The making of neoliberal legality: the legal imagination of business elites and the ‘social constitutionalization’ of ‘free enterprise’ in Latin America
| Published date | 01 December 2023 |
| Author | RICARDO VALENZUELA,RODRIGO CORDERO |
| Date | 01 December 2023 |
| DOI | http://doi.org/10.1111/jols.12451 |
DOI: 10.1111/j ols.12451
ORIGINAL ARTICLE
The making of neoliberal legality: the legal
imagination of business elites and the ‘social
constitutionalization’ of ‘free enterprise’ in
Latin America
RICARDO VALENZUELA1RODRIGO CORDERO2
1Instituto de Investigación en Ciencias
Sociales (ICSO), Universidad Diego
Portales, Santiago, Chile
2Department of Sociology, Universidad
Diego Portales, Santiago, Chile
Correspondence
Rodrigo Cordero, Department of
Sociology, Universidad Diego Portales,Av.
Ejército Libertador 333, Santiago, Chile.
Email: rodrigo.cordero@udp.cl
Abstract
The ‘free enterprise’ system is a normative cornerstone
of many Latin American political constitutions and a
formative principle of neoliberal legality. However, the
way in which this economic model shapes the legal field
and conceptions of the rule of law remainsunderstudied.
Though lawyers, judges, and legal experts have played
an important role in the legal buttressing of the free
enterprise model, this article explores the shaping of
neoliberal legality from the periphery of the juridical
system. We argue that the rise of neoliberal legality in
Latin America owes much to the legal imaginary crafted
by business associations. In line with this, we examine
the ‘norm entrepreneurship’ undertaken since the 1940s
by an organization barely noted in mainstream histories
of neoliberalism: the Inter-American Council for Com-
merce and Production (IACCP).Drawing on the concept
of social constitutionalism and archival work, we inves-
tigate the IACCP’s role in the struggle to give business
activities social legitimacy and establish free enterprise
as a socio-legal norm and a source of public law.
© 2023 The Author.Journal of Law and Society © 2023 Cardiff University Law School.
J. Law Soc. 2023;50:517–537. wileyonlinelibrary.com/journal/jols 517
518 JOURNAL OF LAWAND SOCIETY
1 INTRODUCTION
The relationship between neoliberalism and the law has attracted significant attention in recent
years.1As a growing literature shows, legal forms arenot an external force but rather a constitutive
element of neoliberal politics. Whether in the penal system,2anti-trust regulation and financial
infrastructure,3international trade policies and agreements,4urban life and planning,5family
and morality,6or statecraft and public interest,7the interpenetration of economic and juridical
aspects is central to the rise and consolidation of a mode of government in which ‘the economy
creates public law’.8
The crafting of neoliberal legality,as described by Michel Foucault, involves a political practice
that transforms economic models into legally binding norms. It does so by infusing market insti-
tutions with juridical authority while empowering the rule of law to safeguard economic freedom
as ‘the formative power of society’.9Crucially, the construction of such an ‘economic-juridical
order’ entails the transformation of economic value into a moral language, and ‘free enterprise’
into a generalized principle of government.
To be sure, lawyers, judges, and legal scholars have played an important role in legally but-
tressing neoliberal ideas and disempowering progressive institutions,10 particularly in national
contexts where neoliberalization has meant a radical, anti-democratic transformation of legal
cultures, constitutional orders, and the rule of law in the name of market freedom and private
property rights.11 However, an adequate understanding of the constitutionalization of neoliberal
legality should not focus solely on the alleged power of legal experts and juridical institutions to
shape the law as a mechanism for the economization of the state and society. It should also con-
sider the broader legal imaginaries and practices of social actors who, located on the margins of
1T. Biebricher,‘Neoliberalism and Law: The Case of the Constitutional Balanced-Budget Amendment’ (2016) 17 German
Law J.835;H.Brabazon,Neoliberal Legality: Understanding the Role of Law in the NeoliberalProject(2016); B. Golder and
D. McLoughlin, The Politics of Legality in a Neoliberal Age (2017); J. Britton-Purdy et al., ‘Building a Law-and-Political-
Economy Framework: Beyond the Twentieth-Century Synthesis’ (2020)129 Yale Law J.178.
2B. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (2011).
3W. Davies, ‘Economics and the “Nonsense”of Law: The Case of the Chicago Antitrust Revolution’ (2010) 39 Economy
and Society 64; K. Pistor, The Code of Capital: How Law Creates Wealthand Inequality (2019).
4N. Perrone, Investment Treaties and the Legal Imagination: How Foreign Investors Play by Their Own Rules (2021); Q.
Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (2018).
5M. Valverde, Everyday Law on the Street: City Governance in an Ageof Diversity(2012).
6W. Br own, In the Ruins of Neoliberalism: The Rise of Antidemocratic Politicsin the West (2019); M. Cooper, Family Values:
Between Neoliberalism and the New Social Conservatism (2019).
7W. Bonefeld, TheStrong State and the Free Economy (2017); E. Dezalay and B. Garth, The Internationalization of Palace
Wars: Lawyers, Economists, and the Contest to Transform Latin American States (2002); A. Vauchez and P. France, The
Neoliberal Republic: Corporate Lawyers, Statecraft, and the Making of Public–Private France (2020).
8M. Foucault, The Birth of Biopolitics: Lectures at the Collège de France 1978–1979(2008) 8 4.
9Id., p. 148.
10 B. Alemparte, ‘Towards a Theory of Neoliberal Constitutionalism: AddressingChile’s First Constitution-Making Lab-
oratory’ (2022) 11 Global Constitutionalism 83; S. Botero, ‘Agents of Neoliberalism?High Courts, Legal Preferences, and
Rights in Latin America’ in Latin America since the Left Turn, eds T. Falletiand E. Parrado (2017) 214; I. Kampourakis,
‘Bound by the Economic Constitution: Notes for “Law and Political Economy” in Europe’ (2021) 1 J.of Law and Political
Economy 301; M. Goldoni, ‘On the Constitutive Performativity of the Law of Capital’ (2021)30 Social &Legal Studies 291.
11 U. Mattei and L. Nader, Plunder: When the Rule of Law Is Illegal (2008); E. Christodoulidis, The Redress of Law:
Globalisation, Constitutionalism and Market Capture (2021).
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting