ABSTRACT
This chapter explores the relationship between law and neoliberalism in the context of contemporary social policy. Among the many areas to be affected by the emergence of neoliberalism as the guiding philosophy of today’s politics, welfare has been one of the most prominent and controversial. The nature of the changes within the sphere of welfare that have accompanied the shift to a neoliberal politics have been charted extensively. Increasing privatisation and marketisation of social services; the importance attached to the empowerment of those who use social services by extending their range of choices and opportunities to provide feedback on their experiences; the rise in the importance of league tables within the National Health Service in the UK – these are just some of the features characteristic of the application of neoliberalism within the spheres of welfare and social services. While these have been the subject of a voluminous critical literature in the fields of politics, sociology, social policy, and economics, academic lawyers have tended to concentrate on the implications of such developments for the law within their particular legal subdisciplines, such as health care law and housing law. There has been comparatively little work undertaken by lawyers exploring what these types of developments in welfare and social services might reveal more generally about the manner in which law shapes, and is shaped by, neoliberalism and the neoliberal state. This chapter offers some preliminary reflections on this wider issue. The chapter has three objectives. First, it aims to identify the types of law and legal categories to be found in two areas of contemporary social policy – unemployment and health care. Second, it explores the form and underlying logic of those laws and legal categories and seeks to explain how these contribute, in a constitutive way, to the development and maintenance of neoliberalism and the neoliberal state. Finally, the chapter aims to place the foregoing analysis in the context of literature that comprehends neoliberalism as a political project that involves a central role for
the state and a range of institutional means that are devised and deployed to further the goals of neoliberalism.
