Introduction: Law and Neoliberalism

Abstract

The concept of neoliberalism has been influential in the humanities and interpretive social sciences, but it has little foothold in legal scholarship, and its very coherence has been controversial, as it is often a polemical term. In this Introduction to a special issue of Law and Contemporary Problems, we argue for a meaning of neoliberalism that can help to organize the stakes of various areas of law while also showing the usefulness of the term more generally. We define neoliberalism as an overlapping set of arguments, value commitments, predispositions, and ways of framing problems that are unified by the context and purpose of their use: Neoliberal claims serve to protect and expand market imperatives in a persistent political conflict between those imperatives and countervailing democratic demands for values such as security, dignity, fairness, and solidarity. Our definition of neoliberalism helps to tie together various public and private-law areas by showing how market and democratic imperatives are in conflict there, and how law is mediating those conflicts. Legal scholarship, then, needs the concept of neoliberalism. But a useful theory of neoliberalism also needs law: as legal realism showed, and sophisticated economists agree, markets are not natural phenomena, but products of legal choices. Therefore, the contexts of conflict in which neoliberalism does its work are always specified in law.