The Factory of Freedom: Liberalism and the Rule of Law

Updated: Aug 24, 2021

The strict relation surrounding the rule of law and jurisprudence can be derived from a historical analysis of government rationality, or the “art of government” under Political Economy. The evolution of this government comes from the Divine Right of the Prince under a transcendent social contract, feudal agreements of obedience and protection under the Physiocrat, and the subsequent emergence of Mercantilism that has produced a heterogeneous debate on liberalism. The emergence of the Mercantile and the events that follow are condensed in Raison d’Ètat[1], a significant output of Michel Foucault’s research.

The advent of pre-capitalist structures in the sixteenth and seventeenth centuries created the modern state marked by features of international competition against a common objective of an amalgamated imperialist Empire, the interest in the accumulation of wealth, and population growth and management, which also served as the requisite for the rise of biopolitics. It is this need for an omnipotent internal regulation of the populace that serves as a correlate for the limited reach of the state with regard to international diplomatic apparatuses. Initial attempts to oppose this unlimited regulation by the police state were of a juridical nature. The proponents of Natural and Fundamental law, which were positive multipliers of the power of the Monarch, now fit the role of a strong wind against the police. To optimize the position of the State and its limit of competence with necessary constraints about the objectives of its rationality and nature of governance is a true principle of liberalism. Such a theological and juridico-deductive environment of Rousseau’s Reason thus pursued its roots in the rule of law, which declined under the influence of Benthamite Utilitarian doctrines.

The Concert of Europe is a stressor that leads to significant literature on political theory, among others. It is the milieu of instability and a tussle between revolutionary republicanism and theocratic conservatism that created decades of disequilibrium. The Congress of Vienna captures the essence of the emergence of individual national interests and a stable ceasefire to deadly conquests. The five major powers of the United Kingdom, France, Austria, Prussia, and Russia presided over rounds of rather informal caucuses, contrary to plenary sessions as the name of the document suggests. Here, the apparatus of power shifted so as to give little significance to liberalist and nationalist conquests, and state lines were redrawn that virtually remained in stasis for much of the succeeding century. An important digression with regards to the rationale of mercantilism is crucial. For a closed State with limited resources, or a State with international, economic, and political interests with others, the mercantile or any economic agent may think of wealth and property accumulation as a zero-sum game: one can acquire wealth only at the expense of others. If this game were interrupted so as to recognize the differences in the payoffs of the players involved, a form of economic equilibrium can arise which, in this context, balances the diplomacy of the State and relative prosperity of a near perfectly competing mercantilist. England as a major player in Congress used such a concerted equilibrium as a force majeure against Austria and its traditional view of Europe. The concept of mutual prosperity through a consolidated market mediated by England promised mutual prosperity with the Europeans as a set of players against the rest of the world.

The Pacific and European theatre of the Second World War dissolved the Congress system for good, with a new threat to the competitive equilibrium established over decades. Two events shape and mark the emergence, proliferation, and importance of neoliberalism: postwar reconstruction of Germany as a stage for the Cold War and the subsequent development of a détente, and the political economy of reunification after the fall of the Berlin Wall. The Marshall Plan and the Potsdam Agreement under