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The Neoliberal Republic

The Neoliberal Republic: Corporate Lawyers, Statecraft, and the Making of Public-Private France


Antoine Vauchez is a CNRS Research Professor at Université Paris 1–Sorbonne and a Permanent Visiting Professor at the iCourts research center at the University of Copenhagen. 

This post is part of our symposium on The Neoliberal Republic by Antoine Vauchez and Pierre France. Read all posts here.

For most scholars and commentators in France and abroad, the election of Emmanuel Macron as president was met with surprise and dismay. The rapid ascent to the apex of power of a thirty-nine-year-old technocrat who was virtually unknown to the public three years earlier and claimed to govern “neither at the left, neither at the right,” broke from France’s past political coordinates. Many have interpreted this unprecedented success as the result of his disruptive and charismatic leadership. But the public-private profile of the new governing elite as well as its neoliberal agenda (bi-partisan, pro-market and pan-European) came as evidence that there was something more structural about the phenomenon. A “nouveau monde,” as Macron himself enjoyed calling it, was indeed rising to political power: drawn from both the ranks of the center-left and center-right, it brought together a group of top-level bureaucrats with experience in business—just like Macron and his first prime minister Edouard Philippe, who combined their membership in the State’s grands corps[1] with experiences as a senior banker (Macron) and corporate lawyer and later lobbyist (Philippe).

The sudden rise and success of this “nouveau monde” personified by Macron and Philippe has proven difficult to account for in a country which has long been presented as a reluctant player in the field of neoliberalism. For a long time, the French State has epitomized the “strong State” par excellence, spearheaded by a ruling elite of top civil servants (ENA graduates) and backed by a deep-seated tradition of autonomous public law. To be sure, many scholars have acknowledged the penetration of the neoliberal agenda in a variety of policy fields as well as segments of government over the past decades. This has included the progressive remodeling of the State’s economic role into that of a “market-making state,” promoting competitive markets through a dense web of independent regulatory agencies; the subjection of State-owned companies (services publics) to the invasive grip of EU competition law; the broad promotion of public-private partnerships; dissemination of New Public Management canons throughout local and national bureaucracies; increasing recourse to private consultants; and so forth. Yet, the overall narrative has remained that of a French state “under siege.” In this narrative, the French state resists external privatization pressures originating from the joined forces of EU market integration and economic globalization, and its resilient political and administrative elite attempt to limit privatization’s overall impact on the “service public à la française”.

However, this State-centered reading has remained blind to the symmetrical transformation that affected the business world as large firms and the consulting industry (including, and especially, law firms) were increasingly called upon to take part in the neoliberal reconstruction of the State. These firms have put in an unprecedented effort to accumulate expertise on the “public sector” (including EU institutions). The traditional account which considers the State in isolation has also missed the rise of a new system of collusive ties between politics, government and business that has consolidated at the intersection of EU and national regimes as a consequence of three decades of neoliberal policies. To be sure, the borders between the “public” and the “private” were never clear-cut: the interventionist State of the 1970s was (closely) linked to the business world through many revolving doors with strategic sectors (defense, banks, public procurement, etc.), which were a result of the State’s protectorate over the French “mixed economy.” However, from the 1990s onwards, a new set of revolving doors emerged that connected the segments of the State directly involved in its neoliberal transformation (government officials, cabinet members, regulatory agencies, ministry of the economy, the Conseil d’Etat, etc.) to the consulting industry (accounting firms, public affairs cabinets, advisory banks, and corporate law firms) and the world of large firms (through their secretariat generals, public affairs directors, etc.). These new revolving doors delineated a coalition of public and private interests promoting a new brand of partnership between State and markets.

Law and lawyers provide an unrivaled observation point of this “public-private” State. One indication that something new was happening under the aegis of law at the borders between State and markets was that many former prime ministers, secretaries general of the Elysée, top civil servants of the ministry of the economy—sometimes with no prior legal training—started joining the Paris corporate bar. Drawing from a collective biography of such civil servants and politicians who joined the Paris corporate bar over the past three decades, The Neoliberal Republic explores this new reality. It first documents the fact that these legal revolving doors developed in close connection with the different waves of neoliberal legislation. It tracks the increasing variety of public agents involved (from mid-level State lawyers to ministers, sherpas, or Elysée cabinet members with no prior legal training), the diversification of their State expertise (from tax law to competition law or finance and securities law), and the variety of roles they play when they join the law firms (public law experts, members of the firm’s “government and regulatory” practice, lobbyists, of counsels, compliance officers, etc.). The result of this sociological inquiry into these public-private circulations is a cartography that reveals the parts of the state and of public institutions (including EU institutions) experience in which became progressively more “marketable” in the private legal sector, as well as the segments of the bar that developed an interest in acquiring state credentials and expertise. As the book traces how this intermediate legal field between politics, government, and business has gained in scope, autonomy and political leverage, it identifies its transformative effects on both sides of the public-private divide as new conceptions of the role of the law firms, state, and democracy developed.

The foundational notion of “intérêt général” was largely redefined as neither different, exterior, nor alternative to that of the “competitive market,” and instead grew closely aligned with it.

Law firms have thus played a pivotal in the neoliberal transformation of French state. Upstream of their contribution to the shaping of global markets, The Neoliberal Republic shows how law firms reinvented themselves over the past three decades, shedding their traditionally limited role as litigators and becoming key brokers between politics, government, and market professionals. Far from working at a distance from the state, law firms have increasingly operated in close contact with its neoliberal transformation. The uninterrupted wave of legislation liberalizing and re-regulating the economy has fueled an intense movement of professional innovations. Law firms have undertaken to offer their private clientele with a diversified portfolio of “public” services from legal expertise in traditional areas of public law (tax, public procurement, etc.) to the fast-expanding realm of the “regulatory,” as well as the fuzzier areas of compliance, public affairs, lobbying, etc. Diverse as they are, these new specialties have a common trait: they all implicate the lawyers’ capacity to be familiar with, influence, or advise the State and, more broadly, the vast array of public institutions implicated in the neoliberal policy turn (the EU, state-owned companies, regulatory agencies, etc.). As a result, law firms over the past two decades have accumulated an impressive amount of experience of the public sector. They have thereby become well equipped to play a brokering role in the neoliberalized Republic.

The book also pays attention to the evolutions that were simultaneously taking place in the public sphere as this new field of public-private brokering exerted an increased gravitational force on state grands corps. As their career opportunities in the public sector shrunk as a result of the massive waves of privatization, top civil servants became increasingly independent of the state, repositioning themselves between politics, government and business. The trajectory of the Conseil d’Etat, France’s highest court of administrative justice and the legal adviser to its executive branch, itself epitomizes this transformation. The body is at once a supreme court, a breeding ground for top governmental positions, and a key producer of state public law doctrines. Faced with the obsolescence of administrative law as the French state underwent its European and neoliberal revolution, the Conseil d’Etat engaged in a radical aggiornamento of its founding principles with a view both to embrace the “market competition” paradigm and to maintain its central role as guardian of national legal unity. This cultural revolution can be traced in the highly influential annual reports published by the Conseil d’Etat, as they are loci where the progressive reframing of the grand narrative of the State can be found. These Reports move away from the rationales of the “Etat des services publics” to the new horizons of the “Etat régulateur,” which is presumably better adjusted to the canons of competitive and open markets.

Another highly relevant source of evidence of these profound changes is caselaw, as it progressively but radically reworked the major concepts of French administrative law. The foundational notion of “intérêt général” (public interest) was largely redefined as neither different, exterior, nor alternative to that of the “competitive market,” and instead grew closely aligned with it. Interestingly, this cultural revolution also extended to a new understanding of what being a “public servant” entails. As the in-and-outers move from positions in government to positions as partners in law firms’ “Public and government affairs” practices, they produce new professional norms that claim a continuity in spirit (public-mindedness) and in practice (acting as “private auxiliaries of the State”). They keep “defending the public interest in the private sector, but in a more efficient manner”—as one corporate lawyer trained at the Conseil d’Etat claimed in an interview.

Because of the distinctiveness of the continued role of its state grands corps and the public-mindedness of its variant of neoliberalism, France is a perfect exemplar of the contemporary blurring of lines between states and the business world. Far from clarifying their respective roles, this new turn of events has created an unprecedented zone of proximity and exchange between politicians, technocrats and market professionals. Between neoliberalized segments of the public sector that have acquired the habit of calling on outside consultants (a tendency continued during the current pandemic) and the public affairs consultants that have grown up close along the flanks of the state, a new map of power now stands in counterpoint to the circuits of representative democracy. Because this intermediate space (in which “double agents” moving in-and-out of the State thrive and prosper) is largely beyond the control of political and professional oversight, it has become a new black hole in the functioning of democracy, further undermining the autonomy of the public sphere and the realm of democratic citizenship.

The change is not without consequences. Among the political costs is our current failure to produce a notion of the “public interest” distinct from market asymmetries—a failure that will prove particularly detrimental in the face of the need for public authority to legitimately lead our economies and societies into an environmental transition and to counterbalance the unprecedented accumulation of private authority in the hands of a limited number of multinational corporations. With a view to address this systemic conflict of interests between business and democratic government, The Neoliberal Republic suggests that a new “care of self” on the part of the State ought to be promoted in order to protect the integrity of the “public sphere” (and the related spaces of democratic deliberation and decision) from the gravitational force of this field of public-private brokering. Drawing on the works of American political theorist Michael Walzer, it delineates possible paths toward a new “art of separation” that would allow us to see the public-private dividing line not just as any social or professional border, but as a “common good” of our democracies.

[1] The State grands corps are recruited in part through the Ecole Nationale d’Administration (the state professional school for high civil servants) and include the Inspection de finances, Cour des comptes and the Conseil d’Etat. Traditionally, they hold most of the top executive positions of the State. (See Pierre Bourdieu, The State Nobility: Elites Schools in the Field of Power.)