Constitutional Property Rights and Elision of the Transnational: Foucauldian Misgivings

Abstract

Neoliberal 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. If neoliberalism has had some success in framing democratic discourse, then there should be evidence, both inside and outside of states, of neoliberal values being channeled by constitutionally relevant actors and institutions. Scholars of comparative constitutional law mostly are disinterested in inquiries of this sort. The paper takes up, as evidence, recent work in comparative property rights. The value of Michel Foucault's 1979 lectures at the College de France bring neoliberalism is that they relocate neoliberalism into the centre of discussion. They portend new transnational regimes to complement national ones, like that of international investment law, and the development of new subjectivities beyond the national frame, one that conjoins the liberal rights holder with the bearer of economic interests. Comparative property theorists, by contrast, rely on forms of juridical right disassociated from the global economic context. They oddly fail to account for a critical part of what provide the context for contemporary debates over global property rights.