of what counts as knowledge, with a return to notions of objective and measurable research being¶ considered more rigorous and scientific than qualitative and participatory approaches.¶ The corporate university necessarily functions to prepare students and society to participate in a¶ market economy. However, while the university does prepare citizens to fill jobs it must also¶ engage students in questioning and critiquing the existing structures of society, to recognize and¶ confront policies and practices that are undemocratic, and to learn to imagine and conceive of¶ alternatives that may bring greater equality and a new social order. When what is taught and learned becomes significantly determined through business interests it is difficult for the¶ university to retain autonomy toward these ends as they prove to be in direct conflict to capital¶ interests (Giroux, 2009). |
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+Protests are a reactive form of politics that cede political instiutions – independently turns the case. Srniceke 15 |
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+Srnicek, PHD, and Williams, PhD Candidate , 15 |
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+(Nick, PhD IR @LSE, Alex, Inventing the Future: Postcapitalism and a world without work) |
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+Today it appears that the greatest amount of effort is needed to achieve the smallest degree of change. Millions march against the Iraq War, yet it goes ahead as planned. Hundreds of thousands protest austerity, but unprecedented budget cuts continue. Repeated student protests, occupations and riots struggle against rises in tuition fees, but they continue their inexorable advance. Around the world, people set up protest camps and mobilise against economic inequality, but the gap between the rich and the poor keeps growing. From the alter-globalisation struggles of the late 1990s, through the antiwar and ecological coalitions of the early 2000s, and into the new student uprisings and Occupy movements since 2008, a common pattern emerges: resistance struggles rise rapidly, mobilise increasingly large numbers of people, and yet fade away only to be replaced by a renewed sense of apathy, melancholy and defeat. Despite the desires of millions for a better world, the effects of these movements prove minimal. A FUNNY THING HAPPENED ON THE WAY TO THE PROTEST Failure permeates this cycle of struggles, and as a result, many of the tactics on the contemporary left have taken on a ritualistic nature, laden with a heavy dose of fatalism. The dominant tactics - protesting, marching, occupying, and various other forms of direct action - have become part of a well established narrative, with the people and the police each playing their assigned roles. The limits of these actions are particularly visible in those brief moments when the script changes. As one activist puts it, of a protest at the 2001 Summit of the Americas: On April 20, the first day of the demonstrations, we marched in our thousands towards the fence, behind which 34 heads of state had gathered to hammer out a hemispheric trade deal. Under a hail of catapult-launched teddy bears, activists dressed in black quickly removed the fence’s supports with bolt cutters and pulled it down with grapples as onlookers cheered them on. For a brief moment, nothing stood between us and the convention centre. We scrambled atop the toppled fence, but for the most part we went no further, as if our intention all along had been simply to replace the state's chain-link and concrete barrier with a human one of our own making.1 We see here the symbolic and ritualistic nature of the actions, combined with the thrill of having done something - but with a deep uncertainty that appears at the first break with the expected narrative. The role of dutiful protestor had given these activists no indication of what to do when the barriers fell. Spectacular political confrontations like the Stop the War marches, the now-familiar melees against the G20 or World Trade Organization and the rousing scenes of democracy in Occupy Wall Street all give the appearance of being highly significant, as if something were genuinely at stake.2 Yet nothing changed, and long-term victories were traded for a simple registration of discontent. To outside observers, it is often not even clear what the movements want, beyond expressing a generalised discontent with the world. The contemporary protest has become a melange of wild and varied demands. The 2009 G20 summit in London, for instance, featured protestors marching for issues that spanned from grandiose anti-capitalist stipulations to modest goals centred on more local issues. When demands can be discerned at all, they usually fail to articulate anything substantial. They are often nothing more than empty slogans - as meaningful as calling for world peace. In more recent struggles, the very idea of making demands has been questioned. The Occupy movement infamously struggled to articulate meaningful goals, worried that anything too substantial would be divisive.5 And a broad range of student occupations across the Western world has taken up the mantra of ‘no demands’ under the misguided belief that demanding nothing is a radical act.4 When asked what the ultimate upshot of these actions has been, participants differ between admitting to a general sense of futility and pointing to the radicalisation of those who took part. If we look at protests today as an exercise in public awareness, they appear to have had mixed success at best. Their messages are mangled by an unsympathetic media smitten by images of property destruction - assuming that the media even acknowledges a form of contention that has become increasingly repetitive and boring. Some argue that, rather than trying to achieve a certain end, these movements, protests and occupations in fact exist only for their own sake.5 The aim in this case is to achieve a certain transformation of the participants, and create a space outside of the usual operations of power. While there is a degree of truth to this, things like protest camps tend to remain ephemeral, small-scale and ultimately unable to challenge the larger structures of the neoliberal economic system. This is politics transmuted into pastime - politics-as-drug experience, perhaps - rather than anything capable of transforming society. Such protests are registered only in the minds of their participants, bypassing any transformation of social structures. While these efforts at radicalisation and awareness-raising are undoubtedly important to some degree, there still remains the question of exactly when these sequences might pay off. Is there a point at which a critical mass of consciousness-raising will be ready for action? Protests can build connections, encourage hope and remind people of their power. Yet, beyond these transient feelings, politics still demands the exercise of that power, lest these affective bonds go to waste. If we will not act after one of the largest crises of capitalism, then when? The emphasis on the affective aspects of protests plays into a broader trend that has come to privilege the affective as the site of real politics. Bodily, emotional and visceral elements come to replace and stymie (rather than complement and enhance) more abstract analysis. The contemporary landscape of social media, for example, is littered with the bitter fallout from an endless torrent of outrage and anger. Given the individualism of current social media platforms - premised on the maintenance of an online identity - it is perhaps no surprise to see online ‘politics’ tend towards the selfpresentation of moral purity. We are more concerned to appear right than to think about the conditions of political change. Yet these daily outrages pass as rapidly as they emerge, and we are soon on to the next vitriolic crusade. In other places, public demonstrations of empathy with those suffering replace more finely tuned analysis, resulting in hasty or misplaced action - or none at all. While politics always has a relationship to emotion and sensation (to hope or anger, fear or outrage), when taken as the primary mode of politics, these impulses can lead to deeply perverse results. In a famous example, 1985's Live Aid raised huge amounts of money for famine relief through a combination of heartstring-tugging imagery and emotionally manipulative celebrity-led events. The sense of emergency demanded urgent action, at the expense of thought. Yet the money raised actually extended the civil war causing the famine, by allowing rebel militias to use the food aid to support themselves.6 While viewers at home felt comforted they were doing something rather than nothing, a dispassionate analysis revealed that they had in fact contributed to the problem. These unintended outcomes become even more pervasive as the targets of action grow larger and more abstract. If politics without passion leads to cold-hearted, bureaucratic technocracy, then passion bereft of analysis risks becoming a libidinally driven surrogate for effective action. Politics comes to be about feelings of personal empowerment, masking an absence of strategic gains. Perhaps most depressing, even when movements have some successes, they are in the context of overwhelming losses. Residents across the UK, for example, have successfully mobilised in particular cases to stop the closure of local hospitals. Yet these real successes are overwhelmed by larger plans to gut and privatise the National Health Service. Similarly, recent anti-fracking movements have been able to stop test drilling in various localities - but governments nevertheless continue to search for shale gas resources and provide support for companies to do so.7 In the United States, various movements to stop evictions in the wake of the housing crisis have made real gains in terms of keeping people in their homes.8 Yet the perpetrators of the subprime mortgage debacle continue to reap the profits, waves of foreclosures continue to sweep across the country, and rents continue to surge across the urban world. Small successes - useful, no doubt, for instilling a sense of hope - nevertheless wither in the face of overwhelming losses. Even the most optimistic activist falters in the face of struggles that continue to fail. In other cases, well-intentioned projects like Rolling Jubilee strive to escape the spell of neoliberal common sense.9 The ostensibly radical aim of crowdsourcing money to pay the debts of the underprivileged means buying into a system of voluntary charity and redistribution, as well as accepting the legitimacy of the debt in the first place. In this respect, the initiative is one among a larger group of projects that act simply as crisis responses to the faltering of state services. These are survival mechanisms, not a desirable vision for the future. What can we conclude from all of this? The recent cycle of struggles has to be identified as one of overarching failure, despite a multitude of smallscale successes and moments of large-scale mobilisation. The question that any analysis of the left today must grapple with is simply: What has gone wrong? It is undeniable that heightened repression by states and the increased power of corporations have played a significant role in weakening the power of the left. Still, it remains debatable whether the repression faced by workers, the precarity of the masses and the power of capitalists is any greater than it was in the late nineteenth century. Workers then were still struggling for basic rights, often against states more than willing to use lethal violence against them.10 But whereas that period saw mass mobilisation, general strikes, militant labour and radical women’s organisations all achieving real and lasting successes, today is defined by their absence. The recent weakness of the left cannot simply be chalked up to increased state and capitalist repression: an honest reckoning must accept that problems also lie within the left. One key problem is a widespread and uncritical acceptance of what we call ‘folk-political’ thinking. (5-9) |
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+Their activism is based on the idea that speaking loud enough will make our voices heard – this solidifies cap. Rickford 16 |
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+Russel Rickford (an associate professor of history at Cornell University. He is the author of We Are an African People: Independent Education, Black Power, and the Radical Imagination. A specialist on the Black Radical Tradition, he teaches about social movements, black transnationalism, and African-American political culture after World War Two). “The Fallacies of Neoliberal Protest”. Black Perspectives. September 24, 2016. http://www.aaihs.org/the-fallacies-of-neoliberal-protest/ AGM |
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+Fallacy Number Three: The Myth of the Disembodied Voice. Part of capitalism’s response to grassroots opposition is to assure the distressed that their “voice” is heard. That the authorities who “hear” you also enable your brutalization is immaterial. The point is to convince you of your continued stake in the system. It is to guide you toward the politics of representation and away from the politics of resistance. Of course, there are other fallacies employed by the oppressor to confuse the oppressed. The fallacy of inclusion v. transformation, for example. Or the fallacy of “diversity” v. genuine antiracism. We are taught to be patriotic, to be patient, to strive to embody the very values of peace and goodwill that this society defiles. These and other myths only perpetuate the system. They leave intact our society’s basic power relations. And they cause us to police ourselves and to seek interpersonal reconciliation rather than confront structural racism and oppression. Truth is, we don’t need “diversity” training. We don’t need focus groups. We don’t need consultants and experts. We don’t need the apparatus of our oppression—racial capitalism itself—to rationalize and regulate our dissent. The logic and techniques of the corporate world won’t end the slaughter of black people, or the dispossession and degradation of indigenous people, or the transformation of the entire Global South into a charred landscape of corpses and refugees. We need an uncompromising, multiracial, grassroots movement against white supremacy, endless war, and vicious corporate capitalism. We need to build solidarity with the resistance in Charlotte, Standing Rock, and Puerto Rico. We need to join the rebellions of workers and the colonized all over the world.This is a human rights struggle. And it will be waged in the streets, not in boardrooms, the halls of Congress, or other strongholds of global capital. |
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+The alternative is a relentless class-based politics that works against the university’s economic underpinnings – only engaging in a critique that focuses on the economic forces at play in public universities can we resolve capitalism. Oparah 14 |
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+Oparah, Julia. Professor and Chair of Ethnic Studies at Mills College and a founding member of Black Women Birthing Justice "Challenging Complicity: The Neoliberal University and the Prison–Industrial Complex." The Imperial University: Academic Repression and Scholarly Dissent (2014). |
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+¶ In my earlier work on the academic-prison-industrial complex, I suggested that activist scholars were producing and disseminating countercarceral knowledge by bringing academic research into alignment with the needs of social movements and interrogating and reorganizing relationships between prisoners and researchers in the free world.50 Given the history of epistemic and physical violence and exploitation of research subjects by the academy, such a reorganizing of relationships and accountabilities is clearly urgently needed. Yet no matter how radical and participatory our scholarship is, we ultimately fail to dismantle the academic-military-prison-industrial com- plex (academic-MPIC) if we address it only through the production of more knowledge. Since knowledge is a commodity, marketed through books, arti- cles, and conferences as well as patents and government contracts, the pro- duction of “better,” more progressive or countercarceral knowledge can also be co-opted and put to work by the academic-MPIC.¶ An abolitionist lens provides a helpful framework here. Antiprison schol- ars and activists have embraced the concept of abolition in order to draw attention to the unfinished liberation legislated by the Thirteenth Amend- ment, which abolished slavery “except as a punishment for a crime.”51 Aboli- tionists do not seek primarily to reform prisons or to improve conditions for prisoners; instead they argue that only by abolishing imprisonment will we free up the resources and imagine the possibility of more effective and less violent strategies to deal with the social problems signaled by harmful acts. While early abolitionists referred to themselves as prison abolitionists, more recently there has been a shift to prison-industrial complex abolitionism to expand the analysis of the movement to incorporate other carceral spaces— from immigrant detention centers to psychiatric hospitals—and to empha- size the role of other actors, including the police and courts, politicians, corporations, the media, and the military, in sustaining mass incarceration.52¶ How does an abolitionist lens assist us in assessing responses to the academic-MPIC? First, it draws our attention to the economic basis of the academic-MPIC and pushes us to attack the materiality of the militari- zation and prisonization of academia rather than limiting our interventions to the realm of ideas. This means that we must challenge the corporatization of our universities and colleges and question what influences and account- abilities are being introduced by our increasing collaboration with neoliberal global capital. It also means that we must dismantle those complicities and liberate the academy from its role as handmaiden to neoliberal globaliza- tion, militarism, and empire. In practice, this means interrogating our uni- versities’ and colleges’ investment decisions, demanding they divest from the military, security, and prison industries; distance themselves from military occupations in Southwest Asia and the Middle East; and invest instead in community-led sustainable economic development. It means facing allega- tions of disloyalty to our employers or alma maters as we blow the whistle on unethical investments and the creeping encroachment of corporate fund- ing, practices, and priorities. It means standing up for a vision of the liberal arts that neither slavishly serves the interests of the new global order nor returns to its elitist origins but instead is deeply embedded in progressive movements and richly informed by collaborations with insurgent and activ- ist spaces. And it means facing the challenges that arise when our divest- ment from empire has real impact on the bottom line of our university and college budgets. |
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+And, reject the demand for a plan - neoliberalism operates through a narrow vision of politics that sustains itself through the illusion of pragmatism. We should refuse their demand for a plan. Blalock, JD, 2015 |
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+(Corinne, “NEOLIBERALISM AND THE CRISIS OF LEGAL THEORY”, Duke University, LAW AND CONTEMPORARY PROBLEMS Vol. 77:71) MG from file |
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+RECOVERING LEGAL THEORY’S RELEVANCE? The lens of neoliberalism not only allows one to see how these narratives fit together to reveal a larger rationality but also to understand why the solutions they propose fail to challenge or even escape that rationality. I address the three most prominent prescriptions being offered by critical legal scholars today: (1) a pragmatic turn to politics, (2) a return to more explicit normative and moral claims, and (3) acceptance in recognition that the decline is merely an ebb in the regular cycles of theory. A. Prescription: More Politics The most common prescription for recovering legal theory’s vibrancy is a greater participation in politics—scholars should eschew descriptive projects, especially those that might be used to bolster the conservative argument on an issue or in a case, as well as those critiques that appear purely academic, in favor of projects intended to influence the courts in progressive ways.134 One can certainly understand why this is a tempting prescription in light of the success of explicitly conservative legal theory and methods135 and concern that left-leaning legal academics have not taken up this charge.136 However, this demand for political engagement has unintended consequences: It legitimizes the current frameworks. As the Roberts Court further embraces neoliberal principles, persuading the Court means functioning within neoliberal logic and is therefore counterproductive for the revitalization of critical legal theory. Moreover, this political prescription tends to produce a reified notion of what counts as politics, limiting the political as well as intellectual potential of theoretical projects. For example, in the wake of the of the Court’s incremental move toward recognition of same-sex marriage in United States v. Windsor, 137 many progressive legal scholars have written on the subject hoping to nudge the Court toward full recognition. But in light of Nancy Fraser’s work, one should ask just what kind of recognition that would be—whether it would displace materialist claims or reify forms of identity.138 Full recognition of same-sex marriage is a destination toward which the Court is already heading and an area where the public discourse has largely already arrived. Emphasizing this area also participates in the ideology of erasure, leading many to believe that the current Court is making progressive interventions because it is progressive on identity and cultural issues, even though Windsor was handed down in a term in which the Court retrenched on significant materialist issues and embodied a number of blatantly neoliberal positions.139 Even if not writing for the Court, a legal scholar’s attempt to be useful to those in the profession who share her political goals risks constraining the legal profession and its own professional and disciplinary norms.140 In this way, the focus on concrete political effects helps foster legal thought’s “considerable capacity for resisting self-reflection and analysis,”141 which has only become more pronounced in the face of the neoliberalization of the academy as instrumental knowledge is increasingly privileged. When attempting to counter hegemony, what one needs to do is disrupt the legible—to expand the contours of what is considered political—not to accept the narrowly circumscribed zone of politics neoliberalism demarcates. Therefore, it is crucial not to judge critical legal scholarship according to whether its political impact is immediate or even known, and thus a turn to politics is not the remedy for legal theory’s marginalization. B. Prescription: More Normativity Some scholars recognize the danger of embracing a reified notion of politics that unwittingly reaffirms the status quo, and instead champion assertions of substantive morality to counteract the cold logics of pragmatism and efficiency.142 This proposed solution advocates a return to more substantive ideals of justice and equality. Although it may be true that change will ultimately require wresting these liberal and democratic ideals from neoliberalism and refilling their hollowed-out forms, this approach entails a number of pitfalls. The first is simply the inevitable question regarding moral claims: Whose morality is to be asserted? This question has created crisis on the left before, even producing some of the schisms among the crits recounted above. Neoliberalism does not have to contend with this issue—it foregrounds its formal nature and holds itself out as not needing to create a universal morality or set of values. More importantly, it claims to provide a structure in which one can keep one’s own substantive morals. Therefore, neoliberalism’s logic cannot be countered by moral claims without first disrupting its illusion of amorality. The ineffectiveness of the progressive critique of law and economics, based in claims of distributive justice and moral imperative, provides a clear example of how the neoliberal discourse can capture normative claims. The work of Martha McCluskey, one of the few legal scholars writing about neoliberalism in the domestic context over the last ten years, highlights the extent to which the “distributive justice” critique, which argues against the privileging of efficiency over equality and redistribution, fails to challenge the underlying logic.143 McCluskey illustrates how critics of law and economics who critique the approach’s inattention to redistribution have already ceded the central point, by arguing within the conventional views that “efficiency is about expanding the societal pie and redistribution is about dividing it.”144 “Neoliberalism’s disadvantage is not, as most critics worry, its inattention to redistribution, but to the contrary, its very obsession with redistribution as a distinctly seductive yet treacherous policy separate from efficiency.”145 In order to challenge this rationality, she explains, one cannot “misconstrue neoliberalism as a project to promote individual freedom and value-neutral economics at the expense of social responsibility and community morality.”146 One must instead recognize that neoliberalism has redefined social responsibility and community morality. Therefore, one must refuse the false dichotomy between the economic and cultural spheres (a division that allows the neoliberal discourse to displace cultural concerns to a moment after the economic concerns have been dealt with). Merely asserting the falsity of this separation is not sufficient. Neoliberalism has real effects in the world that strengthen its ideological claims.147 Therefore, it is not a struggle that can take place solely on the terrain of discourse or ideology. Like neoliberalism generally, law and economics does not hold itself out as infallible or as an embodiment of social ideals, but instead as the best society can do. It functions precisely on the logic that there is no alternative. Like Hayek’s theory, “law and economics is full of stories about how liberal rights and regulation designed to advance equality victimize the all-powerful market, undermining its promised rewards.”148 In light of this, it is a mistake to see neoliberalism as disavowing moral principles in favor of economic ones; it instead folds them into one another: “The Law and Economics movement is rooted in the moral ideal of the market as the social realization of individual liberty and popular democracy.”149 Neoliberalism’s approach presents itself not only as efficient, but also as just. Legal scholars need to recognize neoliberalism’s focus on the market is not only a form of morality, but also a powerful one. They cannot assume that in a battle of moralities the substantive communitarian ideal will win.150 Furthermore, the neoliberal framework, through its reconfiguration of the subject as an entrepreneur, justifies material inequalities—in contrast to liberalism’s mere blindness to them. Consequently, merely asserting the existence of material inequalities does not immediately undermine neoliberalism’s claims. Far from the engaged citizen who actively produces the polis in liberal theory, the neoliberal subject is a rational, calculating, and independent entity “whose moral autonomy is measured by her capacity for ‘self-care’—the ability to provide for her own needs and service her own ambitions.”151 The subject’s morality is not in relation to principles or ideals, but is “a matter of rational deliberation about costs, benefits, and consequences.”152 If efficiency is the morality of our time, the poor are cast not only as “undeserving” but also as morally bankrupt. Therefore, efficiency replaces not only political morality, but also all other forms of value. Therefore, critics are right that other forms of value have been crowded out; but the logic is deeper than they seem to realize. It goes beyond the scope of what is being done in the legal academy. It is a logic that organizes our time and therefore must be countered differently. More normativity is not the answer to legal theory’s marginalization because neoliberalism’s logic can accommodate even radically contradictory moralities under its claims of moral pluralism. Ethical claims of justice and community may need to be made, but one must first recognize that countering hegemony is harder than merely articulating an alternative; hegemony must be disrupted first. Disrupting neoliberalism’s logic thus entails not only recognizing that neoliberalism has a morality, but also taking that morality seriously. C. Prescription: Acceptance The final response of legal theorists to their field’s marginalization is to dismiss it as merely the regular ebb and flow of theory’s prominence.153 Putting it in terms of Thomas Kuhn’s theory of paradigm shifts, the contemporary moment is just the “normal science” of the paradigm brought about by the crits’ revolutionary moment in the 1970s and 1980s.154 The vitality, this narrative contends, will return when a competing paradigm emerges. There are several problems with this perspective on the decline. First, it entails an error in logic insofar as it takes an external perspective. Legal theory does not inevitably rise and fall but only according to the work being produced; or, to put it another way, this descriptive account of theory’s ebb can be a selffulfilling prophecy insofar as it decreases scholars’ motivation to pursue and receptivity toward theoretical projects. Second, legal scholars cannot be content with normal science when it has the kinds of consequences for democracy and economic inequality that neoliberal hegemony does. The Court is currently entrenching these principles at an unprecedented rate in areas of free speech, equal protection, and antitrust to name a few.155 At first, such acceptance appears to be what Janet Halley is advocating in “taking a break from feminism,”156 but upon closer inspection it is not. Halley is cautioning against the left’s nostalgia—concluding that operating under the banner of feminism and a preoccupation with “reviving” feminism looks backward instead of forward.157 Critical legal scholarship instead needs to be “self-critical” and to recognize that “how we make and apply legal theory arises out of the circumstances in which we recognize problems and articulate solutions.”158 Theory must arise from engagement with the current circumstances. Acceptance cannot be the solution; legal theory must produce the momentum to move forward. VII CONCLUSION: WHERE WE GO FROM HERE The way forward cannot entail a return to reified notions of theory any more than by a return to reified notions of politics. Critical legal scholars should not attempt to revitalize previous critical movements but, instead, reinvigorate the practice of critique within the legal academy. A. Why Critique Naming neoliberalism is necessary in order to counteract it. Without explicit identification, there can be no truly oppositional position. It also makes legible connections that would otherwise go unseen, as was the case with scholars writing about the decline. But there must also be a step beyond naming: critique. Critique means taking neoliberal rationality seriously. The approach must not be dismissive, merely pointing out neoliberalism’s inconsistencies, but instead must recognize that neoliberal rationality is inherently appealing. One cannot merely indict efficiency as contrary to more substantive values, but one also must recognize that efficiency is inextricably tied to beliefs about liberty, dignity, and individual choice, as well as corresponding beliefs about the capacities and limits of the state to effectuate change. No one is arguing that neoliberalism is the best of all possible worlds; in fact, its power comes precisely from abandoning such a claim. In recognizing its hegemonic status, legal scholars can understand the critical task as being more than just demystification. Neoliberal does not paper over inequalities after all; it justifies them. Ultimately, critique should function as a means of opening the conversation in ways that go beyond the picture of law painted by the Roberts Court—to refuse to allow the legal academy to be merely mimetic of a Court that is clearly embracing a neoliberal vision. Critique provides a means of thinking about law as not limited by what the markets can tolerate; it is the means through which one can discover a form of resistance that goes beyond nostalgia for the liberal welfare state. And finally, critique is simply a means of asserting that things can be different than they are in a world that constantly insists that there is no alternative. |