Every reader of this piece will be familiar with a certain argument for neoliberal government. By the end of the 1970s, we were told, laws governing welfare, employment, housing, etc. had grown out of control. Ever since then, politicians on the right and centre-left of politics have been trying to reduce them back down to their right size. Reducing the law and therefore the state is said to be an ethical decision, since it serves to remove the power of unelected bureaucrats, lawyers and judges and gives people control over their lives.
That way of justifying right-wing politics may be very old; it has not gone away. Anyone who has followed the news since Boris Johnson became prime minister will have noticed how at twelve-week intervals our government republishes a press release promising a ‘bonfire’ of workplace or environmental or EU laws, to take place somewhere in the near but not too near future, and how loyally this intention is always reported as news.
Yet if the law is always just about to be reduced to size, what is extraordinary is that there is never any less of it. Every year around 14,000 pages of new legislation are added to the statute book including both primary legislation (meaning Acts of Parliament), and secondary legislation (such as Statutory Instruments, in other words, supposedly non-controversial laws made by ministers). This is double the volume of legislation of 40 years ago. Tony Blair’s government passed 382 Acts passed between 1997 and 2007; the 2010-5 coalition government created 1,785 new criminal offences, Boris Johnson made 425 Covid Regulations between March 2020 and April 2021. The list goes on and on.
What I want to do in this piece is to propose some explanations of why, contrary to neoliberal promise, such law is never diminished but only in fact grows.
‘Neoliberalism,’ writes George Monbiot, ‘sees competition as the defining characteristic of human relations. It redefines citizens as consumers, whose democratic choices are best exercised by buying and selling, a process that rewards merit and punishes inefficiency.’ For Naomi Klein, neoliberal economics imagines ‘the market’ as an ideal rather than a reality: a world in which needs are always satisfied in the end. Any disturbance is blamed on a human failure to match up to the ideal. Therefore, the solution is always the same: ‘a stricter and more complete application of the fundamentals.’
Therelationship between neoliberal theorists and politicians has changed over time. So, between 1979 and 1990, when Margaret Thatcher was Prime Minister, she met Hayek and Friedman, and they corresponded with her. But by 1997, when Tony Blair was Prime Minister, Hayek was dead and Friedman old. Blair met Thatcher, not long after taking office, and was determined to be seen as governing in linewith her politics. But he was also, at different times, eager to appear a social democrat, a moderniser, an enthusiast for public education or the new knowledge economy, and many other things besides.
Yet the reason why it is worth seeing this period as a whole as one of neoliberal rather than, say, ‘right-wing’ government is that on the surface political competition continued, and centre-left parties have been just as dazzled by the vision of a society of small shareholders, and just as committed as their right-wing counterparts to policies of cuts and privatisation.
Hayek and Friedman were not legal theorists, but a coherent idea of the law emerges from their work. Competition, they argued, would produce a harmonious society. Their emphasis on market solutions is at the heart of neoliberal support for increased law. When the values of market-based systems for, let us say, the pricing of water or of rail are explained to the public, it is very often said that the market is superior to the state because it finds an equilibrium between supply and demand by itself and without needing state aid. But what is supposed to emerge without difficulty never does. A judge is always required.
Neoliberal politicians depend on the law to constitute market relationships. Friedman conceded the point, writing in his 1962 book Capitalism and Freedom that every market must have rules and someone in a position of authority (a judge) to enforce them: ‘The existence of a free market does not of course eliminate the need for government. On the contrary, government is essential both as a forum for determining ‘the rules of the game’ and as an umpire to interpret and enforce the rules decided on.’
Anyone who has ever tried to read a practitioner’s guide to environmental law will have seen how this works in practice. You can convey the totality of all our shared ecological laws in a single volume with little more than 1000 pages of text. But, of all the things that a non-lawyer might expect to find in that book—guides to expropriating polluting industries, punishments for the worst offenders to the warming of the planet—none are there. What we have instead is a vast amount of detailed regulation, laws for the circumstances under which plastics can be made, rule concerning who is allowed to sell a plastic bag and at what price. The managers of polluting businesses are faced with a choice: they can choose to follow government regulation, or if the price of such obedience would mean that competitors acquire a relative advantage over them, they can choose to ignore it, nothing that the fines are derisory, and that the state will no more challenge their power than will it jail tax evaders, etc.
Neoliberal governments depend on the law to facilitate their advance. They need laws to create market relationships, but the actors in these markets behave in different ways to how the neoliberals promised. Getting private bodies to deliver services rather than the state is supposed to drive down prices. But in the reality of privatisation, massive subsidy is needed to maintain a privatised rail network. The state becomes a giant piggy-bank, as we saw under Covid, for those businesses who are most brazen at exploring their contacts in government
Law has often grown as part of a conscious project of creating right-wing voters. The classic example is the introduction of ‘right to buy’. The Housing Act 1980 gave council tenants an option to purchase their home at a discount of up to sixty percent compared to the market rate. The scheme privatised a significant part of the welfare state, and succeeded because the funds were found to finance it on terms so advantageous that opposition would be limited to a hostile minority of tenants who were committed to public ownership. Everyone else would take what amounted to a huge bribe.
Since the policy was introduced, a market in houses has increased the price of accommodation. Ex-council homes are bought in order to be sold; some landlords have been able to build housing empires of hundreds of properties—hence the conditions of scarcity and high rents which characterise the UK housing market.
This proliferation of laws since 1979 represents a political ideology that understood itself, in its first decade, to be engaged in the task of regime change. It was hostile to the previous settlement and sought to overturn it. Whenever committed people have taken power and sought to entrench their values in contrast to what went before, they have tended to do so by introducing a new ‘constitutional’ settlement which future generations would be required to accept. In the UK, measures like the Right to Buy and balloting rules for strikes are now widely treated as inviolable, the boundary line between rational government and a return to the chaos of the last days of the 1974-9 Labour government. Without these laws, the story goes, the dead would go unburied, the rubbish would again pile uncollected in our streets.
This reality, in which laws have expanded at exactly the same time that the social power of most people has diminished. undermines the common-sense idea that because the Right is always talking about reducing the state, the Left should therefore call for its expansion.
In terms of the legal system, the workers’ movements and allied causes could instead call for fewer laws, and better ones. Rather than repeatedly immersing ourselves in the state, we should be distancing ourselves from it – using it tactically and sceptically, if at all.
Of course, any radical theory should not be interested only in how much law there is, but also in how the law is shrunk: if you were to abolish all housing law tomorrow while preserving everything else the same, for example, all tenants would not find themselves secure in their homes. Rather, they would be subject to the whims of their landlords who would be free to evict them at will. The same is true of employment law.
The slogan of cutting the law back down to size does not becomes a radical programme unless it is demanded by a social movement of workers or the poor.
But this does not change the essential point, that the movement of the poor and the oppressed are at their most impressive and creative when they depend on people organising themselves, rather than using the law to negotiate a better relationship with power.
We need stronger movements, and we get them when people mobilise outside the law.
Rather than swallowing neoliberal falsehoods about shrinking state power, we need to do away with laws that entrench capital’s power at everyone else’s expense.
This is a taster for my new book, ‘Against the Law,’ which is published by Repeater on 12 July.