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Abstract
‘The law protects the life of those about to be born. The death penalty is only applied in [determined] cases of crimes’ – says the Constitution of Chile, which was developed and implemented by Augusto Pinochet’s military regime. Why must unborn life be protected while the lives of single persons can be exposed in the death penalty? And why was this regime, famously known for expansive economic liberalization, so concerned with protecting unborn life? These questions are addressed on the basis of two assumptions: (1) Life-protection may become a crucial element of neoliberal functioning; and (2) This protection requires an authoritarian state that acts against living subjects and represses reproductive rights. These assumptions are pursued through an analysis of the discussions on the right to life in the Constituent Commission, taking Hayek’s theory of the social as a theoretic background. In this way, the constellation in Chile contributes to a deeper understanding of authoritarian neoliberalism in its current forms.
Acknowledgements
I am very grateful to Meredeth Turshen for her help in editing the final draft and to the four anonymous reviewers for their constructive, dedicated and insightful comments.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 On a detailed discussion of the legislative process, see Etcheberry Rojas (Citation2018).
2 Luker (Citation1984) shows that pro-life and pro-choice positions are related to social and political developments that coincide with neoliberalism’s emergence.
3 One could state that this shows the eurocentrism of such analyses. Schild (Citation2015) expresses this critique against Fraser, referring to the Latin American context. As Arcos Herrera points out, the question of ‘maternity’ marks the edge between ‘metropolitan’ (meaning European or US-American) and ‘regional’ feminisms (Citation2018, p. 33).
4 To avoid this false dualism, Cohen (Citation2002) pleads for a more complex notion of privacy that distinguishes the economic individualism from the privacy rights of women’s reproductive autonomy.
5 The relation between biopolitics and neoliberalism is quite controversially discussed among Foucauldian and post-Foucauldian scholars. My point is that the concept of biopolitics contributes to an understanding of neoliberal governance. For insightful overviews on current discussions around this issue, see, among many others, the volume edited by Lemm and Vatter (Citation2014) and the special issue edited by Villadsen and Wahlberg (Citation2015). A biopolitical approach to the regulation of abortion in Chile can be found in Maldonado Solar (Citation2014).
6 There had been an economic exchange programme with the Universidad Católica in Santiago de Chile for more than a decade (Valdés, Citation1995, p. 13).
7 Jaime Guzmán was one of the most important personalities aside from Pinochet (see the extensive and insightful intellectual biography by Cristi, Citation2000). He wrote most of Pinochet’s speeches and was the one who took the initiative towards developing a new Constitution. In 1991, he was murdered by the resistance group ‘Frente Patriótico Manuel Rodriguez’.
8 The plebiscite was not only about the constitution but also about the procedures for a transition to democracy (García Hurtado, Citation1983, p. 30). Thus, everyone who wanted the dictatorship to be provisory also needed to approve the constitution. According to official information, it was accepted by 67 per cent of the votes (Fontaine, Citation1993, p. 267).
9 Probably this will not be the case much longer: In the last years there have been several calls for a new constitutional process. This demand was central during the massive protests that started in October 2019. The protesters achieved that now, in 2020, a referendum will take place on whether a new constitution is wanted and how it is to be created.
11 For recent discussions on the implied account of ‘militant democracy’ and its affinity towards authoritarianism, see Accetti and Zuckerman (Citation2017). Especially referring to Chile, Aldunate Lizana (Citation2016).
12 On the huge importance of the constitutional process for the establishment of neoliberalism in Chile, see Cristi and Ruiz-Tagle (Citation2014) and Vatter (Citation2017). As is often highlighted, the neoliberal core is visible in the principle of ‘subsidiarity’ that structures the Constitution, ascribing the greatest possible autonomy to ‘the intermediary groups that organize and structure society’ (Constitución Chilena, Chap. 1, Art. 1.) – referring to the autonomy of companies and corporations (Ahumada, Citation2016; Cristi & Ruiz-Tagle, Citation2014; Viera Álvarez et al., Citation2016).
13 It is remarkable that the Chilean constitution was named ‘The constitution of liberty’ (Silva, Citation1987, p. 131) like Hayek’s famous book The constitution of liberty from 1960.
14 All Spanish quotations are translated by me.
15 The paragraph on the right to life was discussed within three sessions in 1974: 14 November (session 87), 21 November (session 89) and 25 November (session 90). The participants were Enrique Ortúzar (chairman), Enrique Evans, Jaime Guzmán, Gustavo Lorca (only in session 87), Jorge Ovalle and Alejandro Silva Bascuñán.
16 The protocols are written in indirect speech.
17 Guzmán and Silva Bascuñán voted in favour of a constitutional and absolute ban on abortion. The four other members of the Commission preferred the unspecific phrase of protection of the ‘life of those about to be born’. That’s why the ban on abortion was introduced years later and remained on the level of a simple statute (this is why Bachelet was able to release the law, while she probably would not have had the necessary majority for changing the constitution).
18 Equally, Dworkin claims that it is not plausible to understand the opposition to abortion in terms of the rights and interests of a foetus. The fundamental point is, moreover, that life itself is seen as an intrinsic, fundamental value, independent of the subject who carries it (Dworkin, Citation1993). For a fundamental and inspiring critique of this notion of life, see Duden (Citation1993, Chap. 16). In contrast, for Luker the question at stake in the controversies between pro-life and pro-choice is the notion of the person itself (Citation1984, p. 5).
19 It could be claimed that this means to treat it as ‘bare life’ (Agamben, Citation1998). For good reasons to oppose this view, see Mills (Citation2017, p. 285).
20 The market order, which Hayek calls ‘catallaxy’, is for him the fundamental order that holds together every form of social interaction (Citation1998b, p. 113).
21 There is a somewhat striking double structure in Hayek’s notion of the social: liberalism is, on the one hand, the precondition of evolution, while, on the other hand, it is the result of this very same process. Equally, competition is not only the main characteristic of adaptive life, but also the structure that distinguishes adaptive from non-adaptive life. Thereby the alternatives to liberalism are not only presented as competing forms of life, but also as the elimination of any competition – and thus development – whatsoever.
22 Hayek emphasizes that the notion ‘survival of the fittest’ as taken from Darwin is not adequate for the social sciences (Hayek, Citation1958, p. 233) while using this slightly reworded expression.
23 One remark on this source: There is much controversy on the reliability of this book. At the time it was published, Hayek was not in the best of health and it has been assumed that his editor, William Warren Bartley, rearranged it quite extensively or even wrote some parts himself (Ebenstein, Citation2005). With this in mind, I am referring only to statements in the book that seem to be in accordance with other sources.
24 For an intriguing analysis of how the valuing of reproduction links to an idea of ‘the future’ and how this is used within discourses against abortion, see Edelman (Citation2004). For an extensive and insightful discussion on Edelman, see Deutscher (Citation2017).
25 This is also emphasized by Maldonado: The ban on abortion was aimed at protecting ‘future generations’ – understood as the fundament for economic productivity. Pinochet aimed to ‘protect the productive force that comes in a near future and on the other side […] to destroy the social subject that could not be controlled or disciplined […]’ (Citation2014, p. 40).
26 Foucault (Citation1978, p. 139). See Villadsen and Wahlberg (Citation2015) for the notion of population ‘as a self-generating natural and cultural order’ (p. 4), ‘within which efforts to regulate, administer and optimize life continue to unfold today’ (p. 3). For analyses that highlight the importance of reproduction for a regulation of population, see Lettow (Citation2015), Repo (Citation2016, Citation2018), Deutscher (Citation2017) and Mills (Citation2018, pp. 147–154).
27 This reference to nature is characteristic of the Catholic social-conservative ‘world-view’ that structures the pro-life movement (Luker, Citation1984, especially pp. 163–169).
28 This is a central characteristic of neoliberalism according to Foucault (Citation2007, pp. 352–353).
29 Vatter observes a simultaneity of ‘juridification and biologization’ in Hayek (Vatter Citation2014, p. 164).
30 In Hayek, totalitarianism is defined first and foremost economically (Reichhold, Citation2018, p. 89). Moreover, as can be traced throughout his entire work, totalitarianism is understood as an inherent threat of the welfare state or any form of conscious, normative intervention in social structures.
31 On Hayek’s concept of ‘limited democracy’ and its influence in Chile during the dictatorship, see Farrant et al. (Citation2012, especially pp. 520–521).
32 The fact that the term ‘authoritarian liberalism’, originally coined by Hermann Heller against Carl Schmitt, is often related to Hayek is therefore not too surprising. For a current discussion on this term, see Bonefeld (Citation2017). For an understanding of authoritarian liberalism as a constitutional form see Wilkinson (Citation2019) and chapters in the same volume.
33 It seems that Hayek handed Pinochet the manuscript of the 17th Chapter of Law, legislation, liberty: Vol. 3 in which he makes the argument for ‘commissarial dictatorship’ (see Farrant et al., Citation2012; Kiely, Citation2017, p. 739). On the internal connection between neoliberalism and dictatorship in Chile, see Follegati Montenegro (Citation2013).
34 In Wendy Brown’s interpretation: ‘Liberty generates responsibility, responsibility generates discipline, and discipline generates social innovations, efficiencies, and order’ (Citation2018, p. 64).
35 In this sense, they are political actions. On Hayek’s anti-political position, see Reichhold (Citation2018, p. 117), Bonefeld (Citation2017, p. 750) and Whyte (Citation2019).
36 The view of women primarily as mothers as a defining aspect of the pro-life ‘world-view’ is highlighted by Luker (Citation1984, pp. 160–161). Arcos Herrera emphasizes for Latin America a ‘biopolitics of the maternal’ (Citation2018, p. 38).
37 However, Hayek is clearly not simply a conservative (see the ‘Postscript’ of the Constitution of liberty, 1990). His point is not about conserving traditions per se, but about the fact that traditions (those with which he is concerned) are both result and condition of the development of a free market society (Reichhold sees Hayek as a ‘selective’ traditionalist, Citation2018, p. 189).
38 On the relationship between neoliberalism and inheritance see Cooper (Citation2017, chap. 4).
39 See Horwitz (Citation2005) for a discussion of Hayek’s view on the family. On the central status of family-protection within the Chilean constitution, see Marshall Barberán (Citation2010).
40 The idea that the sacredness of the family needs to be protected and maintained free from state regulation is a defining feature of the pro-life ‘world-view’ (Luker, Citation1984, p. 174). This view of the family is also discussed by Cohen (Citation2002).
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Marina Martinez Mateo
Marina Martinez Mateo is a Post-doctoral Researcher in political philosophy. She has published articles on political representation, democracy and aesthetics, feminist theory, and critical race studies. Her current project deals with the significance of nature and economy in a liberal concept of society.