Chapter 4The Rise and Fall of Corporatist Constitutionalism: A Sociological Thesis

Chris Thornhill, University of Manchester

Introduction

In interwar Europe and Latin America, there were few societies that did not undergo, simultaneously, a political-economic and a legal-political transformation, which led to the emergence of states with pronounced corporatist features. Generally, this created states which: (a) claimed legitimacy through the internalization and mediation of class adversity by partly incorporating organized labour in the state, or at least by recognizing the autonomy of organized labour in economic legislation; (b) institutionalized an economic co-determination framework, in which both big business and big labour could participate in establishing legal parameters for industrial production; (c) gave constitutional recognition to collective socio-material rights for sectoral associations, especially those representing organized labour; (d) made provisions for state-directed judicial mediation and arbitration of industrial conflicts, often permitting public officials to issue arbitrational rulings with erga omnes force. In most cases, this process of corporatist transformation meant that states evolved constitutions that possessed at least a corporatist bias, in which labour law was constitutionalized as a vital medium for balancing the interests of rival social classes. Central to corporatism was the principle that labour law could be utilized to translate economic interests, however divergent, into a collective corpus of public law, drawing heightened public authority from the resolution of deep societal conflicts. In post-1918 Europe, some states, such as Italy in the period 1922-1927, Portugal in 1933, and Austria in 1934, devised comprehensive systems of corporatist public law, aggregating industrial interest groups in representative bodies (in professional syndicates or corporatist chambers), which were intended entirely to integrate productive sectors in the state. Other societies, such as the Weimar Republic and the Second Republic of Spain, developed constitutions that were primarily based on a positivistic model, but which still contained clear corporatist elements. Of course, Germany and Spain converted to ultra-authoritarian corporatism in the 1930s. But their original democratic constitutions were oriented around a conception of consensualist democratic corporatism. Even in societies, such as France and the UK, which did not enshrine corporatist objectives at the level of public law, corporatist arrangements were institutionalized at sub-executive level.1 In interwar Latin America, corporatist experiments were also the order of the day, and there were a number of short-lived attempts to create corporatist governments. Notable examples are Brazil under Vargas and Chile under Ibañez. After 1945, however, some societies, such as Argentina (1949) and Bolivia (1952), established more comprehensive corporatist orders, which, in some cases, were committed both to a deep interaction between the executive and organized labour and to a not insubstantial redistribution of domestic income.2

1Research for this article was funded by the European Research Council (Advanced Grant: 323656-STC). See Keith Middlemas, Politics in Industrial Society. The Experience of the British System since 1911 (London: Deutsch, 1979), p. 378 2 The Bolivian political system created in 1952 did not possess a distinct constitution, but it was based in a series of officially recognized corporatist arrangements.

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Many reasons can be given to explain the proliferation of corporatist constitutionalism after 1918, oriented towards consensual integration of the organized labour movement in political decision making. Notably, in Europe, it is widely observed, not inaccurately, that corporatist experiments established a pattern of organized capitalism, based in a deepened penetration of state activities into the economy, which was partly pursued as an attempt to assuage, or at least to contain, class conflicts, which had become politically unsettling through the franchise extensions of the years immediately before and after World War I.3 This was in fact especially the case because of the risk that in states that had converted to democracy after 1918 newly enfranchised constituencies might be inspired by the events in Russia in 1917. In Europe, further, the corporatist turn was also driven by anxieties regarding the demobilization of vast military populations after 1918, and conciliatory techniques for production management were used as an instrument for the concerted integration of potentially volatile, still militarized, cohorts of young workers. Perhaps most persuasively, the rise of corporatism is seen as the result of the fact that World War I had already created a quasi-corporatist system of political and economic organization.4 During the war, most belligerent states had acquired corporatist features in their economic dimensions: they had developed high-taxation fiscal regimes, they had integrated organized labour in order to accelerate and regulate production of armaments, they had established fora for peaceful co-operation between business and unions to maximize efficiency in military mobilization, and they had provided for judicial institutions in industrial units, either to soften or coercively to resolve conflicts in the production process. During the war, most belligerent states had also acquired corporatist features in their political dimensions: in addition to the above, they had peaceably integrated labour-friendly politicians into executive roles, they had created conditions for informal co-operation between parties on different sides of the economic divide, and they had established some degree of cross-party consensus on the most divisive questions of political economy.5 To this extent, the shift towards corporatism after 1918 was in many respects not a revolutionary legal-political phenomenon. Instead, it entailed a relatively organic solidification of structures of bargaining and co-ordination, which had been informally instituted during the period of military conflict. In Europe, further, it is immediately striking that most semi-corporatist constitutions after 1918 had a strong capitalist/developmentalist emphasis. This emphasis also perpetuated tendencies initiated in the war. As in the war, developmentalism involved the use of corporatist policies to mobilize productive forces, and to stabilize the position of national economic and national states within a global system of competition.6

3 For a general account see Charles S. Maier, Recasting Bourgeois Europe. Stabilization in France, Germany and Italy in the Decade after World War I Princeton University Press, 1975), p. 586. For a single case study, see Jürgen Kocka, ‘Organisierter Kapitalismus oder staatsmonopolistischer Kapitalismus? Begriffliche Vorbemerkungen’ in Heinrich August Winkler (ed), Organisierter Kapitalismus. Vorraussetzungen und Anfänge (Göttingen: Vandenhoeck und Ruprecht, 1974), pp. 19-36; 27. 4 Franklin Hugh Adler, Italian Industrialists from Liberalism to Fascism. The Political Development of the Industrial Bourgeoisie, 1906-1934 (Cambridge: Cambridge University Press, 1995), p. 90.5 See my discussion of these points in Chris Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective (Cambridge: Cambridge University Press, 2011), Chapter 4.6 For a general account of fascism as developmentalism see James A. Gregor, The Ideology of Fascism: The Rationale of Totalitarianism (New York: Free Press, 1969). For the legal implications of this, see Raffaele Teti, Codice Civile e regime fascista. Sull’unificazione del diritto privato (Milan: Giuffrè, 1990), p. 141.

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In Latin America, the historical foundations of corporatist experiments had some differences from those in Europe. In Latin America, notably, some societies experimented briefly with corporatism, but then reverted to more conventional constitutional models.7 In Latin America, more importantly, the military context for the rise of corporatism was much less pronounced than in Europe. Leaders of corporatist transitions in Latin America usually had strong military links. In some cases, corporatism was favoured by the military transformation of political institutions – Bolivia in the aftermath of the Chaco war is a case in point.8 Yet, in broad terms, corporatism in Latin America did not evolve against a background of military mass-mobilization. Unlike in post-1918 Europe, it is difficult to observe the main examples of corporatism, for example in Brazil and Argentina, as extensions of already extant patterns of governance, cemented through military adversity. It was only in a later period, from the 1960s onwards, that the nexus between corporatism and military rule in Latin America was intensified. In Latin America, in addition, some corporatist experiments clearly aimed at a policy of effective class equilibration. The more elaborate corporatist experiments in Europe did little factually to placate the class antagonisms which they internalized, and the rhetoric of class balancing underlying European corporatism was usually a facade. By contrast, some variants on corporatist constitutionalism in Latin America effected a substantial realignment between classes, and they clearly transformed the domestic political economy. Argentina under Perón is the most obvious example of this.9

Despite these divergences, however, we can see very prominent overlaps between corporatist constitutionalism in Europe and Latin America. Most obviously, first, Latin American experiments in corporatism were also stimulated by acute class-conflicts, and corporatist political systems tended to be created in situations in which class antagonisms threatened to destabilize existing institutional structures and prevailing economic conventions. As in Europe, corporatist constitutionalism was established to prop up the system of political and economic management against the conflictual dynamics unleashed through the onset of mass democratization. Second, in Latin America, corporatism had a strong developmentalist bias; the developmentalist dimension to corporatism was even more pronounced than in Europe. As is widely documented, the rise of corporatism in Latin America was tied to a strategy of import substitution, and it was intended to stabilize the position of relatively marginal economies within an emergent global division of labour.10

More importantly, however, it is possible to discern a series of deeper, sociological continuities between corporatism in Latin America and Europe. Indeed, it is possible to observe that the rise of corporatism, especially as a constitutional form, crystallized the same macro-sociological processes in both these environments. In both settings, corporatism evolved as a response to similar pressures, inhering in the emergent structure of modern mass society. On this basis, moreover, it is possible to observe that in both Europe and Latin

7 Chile experimented in corporatism in the late 1920s, but never became a fully corporatist state. See Ruth Berins Collier, and David Collier, Shaping the Political Arena. Critical Junctures, The Labor Movement, and Regime Dynamics in Latin America (Princeton: Princeton University Press, 1991), p. 194. 8 See Richard W. Patch, ‘Bolivia: The Restrained Revolution.’ Annals of The American Academy 334(1) (1961): 123-132; 127.9 Edward C. Epstein, ‘Control and Co-Optation of the Argentine Labor Movement.’ Economic Development and Cultural Change 27(3) (1990): 445-465; 450; Collier and Collier, Shaping the Political Arena, p. 342 10 See Werner Baer, ‘Import Substitution and Industrialization in Latin America: Experiences and Interpretations.’ Latin American Research Review 7(1) (1972): 95-122; 97.

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America the ultimate failure of corporatist constitutionalism was induced by similar factors, which were also deeply imbedded in a general societal structure. Accordingly, the purpose of this Chapter is to investigate the structural phenomena underlying the historical rise and failure of corporatism, and it is designed to construct these phenomena as part of a wide sociological inquiry into the formation of modern society. In so doing, this Chapter proposes the thesis that corporatist constitutionalism represents a distinct evolutionary stage in the emergence of modern national societies, the features of which are relatively constant across a variety of social and geographical contexts. The creation of a corporatist system of public law formed a key moment in a quite generalized process of institutional differentiation and societal inclusion, which runs through the evolution of national social structures. Moreover, the collapse of corporatist constitutionalism also formed a distinct moment in a general socio-evolutionary trajectory, which also be explained as part of a generalized process of societal inclusion.

The social foundations of corporatism1. Class and nation

Corporatism became a prominent legal and political form in an era in which most members of most societies were increasingly obliged to select whether they construed their social affiliations in relation to their class or in relation to their nation. It is no coincidence that the two greatest philosophers in interwar Europe were separated, in essence, by their rivalry over the question of whether class or nation provided the dominant motivation for human thinking and human action.11 Exponents of corporatism, notably, positioned themselves self-consciously within this theoretical polarity. Indicatively, state corporatism was originally born in Italy through a fusion of syndicalism, originally linked to the organized assertion of class interests, and statist nationalism, which, after 1900, was increasingly attached to Conservative social groups.12 As a result, proponents of corporatism explained corporatist political ideas in relation both to the politics of class and to the politics of nationality. On one hand, they saw corporatism as a means of sublating class identities into a socially transcendent theory of integration, and of assimilating all social groups in a unifying, economically hyper-productive, ideology. On the other hand, they saw the distinction of corporatist states as residing in the fact that they were able to integrate populations through an emotive appeal, not to class interests, but to national affiliation. Unlike liberal/capitalist states, therefore, proponents of corporatism claimed that corporatist states could generate one single, encompassing, indivisible bedrock of support in society, and through this holistic appeal they were able to mobilize all society both for the political system and for economic production.13 In these respects, corporatism sought to extract material substance from one of Max Weber’s primary sociological observations (or aspirations): namely, that affiliation to a nation could ultimately generate stronger motivations for action than affiliation to a class, and

11 Georg Lukács saw human thinking as determined by class: Georg Lukács Geschichte und Klassenbewußtsein (Neuwied: Luchterhand, 1968), p. 273. By contrast, Martin Heidegger saw human thinking as determined by the shared temporal experiences of historical communities: Martin Heidegger, Sein und Zeit, sixteenth edition (Tübingen: Niemeyer, 1986), p. 53.12 See the account of the nation as an entity formed through the synthetic organization of individuals and corporations in Ugo Spirito, Capitalismo e corporativismo (Florence: Sansoni, 1933), p. 44. For comment see Zeev Sternhell, The Birth of Fascist Ideology (Princeton: Princeton University Press, 1994), p. 228. 13 Giovanni Gentile construed defined the fascist state as a state obtaining legitimacy by reflecting that ‘immanence of the state in the individual person’, which he construed as ‘the proper essence of the state’: Giovanni Gentile, Origini e Dottrina del Fascismo (Rome: Libreria del Littorio, 1929), p. 50.

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that a motivationally integrated national community could form a vital foundation for national economic growth.14 For these reasons, the defining sociological inquiries into corporatism have often attached particular explanatory weight to the concepts of class and nation. Research on corporatism has often argued that corporatist constitutions were constructed to palliate, or even conceivably to resolve, conflicts between social classes, and, above all, that corporatism gained popularity as a legal technique for subordinating class affiliations to the interests of the national economy, ideologically sustaining the interests of the national ruling class over the national proletariat.15 Underlying corporatism, on most sociological accounts, is an ideological triumph of nation over class.

Focus on the relation between nation and class undoubtedly generates a vital sociological perspective for interpreting the growth of corporatism. In most cases, however, it can be observed that corporatism was not constructed through the simple subsumption of class interests under already existing national interests, and the establishment of corporatist legal orders did not result solely from nationalist endeavours to weaken the power of class ideologies. In fact, most corporatist states were created in very insecurely constructed nations, often in settings in which nations, defined as realized legal-political orders, had not been conclusively established. In such settings, corporatism was widely used as a technique, not only for the suppression of counter-systemic class affiliations in the name of national unity, but for the creation of nations as socially meaningful realities. In most states, in fact, corporatist instruments for co-ordinating interactions between diverse economic groups assumed a vital role in a twofold process of, partly coerced, national integration: these instruments were utilized both for the integration of different classes in the national economy and for the integration of different regional territories, and regional elites, in the larger structure of the nation state. Corporatism was thus promoted to allow national states to stabilize their position by offsetting two sets of lateral affiliations: it was designed both to placate conflicts in society caused by class divergence, and to soften antagonisms in society caused by pressures resulting from strong centre/periphery divisions. In consequence, classical corporatism can be interpreted as part of a model of nation building, in which concerted articulation between group interests was fostered in order to stabilize a uniform legal political order, incorporating, at one and the same time, otherwise highly counter-systemic economic organizations and highly centrifugal regional actors. In particular, in most cases, corporatism utilized labour law as a medium of inclusion in this dual nation-building process. Typically, corporatism revolved around the re-location of labour conflicts from the sphere of civil law into the sphere of constitutional law. In so doing, it foresaw an intensified politicization of labour law, in which labour law was used to establish bargains between rival social groups, to co-ordinate economic production in consensual fashion, and to bind regional groups into a direct relation to the central state. In each society that converted to an elaborated model of corporatism, therefore, corporatist constitutions used labour law both to secure the pacification of class conflict, and, quite expressly, to cut across and unify centrifugal regional groups. This twofold function of corporatism is clearly observable in interwar Europe. The objective of class mediation in the corporatist experiments in interwar Europe was quite manifest. At 14 See analysis in Wolfgang Schlucter, Rationalismus der Weltbeherrschung. Studien zu Max Weber (Frankfurt: Suhrkamp, 1980), 75-133.15 See for example Nicos Poulantzas, State, Power, Socialism (London: New Left Books, 1978), p. 233; Guillermo O’Donnell, ‘Corporatism and the Question of the State’ in James Malloy (ed), Authoritarianism and Corporatism in Latin America (Pittsburgh: University of Pittsburgh Press, 1977), pp. 47-87; 70. For discussion see Leo Panitch, ‘Trade Unions and the Capitalist State.’ New Left Review 1/125 (1981): 21-44: 24-5.

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the same time, however, corporatist experiments usually had greatest importance in societies in which the general convergence of society around the state was relatively low, and in which, accordingly, there existed a clear mismatch between the ideological construction of centralized national states and the factually existing, still clearly localized, structure of society as a whole. In such settings, corporatist constitutional norms were applied to link regional groups to the state, and to harden the centration of society, as a national society, around the state. At one level, the anti-regional aspects of corporatism were clear enough in the nationalist rhetoric that accompanied corporatism, which proclaimed corporatist social organization as an inextricable part of strong nationhood.16 More instrumentally, however, most corporatist constitutions in Europeans contained provisions which were clearly designed to promote regional integration just as much as class integration. Notably, for example, corporatist constitutions typically integrated accorded representation to different economic sectors in categories defined solely by professional affiliation, and most of them established unitary organs for economic delegation, in which interests of different parties were addressed without regard for distinctions between labour and management: this meant organizations on both sides of the class divide were fused in single councils.17 Obviously, this aspect of corporatism was intended to diminish the power of lateral affiliations linked to class identities. To that end, it separated social organizations from their location in the system of class conflict, and it forced organized labour to co-operate with organized business, usually on clearly unequal terms. However, the establishment of unitary professional corporations was also intended to diminish the force of lateral affiliations attached to regional identities. To that end, it detached social groups from their locations in the context of centre/periphery partitions, and it linked all workers in all regions immediately to the central state. In the latter respect, the integration of society in professional syndicates was clearly conceived as a mechanism by means of which the state could cut through regional loyalties and undermine sources of authority based in distinct localities. In addition, the anti-peripheral aspects of corporatism were evident in the fact that corporatist constitutions clearly provided for the cross-societal distribution of material goods through the state apparatus, and, in so doing, they provided social groups, especially disadvantaged regional groups, with strong incentives for acceptance of centralized state authority, usually in settings in which society still persisted in its traditionally localized form. In some cases, moreover, corporatist constitutional systems institutionalized particular agencies to co-ordinate relations between centre and periphery, and to ensure that the political centre had a strong hold on different regions. 18 Generally, therefore, European corporatism can be perceived as a legal/political order proportioned to a twofold demand for national construction. Corporatism was created as a legal order designed to stabilize the political system in a wide social landscape marked by two deeply embedded sources of conflict – class conflict and centre-periphery conflict – both of which obstructed the rise of the political system and prevented the emergence of relatively even, uniformly national societies.

16 See the famous address given by Alfredo Rocco and Filippo Carli to the Congress of the Nationalist Association in 1914: Quoted in Ugo Spirito, Capitalismo e corporativismo (Florence: Sansoni, 1934), p. 75.17 On one account, the corporation ‘represents the unitary organization of various categories of participants in production’. In this theory, in corporatist orders, the state ‘guides, corrects and supports economic and social activities’ and the corporations ‘realize the true identification of categories in their different elements (capital, work, technology’ thus ‘establishing an identity between the interests of single persons and of the category with the interests of the nation’: Nicola Palopoli, Legislazione del lavoro, vol 2: L’ordinamento sindacale-corporativo fascista (Milan: CEDAM, 1931), pp. 55, 117.18 Mariuccia Salvati, ‘The Long History of Corporatism in Italy: A Question of Culture or Economics.’ Contemporary European History 15(2) (2006): 223-244; 232.

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This twofold nation-building function of corporatism was far more strikingly accentuated in Latin America than in Europe. On one hand, in parts of Latin America, the use of corporatist techniques of economic management was clearly intended to offset class conflicts that appeared likely to unsettle national economic productivity and global competitiveness.19 As mentioned, corporatism was used to consolidate the national labour process as part of the wider commitment to import substitution, and it was intended to bind all classes together in a drive to maximize national production. On the other hand, however, corporatist constitutional models were developed as a means to implant a fully nationalized political system across society, and to draw historically disparate and loosely connected sectors of society into a reasonably even, uniformly inclusive relation to the political system. Of course, this process varied considerably from society to society. Yet, across Latin America, corporatist constitutionalism was strategically promoted to heighten the penetration of the political system into domains of national societies still marked by the persistence of local power. In Brazil, for example, Vargas elaborated a constitution as part of clear design for the promotion of national unity, and the corporatist labour law was conceived as an instrument both for purchasing support of labour unions for national development and for linking regional actors immediately to the state structure.20 In Argentina, similarly, Peronism was intended as a system of national compensation, in which trade unions and the national bourgeoisie accepted reciprocal trade-offs in order to bolster domestic economic growth. But it was also designed to bring cohesion to a national political system historically marked by very low density and very depleted inclusionary capacity, and so to deepen the reach of the state into national society. In Bolivia, the nation-building impetus behind the corporatist experiments beginning in the National Revolution of 1952 was even more pronounced.21 In Bolivia, notably, 1952 saw the rise of a corporatist legal/economic order, in which trade unions were given far-reaching governmental powers. However, amongst its other objectives, the corporatist system in Bolivia was designed as part of a strategy for centralizing the ethnically fragmented structure of Bolivian society around the state apparatus.22 This was reflected in particular in the fact that peasant groups, very often with affiliations to prior or indigenous populations, were organized in peasant unions, and their interactions with the state were mediated through professional categories, interests, and affiliations. This system of peasant syndicalism was clearly intended to diminish ethnic loyalties and to force rural or indigenous communities to position themselves in a more immediate relation to the central state administration.23 Through this, union representatives transmitted material goods to peripheral populations,

19 See Mathew E. Carnes, Institutionalizing Inequality: The Political Origins of Labor Codes in Latin America, Kellogg Institute, Working Paper # 363 (2009), p. 15.20 See the argument in Joan L. Bak, ‘Cartels, Cooperatives and Corporatism: Getulio Vargas in Rio Grande do Sul on the Eve of Brazil’s 1930 Revolution.’ The Hispanic America Historical Review 63(2) (1983): 255-275; 255; Youssef Cohen, The Manipulation of Consent. The State and Working-Class Consciousness in Brazil (Pittsburgh: University of Pittsburgh Press, 1989), p. 86.21 Patch, ‘Bolivia: The Restrained Revolution’, p. 125.22 See Fernando García Argañarás, ‘The Mechanisms of Accommodation: Bolivia, 1952-71.’ Review (Fernand Braudel Center) 15(2) (1992): 257-308; 302; H.C.F. Mansilla, ‘Apogeo y declinación del movimiento sindical boliviano 1982-1985: Una nota sobre la cultura política del autoritarismo.’ Revista de estudios políticos 79 (1993): 227-246; 229; Álvaro García Linera, La condícion obrera en Bolivia. Signo XX (La Paz: Plural, 2014), p. 204.23 José Antonio Lucero, Struggles of Voice: The Politics of Indigenous Representation in the Andes (Pittsburgh: University of Pittsburgh Press, 2008), p. 66; Jorge Lazarte, Movimento obrero y procesos politicos en Bolivia. Historia de la C.O.B. 1952-1987 (La Paz: EDOBOL, 1989), p. 188.

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which were then conjoined to the state through an ordered system of compensation and distribution.

In sum, the rise of corporatist constitutions can be identified as a quite general moment in a process of nation building. As a reaction to structural contradictions caused both by class affiliation and ethnic centrifugalism, corporatism was designed to resolve both contradictions at the same time, and thus to project society in its entirety as a relatively stable system of inclusion, subject to direct control by national political institutions. The role of corporatist legal/economic orders in cementing a uniform national foundation for the political system within a pluralistically structured society can be observed as a very general characteristic of corporatism. Although clearly salient in interwar Europe and highly prominent in Latin America, this function of corporatism actually found its apogée in Sub-Saharan Africa, in the course of decolonization.24 On this basis, a macro-sociological perspective can be proposed to account for the global spread of corporatist constitutionalism. Corporatist constitutionalism can be construed as a pattern of legal organization which is a prominent characteristic of societies in a process of incomplete nation building. Indeed, corporatism appears almost as an inevitable stage in the process of national formation, and political systems confronted with societies that are incompletely unified, both in term of class antagonism and centre-periphery polarization, typically resort to corporatist constitutionalism to stabilize their societies, however counter-factually, as national units.

2. Political and material rightsThe social foundations of corporatism can also be reconstructed through a sociological theory of rights, which is closely linked to the process of nation building. Generally, when modern nations first emerged in the eighteenth century, their political institutions began, as part of a process of self-abstraction, to elaborate a system of rights across the societies that surrounded them. Early national states constructed a body of rights through society in order to impose cohesion upon their societal environments, and to bring their societies into an immediate relation to state institutions. Indeed, the development of modern nations and modern nation states is profoundly interwoven with the societal distribution of rights by states; many sociologists have observed how national societies and their institutions approach cohesiveness and inclusivity through the state-led allocation of rights to different social groups and sectors.25

Most immediately and symbolically, of course, the nation-building role of rights is visible in the fact that the first modern constitutions, exemplified above all by those in revolutionary France, accorded high standing to general procedural rights and (to a lesser degree) to some political rights. In particular, as they imputed common rights to all members of society, these constitutions used rights symbolically to eradicate the patchwork corporatistic structure of pre-national societies, and to enforce principles of legal equality and procedural integrity across highly localized, legally disconnected, territories.26 Rights acquired salience in 24 See for one example Lester N. Trachtman, ‘The Labor Movement of Ghana: A Study in Political Unionism.’ Economic Development and Cultural Change 10(2/1) (1962): 183-200; 190. 25 See Émile Durkheim, Leçons de Sociologie. Physique des Moeurs et du Droit (Paris: Presses Universitaires de France, 1950); Talcott Parsons, ‘Full Citizenship for the American Negro? A Sociological Problem.’ Daedelus 94 (1965): 1009-1054; 1015; T.H. Marshall, Citizenship and Social Class (London: Pluto Press, 1992 [1950]).26 During the French Revolution Sieyès defined the nation as a people equal in rights. See Emmanuel-Joseph Sieyès, Préliminaire de la constitution: Reconnaissance et exposition raisonnée des droits de l'homme & du citoyen (Versailles: Ph.-D. Pierres,

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classical national constitutions, therefore, because, in defining all persons as holders of like entitlements, they helped to level society into an evenly extensive national form, and they erased distinctions of status and familial and local affiliation which had historically obstructed the formation of national societies. Equally importantly, however, in the aftermath of the classical constitutional revolutions, rights assumed importance because the constitutional formalization of subjective rights – notably, the classical negative rights of contractual autonomy, freedom of movement, proprietary independence, and free circulation of commodities – also helped to dissolve the localized structure of society, and to confer a nationally extensive form upon it. In fact, although the political and procedural rights proclaimed in classical constitutions had greatest symbolic importance in inaugurating the emergence of national societies, European societies only factually became nations as they were pervaded by monetary and proprietary rights, established in classical processes of revolutionary constitution making. Notably, the fact that, after the revolutionary interludes of the eighteenth century, members of European society acquired constitutionally guaranteed monetary rights meant that different societies, of necessity, became more geographically expansive, and their residual local focus was eradicated. On one hand, as holders of civil and economic rights guaranteed under classical constitutions, people could move around in search of work, they were no longer bound by local or corporatist contractual restrictions on the sale of labour, and they could circulate commodities over rapidly widening social spaces. On the other hand, these monetary liberties also presupposed the enforcement of legal codes, which could assume authority over long distances, and which accompanied the movement of persons and goods beyond their traditional local confines. On both counts, therefore, monetary rights led to a rapid expansion and nationalization of societal exchanges, and such rights, to a greater extent than any political rights of equality and representation, imprinted a national inclusionary structure on emergent European societies. Monetary rights usually formed a first tier of rights in a process of inclusion, in which national states pierced the pre-contemporary corporatist form of society, and drew members of society into a direct relation to the national political system.

In Europe, the political rights first allotted to members of national societies under classical constitutions only fully assumed reality in the later part of the nineteenth century. Initially, most national states created through the revolutionary interlude after 1789 only integrated national societies in the dimension of economic interaction, and, in the first instance, it was only as holders of common monetary rights that national populations were unified by their legal/political systems. Accordingly, most European societies preserved their pre-modern localized structure throughout the nineteenth century, and in fact well into the twentieth century. Gradually, however, as national societies expanded and as their institutions increasingly presupposed support amongst a broad range of constituents, most national societies in Europe began to generate a quantity of political rights, which sat alongside monetary rights as sources of societal inclusion. In particular, political rights were circulated through society by state institutions because national political systems, standing opposite

1789), p. 19. The implications of this for the corporatist structure of pre-contemporary society were soon capitalized. The French revolutionaries, notably, despised corporations, which they associated with vested privilege, local particularism and vested egotism. Accordingly, Le Chapelier introduced a repressive law against corporations in 1791, implying that general personal rights eliminated all corporatist structures from society. See Philippe Joseph Benjamin Buchez and Pierre Celestin Roux-Lavergne (1834), Histoire parlementaire de la Révolution française, vol. 22. (Paris: Paulin, 1934), pp. 194-5. For general comment on the use of civil rights as anti-corporatist instruments in the French Revolution see Marcel Garaud, La révolution et l‘égalité civile (Paris: Sirey, 1953), p. 116.

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societies that had been unified in their economic dimensions, were required to secure legitimacy for their legal functions which could no longer be extracted from the localistic sources of pre-modern political authority, and which presupposed deep-reaching support for the political system across society. As a result, in the course of nineteenth century, most national political systems began to expand the sectors of society engaged in political legitimization and decision making, and they allocated increasingly integrated sets of political rights (rights of participation through local and national voting, rights of representation, and rights of party membership) to different constituencies in society. Political rights were thus generated as a second tier of rights in society through which the political system extended its inclusionary reach and mobilized support for its functions of legal and political inclusion. The national people gradually became a real presence in the political system through the extension of rights of a political character to a widening set of social actors. By the late nineteenth century, most national societies, at least in Europe, had added a stratum of political rights to the inclusionary structure which they had originally constructed through the circulation of singular monetary rights.

Once national societies began to be integrated in the political system through a stratum of political rights, however, political rights immediately imposed an unsettling logic on European society as whole. Notably, as soon as national populations were included in the political system through their exercise of political rights, they began to exercise these rights as instruments to assert claims to material improvement, and they began to utilize rights of political inclusion to demand a third tier of rights – rights of social and material inclusion. This occurred at different points in different societies, as different societies approached full political enfranchisement at different historical junctures. Generally, however, the realization of a condition of comprehensive social inclusion in the dimension of political rights usually coincided with a rising insistence on inclusion through material rights: political rights, once guaranteed across society, usually became institutions through which deeply rooted antagonisms between different social groups were channelled into the state, and these groups sought mediation of such conflicts through socio-material rights, allocated by the state. Generally, the construction of a tier of political rights in society opened the political system to acute forms of social and economic adversity, which the political system was then expected to balance through collective guarantees over material rights.

Against this background, the rise of corporatist constitutionalism can again be observed, at its deepest sociological level, as a key stage in a wider trajectory of nation building. In most societies, political systems reacted to the inclusionary pressures which they encountered through their distribution of political rights by devising corporatist constitutions to soften the antagonisms between social groups which they internalized. As discussed, corporatist constitutions established bargaining fora between adversarial parties in society, and they usually constructed judicial institutions to offer arbitration in concrete disputes over wages or production conditions. In these respects, corporatist constitutions were designed to reduce the strain on national political system caused by the sudden politicization of their societial foundations, caused by political rights, after 1918. In this respect, therefore, corporatist constitutions were usually elaborated as part of a third stage of inclusionary nation building, in which states incorporated their national constituencies in a three-tier system of rights. Overall, in fact, modern national societies can be observed, sociologically, as entities formed by a three-layered process of rights allocation, in which civil and monetary rights engendered political rights, and in which political rights then engendered socio-material rights, so that society as a whole was gradually constructed, layer upon layer, as a multi-tier system of inclusion. In this sociological perspective, corporatist constitutionalism appears as a third

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stage in a process of national inclusion. Under corporatist constitutions, material rights were enforced across society, both by distribution and arbitration, in order to stabilize the political system against the inclusionary pressures generated by previous strata of inclusion (private and political rights), and political systems attempted to mobilize compliance across society by linking disparate social groups to the state through socio-material rights. The social foundations of the fall of corporatismThe most striking fact in the history of corporatist constitutionalism is, of course, that it was not successful. Most states that acquired corporatist constitutions failed to establish generalized systems of inclusion, and most of them rapidly entered a process of inclusionary crisis. Through this process, most corporatist states experienced either a partial or complete loss of autonomy, and their ability to perform basic inclusionary functions in society was quickly eroded. Indeed, most corporatist states were exposed to inclusionary crises in broadly analogous ways, and all patterns of corporatist state building tended to create states with a common propensity for crisis.

First, most obviously, most states that developed corporatist constitutions did not establish a system of legal class equilibration, and instead they were brought to crisis by their inability to ensure effective class mediation. Normally, states with corporatist constitutions rapidly abandoned their consensualist construction of labour law, and they gravitated towards a model of corporatism, in which legal instruments for the co-option of organized labour were applied in a strictly instrumentalist, coercive fashion, and labour was transformed into an instrument for the subordination of the labour movement to the prerogatives of capitalist elites. The classical example of this is Italy after 1927, when the basic corporatist manifesto of global fascism, the Carta del lavoro, was introduced. The Carta was designed, ostensibly, to provide a legal framework for the balancing of class interests, and to establish parameters in which industrial legislation could be negotiated between rival organizations, to serve the interests of all parties.27 As such, it was projected that it would radically transform inherited individualistic conceptions of private property.28 Despite such declared ambitions, however, the Carta was clearly intended to secure a privileged position for industrial elites in the corporatist system of industrial bargaining. Tellingly, for example, the Carta was introduced after the formal proscription of free trade unions, so that organized labour could only engage in corporatist negotiations from a deeply disadvantaged position. Moreover, it insisted that, in cases of dispute, macro-economic objectives should be given final precedence in all negotiations between economic organizations.29 Similar patterns of unilateral privilege were even more accentuated in the corporatist constitution created in Spain under Franco. Analogously, many corporatist systems of public law in Latin America were designed as instruments to fortify the position of industrial elites. This is visible in the reduced corporatism promoted in Argentina after 1976.30 However, this found its apotheosis in the authoritarian corporatist system created in Chile after 1973. Indicatively, although he ultimately settled on a strictly neo-liberal economic line, Pinochet originally toyed with corporatist models of governance, which expressly accorded directive authority to economic

27 See Vincenzo Zangara, Rivoluzione sindacale. Lo stato corporativo, 3rd edition (Rome: Libreria del littorio, 1931), p. 147; Marco Fanno, Introduzione all studio della teorie economica del corporatismo (Padua: CEDAM, 1935), p. 110.28 Ugo Spirito, Capitalismo e corporativismo (Florence: Sansoni, 1933), p. 3. 29 In fact, affirmation of the given class structure was more or less explicit in theoretical literature on fascism. See Sergio Panunzio, Teoria generale dello stato fascista. Appunti di lezioni (Milan: CEDAM, 1937), p. 29130 See especially Law 22.105 (1979).

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elites.31 Overall, corporatist states, even those first designed to promote class mediation, usually translated their inclusionary systems of labour law into instruments of exclusion and coercion, and they placed institutions of interest aggregation at the disposal of dominant economic groups. Through this transformation of labour law, states with corporatist constitutions almost invariably allowed industrial elites to take control of economic policy making, and corporatism was typically transformed into a system of coercive developmentalism.

Second, corporatist states did not usually achieve success in integrating private interests into a broad constitutional order, and corporatist constitutions did not typically form a reliable foundation for the consolidation of a system of public law. In most cases, the creation of corporatist constitutions did little more than stabilize private interests at different points within the political system, and it transformed the political system into a clearing house for the prerogatives of the societal organizations which it internalized. As discussed, corporatist states ultimately used their legal authority to give protection to the interests of industrial elites, which, as their position in the margins of government had been secured under corporatist public law, used their proximity to state executives to exert influence on public policy and generally to steer legislation in accordance with their distinct objectives. As a result, corporatist states usually dissolved into highly privatistic legal orders, in which policies were made in informal fashion, and aggregated interests were communicated through personal channels between inner-systemic and extra-systemic elites. In most cases, this personalization of policy making eroded the essential distinction of national states in relation to private actors, so that corporatist states often forfeited quite elementary qualities of statehood. A number of examples of this can be observed. In Italy under Mussolini, for example, private organizations assumed functions classically performed by public bodies, and semi-official agencies, often tied to powerful industrial players, came to form a large para-state sector, in which public and private actors were often indistinguishable.32 In Spain under Franco, policy making relied on highly personal intersection between the executive and politically relevant elites.33 In Argentina in the 1970s, organs of state became so thoroughly hollowed out by external rent seekers that the state experienced a deep collapse of its institutional structure.34

Third, corporatist states did not usually devise successful policies for linking different regions to the state, and they widely failed to imprint a cohesive national-inclusionary form across society. The persistent localism of society under corporatistic states in Europe has been widely observed. In extreme cases, corporatism forced social structure back into pre-modern forms, and it directly obviated the emergence of societies on a national unified pattern. The most illuminating example of this is Germany under the National Socialists. The political leadership of the NSDAP, of course, projected an ideology of ultra-cohesive national integrity. Beneath this sloganism, however, the fabric of German society under Hitler was strained by extreme centrifugalism, deeply ingrained local protectionism, and general 31 Renato Cristi, El pensamiento politico de Jaime Guzmán. Una biografía intellectual (Santiago: LOM ediciones, 2011), p. 7332 Guido Melis, Due modelli di amministrazione tra liberalismo e fascismo. Burocrazie tradizionali e nuovi apparati (Rome: Ministro per i beni culturali, 1988), p. 262 33 Richard Gunther, Public Policy in a No-Party State. Spanish Planning and Budgeting in the Twilight of the Franquist Era (Berkeley: University of California Press, 1980), p. 250.34 Silvio Borner and Markus Kobler, ‘Strength and Commitment of the State: It Takes Two to Tango: A Case Study of Economic Reforms of Argentina in the 1990s.’ Public Choice 110(3/4) (2002): 327-350; 340

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systemic particularism.35 The prevalence of local power in other authoritarian corporatist societies in Europe has also been widely noted.36 In Latin America, similarly, societies under corporatist states obdurately resisted the dynamic of inclusionary nationalization which corporatism was supposed to promote. In Latin American societies, generally, the use of corporatist labour law to promote national integrity was undermined by patrimonial colonization of the state.37 In Latin American societies where corporatism was related to ethnic policies, attempts to bind peripheral communities to the state through controlled unions meant that union leaders assumed high authority within the bargaining system. In fact, union leaders often acted as caciques, replacing the quasi-feudal local bosses whose authority corporatism was intended to eradicate,38 and generally accentuating the local emphasis of society. In extreme cases in Latin America, corporatistic experiments had catastrophically undermining implications for the regional cohesiveness of the state, and the long-term outcome of corporatism was effective loss of state control in many regions.39

In addition, fourth, corporatist states were typically marked by an inability to generate an inclusionary system of socio-material rights, and they usually encountered systemic crisis as they attempted to cement a stratum of material rights across different parts of society. As mentioned, corporatist systems were defined, quintessentially, by the fact that they attempted to construct a basis for the political system by binding collective actors into the state through the circulation of material rights. In most cases, the pressures to meet programmatically declared expectations in respect of material rights had a deeply unsettling impact on national states. The fact that corporatist states tied their legitimacy to the material integration of actors demanding collective rights meant that they were required endlessly to balance competing claims, which often proved irreconcilable, and, instead of establishing consensually mediated rights to satisfy different groups, they often parcelled out public resources on an ad hoc basis to placate different sectors. Usually, this intensified the antagonisms between rival organizations, and it eventually trapped the state between different sets of acutely polarized

35 The debility of statehood under Hitler was admitted by Alfred Rosenberg, a leading ideologue of the NSDAP, who stated: ‘The National Socialist state developed into a legal centralism and into a practical particularism (quoted in Michael Ruck, ‘Zentralismus und Regionalgewalten im Herrschaftsgefüge des NS-Staates’, in Horst Möller (ed.), Nationalsozialismus in den Regionen (Munch: Oldenbourg, 1996), pp. 99-122; 99). For similar reflections, see Peter Diehl-Thiele, Partei und Staat im Dritten Reich. Untersuchungen zum Verhältnis von NSDAP und allgemeiner innerer Staatsverwaltung 1933-1945 (Munich: Beck, 1969), p. 21. See recently António Costa Pinto. ‘Ruling Elites, Political Institutions and Decision-Making in Fascist-Era Dictatorships: Comparative Perspectives’ in António Costa Pinto (ed.), Rethinking the Nature of Fascism. Comparative Perspectives (Basingstoke: Palgrave, 2011), pp. 197-226; 206-7. Of course, for the classical version of this argument, see the entire argument in Franz Neumann, Behemoth. The Structure and Practice of National Socialism 1933–1944 (New York: Harper and Row, 1944).36 See accounts of localism in Portugal and Spain in Maria Antónia Pires de Almeida, ‘Landlords, Tenants and Agrarian Reform: Local Elites and Regime Transitions in Avis, Portgual, 1998-2011.’ Rural History 24(2) (2013): 127-143; 135; Peter Cornelius Mayer-Tasch, Korporativismus und Autoritarismus. Eine Studie zu Theorie und Praxis der berufsständischen Rechts- und Staatsidee (Frankfurt am Main: Athenäum, 1971), p. 19337 See Oscar Oszlak, ‘The Historical Formation of the State in Latin America: Some Theoretical and Methodological Guidelines for its Study.’ Latin American Research Review 16(2) (1981): 3-32; 28. 38 James M. Malloy, Bolivia: The Uncompleted Revolution (Pittsburgh: University of Pittsburgh Press, 1970), pp. 213-14.39 Colombia is the key example of this.

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demands. Examples of this can be seen, paradigmatically, in the corporatist phases of the Weimar Republic, in which the state’s recognition of socio-material rights led, on one hand, to expansionary wage demands by trade unions, and, on the other hand, to vicious retrenchment against rights-based socialisation by big business.40 Examples of can also be seen in Peronist and post-Peronist Argentina, where material rights granted to trade unions in the 1950s triggered a deep polarization of society and a profound backlash amongst combined anti-labour forces, which eventually crippled the state.41 On balance, therefore, the corporatist circulation of material rights through society did not provide an inclusionary structure for society as a whole. Quite generally, it did the opposite, and material rights acted as intensely disaggregating forces in the political system, and in society at large.

In each of these respects, corporatist constitutionalism usually induced a deep, often pathological fragmentation in the political system. In particular, it is notable that, at least in its original ideological conception, corporatism was construed as a political system based in the domestication of extreme social conflicts, and in the attempt to incorporate all society in a solid organic, eminently public body. With variations, however, corporatism usually produced a condition in which the political system was exposed both to a chronic depletion of its inclusionary power and to a deep cycle of privatization, in which all pretence at class balancing was renounced.

As discussed, corporatism is usually approached as an attempt to mediate class conflict at a decisive stage in the formation of mass society. By the same token, the crisis of corporatism is typically viewed as a failure of class compromise, driven by the fact that industrial elites rejected the constraints imposed by consensual corporatism. From Weimar to Perón, in fact, it is widely claimed that the corporatism typically followed a trajectory from inclusionary to exclusionary corporatism, and this trajectory of collapse was induced to a large degree by particular class dynamics.42 If viewed from the wider sociological standpoint outlined above, however, both the rise and the fall of corporatism can be observed as reflections of a social conjuncture, in the definition of which class played an important role, but which cannot be explained solely analysis of class relations. On one hand, the general crisis of corporatist political systems can be seen as an experience in which societies failed to reach a condition of national inclusion. The corporatist attempt at inclusionary nation building through mediation of class conflicts and through reconciliation of centre/periphery divisions did not prove successful. On the other hand, corporatism proved ineffective in constructing a rights-based substructure for the political system, and it did not succeed in unifying society through the distribution of rights. In this light, the failure of corporatism is not explicable, sociologically, as a crisis of a particular type of social or political organization. In fact, the failure of 40 Heinrich August Winkler, Liberalismus und Antiliberalismus. Studien zur politischen Sozialgeschichte des 19. und 20 Jahrhunderts (Göttingen: Vandenhoeck und Ruprecht, 1979), p. 203; Michael Grübler, Die Spitzenverbände der Wirtschaft und das erste Kabinett Brüning: Vom Ende der Großen Koalition 1929/30 bis zum Vorabend der Bankenkrise 1931 (Düsseldorf: Droste, 1982), p. 18941 Guillermo O'Donnell, Y a mí qué me importa? Notas sobre sociabilidad y política en Argentina y Brasil, Kellogg Institute, Working Paper # 9 (1984), p. 3742 See for example Carl Böhret, Aktionen gegen die kalte Sozialisierung 1926-1930. Ein Beitrag zum Wirken ökonomischer Einflußverbände in der Weimarer Republik (Berlin: Duncker und Humblot, 1966), pp. 104, 125; Guillermo O’Donnell, ‘Corporatism and the Question of the State’ in James M. Malloy (ed), Authoritarianism and Corporatism in Latin America (Pittsburgh: University of Pittsburgh Press, 1977), pp. 47-87; 48; Paul G. Buchanan, ‘State Corporatism in Argentina: Labor Administration under Peron and Ongania.’ Latin American Research Review (20(1) (1985): 61-95; 62.

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corporatism underlines failure of two deeply embedded structural processes that define modern society. It marks the failure of nation building and the failure of national inclusion through rights. On this basis, the crisis of corporatism does not only raise sociological questions about class relations; it raises sociological questions about the basic preconditions for the formation of inclusive national societies. In fact, it raises sociological questions about the basic preconditions and sustainability of nationhood as a system of inclusion.

The social foundations of neo-corporatismFew purely corporatist systems survived beyond the 1980s. In Europe, the first democratic transitions after 1945 had a strong anti-corporatist emphasis. Then, the democratic transitions of the 1970s finally put an end to state corporatism. In Latin America, corporatism was discredited by the collapse of the authoritarian regimes, which began in Argentina in 1983. Like its emergence and its crisis, the demise of state corporatism has usually been examined through a perspective derived from the politics of class. In particular, the end of corporatism has typically been observed as component in a global political-economic conversion to neo-liberalism.43 Notably, in many societies, the end of corporatism is attributed to the policies of the World Bank and the International Monetary Fund (IMF) in the 1980s, which made international loans conditional on structural adjustment: that is, debt reduction, tightening of credit supplies to public economies, restrictions on public spending, and cuts to public services.44 It is widely agreed that these policies had a particular impact on states with a strong corporatist orientation, as, once subject to adjustment policies, national governments had fewer resources to distribute across society, material compromises between trade unions and the government became less sustainable, and the allocation of material goods to private organizations and regional bodies became less easily affordable.45 As a result, international policies of liberalization gave rise to states in which trade unions had a less prominent position in economic bargaining, previously protected national economies were opened to global trade flows, and, in some cases, legal provisions for labour protection were weakened. In extreme cases, this created an economic order in which national resources became susceptible to easy depredation, and basic public goods were contested, on uneven terms for national populations, as commodities in an emergent global market. Whereas after 1945 authoritarian corporatism had been replaced by a system of embedded liberalism, it is commonly suggested, not incorrectly, that in the 1980s and 1990s authoritarian corporatism was replaced by an exploitative system of neo-liberalism.46

43 See for example Steven Levitsky, ‘From Labor Politics to Machine Politics: The Transformation of Party-Union Linkages in Argentine Peronism, 1983-1999.’ Latin American Research Review 38(3) (2003): 3-36; 11; M. Victoria Murillo, ‘La adaptación del sindicalismo argentino a las reformas de Mercado en la primera presidencia de Menem.’ Desarrolo Económico 37(147) (1997): 419-446; 431. This is of course also implied in some current Latin America constitutions, notably the 2009 constitution of Bolivia, which, in the preamble, rejects the model of the neo-liberal state.44 See Asa Cristin Laurell, ‘Structural Adjustment and the Globalization of Social Policy in Latin America,’ International Sociology 15(2) (2000): 306-125; 307; Alison Brysk and Carol Wise, ‘Liberalization and Ethnic Conflict in Latin America.’ Studies in Comparative International Development 32(2) (1997): 76-104; 82. 45 See for example Håvard Haarstad, and Vibeke Andersson, ‘Backlash Reconsidered: Neoliberalism and Popular Mobilization in Bolivia.’ Latin American Politics and Society 51(4) (2009): 1-28.46 On embedded liberalism, see the claims in John Gerard Ruggie, ‘International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order.’ International Organization 36(2) (1982): 379-415.

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Of course, it is difficult to deny the basic presumption that the end of state corporatism was linked to a contraction of governmental fiscal resources, caused by international debt-reduction policies. Nonetheless, the attribution of the demise of corporatism to global political-economic forces has some weaknesses and limitations. For example, this argument cannot be applied to all major corporatist states. In some societies, national economies were opened to global markets before the demise of corporatism. In other cases, much of the corporatist structure was left in place through the transition to liberal democracy. Only in very few cases was a fully evolved corporatist system suddenly eradicated through political regime change.47 In addition, however, the purely political-economic inquiry into the collapse of corporatism typically fails to place this process in an adequate sociological perspective, and it omits to analyse the deeper inner-societal premises for the collapse of corporatism and its replacement by legal/political systems defined by a less integral interlocking between polity and economy. Although labour-market transformations related to the decline of corporatism can be partly explained in light of changes in global economic policy, a broader sociological perspective is required to understand the causes of transition from corporatism in different societies. In fact, the end of corporatism can be explained using the sociological parameters set out above. That is, we can observe the emergence of post-corporatist models of political economy and constitutional law by interpreting the original corporatist experiments as failed attempts at national construction and social inclusion through socio-material rights, which ultimately led to deep crises in national political systems. On this basis, we can explain the formation of new modes of post-corporatist public law as reactions to potentials for crisis always sociologically implied in corporatism.

To elucidate this, we need to examine the essential features of national political systems created after the transformation of states that had originally possessed strongly corporatist constitutions. In fact, most states in this category have clearly unifying characteristics. First, as mentioned, the move away from corporatist constitutionalism typically led to the construction of states in which trade unions play a less integrated role. This can be seen as a general aspect of post-corporatist transitions, visible in all post-transitional settings – from West Germany and Japan in the years after 1945, marked by US-American de-concentration policies, to the Iberian transitions of the 1970s, to the transitions in Brazil, and, especially, in Argentina, and then to the IMF-dictated transitions in Sub-Saharan Africa. In each case, trade unions were loosened from the state structure, and they were invited to shape policy and legislation in more clearly formulated, external procedures. In the first instance, this usually led to a flexibilization of bargaining procedures and working arrangements, such economic negotiations between state institutions and trade unions were conducted on voluntary foundations, and unions were usually unable to effectuate categorically binding contracts for entire economic sectors. In some states, at least in the shorter term, this meant that trade unions were stripped of certain benefits, and their ability to allocate resources obtained through public taxation to their own members was diminished. In addition, this usually led to a democratization of trade-union activity. On one hand, union democratization meant that unions obtained greater autonomy in their internal affairs, and they were allowed to negotiate contracts for their members without immediate state surveillance. On the other hand, union democratization meant that union leaderships were expected to hold ballots on key internal issues, and decisions of union executives were expected to reflect some consensus amongst union members. This is exemplified by the post-corporatist transition in Argentina under Alfonsín, who strategically attempted (with limited success) to impose a regime of internal

47 For the main example of the persistence of corporatism after the advent of democracy see Armando Boito Jr and Laura Randall, ‘Neoliberal Hegemony and Unionism in Brazil.’ Latin American Perspectives 25(1) (1998): 71-93.

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democracy on the trade unions.48 In close relation to this, second, most states that abandoned corporatism usually suspended their arrangements for mediating industrial conflicts, and they typically either abolished the labour tribunals with which they had controlled industrial disputes or they at least reduced the authority of such tribunals, so that state arbitration in industrial conflict was not mandatorily binding. To this degree, post-corporatist states renounced responsibility for the immediate internalization of class conflicts, and they moved class conflicts to locations not internal to their own administrative structure. This process is exemplified most perfectly by West Germany after 1945, in which provisions for mandatory resolution of industrial conflicts, which had been established in 1923 and had proved deeply unsettling for Germany democracy, were replaced by a system of liberal collective bargaining, in which industrial disputes were not directly internalized in the state.49 In these respects, third, post-corporatist state formation has usually been marked by a weakening of commitments entered by the state in relation to collective rights. Post-corporatist legal and constitutional systems usually replaced the recognition of group rights under corporatism with a stronger emphasis on singular rights. These systems tended to insist that persons acting within collective associations should be observed, at the final level of legal construction, as single individuals, ultimately defined, not by group membership, but by particular interests, freedoms, and entitlements. This legal reconstruction had a great impact on post-corporatist states. It meant that, ultimately, states derived their legitimacy through their interactions with a mass of particular individuals, some of whom were partially represented through professional associations, and that no collective organization could produce legitimacy for the state in independence of the rights of those persons that it incorporated. The result of this was that states, in extracting legitimacy from single rights, were less susceptible to direct influence by collective organizations, and they were less strongly obliged to assimilate such organizations in their own internal functions. In this respect, collective associations were generally moved to positions outside the political system.

On this last point, fourth, it is telling that, after the transition from corporatism, most states began to devise legal systems in which heightened standing was accorded to international law, and in which the legitimacy of the state was defined through its ability to address persons subject to its power as holders of internationally prescribed rights. Most post-corporatist states moved towards clearly monist constructions of international law, and they ensured that international human rights law was applied directly through domestic public law.50 In connection with this, most post-corporatist states also raised the importance of the judicial branch in their own constitutions, and they gave to courts, interacting with international judiciaries, far-reaching authority to check new laws for conformity with rights norms and generally to scrutinize the inner functions of the state. In some cases, the domestic reception and judicial enforcement of international law were closely related to the constitutional position of collective organizations, and internationally defined rights of persons were applied to weaken the hold of trade unions, and in fact also of cartels, on the political system. This was clearly visible in post-1949 West Germany. It was also clearly

48 Maria Lorena Cook, The Politics of Labor Reform in Latin America. Between Flexibility and Rights (University Park, Pennsylvania: Pennsylvania State University Press, 2007), p. 6449 Jürgen P. Nautz, Die Durchsetzung der Tarifautonomie in Westdeutschland. Das Tarifvertragsgesetz vom 9. April 1949 (Frankfurt am Main: Lang, 1985), p. 4550 For example, the Grundgesetz gave recognition, in Articles 24, 25, 26 and 100(2), to the precedence of international law over national acts of legislation. This was also stipulated in Article 10(1) of the Italian Constitution of 1948. In 1994, the Argentine Constitution was modified and ten international treaties were incorporated as higher domestic law.

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evident in Argentina and Brazil in the 1980s. The instilling of international law in domestic legal and constitutional systems, in fact, often proved to be a vital step in the transition from corporatism. Central to this process was the fact that, insofar as they internalized human rights as principles of legitimacy, post-corporatist states were able to confer legitimacy on acts of law, usually through judicial intervention, without being required to generate all their legitimacy through acts of concrete social mediation and conflict pacification. International law was thus applied as part of a process in which a normative spine was extracted for the state, and stabilized above objective conflicts in the industrial economy. As a result of this, states were able to produce legitimacy and to legislate across society at a relatively diminished level of contestation and intensity. Generally, the use of rights as a source of legitimacy meant that some part of state structure was immunized against social conflict, and the state was able to preserve a basic foundation of autonomy for its functions, which was not endlessly politicized by rival social groups. Notably, for example, core decisions in labour law in post-war Italy and West Germany were made, not in parliaments, nor in corporatist chambers, but in superior courts.51 Moreover, these decisions were expressly supported by formal rights norms. The sphere of labour relations thus became subject to the jurisprudence of rights, partly extracted from international law, and its capacity for generating highly charged political conflicts was restricted. On this basis, states were able to re-define the terms of their interaction with economic associations, and they began to stabilize their functions at an increased level of functional differentiation.

In this respect, fifth, it is striking that few corporatist states simply abandoned all aspects of corporatism. On the contrary, most states with a corporatist history ultimately converted to some variant on neo-corporatism or societal corporatism, in which the state retained responsibility for resolving conflicts between different sets of aggregated societal interests, but these conflicts were addressed at sub-executive level, and were not endlessly subject to immediate state jurisdiction.52 In some respects, in fact, the rise of neo-corporatism can be placed in a very close relation to the rising authority of international human rights law. As indicated, where states extracted reserves of legitimacy from international norms, they were able partly to depoliticize the system of labour relations, and to position labour disputes outside their own immediate structure. In particular, states learned to negotiate with economic organizations without making their legitimacy entirely contingent on the moderation of material conflicts, and so without subjecting themselves to acute legitimational demands. To this degree, the penetration of international law into domestic law became a premise on which national states could insulate themselves against inclusionary pressures that had historically proved debilitating. Neo-corporatism evolved as a model of economic

51 See West German Constitutional Court, BVerfGE 4, 96 - Hutfabrikant (18.11.1954); Italian Constitutional Court, Sentenza 29 1960. 52 This is exemplified in Latin America by Argentina. The move against authoritarian corporatism in 1983 led to the creation of neo-corporatist system. See Marcelo Luis Acuña, Alfonsín y el poder economico. El fracas de la concertación y los pactos corporativos entre 1983 y 1989 (Buenos Aries: Corregidor, 1995), pp. 391, 402. A new system of neo-corporatism was later established by Nestór Kirchner. See Cecilia Senén González and Julieta Haidar, ‘Los debates acerca de la revitalización sindical y su aplicación en el análisis sectorial en Argentina.’ Revista latinoamericana de estudios del Trabajo 22(2): 2009 p. 5-31. In Europe, most post-corporatist states recreated some kind of corporatism. Illuminating is the case of West Germany, where the backlash against corporatism was strong, but an informal neo-corporatist system was soon established. On the latter point see Werner Abelshauser, ‘Korea, die Ruhr und Erhards Marktwirtschaft. Die Energiekrise von 1950/51.’ Rheinische Vierteljahrsblätter 45 (1981): 287-316; Ulrich von Aleman, Neokorporatismus (New York: Campus, 1981), pp. 164-6.

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governance in which the assimilation of internationally dictated rights intensified the differentiation national states in their own societies, and national political institutions acquired the ability to avoid repetition of traditional histories of inclusionary crisis.

What is striking in these processes is that the shift from corporatism to neo-corporatism usually created political systems that were more effective in performing the functions of deep societal inclusion originally assumed by corporatist states.53 Most neo-corporatist states have proved reasonably adept at establishing systems of national inclusion: they have generally resisted inner fragmentation, they have stabilized structures of political inclusion in relative autonomy vis-à-vis potent national elites, and they avoided tendencies towards extreme privatization. More importantly, most neo-corporatist states, although less centrally focused on the distribution of material rights than their precursors, have proved more effective at generating material rights for different sectors of society. Indeed, neo-corporatist systems have typically managed, however incompletely, to integrate society through three overlapping sets of rights: civil rights, political rights, and socio-material rights. In both respects, neo-corporatist states have usually offset the pathological tendency towards societal de-nationalization associated with corporatist constitutionalism. Observed sociologically, post- or neo-corporatist states evolved within the sociological conjuncture described above: as reactions to the pressures caused by nation building and societal inclusion through rights, which culminated in the collapse of national corporatism. Normally, they constructed more adequate responses to these pressures than corporatist states. Paradoxically, international norms have typically played a very vital role in this process of national stabilization. Indeed, if corporatism is observed as part of a trajectory of inclusionary nation building, sociological analysis of neo-corporatism indicates that the addition of a supplementary layer of international human rights law to the three-tier rights structure of national societies became the foundation on which national political systems, and indeed national societies tout court, were ultimately elaborated and stabilized.

ConclusionClassical corporatist constitutionalism stands at a vital juncture in the evolution of modern societal structures. It marked a failed attempt at national building and a failed attempt at rights-based societal inclusion. The systemic crises caused by corporatist constitutionalism tell us many things about the formation of modern society. Not lastly, of course, they tell us much about the limits of state structures in absorbing class conflicts. They also tell us much about the typical outcomes of extreme politicization of state institutions. Often unnoticed in analysis of corporatism and its collapse, however, is the fact that corporatist states tried to create nations, as systems of inclusion, through material rights. Corporatist distribution of material rights, however, normally forced nations into obdurately conflictual and sectoralized form, which obstructed the process of nationalization which corporatism promoted. Ultimately, then, national societies began to evolve sustainable inclusionary structures as material rights were connected to a fourth tier of rights: that is, a tier of international rights. When states began to proclaim legitimacy, or at least part of their legitimacy, through international human rights, the other sets of rights which they had attempted to guarantee lost political intensity and unsettling political force, and states began to underwrite the rights that they allocated domestically without exposure to extreme destabilization. In particular, the capacity of states to integrate their populations in the material dimensions of their lives often

53 For statistics regarding accelerated re-distribution after post-corporatist transitions see Manfred Spieker, Legitimitätsprobleme des Sozialstaats. Konkurrierende Sozialstaatskonzeptionen in der Bundesrepublik Deutschland (Stuttgart: Paul Haupt, 1986), pp. 33-4.

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presupposed that material rights generated nationally could be backstopped by rights generated internationally, and it was only as material rights allocated to national populations were securitized against their own implications that they could be applied as sustainable principles of inclusion. Sociological analysis of corporatism thus tells us much about the preconditions of national inclusion. The formation of nations as systems of rights-mediated inclusion in some respects required a normative structure which nations on their own could not generate, and it was only as societies were integrated into an international normative system that they began to assume identifiably national form. Moreover, in consequence, sociological analysis of corporatism tells us much about the sociological foundations of international human rights law, and in fact about the essential transnational structure of national societies.

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