Legal-Political Institutionalization of Neoliberalism

The 'Declaration of Economic Freedom Rights' as a Case of 'Neoliberal Polity' in Brazil

Abstract

https://doi.org/10.1590/2179-8966/2025/88731i

The criticism of the adoption of neoliberal ideas of "market supremacy" by law has been gaining traction in the literature, and in response, there’s has been a growing recognition of the need to reintegrate "political economy" into legal analysis. This article suggests that this literature, traditionally focused on neoliberal "policies," would benefit from incorporating the study of neoliberal "polities": the forms of policy deliberation and conflict resolution. As an example, I examine Brazil's Declaration of Economic Freedom Rights (DEFR) and its potential for institutional change, not through immediate material policies, but by altering the "rules of the game" (and the ideas that inform them). I discuss three aspects of the DEFR: its impact on litigation through new pro-market forms of contestation; its use as inspiration for the creation of similar norms; and the transformation in legal education and legal reasoning. Through these points, I aim to contribute to analyses grounded in political economy in law, revealing the long-term potential for institutional change of laws like the DEFR.

Keywords: Law and Political Economy; Neoliberalism; Institutionalism; Economic Freedom Law; Declaration of Economic Freedom Rights.