By JUAREZ GUIMARÃES*

Against the prevailing neoliberalism, it is urgent to build a new paradigm of constitutional law

Dedicated to Marcelo Cattoni

1.

It is necessary that democratic constitutionalism think about neoliberalism, since the latter, since its origin, conceptually thought about the theme of the Constitution.

For a while, neoliberalism was identified as an extreme economic liberalism or, to use the language of Benedetto Croce, a liberism. But this was not the case from its inception: Friedrich Hayek, the main author of this tradition, was a doctor in law and political economy at the University of Vienna; since the end of the XNUMXs, he began the transition from a strictly economic anti-socialist debate to the construction of political thought; his masterpiece is called, not by chance, Law, legislation and freedom. The concept of "rule of law” is at the heart of neoliberal theory about freedom.

2.

The crisis of democratic constitutionalism, in its pluralism of values ​​and theories, is a result of the rise of neoliberalism as a proponent of a new liberal state regime.

The formation of neoliberal thought, in its various national matrices, was from the beginning marked by criticism of the so-called social or Keynesian liberalism, which it understood as dissolving the classic identity of liberalism and incompatible with the “free market society”, allowing the rise of socialist or social democratic traditions. Hence, the post-war Constitutions, including the North American legal and institutional tradition after the decades of New Deal, are understood by neoliberal authors as incompatible with the newly formulated concept of freedom.

3.

At the center of the true “Constitutional Thermidor” promoted by neoliberal policies is the construction of a new concept of freedom, through which a whole new order of meaning and values ​​for life in society is built.

This new concept of neoliberal freedom, programmed in the work The Constitution of Liberty, by Friedrich Hayek, performs four simultaneous operations. First, it separates freedom conceived as strictly individual from political freedom or public freedom, from the principle of democracy and popular sovereignty. Second, it divides the value of freedom in relation to the value of equality, opening the way for the apology of inequality as an unavoidable source of progress.

Third, with a patriarchal paradigm, it challenges the freedoms and rights of feminism, returning questions of the traditional social division of labor and family values ​​to the private world. Finally, it identifies freedom itself ontologically with the self-realization of the individual in the market world.

4.

Neoliberalism is not a revival of classical liberalism, but a new liberalism, different from libertarianism.

The pretense of neoliberal authors to be true interpreters of classical or Manchester liberalism does not pass the test of the text (selective and partial interpretation of classic authors of liberalism, such as Locke, Adam Smith, Madison or Tocqueville) nor the context (their function is no longer to delimit a space of non-interference by the State, but to functionalize the entire logic of the State to the mercantile dynamics, such as the financialized capitalism of the XNUMXst century presents itself).

Neoliberalism is a liberalism because it has strong elective affinities with the formation of liberalism in the XNUMXth and XNUMXth centuries, in particular with regard to its historical critique of the republican values ​​of freedom and equality, becoming an organic expression of capitalism at the end of the XNUMXth century. XNUMXth and early XNUMXst century.

But neoliberalism is certainly not libertarianism: neoliberal authors are critical of laissez faire and advocate a strong State as a guarantor of the validity and reproduction of the mercantile order.

5.

Neoliberalism legitimizes and builds a new liberal State regime, that is, it causes a change in the very constitutional foundations of the State and cannot be identified only as a biopolitics (a way of governing people by giving them a new meaning of life), as a principle of governance (certain budgetary and public policy guidelines) or as a prescription for economic policies.

By promoting a conceptual and values ​​shift in the understanding of what freedom is, neoliberalism causes a true constitutional earthquake. That is, the very principle of the democratic formation of power, its exercise, its reproduction, all forms of sociability that are regulated by the State suffer the impact of this paradigm shift.

6.

The critique of neoliberalism is, strictly speaking, inaccessible to all theories that still feed on a liberal concept of freedom, even those that update an egalitarian sense of social liberalism (Rawls), discursive democracy (Habermas) or recognition ( Honeth).

This for three reasons. Firstly, because neoliberal theory merges the political and economic while these theories are conceptually organized from the separation between the order of politics and the order of the economy. Secondly, because they are inorganic and, therefore, counterfactual in relation to the prevailing capitalist dynamics in the neoliberal era.

Finally, because they adopt the procedural path in defense of democracy at a time when its fundamental values ​​are being deeply questioned and disputed. Thus, the undeniable and unavoidable contributions of these theories to the democratic struggle must be accepted in a new theoretical and conceptual paradigm.

7.

Criticism of neoliberalism is also, strictly speaking, inaccessible to the traditions of non-democratic socialism and social democracy, which eclectically combines corporatism and parliamentaryism.

Precisely because neoliberalism focuses on and disputes a new concept of freedom, theories of socialism that are unilaterally centered on the critique of capitalism's inequality, but which reproduce autocratic forms of power, are vulnerable to neoliberal counter-revolution. For neoliberalism, based on its concept of freedom, implodes the very meaning of equality and social justice.

In another dimension, the perspectives of social-democratization of capitalism are attacked three times by neoliberalism: on the economic level (by permanent structural and massive unemployment, by the inversion of progressive taxation, by the control and restriction of public budgets), on the political level ( by the reduction of spaces for agreement, negotiation and representation of interests, progressive reforms within the order) and in terms of political culture (by attacking the values ​​of social, racial or gender, intergenerational solidarity). O homo marshallianus – the expectation of a horizon of progressive overcoming of class inequalities by extending and deepening the status of citizenship, as conceived by TH Marshall – is thus put at a standstill.

8.

By cutting the thread between individual freedom and political freedom, neoliberalism redefines relations with democracy and, therefore, with the very meaning of democratic constitutionalism. There is a preference for democracy as long as it respects the “rule of law”. The compatibility of liberalism with democracy is conditional on it not violating the “rule of law”, which organizes and guarantees commercial relations. According to neoliberal authors, freedom could be more guaranteed in an autocratic regime that respected “rule of law” than in a democracy that confronted it.

In this order of argument, there would be no estrangement between neoliberalism and the Pinochet dictatorship, as shown in history. There would be more freedom under Pinochet than during the Allende government, for example. But democracy in a liberal regime that protects the “rule of law” would be preferable as it would allow a peaceful method of conflict resolution, also bringing greater legitimacy to the mercantile order.

9.

The concept of "rule of law” in Friedrich Hayek's theory it is conceived as a metal-legal rule, that is, an order of principles to which every law and every action of the State should conform. It is conceived as the result of the experience of civilizations that proved to be capable of guaranteeing progress in freedom, as formulated by neoliberalism. This metal-legal order, which would guarantee the functioning of the market – centered on the right to property, guaranteeing transactions and contracts – would have a spontaneous origin, not resulting from a previously formulated design by reason or collective will.

This "rule of law”, which is historically thought of as having its origins in pre-democratic nineteenth-century English liberalism and would be historically updated by the experience of the North American Constitution, should submit the three powers – executive, legislative and judiciary – to its logic conceived as procedural and not substantive. That is, it would guarantee the stability of a system of market functioning rules, guaranteeing stability, predictability and functionality.

10

The defense of thisrule of law” would use an indeterministic view of the social world, that is, the impossibility of any constructive rational planning and forecasting in democracies. In this way, Friedrich Hayek is critical of utilitarianism and even legal positivism, separating an Anglo-Saxon experimental and evolutionary liberalism from a rationalist and constructivist liberalism of mainly French origin. The critique of planning in democracies would be supported by a critical view of Enlightenment reason and an unavoidable pluralism of values, which would make the imposition of any goal of social justice arbitrary.

It is interesting here to note the way in which Hayek naturalizes the “rule of law”, no longer being able to use a sense of natural law as in the first contractualist theories, as in Locke. A "rule of law” is historically legitimized by English and, later, North American hegemony, in a great narrative of civilizations that operates a selection of those with greater progress and strength; the formation of the first liberal order would be the result not of a project of domination but of a spontaneous interaction, which would create a cosmos endowed with certain intrinsic tendencies of balance and progress; a certain conception of social science, seeks to close the space for even conditioned predictions and even democratically conceived planning, removing from the very notion of democracy the central idea of ​​a human purpose, collectively formed, acting in a conditioned way in history.

11

This core notion ofrule of law” dialogues centrally with the counter-majoritarian conception of James Madison, crystallized in the North American constitution, and with the appeals of Benjamin Constant against a “despotism of the majority”. But, in fact, it legitimizes a political order dominated by minorities, organically linked to the forms of financial capitalism dominant since the last decades of the XNUMXth century.

Once the relationship between constitution and democracy is severed, Friedrich Hayek can claim for himself, always selectively, the whole tradition of rule of law that comes from the Greeks, even going so far as to make incursions of utilitarian legitimacy of dimensions of the traditions of republicanism, such as the refusal of arbitrary powers, now reframed as those that go against the “rule of law”. But, in fact, there is no longer a production of legitimacy, but of legitimation, in the Weberian sense, of the formation of mass conformisms through the combination of cultural domination, coercion and consensus obtained under constraint.

12

The destruction of the democratic sense of constitutionalism, that is, its conformity with the legitimacy guaranteed by popular sovereignty, causes real devastation in at least five spheres of law: international law, public law, labor law, feminist rights and criminal law.

Thus, we pass from an era of the formation of rights to a Thermidorian era of rights, that is, from their explicit denial or impediment to their effectiveness. By deepening power asymmetries and establishing a short circuit in the democratic production of decisions, it is the very democratic origin of the universalization of citizenship rights that is suffocated. A new asymmetrical constitutional order of rights and duties comes to light, the referent of universalization having been lost.

13

As the political history of neoliberalism must be told from the epicenter of the US State, it must be geopolitically interpreted as a regressive response by the US State to the crisis of its hegemony in the world system. The regressive dimension of this response to the crisis is evident in the attack on the declaration of Human Rights made by neoliberalism and on the multilateral order in formation that around it was formed, through the dynamics constructed by the UN.

The 1960s and 1970s evidenced a set of regional and international crises that called into question the North American leadership, either by anti-colonial movements and revolutions in Asia and Africa, or by the cultures of Third Worldism and Non-Country Countries. Aligned, either by the cultures of autonomous national or Latin American development, or by the difficulty of controlling decisions in the General Assembly of the United Nations.

The refusal of a universalism of human rights that is at the center of neoliberal theory restores the legitimation of colonial dynamics in the XNUMXst century, forming a crisis of International Law, of international instances of conflict mediation, of cooperation structures in the initial formation process.

14

By denying epistemological validity and political legitimacy to the notions of general will, popular sovereignty, common good, social justice, public interest, neoliberalism proposes a wide spectrum of privatization of economic and social life, generating a withering and crisis of the public right.

This process is certainly more evident in the economic field, with the seizure of control of public budgets by rentier logic, the privatization of companies that operated in areas of public interest, the autarchy of central banks from any democratic control, the commodification of public goods, by the dismantling through real estate speculation of urban planning perspectives. But this shrinkage of public life, of its dignity, of its power of regulation, of civility, of the institutionalization of conflict, of its solidary and communitarian dimensions, produces a new regime of competitive and competitive sociability that spreads to the most primary forms of affection, love and beliefs.

15

From the beginning of its formation, more clearly from the beginning of the forties of the last century, neoliberalism directed its hatred and resentment towards the culture of labor rights, understood in a broad sense. These rights and cultures would be incompatible with the spontaneous order of functioning of the market, generating privileges in workers' unions, constraints on free individual contracts, unavoidable inflationary pressures, a gap between wage setting and productivity and, finally, cultures similar to a totalitarian regime.

In fact, neoliberalism not only continued the culture of the “cold war”, but gave it a greater scope, catching in the accusatory escalation of incompatible with freedom not only the socialist and Marxist traditions, but all other socialisms, laborisms, traditions social-democratic.

The attack on legislated law, on the culture of collective agreements, on the social security system and a new legal order to reduce membership bases, repertoire of actions and attributions of unions, thus produces a crisis in the historical references of labor law formed over the course of of the XNUMXth and XNUMXth centuries.

16

The relationship between neoliberalism and moral conservatism can be interpreted as a shared foundation of values ​​and political convergences. Its patriarchal sense is evident when it attacks public policies aimed at the reproduction of social life, attributing care to the family order, and interdicting the historic feminist investment in the subjective formation of freedom, the self-formation of gender identities and free sexuality. For this reason, it makes no sense to speak of “progressive neoliberalism”, even when it accepts certain demands for the “empowerment” of women, referring to their competition and self-realization in the mercantile world.

The convergence between political movements that adopt neoliberal programs with ultraconservative and even proto-fascist religious movements comes strategically from the confrontation of “common enemies”, understood as all cultures related to socialism. The so-called “conservative wave”, which flourished from the 1968s onwards in contrast to the libertarian cultures of XNUMX, must be interpreted as organic to the rise of neoliberalism, generating a crisis in the formation and consolidation of the historical rights of emancipation of feminism.

17

The rise of neoliberalism also meant a dramatic shift from an entire culture of welfare criminal law for the public security policies of “warfare” which, in split with any perspective of social citizenship, even affect the civil rights of populations tracked as marginal or under suspicion.

With the growth of massive structural and permanent unemployment, with the precariousness of labor ties and the deepening of social, racial and gender inequalities, neoliberalism has put into practice a culture of separation that has in a new direction of meaning of security policies the its nodal point.

There are no more prospects of re-socializing the subject of the crime, but massive incarceration, generally in conditions of violation of fundamental human rights; policies to reinforce the coercive dimensions of the State and surveillance target vulnerable populations, ostensibly infringing their civil rights; the retraction of social, inclusion and distribution policies is accompanied by a budget increase for the police and, worse, a culture of legitimizing violence against the poor. With neoliberalism, an entire historical construction of Criminal Law entered into crisis, with serious repercussions for a universalist dimension of civil rights.

18

The crisis of contemporary democracies must be fundamentally interpreted as a legitimation deficit of liberal democracies under a neoliberal regime.

Since the eighties, there has been a growing awareness in political and legal sciences that there is a structural crisis in the foundations and democratic institutions built in the post-war period: crisis of Welfare, crisis of the labor society, crisis of parties, crisis of the legitimacy of democracies, crisis, finally, of democratic constitutionalism.

This phenomenal identification of crises must be understood today as a first awareness, which should go to the root: they converge to a crisis of legitimation of the neoliberal state regime, whose process of destruction/creation has been consolidating since the 80s, in different pathways and extensions in liberal democracies.

19

This legitimization crisis of the States under neoliberal regime is historical and structural, having its epicenter in the North American State itself and affecting in different proportions all States that suffered the Thermidorian pressure of rights, typical of the Neoliberal Era.

It has always been through the process of extension, universalization and deepening of citizens' rights that the democratic regime has been legitimized. It is through the conquest and access to the right that citizens recognize themselves in the democratic order. The democratic retreat of the States under the neoliberal regime, accompanied by a regression of rights and an escalation of the growth of inequalities, generated a crisis of trust with the democratic culture, of the parties, of the institutions of representation that are proper to it.

20

The decades of dominance of a neoliberal state regime were accompanied by the entire formation of an arc of social resistance movements, which enriched the historical culture of rights, in relation to the defense of programmatic, welfarist and democratic post-war constitutions.

The entire neoliberal agenda of building a new liberal State regime has been presented in these last decades as a movement of destruction of constitutionalized rights, of established jurisprudence, of established procedures for their protection. Hence, the defense of these Constitutions, in their assertion of universalizable human rights, is understood as a true piece of resistance and a symbol of an entire Era of Rights.

21

This defensive movement of democratic conquests of rights increasingly needs to form a new culture of democratic constitutionalism that is capable of overcoming the neoliberal State regime and program a radical democratization of power articulated to a new Charter of Rights for the XNUMXst century.

Just as the experience of the crisis of capitalism and the world wars formed, through a negative dialectic, a new paradigm of democratic constitutional law, the experiences of barbarism lived under the new regime of the neoliberal State, through the pedagogy of its resistances, must generate a new paradigm of democratic constitutionalism, with a democratic socialist orientation, socially egalitarian, libertarian from the point of view of identities and love relationships, ecological, feminist, anti-racist and overcoming colonialism.

*Juarez Guimaraes is a professor of political science at UFMG. Author, among other books, of Democracy and Marxism: Criticism of Liberal Reason (Shaman).

Originally published in the book Against authoritarianism: constitutionalism to come and democracy without waiting.

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