In the course of this inquiry, the center of gravity of our research has progressively shifted: what started as a survey limited to a novel form of the revolving door phenomenon became a plunge into the depths of the corporate bar, an exploration of the new forms of state action, and in the end an analysis of the realignment of the borders separating public and private. Lawyers, as tracers of the neoliberal reconfiguration of the state, served as our guides through the meandering byways of a field of public-private brokerage that has unceasingly grown and expanded over the past two decades. In the end, one thing is evident: far from having fulfilled the trumpeted promise of clarifying the respective roles of the state and the marketplace, the neoliberal turn has given birth to a space of mingling and exchange that has no precedent. An extraterritorial zone has grown up at the margins of business, politics, and government. In this new framework, confusion of roles and mixing of genres are not individual deviations from the norm or symptoms of occasional administrative anomalies. On the contrary, they constitute the new normal when it comes to the functioning of the state in its relationships with the market economy. This book, in the end, tells the story of a “black hole” that has appeared at the very heart of our democracies: its birth in a blind spot hidden from the view of professional regulations and political oversight, the expansion of its gravitational pull at the core of the state, and the ensuing political and democratic costs that we face today.
We are seemingly powerless to confront this new cycle of the state that has consolidated since the 1980s. Battered and brainwashed by two decades of injunctions vaunting the virtues of synergy and of public-private partnerships, we have underestimated the cumulative effects of these reforms on the “public spirit” that animates our political and administrative institutions. Not without consequences. After two decades of incessant reminders that private management is the superior mode, the self-confidence of the state, or in other words, its capacity for autonomous action in reaction to the market, has been gradually eroded.1 Worse still, our collective capacity to distinguish the public from the private and to theorize the specific nature of the public sphere with regard to the realm of private action is degraded. Tricked by the constant and misleading use of the “public” vocabulary of the state, we have collectively failed to see that the presumed correspondence between the public interest and the interest of the state, long the essential reference point of our democracies, had broken down. For if the lexicon of the public sphere remains omnipresent and central in administrative law, defining its agents and stipulating their missions—there are still “public” establishments, “public service” missions, and so on—these words now have a hollow ring. As a consequence of the blurring of lines, the fiction of the state that parades “the spectacle of public respect for public truth” in its relation to the marketplace appears to be a dupery and a sham.2
Can we however afford to give up this special relationship between the state and the public interest, as the proponents of good governance who proclaim a principle of nondifferentation between public and private persons, would have us do? Must we repudiate the normative ideal of the state as a repository of the universal values associated with the notion of the public in favor of public-private synergy by which market dynamics would conveniently correct the failings of the public sector? Surely not, for what is at stake are the very conditions in which the public interest is articulated and the functioning of a democratic space elaborated, beyond the reach of the unequal workings of the marketplace. But after two decades of neoliberal ascension, the work to rebuild the intellectual ties between the public realm and the state and to muster the collective political forces capable of championing the autonomy of the public sphere is still extraordinarily embryonic.
We are still inclined to cling to old relics and nourish the obsessive memory of a golden age of the state, and we are slow to awaken from our long dogmatic slumber. We do not presume to undertake in a few lines here a task that will require collective work over the long term. We simply suggest a few markers that point in this direction. The first step is a renunciation: we must renounce the more or less explicit delegation of the public interest to the state grands corps. The aptitude of these elites to be the “ethical prophets” of public interest, those who convey “the official truth in which the totality of society is supposed to recognize itself,”3 thus implicitly casting the imprint of the collective ethics, this capacity is today in tatters. This “State nobility” is no longer legitimate in this role, having frequently introduced the imperatives of new public management into the central workings of the state, and opened new possibilities of crossover to the private sector. The scope of circulation and the degree of separation between the public and private spheres condoned by society cannot be left to the decision of administrative commissions or ethics committees dominated by these elites alone. As noted by Walzer, the art of separation of social spheres is difficult and controversial. In this respect, drawing the respective borders of the public and the private spheres, and enforcement of this separation, is “a popular, not an esoteric, art.”4 A new political vision must emerge that holds all citizens collectively accountable for this separation and makes them the guardians of this dividing line; only public deliberation can decide what level of autonomy is seen to be compatible with the proper functioning of democracy.
This new democratic stewardship of the state calls for mobilization of all those—anti-corruption NGOs, citizens’ collectives, public service unions, and other divisions of civil service—who have over the years pinpointed the risks for politics and democracy that stem from the confusion of roles. Faced with the new collusive system described in this book, a system which has sprung up at the periphery where business, politics, and government meet, it is important to envision a new coalition of forces that can roll back the process of blurring and nondifferentiation that is at work before our very eyes. We pass over the mechanisms designed to protect whistleblowers, but we can mention the breach tentatively opened by creation of the High Authority for transparency in public life under the legislation enacted October 11, 2013. This legislation allows authorized anti-corruption NGOs to file complaints with the authority “when they have knowledge of a situation or facts that could constitute a failure to comply with the various obligations set by law”—for example, improper conduct, conflict of interest, failure to make mandatory filings, noncompliance with the rules of departure to the private sector, and so forth. There has been little success to date, seeing that only four groups have been recognized (Anticor, Transparency International, Pour la démocratie directe, and Sherpa), and that as of the end of 2016 just one case had been referred to the authority, regarding a completely innocuous matter of an incomplete statement by a member of Parliament who failed to mention his role as president of a nonprofit entity.
It remains that the Gordian knot is indeed a political affair. All the institutional apparatus of modern democracy (transparency, access to data, participatory mechanisms, etc.) will not suffice to change matters. What is needed is an awakening of consciousness and recognition of the political accountability of the various majorities that have succeeded each other over the past thirty years. Far from the enchanted vision of a virtuous circle by which recourse to the private domain would allow the public sphere to keep its promises—a notion long espoused by advocates of the “third way”—the proliferation of reforms since the late 1980s has not been neutral in terms of definition of the public interest. One of the unseen effects of decades of multiplication of independent regulatory agencies, private counsel to public bodies, public-private partnerships, and competition between public establishments, has been precisely the incessant expansion of this gray area at the heart of our democracies. We must undertake an inventory, if we hope to halt this expansion that puts the public spirit of the state at risk. This inventory will enable us to measure the cumulative political effects of the neoliberal remaking of the state. On this basis, a new principle of precaution can be founded, to in the future make proposed legislation subordinate to impact studies to assess the consequences in terms of further development of the politics of influence at the margins of the state. And from this inventory can start over the never-ending work of reinventing the raison d’être of the “public” in democracies.
1.Crouch, The Strange Non-Death of Neoliberalism.
2.Pierre Bourdieu, On the State: Lectures at the Collège de France (Cambridge: Polity, 2015), 28
4.Walzer, “Liberalism and the Art of Separation,” 328.