Constitutional Property Rights and Elision of the Transnational
| DOI | 10.1177/0964663914548747 |
| Date | 01 March 2015 |
| Author | David Schneiderman |
| Published date | 01 March 2015 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2015, Vol. 24(1) 65–87
Constitutional Property
ª The Author(s) 2014
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Foucauldian Misgivings
David Schneiderman
University of Toronto, Canada
Abstract
Neo-liberal thought has for some time been shaping policy outcomes in many parts of
the world. According to the neo-liberal frame, the economy functions as an internal
limit on government. Scholars of comparative constitutional law mostly are disinter-
ested in seeking out evidence, both inside and outside of states, of neo-liberal values
being channelled by constitutionally relevant actors and institutions. Recent work in
comparative property rights, purporting to be attentive to culture and context, is
taken up by way of example. Turning subsequently to Foucault’s lectures on biopolitics,
neo-liberal thought is understood as productive of new forms of legality, like interna-
tional investment law, and of new subjectivities, such as one that conjoins liberal rights
with economic interests. Comparative property theorists, by contrast, rely on forms
of juridical right disassociated from the global economic context, oddly failing to
account for a critical part of contemporary debates over global property rights.
Keywords
Neoliberalism, Foucault, governmentality, global property rights, investment law
An insistence upon the market as the exclusive ‘organizational principle’ for state and
society – a view one associates with neo-liberal orthodoxy – has been shaping public
policy outcomes in many parts of the world (Lemke, 2001: 200). However ‘messy’ and
‘polycentric’ the project (Peck, 2008: 3–4), neo-liberalism appears to be ‘deeply
embedded in the reflexes of the world’s ruling elites and line managers who have
Corresponding author:
David Schneiderman, University of Toronto, 78 Queen’s Park, Toronto, Ontario M5S 2C5, Canada.
Email: david.schneiderman@utoronto.ca
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Social & Legal Studies 24(1)
difficulty conceiving the world in any other way’ (Cerny, 2010: 154; Tribe, 2009: 694).
We can reasonably anticipate finding evidence, then, both inside and outside of
national states, of constitutionally relevant actors and institutions giving voice to or
resisting this modern orthodoxy. Yet comparative constitutional law has, for the most
part, kept a safe distance from these developments. Though a burgeoning and lively
field within the legal academy, scholars of comparative constitutional law, with few
exceptions, have been uninterested in examining the dampening effects on constitu-
tional law and discourse of the world’s dominant ideology.
Yet the neo-liberal frame has had some success in configuring democratic institutions
so that the economy functions as an internal limit on government. Foucault described
the formation of neo-liberalism in his 1979 Colle`ge de France lectures entitled ‘The Birth
of Biopolitics’ (2008). The lectures presciently addressed the rise of economic–liberal
orthodoxy in North Atlantic economies on the eve of Prime Minister Thatcher and
President Reagan coming to power. Foucault set out to apply his methodology of histor-
ical exegesis – asking such questions as ‘why have things become thus and why could
they not be otherwise?’ (Eribon, 1991: 266; Foucault, 2008: 3; Veyne, 2010) – upon
a set of ideas that were, by then, common currency in official political circles (Fou-
cault, 2008: 193). Foucault might not have anticipated the subsequent global take-up
of neo-liberal ‘common sense’ (Cerny, 2008: 31; Dean, 2009: 55). His lectures, how-
ever, help us understand the origins, even the appeal, of the modern neo-liberal frame,
giving rise to both convergence and differentiation across constitutional systems – its
effects being felt unevenly (Harvey, 2007; Ong, 2006) – both of which should be of
interest to comparative constitutionalists.
Like international lawyers before them, comparative constitutional scholars display
some interest in the search for commonality (Law and Veersteg, 2011) and, hence,
the establishment of mechanisms for global governance.1 Much of the literature is
preoccupied with another comparative exercise wherein a small number of somewhat
similar constitutional systems are described with a view to sniffing out not only com-
monality but differences that give expression to local contexts (i.e., Goldsworthy,
2006). Curiously absent is mention of the background conditions under which much
of the governing world operates and in which states are deeply implicated. Neo-
liberalism simply appears not to be of much interest to this body of scholarship.
Consider Gregory Alexander’s book length treatment of constitutional property rights
in the era of globalization. Alexander is on the lookout for points of similarity across
national legal orders – he is on the hunt for unity based upon a set of agreed upon prin-
ciples – and so exhibits internationalist tendencies. Alexander wants to avoid, however,
arid comparisons with reference only to text. As important as text is, there are other
factors, Alexander claims, such as background legal and political traditions and culture
that influence the ways in which constitutional property rules function within national
legal spaces (2006: 27). Deploying this cultural understanding of law, Alexander is not
so much on the lookout for difference but for sameness. He is able to identify a set of
moves common to the constitutional property systems of Germany, South Africa and
even implicitly in the United States. The common move is that property is treated as ser-
ving a ‘social function’ and so is constitutionally susceptible to fulsome regulation in the
name of the public good. We drift inexorably towards a universalist understanding of
Schneiderman
67
property rights in the age of globalization, Alexander infers, even whilst attending to
continuing areas of pluralism and difference according to his culturalist account
(2006: 14).
By contrast, Alexander accuses critics of global constitutional property rights, thin-
kers he associates with the ‘new constitutionalism’,2 of ignoring culture and difference.
These are folks who fear that the entrenchment of property-like entitlements result in the
further separation of law from politics (Schneiderman, 2011). Such critics inveigh
against proposals that take up constitution-like constraints on the ‘conduct of fiscal,
monetary and trade and investment policies’, imposing ‘discipline on public institutions’
intended to ‘prevent national interference with the property rights and entry and exit
options of holders of mobile capital’ (Gill, 2008: 132). Inspired by a critical branch of
the British school of international political economy (Cox, 1981; Schneiderman,
2013), the new constitutionalism asks what values get promoted and who benefits from
the new institutional arrangements promoting global economic integration (Strange,
1988: 18). The task facing this loose thought collective is as much diagnostic as it is
emancipatory. It is to identify and act upon fissures in transnational norms and forms
in ways that will liberate states and citizens from the binding constraints of transnational
legal strictures (Schneiderman, 2014).
Alexander accuses such critics of falling into a ‘formalist trap’ by failing to account
for the way constitutional systems operate in fact. By this, he means that these critics
place undue emphasis on constitutional text over factors such as background traditions
and culture. This is the ‘core weakness of the formalist thesis’, he writes (2006: 57).
What matters for Alexander is less whether a constitutional property clause exists
(though this obviously does matter), then ‘how it is interpreted’ (2006: 29). New consti-
tutionalist accounts, Alexander alleges, fail to acknowledge that the more meaningful
determinants of property rights lie beyond mere textual guarantees.
In this article, I take issue with the claim that the critics of the spread of global prop-
erty rights are unaware of the role of background tradition and culture. On the contrary,
I aim to exemplify how those working within this critical frame cannot conceive of
doing their work without insisting on the relevance of background conditions. The
background tradition and culture most material to the new constitutionalist account,
I argue, is neo-liberalism. I maintain that neo-liberalism’s cultural achievements,
drawing on the mythological pasts of capital exporting states, help to explain its pre-
valence and, one might even say, its success even as the consequences of an economic
recession continue to resonate globally.
I do so, firstly, by drawing on the genealogical and conceptual account offered by
Foucault in his 1979 lectures and, secondly, by taking up international investment
law as an indicator of neo-liberal success. In the final section, I draw on a concep-
tion of the rights-bearing economic subject suggested in Foucault’s lectures, though
never fully developed, which captures well developments in the transnational legal
realm. As do many others working in the field of comparative constitutional law,
Alexander, by contrast, relies on a form of juridical right disassociated from the glo-
bal economic context. Ironically, Alexander’s ostensibly contextualized account of
the global debate over property rights fails to acknowledge a critical part of what
makes up that context.
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Social & Legal Studies 24(1)
By contrasting Foucault’s genealogical account with Alexander’s...
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