One of the important features of neoliberalism is its adoption of " rule of law " as a fundamental condition for the proper operation of a free market and as a medium for the disembedding of the market from the state. However, " rule of law " is traditionally understood to be one of the defining features of republicanism. How is one to understand this coincidence? And where does the real difference between neoliberalism and neorepublicanism lie? This chapter addresses the changes that neoliberal thought makes to the republican conception of " rule of law " in order to render it functional to its own imperatives, primarily the defence of the " spontaneous order " (Hayek) of the economy with respect to state planning and legislation. The chapter discusses Hayek's adoption of the concept of concrete order (nomos) originally introduced by Schmitt in the early 1930s, and discusses how and why it functions in Hayek's central distinction between " judge-made law " and (parliamentary) " legislation. " By emphasizing the former at the expense of the latter, neoliberal thinking at once diminishes the political power of the people and attempts to steer constitutional thinking and practice towards a mere " negative " constitutionalism that protects the interests of private persons (including corporations) at the expense of the common interests of the people.
|Title of host publication||The Sage Handbook of Neoliberalism|
|Editors||Damien Cahill, Melinda Cooper, Martijn Konings, David Primrose|
|Place of Publication||London|
|Publisher||SAGE Publications Ltd|
|Number of pages||14|
|Publication status||Published - 2018|