Introduction

As Stephen Gill and other critical political economists have argued, over the past three to four decades, various quasi-legal mechanisms of the ‘new constitutionalism’ have been used to ‘lock in’ political and economic reforms designed to promote fiscal discipline, a reduction of public expenditures, the privatization of state-owned enterprises, free trade, financial liberalization and other reforms associated with ‘disciplinary neo liberalism’ (Gill 1995a, 2008). The latter term refers to a politico-economic project that combines the direct and structural power of capital with more diffuse forms of ‘capillary power’ and ‘panopticism’ in order to compel states, social forces and individuals to conform to certain norms of behaviour. The locking in of disciplinary neo-liberalism at various sites and scales through these quasi-legal mechanisms secures the formal separation of politics and economics by limiting the policy space available to governments and progressive social forces, and by restricting the ability of governments to generate revenue (Gill 2008: 137–42).

Rather than entailing the retreat of the state, the new constitutionalism is part of the neo-liberal restructuring of state forms, partially through constitutional and legal means, in ways that support and extend market-based frameworks of power and accumulation. The new constitutionalism has also supported the reconstitution of the nature of social welfare and the governance of social reproduction more generally. This chapter seeks to further elucidate the ways in which the nature of social welfare has shifted under the broader frameworks of the new constitutionalism and disciplinary neo-liberalism. It also seeks to draw attention to the ways in which the state’s legal apparatus, including its criminal and penal institutions, underpins market-based frameworks of power and accumulation.