Neoliberalism and republicanism: Economic rule of law and law as concrete order (nomos).

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

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.
Original languageEnglish
Title of host publicationThe Sage Handbook of Neoliberalism
EditorsDamien Cahill, Melinda Cooper, Martijn Konings, David Primrose
Place of PublicationLondon
PublisherSAGE Publications Ltd
Chapter29
Pages370-383
Number of pages14
ISBN (Print)9781412961721
DOIs
Publication statusPublished - 2018

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    Vatter, M. (2018). Neoliberalism and republicanism: Economic rule of law and law as concrete order (nomos). In D. Cahill, M. Cooper, M. Konings, & D. Primrose (Eds.), The Sage Handbook of Neoliberalism (pp. 370-383). SAGE Publications Ltd. https://doi.org/10.4135/9781526416001.n30