Behind the bars of neoliberalism

In the United States today, one in a hundred adults is in prison. In the United States, too, free markets are widely considered the best system for distributing resources efficiently. The juxtaposition of these two well-known observations may seem incongruous. Nevertheless, it is to demonstrate its merits that Bernard E. Harcourt, professor of law and political science at the University of Chicago, sets out in his latest work.

This work thus enriches the numerous works devoted since the 1970s to the phenomenon of mass incarceration in the United States, which the author places in the broader movement of “ neoliberal penalty “. In previous works, mass incarceration has been linked to a new form of management of poverty and racial inequalities, to the weakening of the rehabilitative ideal in favor of a “ culture of control “, or even the development of new government techniques exploiting the fear of crime. The Illusion of Free Markets takes note of these explanations and proposes to augment them with a new perspective, the ambition of which goes far beyond the criminal sphere.

According to the author, mass incarceration and the illusion of the free market arise from the same ideological environment, the keystone of which is the myth of the natural order. Its intermediary allows the articulation of differential injunctions addressed by the liberal economy to the State: to keep a distance from the economic sphere and to intervene without weakness in the criminal sphere.

To put an end to the fictions of freedom and discipline

The work opens with the careful discussion of two cases, considered paradigmatic of the categories of regulated market and free market, the grain police in the Paris of XVIII^e and the Chicago Board of Trade in 1996. Conversing in particular with the work of Michel Foucault, the author highlights the innocuous nature of the interventions of the grain police – which mainly concern offenses of not sweeping the sidewalk in front of the shops – and the strict rules which govern the exchanges within the Chicago Board of Trade. This convincing demonstration allows the author to assert that all economic organizations have a regulatory system, of comparable structure, the provisions of which must be analyzed outside of the categories “ misleading and empty » (“ misleading and empty », p. 25) of “ freedom » and “ discipline “.

Consequently, it is necessary to understand how these categories have established themselves as essential references for thinking about economic organizations. Even more, it is the performativity of these categories which raises questions: “ What made this worldview possible ? At what price ? That is, what are the consequences of looking at the world through these categories? ? » (p. 26). The answer to these questions requires a genealogical analysis of the notion of “ natural order », which supports the ideological environment facilitating, on the one hand, the development of the penal sphere and, on the other hand, the naturalization of the distribution of wealth in American society – a consequence certainly less new, and therefore less studied in the work, but no less important.

From the natural order to the sanction of “ disordered »

Bernard Harcourt places the introduction of the concept of natural order in economics in the middle of XVIII^e century, in the works of the Physiocrats, and in particular of François Quesnay. For this author, the notion of natural order reconciles a deterministic vision of the economy – of which he proposes a modeling within a closed circuit – and the affirmation of individual freedom – which must not be limited by ‘State. Individuals, by freely following their natural interest, participate in a determined economic order, which obeys the laws of nature.

However, not everyone obeys the laws of nature, and this is where the second part of the Physiocrats’ thinking comes into play: legal despotism. If the State must refrain from intervening in the economic sphere, it must on the other hand intervene firmly to sanction “ disordered » and the “ perverted men », whose freedom does not agree with the natural order of the economy. When, in periods of triumph of liberal thought, the State disengages from certain sectors of the economy, it reinvests the margins through its penal action. By extending the market sphere, the natural order jointly extends its projected shadow, the penal sphere.

The thought of the Physiocrats formulates with particular clarity the articulation of the three central notions of the work: free market, criminal sanction and natural order. The author shows that these are found in the work of the two authors who have most influenced modern penal thought, the Marquis de Beccaria and Jeremy Bentham. Even the latter, slayer of illusions (fallacies) of natural law, introduces an ideological bias into his economic thinking, in the form of a spontaneous harmony of individual interests. The passage through Beccaria and Bentham also makes it possible to introduce an essential element to link natural order and criminal sanction: the latter must not only punish “ disordered ”, but also encourage them to come to their senses and dissuade others from imitating them. For this, the punishment itself must be rational. Thus, economics begins a movement, which fully asserts itself within the Chicago School from the 1960s: it is no longer content with defining the contours of the penal sphere, it also introduces its logic and its purpose.

The Chicago School and the Prosperity of the Crime Economy

Contemporary neoclassical economics certainly no longer speaks of natural order. The author nevertheless maintains that this is less a change in philosophy than a refinement of concepts. To the natural order of François Quesnay, neoclassical economics prefers the notion of efficiency, resulting from the work of Pareto or Kaldor and Hicks. “ Once the Pareto and Kaldor-Hicks refinements are established, it becomes much easier to claim that “efficient” solutions are in fact neutral, objective and non-normative. » (p. 140). The myth of the free market is above all that of its neutrality, which naturalizes its direct consequences – the distribution of resources – or indirect consequences – the development of the penal sphere.

Efficiency is in fact at the heart of what the author considers to be the point of convergence of the movement Law and Economics within the Chicago School: the Coase theorem. The latter asserts that, in a world without transaction costs, the market is the most efficient solution for allocating resources. This result, extended to situations presenting significant transaction costs by an ideological bias similar to that of Bentham, allows the rebirth of a modernized version of the natural order of the market. With him also comes the idea that criminal law must punish market avoidance. Richard Posner, one of the leaders of the movement Law and Economicswrites thus: “ The main function of criminal law in a capitalist society is to prevent individuals from circumventing the system of voluntary and paid exchange – the “market”, whether explicit or implicit. “. Thus, theft, which involves a cost for the victim but also for the community in terms of security and justice expenses, is a form of inefficient allocation of resources compared to market exchange. Rape is also understood as a circumvention of the sex and marriage market, which should be punished as such. The penal sphere maintains the boundaries of the economic sphere and its expansion is favored as the most diverse areas of social life are understood as markets.

From the illusions of neoclassical economics to the neoliberal penalty

“ The neoliberal penalty facilitates the expansion of the penal sphere. It makes it easier to resist government intervention in markets and embrace the criminalization of any and all forms of “disorder.” » (p. 196). The link between the illusion of the free market and the neoliberal penalty is therefore not of the order of simple causality, but of participation in the same ideological environment, which makes it possible to reduce the dissonances between differential injunctions addressed to the State in the economic and criminal spheres.

Demonstrating the existence of diffuse causality is a difficult task. Bernard Harcourt does this by multiplying sources, approaches and periods. From the study of the grain police archives in Paris to XVIII^e century to the analysis of the jurisprudence of the Supreme Court XX^e century, from reading the French physiocrats to examining the presidency of Andrew Jackson in XIX^e century, The Illusion of Free Markets is a rich, if not abundant, book. This bundle of analyzes comes together in a common intention: to convince of the need to get rid of illusions and misleading categories such as the free market, the natural order, freedom and discipline. Only the elimination of these illusions, which structure our vision of reality to the point of obscuring it, will make it possible to rethink questions as central as the distribution of wealth and the evolution of penal policies. In this, Bernard Harcourt convincingly takes up the ambitious challenge launched by Luc Boltanski to research in the social sciences: “ Show the world in the form of reality to which it is required to comply, in a given society ” in order to “ release the lateral possibilities that it locks up “.