The Rule of Law as Concrete Order: From Neoliberal Capture to Postliberal Weaponization of Constitutionalism

Abstract

This article puts forward a hypothesis as to what links neoliberalism to postliberalism, despite the apparent opposition between liberalism and illiberalism, globalism and nationalism, free market and homeland security that these ideologies mobilize. The hypothesis is that they both share a conception of the law as “nomos” or “concrete order,” opposed to democratic legislation, as well as an imperial interpretation of the “law of nations.” The article discusses the idea of law as “nomos” in relation to Carl Schmitt and traces its deployment in Friedrich von Hayek’s neoliberal conception of jurisprudence and in Adrian Vermeule’s recent, postliberal “common good constitutionalism”.