Akritas Kaidatzis, Assistant professor of Law, Aristotle University of Thessaloniki
Aspa Theochari, PhD researcher, Aristotle University of Thessaloniki
Drawing upon Fishkin and Forbath’s notion of “the Anti-Oligarchy Constitution” (2014), and on recent scholarship on plutocracy’s implications for constitutional democracy (Sitaraman, 2017; Formisano, 2015), we argue that the successful invocation of economic human rights by the (very) rich before courts undermines efforts made by the political branches to either deal with the problem of excessive material inequality or prevent its conversion into political inequality. This kind of adjudication often rests on the presumption, itself a basic tenet of neoliberal constitutionalism, that (big) corporations are “persons” and, hence, entitled to the same human rights protections as everybody else (Winkler, 2018). There is a distortive, indeed perversive, effect in this. It allows the very rich to maximise their wealth by successfully opposing the implementation of redistributive policies; and also enables them to use their wealth to “buy” themselves political influence, in order to preventer distributive policymaking in the first place –a vicious circle that ends up widening the inequality gap in a society. This, actually, is pretty much what plutocracy is all about (Khaitan, 2019; Kuhner, 2015).
We test our working hypothesis on a series of landmark rulings by the Council of State, Greece’s highest administrative court, decided during the last decade or so – notably, in a period of severe fiscal crisis and austerity policies. In all cases, the litigants were wealthy individuals or corporations; they invoked some kind of human rights protection; and the court struck down legislation that either imposes limitations on economic activity or burdens on businesses, or aims to restrict the political influence of economic actors. In some cases, the court’s rulings were inspired or indeed effected by the case-law of the ECHR or the CJEU. Despite employing the language of rights and principles, the rulings effectively contribute to the widening of the inequality gap in Greece. Thus, e.g., they create what we might call a “right” of big businesses to force small retailers out of the market (Praktiker, 2008); or of corporations to have their tax offences forgotten (Fiscal claims limitation, 2017); or even of media moguls to manipulate public opinion and, hence, electoral outcomes (TV licensing, 2017). Although certainly not conclusive, there seems then to be a judicially initiated trend towards a kind of “neo-Lochnerian” neoliberal constitutionalism, opposing what we might call “the anti-oligarchy constitution,” indeed even representing the very locus of an anti-“anti-oligarchy constitution.”
Fishkin & Forbath (2014). “The Anti-Oligarchy Constitution,” Boston Univ. Law Rev. 669-696
Formisano (2015). Plutocracy in America: How Increasing Inequality Destroys the Middle Class and Exploits the Poor
Khaitan (2019). “Political insurance for the (relative) poor: How liberal constitutionalism could resist plutocracy,” Global Constitutionalism1-35
Kuhner (2015). “American Plutocracy,” King’s Law Journal 44-75 Sitaraman (2017). The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens Our Republic
Winkler (2018). We the Corporations: How American Businesses Won Their Civil Rights