Rule of law and legal interventionism The problem of authoritarianism in Michel Foucault's analysis of ordoliberalism

Abstract

This article discusses how the conception of the rule of law is presented in the Foucauldian analysis of ordoliberalism. The argument defends the need to link the ideas of ordoliberals regarding the state with the political thought of Carl Schmitt in order to show its authoritarian character. Research following the Foucauldian analysis has emphasized the fact that Foucault did not pay special attention to the non-democratic dimension of neoliberalism. At the same time, however, they insist on disassociating the neoliberal state from an authoritarian conception of the exercise of power. The article argues that if the ordoliberal positions are placed in the light of the debates surrounding Weimar democracy, the authoritarian impulse inherent in its conception of the rule of law is unavoidable. This is done in three steps: first, I present the ordoliberal theory of the state analyzed by Foucault; then, I show the dependence of this theory on the Schmittian conception of the strong state; and, finally, I point out how the absence of a substantive reference to Schmitt leads Wendy Brown or Christian Laval and Pierre Dardot to dismiss the authoritarian component of the neoliberal undermining of democracy.