Neoliberal Penality: The Birth of Natural Order, the Illusion of Free Markets

Bernard E. Harcourt, Columbia Law School

This paper was presented at the University of California, Los Angeles, September 26, 2008.


This Article represents the culmination of over two-years of historical research, but it arrives at an odd moment, right in the middle of one of the largest financial crises in Western capitalism. In one sense, it is bad timing because the central premise of the Article is that most people today believe that the market is the most efficient mechanism to allocate resources. The federal bailouts of 2008 challenge this central premise and are forcing the American people to reexamine the need for the regulation of the free market. In another sense, the timing is, sadly, perfect. Perfect because the purpose of this Article is to question the meaning of the phrase the need for the regulation of the free market and to suggest that it is precisely the belief in the duality of those two terms – regulation and free market – that is one of the greatest problems we face today. The terms, as well as their companion expressions, market efficiency, natural order, self-adjusting markets, etc., are misleading categories that fail to capture the individual distinctiveness of different forms of market organization. These categories are responsible, first, for facilitating our growing penal sphere, and, second, for naturalizing and thereby masking the redistributive consequences associated with different methods of organizing markets. This Article asks the question, what work do these categories of natural order and market efficiency do for us? The story begins very far in time and place, in the Parisian markets of the eighteenth century, with the establishment of the lieutenant generale de police du Chatelet de Paris and the police of bakers, grain merchants, and markets.