Alain Supiot : "Seul le choc avec le réel peut réveiller d’un sommeil dogmatique" (version anglaise)

The coronavirus pandemic, which is spreading very rapidly in France and Europe, sheds a harsh light on the tensions in the healthcare system and the fragility of healthcare personnel after decades of budget cuts. Ironically, Emmanuel Macron denies his own politics and beliefs displayed in the market in his televised speech on Thursday 12 March. What is your analysis?

For my part, I would not speak of a denial, but rather of a shock of reality. It is faith in a world that is manageable as a company that today is brutally colliding with the reality of incalculable risks. This shock of reality is not the first. Already in 2008, the belief in the omnipotence of risk calculations had come up against the reality of financial transactions, which are always ultimately based on trust in singular individuals. The institutional order, which places the plan of utility calculations under the aegis of an authority in charge of the incalculable share of human life, cannot be overturned with impunity. Since modern times, it is the State which occupies this vertical position and is the guarantor of this incalculable share of human life, whether it is a question of the identity and security of individuals, the succession of generations or the preservation of civil peace and vital environments. This guarantee is indispensable for the free deployment of the horizontal plane of exchanges between individuals, and in particular commercial exchanges.

It is the overthrow of this legal and institutional order that characterises neo-liberal thinking. Based on the belief in a "spontaneous market order" that will govern on a global scale what Friedrich Hayek called the "Great Society", neo-liberalism places law and the State themselves under the aegis of calculations of economic utility, and thus promotes a flat world, purged of all institutional verticality and organised solidarity. A new avatar of the totalitarian experiences of the twentieth century, globalisation is a process of the advent of a Total Market, which reduces humanity to a dust of contracting particles driven by their sole individual interest, and States to instruments for implementing the "natural laws" revealed by economic science, the first of which is the privative appropriation of land and its resources.

The religious dimension of this belief was seen very early on by Karl Polanyi, observing as early as 1944 that "the process set in motion by the motive of gain can only be compared in its effects to the most violent outburst of religious fervour in history".  The characteristic of religious fervour is to be impervious to criticism, however moderate and rational it may be. Only the shock with reality can awaken from a dogmatic sleep. The financial crisis of 2008 should have sounded this awakening of the neo-liberal dream. But it was very quickly turned into an argument for "moving up a gear". This was the OECD’s watchword, urging in 2010 not to question "the principles that have been advocated for many years", but rather to intensify policies aimed at making labour markets more flexible, "achieving efficiency gains on spending, especially in education and health, and avoiding significant tax increases".

We have thus fallen back to sleep, but a sleep that is increasingly shaken by the evidence of the ecologically and socially unsustainable nature of globalisation, by the migration of human masses driven from their homes by poverty, by the deaf anger of populations against the rise in inequalities and the deterioration of their living and working conditions, anger that occasionally erupts into anomic revolts of the "yellow jackets" type. These tensions were not enough to challenge the neoliberal programme of dismantling the social state. The schizophrenic rhetoric of the "at the same time" type is not enough to calm them down; everywhere in the world they feed the rise of neo-fascism, made up of ethno-nationalism and identity obsessions, often spiced with ecological denial.  

Today, as in 2008, we are faced with incalculable risks that no insurance company can guarantee. And today, as in 2008, as in all major crises, we look to the State to assume them, the State that is expected to use all the solidarity mechanisms instituted in the post-war period (public services, social security, employee protection) and, if possible, to invent new ones.

We can therefore only rejoice to see the President of the Republic become aware, and I quote, "that free health care, without any condition of income, career or profession, and our welfare state are not costs or burdens but precious assets, indispensable assets when fate strikes....

Faced with the movement to dismantle the social state, what is the future of social justice and non-alienating work in the face of the "total market"?

The social state, whose virtues are being rediscovered with the current epidemic, rests on three pillars that have indeed been methodically undermined by 40 years of neo-liberal policies.  
 
The first of these pillars is labour law, born in the 19th century with the first laws aimed - already - at dealing with the deadly effects of the rise of industrial capitalism on the physical health of European populations. The unlimited exploitation of human labour ended up threatening the nation’s physical resources, justifying the intervention of the legislator to limit the working hours of children (in France by the law of 22 March 1841) and then of women (law of 2 November 1892). From these first laws, labour law, by inserting a protective status in every employment contract, thus obliged us to take into consideration, beyond the short term of exchanges on the labour market, the long term of human life and the succession of generations.

The second pillar is social security, whose invention responded to the same need to protect human life from the deleterious effects of its submission to the market sphere. The first stone was the adoption in all industrial countries of laws (in France, the 1898 law) ensuring compensation for accidents at work. By making companies liable for the damage caused by their economic activity, these laws opened the way to the idea of solidarity in the face of the risks of existence. This idea has continued to assert itself ever since, giving rise to the first social insurances and then to the invention of the Social Security system. According to the terms (still in force) of the first article of the Social Security Code, social security "is based on the principle of national solidarity", which distinguishes it from both public charity (social assistance or protection) and private insurance. Inherited from the mutualist tradition, the hallmark of the French social security model established in 1945 was its autonomy from the State, which is the guarantor and not the manager.

Finally, the third pillar of the social state is the concept of public service, according to which a certain number of goods and services (health, education, post, energy, transport, etc.) must be made available to all citizens under conditions of equality, continuity and accessibility.

In France, these pillars were given a constitutional legal basis at the end of the Second World War and that is why, unlike, for example, the reforms of the American New Deal, none of them has so far been overturned. However, in accordance with the neo-liberal motto calling for the "methodical undoing of the programme of the National Council of Resistance", each of them has been the subject of undermining work, which has been greatly accelerated under the presidency of Mr Emmanuel Macron.
Labour law has been weakened both in its structure, by the retreat of social public order in favour of company negotiations, and in its perimeter, by "uberisation" (to which the Court of Cassation has just issued a salutary ruling) which aims to reduce its scope of application.  The same has been true of public services, whose scope has been reduced by privatisation or competition between many of them, and whose structure has been weakened by claiming to manage them "like companies" and to monitor them by indicators, with the devastating effects that we know of the desertification of so-called peripheral France or the breakdown of the public hospital. This double movement is also at work in the area of social security. The failure at the end of the 1990s of projects aimed at opening up the very lucrative "market" of health and old-age risk coverage to private insurance and pension funds led to the adoption of what Didier Tabuteau called the "salami technique", i.e. the privatisation in thin slices of its most lucrative parts, such as the "small risk" in the area of health, or the coverage of unemployment, family and now old-age risks for those with the highest incomes. This reduction in scope has also been combined with a structural reform, less often observed, consisting of the nationalisation of social security, and first of all of its resources, which the government can now dispose of as it sees fit, by making it bear the burden reductions it decides on for political purposes.

What is the weight of European law in this dismantling?

European law has become an instrument for bringing national legislation into line with neo-liberal doctrines, which see the social state not as a condition for its proper functioning, but on the contrary as an obstacle to market order and economic freedoms. As Fritz Scharpf observed at the end of the twentieth century, Union law is thus capable of eroding the systems of solidarity built democratically at national level, but incapable of replacing them with European solidarity. The purely national responses to the current pandemic are a further manifestation of this incapacity, which was already evident during the financial, monetary and migratory crises of the last ten years. The only solidarity that the EU has managed to organise is that of taxpayers to save banks from bankruptcy.
 
You write that we have moved from a regime of law to a regime of "Governance by numbers". In what way?  

According to classical liberalism, market forces are exercised within national constitutional and legal frameworks, which channel and domesticate them. Neo-liberalism breaks away from this in that it places law itself under the aegis of economic utility calculations. This is the object of the theory of Law and Economics, which is now taught in the best American and European universities, and of which Father Richard Posner could logically affirm that "if the stakes are high enough, it is permissible to torture". Indeed, if everything is a matter of calculating utility and proportionality, no legal principle is intangible, not even that of the equal dignity of human beings. After having been propagated in the most prestigious universities, this theory has been widely implemented by the European Court of Justice and has influenced the case law of our highest courts.

This submission of the law to utility calculations sheds light on another important difference between neo-liberalism and liberalism, which consists not in prohibiting, but in privatising certain mutualisation systems built by the social state. Such was, for example, the roadmap addressed by the World Bank to States in the area of pensions. In its 1994 report, entitled Advertising the old age crisis, it urged them on the one hand to reduce the share of pay-as-you-go pensions in favour of funded pensions, and on the other hand to reduce defined benefit pensions in favour of defined contribution pensions. In the countries that followed these instructions, this two-pronged movement was supposed to allow  a rise in the power of pension funds, which have become major players on the financial markets, with the catastrophic consequences for pensioners that we see today as stock market prices collapse. In France, the Thomas Law, adopted in 1997, was a first attempt to implement these World Bank guidelines. It was a failure because of the population’s attachment to the system inherited from 1945. Hence the new attempt by the current government and the opposition it aroused from employees, whose diverse working conditions are ignored in this reform and who are deprived of any certainty about the future amount of their pensions.

Far from the Europe of homelands that De Gaulle wanted, or the political union that J. Monnet and R. Schuman thought they could bring about through the detour of the Common Market, the European Union has realised the neo-liberal dream described as early as 1939 by Friedric Hayek of a federation of states, capable of free and undistorted competition, because it is sheltered from the democratic demands of social justice and solidarity. However, the long-term viability of this institutional creature without a political head and a democratic basis is doubtful.

In the face of the democratic emergency, what is the capacity of resistance of the legal form?

You are right to speak of resistance. The constitutionalisation of social rights has made it possible to maintain a social state in France, which was easily swept away in countries where it did not have a solid legal basis. The law then acts as a floating anchor, which can slow down political changes of course without preventing them. But its function is not only passive, because it also has a driving force. This is demonstrated by the adoption in 1946 of the Preamble to the Constitution, which was the fruit of the Resistance’s reflections. Proclaiming the equality of men and women, the participation of workers in the management of enterprises or the protection of health was not late, but rather ahead of the facts, and remains so. In moments of peril, of the kind we are currently going through, there are and always will be men and women who, instead of believing themselves to be the toys of immanent forces, will question themselves, in the light of historical experience, about the causes of their ills and the world they want to build together. And the answer to this question necessarily takes the legal form of a world as it should be.

From this point of view, the myth of indefinite growth, which has nourished the social state, has blunted our ability to ask these essential questions. Since the New Deal and the "Trente Glorieuses" (the post-war boom), there has been a belief that a continuous increase in wealth can dispense with the question of justice at a given time and in a given historical society. This is one of the ambivalences of Roosevelt’s proclaimed fourth freedom, Freedom from want, which in the Keynesian perspective could be understood both as liberation from want and liberation from market demand.
 
The welfare state thus transposed the structure of salaried employment to the collective level: "You submit, but in return I promise you enrichment and material conditions that will improve". The question of the meaning and content of work has thus been replaced by considerations of short-term efficiency and effectiveness.
This is no longer tenable in the face of rising ecological and health risks, which are closely linked.

We are still on the slippery slope of steering societies on the basis of economic indicators, which are increasingly disconnected from the realities experienced by people, who are becoming aware of the unsustainable nature of this growth model. Hence the latent schizophrenia of political discourse, of which "at the same time" is a symptom in France: "If you want work, there is work 200 kilometres away from here, but above all don’t spend on diesel". At the international level, the multilateral system is struck by the same schizophrenia, which is reflected in the oxymoron of "sustainable development", expressed in the form of a battery of objectives and indicators aimed at managing the planet as a business.

What sources of hope do you see?

The unprecedented health crisis we are going through can lead to both good and bad. The worst would be that it feeds the already strong tendencies towards identity-based withdrawal, and leads to the war of all against all that neoliberalism has promoted at the individual level, to be carried to the collective level of nations or community affiliations. The best thing would be for this crisis to open the way, in the opposite direction to globalisation, to a true globalisation, that is to say, in the etymological sense of the word, to a humanly livable world, which takes into account the interdependence of nations, while respecting their sovereignty and their diversity. Thus understood, globalisation is a path that remains to be traced between the impasses of neo-liberal globalisation and those of inward-looking attitudes, which the technological and ecological interdependence of peoples makes illusory. This perspective of globalisation corresponds to what Marcel Mauss, in a 1920 text recently unearthed by Bernard Stiegler, called "the international". The diversity of nations, languages and cultures is not an obstacle, but on the contrary the first asset that the human species has at its disposal in the age of the anthropocene. But this asset presupposes the establishment of a certain solidarity between nations. This should be the role of a rethought and recast European Union. This was the mission assigned to organisations such as the ILO, WHO, UNESCO and FAO in the aftermath of the Second World War. Marginalised by economic organisations (IMF, World Bank or WTO), they too would deserve to be profoundly reformed and legally armed to be equal to their mission.

However, it must be admitted that this hope hangs on the ability of the political, economic and intellectual "elites" to question themselves, to look back on themselves when they have set their fellow human beings on a path that is proving to be deadly. Yet this capacity only becomes apparent in the face of disaster. Since it is time to read at home, I would recommend reading "La Grande implosion", a philosophical tale published by Pierre Thuillier in 1995. It transports us after the collapse of the world order, which occurred at an undetermined date and for an undetermined cause (perhaps it was a pandemic?). A commission of inquiry was appointed with the mission of understanding why, when everything had been said and predicted about the impasses of the mad race in which the West had engaged the world, no account had been taken of these multiple warnings. The brave Professor Dupin, who chairs this commission, is constantly surprised by this blindness and also by the fact that the importance of poetry in human life has been forgotten to such an extent. Let us hope, therefore, that a commission of this kind will be appointed once the current pandemic has been brought to an end.

Notes:

The Spirit of Philadelphia. Social Justice vs. the Total Market, London New-York, Verso (2012), 160 p.

Governance by Numbers. The Making of a Legal Model of Allegiance, Oxford & Portland, Hart Publishing, 2017, 336 p.

Democracy laid low by the market, Jurisprudence, 2018, 9:3, 449-460