ABSTRACT
This contribution is based on the following presumption: neoliberalism must be understood and analysed on two distinct and interrelated levels: first, neoliberalism can be understood as an intellectual current stemming from the crisis of classical laissez-faire liberalism that was initiated already in the late nineteenth century and second, as a class strategy to revive capitalist profitability and hegemony in the last quarter of the twentieth century. This duality is essential in order to comprehend the peculiarities of neoliberal legality. First, the intellectual novelty of neoliberalism and its attempt to respond to genuine problems of classical liberalism hints at the existence of a specifically neoliberal genre of legality that corresponds to the richness (and the contradictions) of the most influential intellectual tradition of our times. Hence, the idea that neoliberal legality is a ‘return’ to the archetypical liberal paradigm appears oversimplified. At the same time, we need to keep in mind that the rise of neoliberalism from an ensemble of intellectuals marginal to the mainstream ideology and governance technique of our time can only be explained in reference to the political and economic interests it is anchored to. In a nutshell, neoliberalism should also be understood as a strategy of the ruling capitalist class to re-establish their profitability and consolidate their dominance in turbulent times. Consequently, neoliberal legality should be analysed through its continuity with previous forms of capitalist legality. This dual approach enables us to conceptualise neoliberal legality both as novel and as immanent, as intellectually ground-breaking and socially integrated in a nexus of capitalist relations of power and exploitation. Because the right to strike is situated at the heart of class confrontation and has gone through multiple stages of regulation, limitation and restriction in the course of the last decades, it provides us with a good case study to examine the above sketched assumption. More specifically, the focus of this chapter will be the diachronically diverse utilisation of the exact same legal framework in Greece to achieve different social outcomes in relation to the right
to strike. In turn this points to legal indeterminacy of law as the quality that enables bridging the gap between liberal and neoliberal forms of legality. This chapter consists of three parts. First, I am going to provide an account of neoliberal thought on trade unions, strikes and their legitimate regulation through law. Here, it is explained how the confrontation between ordo-liberals and the American ‘branch’ of neoliberalism concluded with the decisive victory of the latter, who were openly averse toward trade unions and their legal protections. Second, I will try to show how Greek legislation on the right to strike as implemented during the last five years of intense austerity constitutes an impressively faithful application and, importantly, a further deepening of the neoliberal understanding of the right to strike. Third, I will attempt to theorise the functions of law vis-à-vis industrial disputes in the era of neoliberalism. To do so, Poulantzas’ conceptualisation of authoritarian statism will be invoked. My argument here is that the concept of authoritarian statism enables us to comprehend the expansive role of the state in restraining trade unions’ actions in a context of capitalist crisis and to theorise neoliberal legality as a continuum of norms and practices that draws from past arrangements and, anchoring itself to the inherent indeterminacy of law, establishes a new, draconian framework for strike action. The point of departure here is that since law incorporates varying and conflicting morals, values and – significantly – interests, it is unable to provide a rational and coherent body of norms.1 This openness in turn means that the same legal framework can acquire widely divergent meanings. In this specific case, it is argued that a provision originally designed to establish the outer limits of class confrontation in a Keynesian context was re-invented in the era of neoliberalism as a means of aggressive confrontation with trade unions.
