4.3 Is it still possible to reconcile law and idea?
In the years following the 2008 financial crash, one thing seems clear: the division between the two types of equity discussed throughout this course continues to grow. There is, in short, less concern for equity in terms of countering inequality; and where equity remains concerned with what is either just or fair, or where it seeks to counter opportunism, it is only within the very narrow context of existing wealth. Perhaps this is unsurprising when mapped across the general trend for increased inequality highlighted by commentators such as Thomas Piketty (2014) and the Nobel Prize-winning economist Angus Deaton. Moreover, the notion that equity can exist as a single coherent body of law that at once promotes wealth proliferation via mechanisms of ‘legal’ tax avoidance/evasion (one of the many ‘benefits’ of trusts), while continuing to talk about conscience as a central tenet for achieving justice and fairness seems all the more absurd.
At heart the matter here mirrors far bigger issues, including those relating to democracy, rule of law and whether opportunism, the profit motive, or individualism in capitalist societies are compatible with notions of justice and fairness for the many and not just the few. There may be a post-financial crash fashion for so-called corporate social responsibility and even conscious capitalism (Mackey and Sisodia, 2014), but these are only papering over the cracks left by the retreat of other moral and ethical frameworks. But there is perhaps an even more disturbing issue on the horizon. There is a growing sense that capitalism’s inherent incompatibility with broader social and democratic ideals means that its collapse and end may not be far away, as it becomes, to all intents and purposes, unsustainable. As Wolfgang Streeck maintains: ‘The capitalist system is at present stricken with at least five worsening disorders for which no cure is at hand: declining growth, oligarchy, starvation of the public sphere, corruption and international anarchy’ (2014, p. 64). Not all of Streeck’s suggestions are directly relevant here, but there is certainly a case to be made on the connection between corruption and opportunism. And one thing can be sure: the end of capitalism will not be something positive for the majority of people who presently live under it, even those for whom capitalism bears no fruit at present.
It is also important to note the impact that neoliberalism is having on equity, including any possibility of recovering forms and ideas of equity that exist outside of or beyond economic or financialised considerations. Neoliberalism, which can be defined briefly as the radical extension of free-market ideology to all areas of human life, not just those directly concerning finance, ought not to be confused with capitalism as such, and the two are not directly interchangeable, although the two are certainly related inasmuch as they flow from classical economic forms of liberalism. In many ways neoliberalism is far more insidious than the laissez-faire capitalism discussed thus far. For example, neoliberalism does not simply promote a false sense of aspiration or freedom, but actively encourages individuals to sustain an illusion that freedom is available for all when it is clear, among other things, that increased economic inequality means freedom, if that is defined, for example, as being unencumbered by debt, is something that can only be achieved by a select few. To sustain the illusion, therefore, goes to the heart of what it means to aspire, while aspiration itself fails to support any material or concrete outcomes.
How does neoliberalism affect equity? In the following passage by Wendy Brown that touches on some of the themes discussed throughout this course, it is possible to make some important connections:
Neoliberal reason, ubiquitous today in statecraft and the workplace, in jurisprudence, education, culture, and a vast range of quotidian activity, is converting the distinctly political character, meaning, and operation of democracy’s constituent elements into economic ones.
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As both individual and state become projects of management, rather than rule, as an economic framing and economic ends replace political ones, a range of concerns becomes subsumed to the project of capital enhancement, recede altogether, or are radically transformed as they are ‘economized’. These include justice (and its subelements [sic], such as liberty, equality, fairness), individual and popular sovereignty, and the rule of law.
Thinking about equity in these socio-economic terms may seem pointless to some people. For example, some may ask how this has anything to do with law. It may seem overly provocative to others to drag law into such a contentious debate, such as the end of capitalism and rise of neoliberalism. But, in order to take the future of equity, as both law and idea, seriously, it must be considered in light of these radical socio-economic shifts. Mainstream, doctrinal perspectives rarely if ever provide a sense of what is at stake regarding contemporary equity. An average textbook on the subject will, for example, tell you simply that equity remains a flexible body of law, based on conscience, able to guarantee fairness and justice in the legal system. And yet, as you have seen, it is not that clear cut. This is the view that lawyers are expected to take; one which does not question what ends the legal system ultimately serves and to whose advantage. Not all lawyers or those wishing to study the law need to accept this.