Neoliberalism and authoritarianism

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By PIERRE DARDOT*

The irreducible authoritarian dimension of neoliberalism is configured in different degrees, including the constitutionalization of private law

Since the election of Trump in 2016, the public debate about the characterization of neoliberalism has centered around the term “authoritarianism”. In fact, from that moment on, some analysts did not hesitate to declare the “death of neoliberalism” due to the victory of “extreme right-wing populism” (right-wing populism). On the contrary, others insisted on the need to consider the amalgamation between these two phenomena, under the name of “authoritarian neoliberalism”, and even sought to re-elaborate the very notion of “authoritarianism”.[I].

But what is to be inferred from this last concept? Is this the trend observed almost everywhere of strengthening executive power and restricting public liberties? Is it about defining a new kind of freedom, suited to the “nationalist” version of neoliberalism, and which Wendy Brown interestingly calls “authoritarian freedom”? Furthermore, would it be the case to exempt the “globalist” and “progressive” version of neoliberalism from any authoritarianism? Even more, wouldn't the authoritarian tendency cross, at different levels, neoliberalism itself, regardless of its tendencies, from its origin? It would be a case of recalling, in addition to the unanimous support of Hayek, Friedman, Becker and Buchanan for the Pinochet dictatorship, Röpke's joy at the news of the 1964 coup d'état that established a military dictatorship in Brazil, or even that Hayek sent a copy, with dedication, of his Constitution of Liberty to the Portuguese dictator Salazar?

Neoliberal political authoritarianism

The uprising on January 6, 2021, in Washington, showed how far Trump was willing to go to prevent the ratification of the states' vote. Most important, however, for the future is unquestionably that he was able to increase the number of voices in his defense between 2016 and 2020 (from 63 million to 73 million in 2020). This polarization would not have been possible without an opposition of values, that between liberty and equality, or between liberty and social justice, in a word, that between “freedom” and “socialism”. It was this opposition that gave meaning to the hatred or resentment of a large portion of its voters.

As Wendy Brown said, the Republicans’ greatest achievement in these elections was “associating Trump with freedom”: “freedom to resist anti-Covid protocols, to reduce taxes for the richest, to increase the power and rights of companies, to try to destroy what remains of a regulatory and social state”. It is the association with this “freedom” that takes Trumpism beyond the person of Trump and it is this that allows the prospect of a Trumpism without Trump. Trump certainly embodies a “racist neoliberal authoritarianism”, but he is by no means an accident in the course of American history, and the militiamen of the Capitol, far from being a foreign body to America, “are part of a long tradition of white American terrorism,” which can only thrive on the terrain of a four-century-old “nativism.”

It was this “unregulated freedom”, “more precious than life”, that Bolsonaro and his supporters claimed in Brazil. And, just as Trump resorted to the power of decrees (among them the famous “Muslim ban”), Bolsonaro sought to extend his power by diminishing, if not eliminating, the system of checks and balances inherent in the 1988 Constitution. ). All of his actions were directed towards an expansion of executive power (intimidating governors and mayors in favor of confinement, accused of corruption, calling the population to arms to force them to yield, etc.)

In both cases, on the side of the leaders, political authoritarianism is characterized by the will to govern freeing oneself from any parliamentary or constitutional control. Does this mean, however, that neoliberalism as such requires the enactment of an authoritarian regime as its condition of possibility? In short, what is the relationship between neoliberal political authoritarianism and an authoritarian regime?

Neoliberal authoritarianism and authoritarian regime

To answer this question, it is necessary to consider the classic category of “authoritarianism” in vogue in political philosophy. In this field, it often designates a type of political regime: by “authoritarianism” is meant a regime authoritarian.

This is particularly the case of Hannah Arendt, dedicated to avoiding a confusion between phenomena as profoundly different as the “tyrannical, authoritarian and totalitarian systems”, as well as their inclusion in a continuum that considers only differences of degree: if authoritarian regimes characterized by a “restriction of freedom”, the latter should not be confused with the “abolition of political freedom in tyrannies and dictatorships”, nor with the “total elimination of spontaneity itself” in totalitarian regimes[ii]. Such a typology is not of a historical order and cannot be understood beyond the reference to a world in which “authority was erased to the point of almost disappearing” – authority being understood, here, from the Roman concept of self-critical, as being distinct from power (protests).

If we turn to historians, we will distinguish regimes such as Italian fascism and German Nazism, which aim to “guarantee a total framework for society” and seek to “form a new man”, from authoritarian, traditionalist and conservative regimes, such as Salazar’s Portugal, Franco's Spain and Vichy France[iii]. Now, the distinction will pass in the interior dictatorial regimes themselves, and not between authoritarian, dictatorial and totalitarian regimes, as in Arendt.

The difficulty of such classifications is due to the fact that they prove to be inoperative when it comes to accounting for the multiple forms of neoliberalism in government. Was the fact that Hayek supported Salazar and that Friedman was enthusiastic, in 1997, in the way in which Great Britain acted as a “benevolent dictator” in Hong Kong enough to establish that all these regimes were “neoliberal regimes” ? We can refuse to enter into such classifications and devote ourselves to highlighting the common tendency of authoritarian regimes to give primacy to the executive branch at the expense of the legislature. This characterization of authoritarian regimes, however, is too general to be relevant: after all, where should we mark the difference between regimes that demonstrate such tendencies and those characteristic authoritarian regimes, where all political plurality has been banned?

It also proves incapable of accounting for the diversity of forms assumed by neoliberalism in government. In this way, it can happen that a leader like Macron intentionally plays with the resources of a hyper-presidential Constitution (prolongation of the state of emergency since 2015) to go far beyond his predecessors in putting into practice neoliberal policies initiated by them in this same position. But it can also happen that a head of state manages to modify the existing Constitution in the sense of putting into practice an authoritarian regime: Viktor Orban has thus abolished the most elementary democratic guarantees, giving himself full powers for an unlimited duration. These conditions are far from indifferent to the political struggle for democracy.

Political constitution and “market constitutionalism”

At first sight, there is, in the neoliberals' predilection for the strong if not authoritarian state – something difficult to reconcile with their almost unanimous insistence on the inviolability of the rule of law. How to affirm, at the same time, the need for a strong State and the limitation of governmental power by the same rules? In fact, such rules are reduced to those of private law. What makes neoliberalism original is the claim that private law must be constitutionalized. We will designate by “market constitutionalism” the elevation of the rules of private law (including commercial and penal) to the level of constitutional laws, whether or not extended by their inscription in a political Constitution.

But what should be understood by “constitutionalization”? What is the relationship between constitutionalization and the Constitution? And what is the meaning of the typically neoliberal idea of ​​the “economic constitution”? It is not a question of sanctioning, after the granting of a State Constitution, a right devoid, in itself, of any constitutionality. Quite the contrary, it is about recognizing, from the beginning, that the economy has a constitutional scope free of any formalization until a second moment. We see that the originality of neoliberalism lies in inscribing the Constitution in the order of the economy through the mediation of law, without necessarily assuming its incorporation into a state political constitution.

At its origins, in the 1930s, Eucken and Böhm, two founders of German ordoliberalism, gave two meanings to the notion of “economic constitution”: a descriptive meaning, that of a given sociological reality, and a normative meaning, that of a given order. desired legal. They did not, therefore, think of the “economic constitution” in its literal sense, just as they did not claim that such a constitution should be incorporated into a founding legal document.[iv]. In Law, legislation and freedom, Hayek qualifies the rules of private law as “constitutional” laws, stating that they precede the political constitution and are not part of it. To make it clearer, we will systematically distinguish three major paths of neoliberal constitutionalization: that of enacting a new authoritarian Constitution, that of modifying the existing Constitution in an authoritarian sense, and that of a Stateless Constitutional Treaty imposing a competition policy.

Imposing a new constitution by the state dictatorship

We know the example of Pinochet's Chile, supported by Hayek and Friedman. But we paid little attention to the content of the Constitution promulgated in 1980. This constitution, however, is undoubtedly the only one that we can qualify as “neoliberal” due to its fundamental inspiration. At its core is the “principle of subsidiarity”: the private sector has priority in a market unless the state can prove its superiority, which must be ratified by a vote in Congress. Prohibiting, at first, any possibility of political alternative, even in the case of electoral alternation, this constitution was rightly called the “Trap Constitution”.

But neoliberal constitutionalism could still take other forms. At the Monte Pélerin meeting in Viña del Mar in November 1981, in his contribution entitled “Limited or unlimited democracy?”, James Buchanan warned his colleagues by alluding to the recent victories of Thatcher and Reagan: one cannot “let oneself be fall asleep with the temporary electoral victories of politicians and parties that share our ideological affiliations”, as they should not distract attention “from the more fundamental problem of imposing new rules to limit governments”[v]. In May 1980, he presented five lectures to high-level dignitaries of the military junta to assist them in drafting the new Chilean Constitution. He recommended imposing severe restrictions on the government and, first of all, fiscal rigor to prevent any overspending.

In an interview for the newspaper The Mercury, he declared: “We are in the process of formulating constitutional means to limit government intervention in the economy and ensure that it does not put its hand in the pockets of productive taxpayers” (May 9, 1980). We understand, in light of his statements, that neoliberals have no aversion to resorting to force, not just to save the market order when it is threatened, but to create such an order by such means. In a converging manner, albeit by different means, they sought to establish market constitutionalism by all means, including those of the state dictatorship.

The path of constitutional amendments

The recent history of government neoliberalism leads us to consider another way of constitutionalization. In Brazil, the 2016 institutional coup d'état against Dilma Rousseff, elected president in 2014, impressively illustrated this trend. The pretext for launching the process of impeachmentt against the president was provided by accounting maneuvers to which her government resorted after having used public banks to execute various payments. The dismissal process, in the national Congress, resumed the accusation already formulated by the judges, that of an attempt to circumvent the budgetary laws. Basically, beyond the tax pretext, the impeachment it aimed to criminalize any policy that allowed spending greater than that authorized by the austerity laws.

As Tatiana Roque said: “It was, after all, the beginning of a process of constitutionalization of economic policy, whose peak was reached with the first measure of the government installed in 2016: a constitutional amendment imposing a fiscal ceiling on expenditures public”. Although this unprecedented constitutionalization in the history of Brazil was valid only at the federal level, it hit the education and health systems hard. President Temer thus paved the way for Bolsonaro by introducing constitutional amendments with the aim of freezing public spending for 20 years. Bolsonaro, in turn, had to modify the Constitution to carry out the pension reform. In both cases, the mechanism is the same: the modification was carried out through a Proposed Amendment to the Constitution (PEC).

We see that “constitutionalization” does not necessarily take the form of creating a new Constitution, as in Chile, nor that of formally inscribing an economic constitution in the existing political Constitution.

Constitutional decisionism and European construction

The construction of the European Union allows the exploration of a third way. The pioneers of German ordoliberalism, W. Eucken and F. Bhöm, had already paved the way for a constitutional decisionism inspired by Schmitt, understanding the “economic constitution” as a “basic decision” or “fundamental decision”. As early as 1937, Böhm described the economic constitution as a “normative order of the national economy”, which could not exist except “by the exercise of a conscious and informed political will, an authoritative decision to leadership"[vi].

Based on the works of Eucken and Böhm, the ordoliberals transposed this conception of the economic constitution to the supranational scale of Europe. In fact, from the moment the Treaty of Rome was signed, it was clear that this Treaty, far from being a conforming copy of neoliberal doctrine, was nothing more than a general legal basis destined to be formalized by a political leadership. It was only later, in 1962, that certain additions to the Treaty gave “unlimited jurisdiction” to the Court of Justice of the European Union (CJEU) with regard to amendments and sanctions. Pro-Europe neoliberals asserted two principles: the power of the Court to override national law and the recognition of the power of individuals to appeal directly to the Court. Such a bifurcation of powers, upwards towards the Community and downwards towards individuals, was essential to the constitutionalist reading of the construction of the European Union: Europe was a “supranational legal order” guaranteeing private rights directly applicable by the Court of Justice.[vii].

It is for this reason that the authoritarian dimension of neoliberalism took on a different form in Europe from that of authoritarianism. state classic. In the absence of a European State, we find here a concentrated expression of market constitutionalism, through the stacking of so-called “community” norms prevailing over national state law. The equation that prevails is the same one that Hayek formulated in his time: sovereignty of private law guaranteed by a strong power. That sovereignty is sealed in European treaties; The strong power responsible for guaranteeing respect for sovereignty takes the form of different but complementary bodies, such as the Court of Justice, the European Central Bank (ECB), the Interstate Councils (heads of State and ministers) and the Commission. It is market constitutionalism, whatever its forms, that no longer simply requires the powers of the nation-state, but institutional decision-making mechanisms removed from any democratic control on a supranational scale.

In this regard, it is worth remembering that the Treaty of Lisbon does not formally have the status of a Constitution: rather, it is an agreement between States with constitutional value, which is quite different. However, it integrates a form of “European economic constitution” (mainly in its part III) enshrining the famous “golden rules” (monetary stability, budget balance, free and undistorted competition). We can thus give such rules a constitutional character without waiting for the hypothetical creation of a European Constitution in the state sense of the term. Better: this constitutionalization allowed saving a supranational Constitution of state order, whose adoption would immediately find strong resistance.

The authoritarian dimension of neoliberalism

The essential thing is, after all, in the constitutionalization itself. The drawback of an interpretation focused in terms of political regimes is that neoliberalism cannot be positively defined by a specific political regime: it is certainly opposed to classical liberal democracy, but it can do so through quite different political forms. Not to go beyond these two examples, the Constitution of the French Vth Republic and the German federal state are two very different political regimes, with no necessary relationship to each other, but which have neoliberal policies. On the other hand, and this is a particular case, it will be very difficult to dissociate the Chilean regime from the 1980 Constitution, since it was that Constitution that established it as a regime that enshrines the neoliberal orientation.

The attitude adopted by Röpke in view of the historical circumstances is revealing of the flexibility of neoliberalism: in favor of a strong “total state” in the early 1930s in Germany and of a “dictatorial democracy” in 1940, in 1942 he extrapolates the model of the cantons the Swiss – which is not precisely an authoritarian model – on a world scale and, in the spring of 1945, he lets it be understood that the “German question”, according to the title of his book, would not be resolved unless through a decentralization that transforms the Bismarckian state in a federal structure[viii]. We must, therefore, pay attention to the risk of misunderstanding around the concept of “authoritarianism”.

Thus, we can speak of an “authoritarianism of State” to return to an authoritarian regime, but we can also speak of “authoritarianism” to designate the mode of government proper to a Head of State or a government: we understand, with this, an attitude which consists of superimposing any consultation, or even the tendency to favor the concentration of powers as opposed to their distribution.

From the first to the second meaning of the concept of “authoritarianism”, there is no logical connection. All we can say is that the more the Constitution is “liberal” in the sense of recognizing the division of powers, the more authoritarian rulers encounter obstacles in the way of executing their projects.

All this concerns history, politics and the relationship of forces. What does not change, beyond the difference between “nationalist” neoliberalism and “progressive” neoliberalism, is the affirmation of the need for an “economic constitution” capable of binding States, whatever their political form. Here lies the heart of the authoritarian dimension of neoliberal politics: the structure of the State can very well vary, governments and their forms as well, the essential thing is that the rulers are strong enough to impose, by one way or another, the constitutionalization of private law . This is because what is at stake is the founding decision to restrict a priori the field of deliberation by excluding economic policy from collective deliberation.

The mistake made by those who refuse to admit a necessary connection between neoliberalism and authoritarianism is to equate authoritarianism with authoritarian rule.[ix]. After all, if we can rightly state that the “authoritarian option” (in the sense of an authoritarian regime) is nothing more than one of several strategies within neoliberal thought, and that others include a decentralization of state sovereignty, it would certainly be wrong to present the experience of “third way” neoliberalism (Clinton, Blair) as not being authoritarian: in fact, it was authoritarian in its own way, even though it did not need to resort to the establishment of an authoritarian regime to achieve its ends. Thatcher didn't need that either, as she made clear to Hayek – who urged her to adopt Chile as a model.

Definitively, if we try to be even clearer, it is necessary to distinguish three things: the authoritarianism as a political regime, which can be defined by a questioning of the division of powers and the tendency of the executive to assume all control – an authoritarianism that is not, far from it, exclusive to political neoliberalism –; O neoliberal political authoritarianism, which is defined, in turn, by government models that can adapt to profoundly different political regimes depending on the strategic needs of the moment; finally, the irreducible authoritarian dimension of neoliberalism, the one that takes place to varying degrees through the restriction of the deliberable that implies the constitutionalization of private law.

*Pierre Dardot is a philosopher, researcher at the Sophiapol laboratory associated with the University of Paris-Nanterre. He is the author, among other books with Christian Laval, de Common: essay on revolution in the XNUMXst century (Boitempo).

Translation: Daniel Pavan

Originally published on the portal AOC.

Notes


[I] Cf. Ian Bruff, “The Rise of Authoritarian Neoliberalism”, Rethinking Marxism (2014); Wendy Brown, Peter E. Gordon and Max Pensky, Authoritarianism: Three Inquiries in Critical Theory, University of Chicago Press (2018); Bob Jessop, “Authoritarian Neoliberalism: Periodization and Critique,” South Atlantic Quarterly (2019); Thomas Biebricher, “Neoliberalism and Authoritarianism”, Global Perspectives (2020)

[ii] Hannah Arendt, “Qu'est-ce que l'autorité?”, in L'humaine condition, Gallimard, 2012, p. 675-676

[iii] Johann Chapoutot, Fascism, Nazism and authoritative regimes in Europe (1918 – 1945), PUF, 2020, p. 249

[iv] Quinn Slobodian, globalists,

[v] Quoted by Nancy MacLean, Democracy in Chains. The Deep History of the Radical Right's Stealth Plan for America, Scribe, 2017, p. 372

[vi]Quinn Slobodian, Globalists,

[vii] Quinn Slobodian, globalists,

[viii] Quinn Slobodian, globalists,

[ix] This is the case of T. Biebricher in “Neoliberalism and Authoritarianism”

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