On September 4th, Chile held a national referendum to approve or reject a new Constitution that would have replaced Pinochet’s authoritarian and anti-democratic Constitution of 1980. Widely regarded as progressivist and innovative in many regards, it was rejected by Chileans.
Pinochet’s Constitution allowed the privatisation of education, health and social security. It led to the dismantling and chronical defunding of public institutions and over-emphasised the role of private capital and capitalisation as the solution to socioeconomic inequalities. In short, the 1980 Constitution’s contribution to the Chilean neoliberal experiment cannot be understated.
The question is how this Constitution ‘neoliberalised’ Chilean politics, policies and citizens. The answer is a two-part story. The first involves the law and the design of the political system. The Constitution established a ‘protected’ or ‘authoritarian’ democracy by means of institutions that kept the country in line with conservative and neoliberal policies and politics. Space precludes a deeper description, but to name a few these included designated Senators that were not democratically elected and were imposed by Pinochet’s dictatorship, a voting system that ensured the dictatorship-aligned right would achieve a relevant number of seats in Congress, high quorums that prevented changing the Constitution, and others.
The second part of the story has received much less attention. In my recently completed PhD thesis I explored and analysed how the Constitution contributed to the transformation of citizens’ habits, their social and political ways of being and behaving, and even an idea of society that ultimately all legitimised neoliberal ideologies. This happened because the constitution-makers chose to use their Constitution as a ‘pedagogic instrument for the common citizen’ through which they could educate the citizenry about their duties and their place in society (hereafter quotes cite the constitution-makers official reports as published by the Chilean Congress Library). As a result, there is a ‘hidden curriculum’ in Chile’s 1980 Constitution that shapes political relations and relations between social actors. It tightly bounds and controls the legitimate ways of being and behaving of citizens in a way that allowed neoliberal practices to take hold on society and its culture.
Chile’s current constitution configured an individualistic society, delegitimised politics and democratic conflict as a legitimate human dimension, and disempowered citizens and political parties.
Importantly, the lawyers who wrote it transformed into ideological educators and social engineers who based their arguments solely on the weight of their own specific moral, political and religious values and beliefs. They abandoned all legal arguments when elaborating this ‘pedagogic’ constitution. This is fundamental to understanding why and how a constitution could re-educate and shape citizens’ habits. For example, to them, the individual’s right to private property was inviolable and inalienable because it was the result of individuals having a soul. They based this notion on Catholic doctrine (Mater et Magistra, §109) but nevertheless tried to argue that anybody employing reason would arrive at this conclusion. Since only individuals have souls, it was clear to the constitution-makers that society exists only to serve individuals’ needs. Since private property is perhaps one of the most important inalienable rights to them, the basis of social relations depended on the protection of private property rights. This is why the constitution-makers were staunchly anti-Communist and produced what is ultimately a starkly anti-Marxist constitution.
In this line, they proclaimed that the State exists only in ‘service of the human person’. Positioned deep within Cold War fears, they were concerned that the State would take control and direct individuals’ lives. That the State would force individuals to depend on it to solve needs such as hunger and shelter. Against this, the constitution-makers emphasised the individual must always be the prime mover of the economy. They argued the State had to ‘procure the full development of the human person’. But this activity had to be restricted by the Constitution, which had to ‘set a limit, a margin, a stop’ to the State preventing it from invading that ‘which individuals are in the condition to execute by themselves’. It was up to individuals to provide social services, rather than have a public provision reinforced by the State. The Constitution thus reinforces a specific way in which State and society, or the State and individuals may interact. It forces upon society the ideological belief on the artificial separation of the State and society.
The constitution-makers imprinted on the Constitution the belief or ideology that the State serves individuals as an external and non-political institution that exists outside of a society which is itself understood as a mere sum of individuals. Society was reduced to being the place where private bargaining among property owners occurs, and where citizens’ needs are reduced to individual needs to be solved by consumer relations to businesses. Politics was to be simplified to voting, to decide who took control of the State.
Hence, Pinochet’s Constitution exhibits a restrictive understanding of political pluralism and of the ways to solve social and political issues. The only legitimate citizen is one that is allegedly non-political, atomised and individualistic. Irrespective of their intention, the constitution-makers created a legal and political order that fostered predatory neoliberal practices and educated its citizens in a neoliberal way of thinking.
My research illustrates how a constitutional arrangement enabled specific political ways of being among the citizenry that entrenched neoliberal practices in the culture. It is a callout to look for ways in which neoliberal and neoliberal-compatible practices have taken hold in society, beyond economic policies. While a country’s basic law cannot by itself direct individuals, it does provide the means through which boundaries of what is possible and thinkable are constructed. In this sense, this is an opportunity for critics of neoliberalism to look beyond economic policies and institutions toward law as another site in which neoliberal practices can further reinforce this deeply flawed model of society.