Law & Critique: Chile’s ‘Constituent Moment’

by | 14 Apr 2020

Few documents speak more clearly of the alliance between market thinking and authoritarian constitutionalism than a letter written by Margaret Thatcher in February 1982 in response to a letter sent to her by Hayek and, more likely, to a conversation that took place possibly a few days before during a dinner organised by Walter Solomon and attended by both. From the letter, one can infer what was already known: Hayek’s positive judgment on the performance of the Chilean economy under Pinochet.  After all Hayek had first-hand evidence of Chile’s economic ‘miracle’ having personally visited Chile twice: first in 1977 and then in 1981. In both cases, he wrote articles for European newspapers criticising the bias toward Pinochet’s Chile exhibited in the mainstream media, and praising the outstanding economic performance. But there is more to note. Hayek had no misgivings about the military means deployed for imposing the regime of the market on Chilean society. In a 1981 interview to the Chilean newspaper El Mercurio, Hayek went so far as to state that a transitional authoritarian liberalism would be preferable to forms of what he called ‘unlimited democracy’ or the ‘totalitarianism’ of Allende’s government.

In her reply, Thatcher acknowledges the extraordinary growth of the Chilean economy (around 7.3% on average during the years preceding 1983) since the beginning of the dictatorship. She also praises the reduction of government expenditure achieved by the military junta and she notes that ‘many lessons can be learnt’ from ‘the striking example of economic reform’ that can be gleaned from ‘the progression from Allende’s socialism to the free capitalist economy of the 1980s’ in Chile.’ Nonetheless, she hesitates to recommend following the “Chilean path” for a country like the UK. She remarks that the UK constitutional order is based on democracy and on consent: therefore, those economic reforms realised in Chile ought to take place only ‘in line with our traditions and the constitution’, ‘painfully slow’ as they may prove.

As a document of historical value, this letter gives us the chance to highlight two key aspects of the Chilean ‘laboratory’. The first one is the recognition of the violent nature of the neoliberal constituent moment in developing countries. The entrenchment of radical market thinking into the constitutional order does not happen incrementally, but through an act of original appropriation supported by brute (military) coercion. The coup organised by the military junta and the enactment of the 1980 constitution tell us that there is nothing peaceful about the installation of a neo-liberal constitutional order. A civil war was necessary in order to dis-embed the economy from society and to expose social relations to capture by market rationality. If the lesson regarding ‘law-founding violence’ is clear, a second lesson concerns ‘law-preserving violence, and more specifically the institutional dimension of the ‘preservation stage’. The constitutionalisation of the market requires its separation from the political economy, and the elevation of market thinking above political rationality is at the core of the consolidating process. This is where the 1980 constitution and the leyes constitucionales organicas (organic constitutional laws) enter fully into the picture as a key instrument of neoliberal preservation.

The current Supplement of Law & Critique (2020/1) discusses the developments and their meaning in detail. In the main paper, Octavio Ansaldi and Maria Pardo-Vergara provide a careful account of the conditions of the installation of the comprehensive market system under the supervision of the ‘Chicago boys’ and the brutal suppression of an societal resistance to the installation of the ‘market utopia’ by the military junta. Their emphasis is on the constitutional settlement, the way in which the constitutional provisions that sustained the comprehensive market order were locked in place through a very particular constitutional design. Any notion of a societal reaction, any Polanyian ‘double movement’ that might have spontaneously erupted, was extinguished at the root through a system of policing of extraordinary barbarity. It is the violence that permitted the clean slate to be introduced for the Chicago School to inscribe market thinking, in the act of ‘original appropriation’ that Thatcher, as we saw, expressed reservations over replicating.

And yet in 2019, thirty years after Pinochet’s coup, the double movement has erupted with a vehemence and a dynamism that took the world by surprise. The market economy had been locked in place by a constitutional settlement that had subordinated politics to capitalist structures. The ‘cheating constitution’ (La constitución tramposa) as Fernando Atria popularised the description, devised by the regime’s constitutional lawyers at the Catholic University of Santiago under the inspiration of J Guzman, had made political redress impossible. If the social movement swept away the constitutional settlement with its careful hierarchies, balances and articulations, the induced inertias and political paralysis it installed, it was because Chile’s constituent moment could not find expression on the plane of the constituted. Thus the political found expression as contradictory to the constitution, as antisystemic, a moment of negativity on an emergent constitutional imaginary.

Ordinarily one would invoke a ‘constitutional moment’ at this juncture. Such moments mark occasions on which ‘the people’ exercise deliberative, ‘considered judgements’ regarding ‘the rights of citizens and the permanent interests of the community,’ as Bruce Ackerman famously put it in his 1984 Storrs lectures. They are ‘ratified by a mobilized mass of … citizens expressing their assent through extraordinary institutional forms.’ Because the constitutional provisions do not license these moments of creativity, the innovation that the constitutional moment carries is not, legally speaking, democratically licensed. Yet they are democratic in a more fundamental sense as exercises in ‘constitutional creativity’ in the sense that the populace as sovereign periodically instigates transformations of such depth that they can be credibly claimed to have re‑situated the meaning of freedom, democracy and self-determination.’ And yet Chile’s constituciòn tramposa, affords no leverage. It is a mechanism of deadlock, not of openness. The resistance that flared up in Chile and spread like a bushfire, was an anti-systemic movement of the type that have not been observed in North America or Europe in the last century. Constitutional moments intimate containment as they intimate acceleration of the constitutional dynamic. But even as they mark constitutional innovations, the latter are rooted in the logic of institutional processes, which, in extraordinary cases, move beyond the framework of their reproduction, and supposedly reconfigure this framework in the process. But for the most part, overwhelmingly so, constitutions are results of gradual evolutionary processes. What confronts us in Chile are volatile revolutionary irruptions of norm-giving and dramatically emancipatory social activity, ‘moments’ of large-scale constitutional innovation. We have observed them erupt before in that country. The massive labour struggles that shook Chile in the early years of this century were conducted against the constitutional ‘settlement’. In the world’s largest copper mine, Escondida, the unions broke the law when they rose to publicly call for its return to state ownership, to reverse the scandal of an industry where the multinational contractors that have secured long-term leases to exploit the mines have been completely absolved from paying any royalties and effectively from paying any taxes. In a country where there is a strict prohibition of sympathy strikes, workers in the mines were joined by those in the forest industry to bring the latter to its heels in May 2007, and both were joined by fluid alliances within the urban salariat and more than a million students and pupils who occupied educational institutions for over a month in 2007 to protest against privatisation of pensions and schools. Movements shook the country again in the widespread student movement that forced the question of public education to the fore irrevocably. The anti-systemic movement that heralded in the extraordinary constitutional innovation before us today, exhibits a deeper fidelity to the constitutional ideal of solidarity and dignity.

The Law & Critique supplement explores the terrain with the help of constitutional lawyers and theorists who have been witnessing it first hand, and attempting to make sense of it in terms of a constitutional genealogy, and the current conjuncture. Octavio Ansaldi and Maria Pardo-Vergara give us an account of the ‘Chilean awakening’ though a careful reading of Chile’s constitutional history; Fernando Atria offers us a statement of the political conjuncture from the battleground of strategy; Ricardo Sanin Restrepo and Marinella Machado Araujo warn against theorists’ readiness to categorise and discipline spontaneous action in the context of the disappearance of the ability of the societies of the ‘north’ to create new collective perspectives. For those of us engaged observers in the incapacitated societies of the north, it is with attention and humility that we confront the popular movement that courses through the country, careful not to over-determine the event (as has happened so often in the past), to let political praxis run its course, thankful to the people of Chile for having initiated for the second time in the last half-century a profound process of the renewal of socialism.

The full Dossier can be found (open access) on the Law & Critique website (link)

Emilios Christodoulidis and Marco Goldoni (University of Glasgow)



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