Neoliberal Discrimination: Revisiting “Critical Theory in the Shadow of Law” (2012)

In this essay, Leora Bilsky and Ofra Bloch return to the 2012 essay “Critical Theory in the Shadow of Law” in order to rethink the relationship between critical theory and legal reform. The essay is devoted to studying the new mechanisms of discrimination that have evolved in Israel in recent years in response to critique and legal constraints. This new discrimination, which we term neoliberal discrimination, operates through increased privatization of governmental authorities and the infusion of market logic in the distribution of state funds, which serves to cover up the existence of discrimination. The essay introduces the concept of resignification to explain how prior strands of liberal critique of the state are given a diluted and narrow meaning, in a way that allows the state to use them to gain legitimacy for its new discriminatory policies. The essay argues that resignification is not a consequence of a strategic error, but rather is inherent in the interaction of critical theory and law. Therefore, we propose that critical theory should not aim to eliminate resignification, but rather try to expose it.