Neoliberal Administrative State, Digitalization and Pandemic

Sergei V. Korolev

and Irina S. Lyalina

Institute of State and Law of the Russian Academy of Sciences, Moscow, Russia

Keywords: Globalization, Neoliberalism, Information, Digitalization, COVID-19, Administrative State, Neoliberal

Administrative Empire.

Abstract: The article examines theoretical approaches to understanding the state - from the classical definition given by

G. Jellinek, to the public-private imposition of Maurice Oriou, its transformation under the influence of a

pandemic from a constitutional state with a liberal-democratic regime into a neoliberal administrative state.

The role of digitalization as an internal process of optimization of an administrative state and an external

process of optimization of a welfare state, digitalization trends characterizing the relationship between the

administrative apparatus of the state and its citizens, as well as its importance in overcoming the current crisis

of the state are investigated. The dichotomy "objective-subjective" in digitalization processes and the context

of a pandemic is considered. The impact of the COVID-19 pandemic on the digital status of a person and the

challenges and threats posed by the digitalization of a covid database from a neoliberal administrative state

are discussed.

1 INTRODUCTION

We live in the era of transformation, fragmentation

and even diffusion of what Karl Schmitt called

"political theology"(Schmitt, 2000). It is based on the

concept, and from the point of view of K. Schmitt's

ideological myth that state power is "neutral power"

(Schmitt, 2000). In other words, political theology is

the product of a triumphant legal positivism,

according to which - in the words of Georg Jellinek -

the state limits itself to law (Jellinek, 1929). As a

result, continuing the logic of Jellinek, Hans Kelsen

was able to complete the concept of neutral power in

his theory of "pure law". According to this theory, the

state is, first of all, a legal structure, that is, law is

primary, and the state is derived from it (Kelsen,

1992).

The concept of "neutral power" has long been a

subject of debate among constitutionalists. Karl

Schmitt, in contrast to it, developed his own doctrine

called "decisionism" (Schmitt, 2000) in fact, we are

talking about a paradigm change in the classical ideas

about the state, law, social interaction, about the

person himself/herself. Undoubtedly, this process did

not begin yesterday: especially the representatives of

https://orcid.org/0000-0001-9305-0274

https://orcid.org/0000-0002-2060-4851

Scandinavian legal realism did a lot to make a hole in

the seemingly impregnable fortress of legal

positivism (Lyles, 2009).

Therefore, in his work "The Unscientific Nature

of Legal Science" Anders Wilhelm Lundstedt, using

the term "state" as an example, actually accuses

classical jurisprudence of being the secret heir of

medieval realism. Lundstedt poses the following

question: what is the meaning of the phrase about

state neutrality in the struggle between workers and

employers? He himself answers: none, since it is

impossible to present the state as something third.

After all, if we “eliminate” workers and employers,

then what will then be left of the “state”? Only desert

and "dead existence". The state, according to

Lundstedt, is only a designation of a social

organization in its entirety and nothing more

(Lundstedt, 1932).

2 STUDY METHODS

This paper uses a logical, historical, sociological and

systematic method. The latter is a legal way of

understanding intersectoral relationships within the

392

Korolev, S. and Lyalina, I.

Neoliberal Administrative State, Digitalization and Pandemic.

DOI: 10.5220/0011121200003439

In Proceedings of the 2nd International Scientiﬁc and Practical Conference "COVID-19: Implementation of the Sustainable Development Goals" (RTCOV 2021), pages 392-397

ISBN: 978-989-758-617-0

national legal order. Moreover, in our opinion, the

systematic method cannot be bypassed when it comes

to comparing the system of international law and the

system of internal law of a particular state. This

allows us to define a systematic method as a system-

forming one within the framework of our

methodology.

3 PROBLEMS OF THE TERM

"STATE"

The term "state" in classical jurisprudence was used

without any qualifications, with the exception of the

terms "police state" and "rule of law". If we follow

Lundstedt's argumentation, then these terms can be

regarded as double fictions: "state" - "police" and

"state" - "law".

The reality of the "police" is not difficult to

imagine and even prove. However, according to

Lundstedt's logic, the entire materiality of the

"police" easily evaporates if we perceive the "state"

as a reified term, that is, as something that exists side

by side and independently of "workers and

employers." How to imagine a (state) police without

workers and employers?

The reality of "right" is much more difficult to

imagine. The first that comes to mind is the legislative

body, which consists of deputies who themselves are

not "rights", but create the so-called black letter law.

The problem here is that legislators can, in principle,

pass illegal laws. According to the well-known

formula of Gustav Radbruch, they can do “legislative

wrong, that is, anti-law": "Where there is no even

striving for justice, where equality, which is the core

of justice, is deliberately rejected in development of

positive law, there the law is not only a "wrong right",

but rather, it is generally devoid of legal nature"

(Radbruch, 1946).

Finally, a third perspective on combining the

terms “law” and “state” is offered by Oliver Wendell

Holmes, Jr., according to which “law is just a

prophecy about what the courts will actually do”

(Holmes, 2009). From the point of view of Holmes,

and then of American legal realists, the sphere of law

actually and practically coincides with what judges

do. Wherein, it is necessary to distinguish between

the performative (in principle, ritual) acts of judges

within the framework of the theory of neutral state

power, on the one hand, and the motivational (socio-

cultural, psychological and even emotional) triggers

of their behavior, on the other one. It is the latter that

form the judge law, for example, in the spirit of

Hofeld (Hohfeld, 1919).

A universal definition of the state was offered by

the famous Austro-German state scholar Georg

Jellinek. It is still replicated in textbooks on public

law in Germany as a three-pillar theory of the state

(Germ. "Drei-Elemententheorie") (Jellinek, 1929).

According to this theory, the state is a political

community that combines three characteristics

(elements): territory, population and an organized

administrative apparatus (bureaucracy). All three

signs shall be present in order for the state to take

place legally.

Less well known is the definition formulated by

the famous French administrativeist Maurice Oriou,

who defines the state in terms of combining public

and private law, namely as the imposition of "a public

thing on a private thing" (fr. L'etat est la superposition

d’une chose publique à la chose privée) (Hauriou,

1930).

“This does not mean at all that (political - auth.)

community is more than individuals. However, this

means that, to a significant extent, the benefit

intended for individuals cannot be provided otherwise

than through the community, perhaps because in this

way the distribution of benefits and advantages is

carried out more egalitarian than if it were left to the

arbitrariness of private initiatives. So, let us note that

the community of a public thing (res publica - author)

is nothing more than a tool for better servicing a

private thing by means of managing it"(Hauriou,

1930). Hence, Maurice Oriou draws the following

conclusion: if from a public thing (public need) there

is a danger for private things (personal interests), then

it lies in the excessive intensification of the

administrative and tax regime (Hauriou, 1930).

4 ADMINISTRATIVE STATE IN

THE GRIP OF

NEOLIBERALISM

In Europe in the eighteenth and early nineteenth

centuries, almost all states were "police" in the sense

that "law and order" were almost the only function of

European monarchies. However, from the second half

of the 19th century, the political elite, with the

exception of the conservative monarchists, began to

persistently distance the term "state" from the term

"police state". Ideologically, the concept of "state"

has become an abbreviated formula for the term "rule

of law" (Bähr, 1864; Gneist, 1872; Gumplowicz,

1881).

Neoliberal Administrative State, Digitalization and Pandemic

393

Nevertheless, one cannot draw a sharp line between

them, there is no reason to believe that the rule of law

in the spirit of liberal individualism of the second half

of the 19th century has ceased to be a police state in

the spirit of the "night watchman state", another thing

is important: in the liberal worldview of the second

half of the 19th century, the rule of law clearly

associated with the parliamentary regime (the

executive branch is derived from the parliament and

is accountable to it) and the (many) party system

(political parties as public organizations are called

upon to “supervise” the state, forcing it to publicity,

transparency, and etc.).

Undoubtedly, the rule of law in the era of classical

liberalism by itself could not evolve into a "social

state" without a "white revolution" (in the spirit of

Otto von Bismarck) or a "red revolution" (in the spirit

of V.I. Ulyanov-Lenin). However, a mystery remains:

how did the currently dominant matrix called the

"neoliberal state" manage to digest almost all the

previous ones — primarily primitive populism and

elitist individualism?

It shall be noted that “the most basic feature of

neoliberalism is the systematic use of state power to

inculcate the imperatives of financial markets in

domestic politics to the accompaniment of

(politicians –author). "Globalization" at the

international level" (Saad-Filho and Johnston, 2005).

As mentioned above, neoliberalism has absorbed

almost all the previous -isms. However, in this

ideological "compote" the paradoxical combination

of individualism and totalitarianism is striking.

The first genetic line of neoliberalism goes back

to the beloved brainchild of Adam Smith "homo

oeconomicus". This "ideal type" of a rational

individual is aimed at his/her own benefit and always

subordinates his/her behavior to calculation and

personal benefit. The second genetic line goes back to

the practice of real socialism, which, however, was

not always limited to verbal populism and harsh

totalitarianism.

5 ADMINISTRATIVE DIGITAL

STATE IN THE CONTEXT OF A

PANDEMIC

The COVID-19 pandemic marked, in our opinion, a

change in the political and legal paradigm of Western

civilization: we are talking about the actual

transformation of a constitutional state with its

characteristic liberal democratic regime into a

“neoliberal empire”. Its regime can be characterized

as predominantly administrative and, in tendency,

totalitarian.

We have already mentioned the specifics of the

administrative regime above. Here a double question

arises: how does the administrative regime “degrade”

into a totalitarian one, or is it about the transformation

of the classical liberal-democratic regime, which in

an incredible way is gradually acquiring a

“totalitarian face”, in which, in our opinion, two

aspects are clearly visible: one of them is closely

related to the digitalization process, the second – to

the socio-political challenges of the 2019 pandemic.

Digitalization processes can be considered, at

least, in two ways: firstly, as an internal process of

optimization of the administrative (managerial) state,

aimed at rationalizing the bureaucratic workflow,

and, secondly, as an external process of optimizing

the welfare state, aimed at removing barriers and

intermediate links between administrative apparatus

and ordinary citizens. Therefore, the term "electronic

government" was initially ambivalent: on the one

hand, this term could mean a document flow system

within the administrative apparatus, on the other

hand, it could mean an external system of interaction

and feedback with the population.

Professor Ulrich Jan Schroeder notes four

digitalization trends that characterize the relationship

between the state administration and its citizens

(Schröder, 2019). First, we are talking about the

increase in power (Machtgewinn), which the state

acquires in relation to citizens and private firms. This

trend symbolizes the transition of the ruling class

from the regime of "electronic government", where it

is difficult to deny the component of the "welfare

state" in the service of citizens, to the regime of the

"neoliberal administrative empire", the goal of which

is to achieve the most complete transparency of each

individual for the "sovereign's eye".

Secondly, we are talking about the danger of loss

of control (Kontrollverlust) of the state over

management processes: algorithms for the

digitalization of state activities, as a rule, are not

transparent to bureaucrats. The positive effect of this

opacity is that the subjective factor (corruption,

arbitrary discretion, and etc.) is minimized, but there

is also a negative effect: the increased vulnerability of

the state to all kinds of hacker attacks poses a

particular danger.

Third, the digitalization of such democratic

institutions as elections, freedom of opinion, and etc.

is able to transform the constitutional and legal

essence of the liberal-democratic regime. First of all,

we are talking about the institution of subjective

public rights (die subjektiv-öffentlichen Rechte),

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which since the time of Georg Jellinek has been the

core of the constitutional regime of the civilized states

of the West (Jellinek, 1919).

Fourth, the special dependence (die Besonderheit

erhöhter Bindungen) on the state of those private

firms that use digitalization or are open to it is

increasing. Here Professor Ulrich Jan Schroeder notes

a tendency that works in a counter-direction towards

the already discussed third tendency. In other words,

the digitalization of the private sector expands and

details the scope of its obligations in the context of

the interaction of public and private law (Schröder,

2019).

Let's onsider all four trends in the focus of the

current pandemic:

1. The digitalization of the "covid database" - in a

trend - each citizen symbolizes, at least,

"administrative co-residence" or even the merging of

"electronic government" in terms of a welfare state,

on the one hand, and a neoliberal administrative state"

aimed at total control, on the other one.

2. The digitalization of the "covid database"

carries a significant risk of losing administrative

control not only over the way this data is stored, but

also over the protection of personal data. In other

words, the risks extend not only to the possibility of

unexplained disappearance of these data, but also to

the possibility of their change as a result of an

unexpected program failure, imperfection or

unpredictability of the behavior of algorithms.

3. The digitalization of the "covid database"

certainly changes the mode of functioning of

subjective public rights. In a trend, the logic of the

neoliberal administrative empire may lead to the fact

that not only "antivaxerism" (which means an active

anti-vaccination position), but also non-compliance

with the "vaccination schedule" can be regarded as

disloyal and antisocial behavior subject to

administrative punishment.

4. Wherein, the digitalization of medical

institutions in terms of rationalization and

optimization of individual "covid databases" shall

objectively contribute to an increase in the

responsibility and professionalism of medical

workers. First of all, we are talking about the strict

observance of antiquarian standards in the system of

relations "doctor - patient".

6 STUDY RESULTS

The cross-cutting core of our study is the opposition

"objective-subjective" in the specifics of legal

science, which, in principle, cannot abandon the

dichotomy "objective law - subjective law", although

it allows a change of places between "objective" and

"subjective" in it. For example, this approach is

characteristic of the institutional theory of law by

Maurice Oriou: “So, the subjective is supported by

our conscious wills, and the objective - by our

subconscious ideas. Having said this, we have

touched upon ... the strife (la querella) between

subjective law and objective law" (Hauriou, 1968).

As you can see, according to Oriou, for a civilized

legal order, the system of subjective rights is the goal

and, at the same time, the content, and objective law,

including positive law, is an instrument and, at the

same time, a sphere of ensuring subjective rights.

Within the framework of the topic we have

declared, this means the inevitable interaction of

“objective and subjective” in three angles: (1) within

the framework of the topic “state”, (2) within the

framework of the topic “digitalization” and (3) within

the framework of the topic “pandemic”. Let us

summarize first in relation to (1) and (3). We are in

solidarity with M. Oriu that the state is an

instrumental concept. This does not necessarily mean

that the state is just a fiction, just a “word” that, within

the framework of the dominant “narrative”, performs

a purely ideological function in the spirit of

postmodernism (Foucault, 1975).

According to Oriou's institutional theory, the state

is social institutions (for example, a contract, money,

family, private enterprise), one way or another taken

under political control by the ruling elite. Only by

relying on these institutions the state power can

become more or less effective. The Achilles' heel and

- as Hannah Arendt put it - the "stupidity" of the

neoliberal political elite is that it deliberately ignores

these social institutions and tries to destroy them. This

is possible only through the destruction of human

civilization, together with all its "elites". Within the

framework of the neoliberal administrative empire

project, we see a classic example of solipsism, i.e.

complete ideological, but not actual "triumph" of the

subjective over the objective.

With regard to the topic of "pandemic", there is a

situation of ambiguous "parity" between the

subjective and objective perspectives on this problem.

On the one hand, discussions about the man-made

nature of this pandemic and the objective

expectations of some of its results on the part of all

carriers of neoliberal ideology, including in the

context of the controversial conspiracy theory of

elites, do not cease. On the other hand, only the most

inveterate "antivaxer" can insist on denying the

objective nature of the current pandemic.

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395

Finally, “digitalization” in its purely functional

form brings us back to common sense, which is

“encoded” in the “objective-subjective” dichotomy.

Digitalization algorithms do not make analogous

assumptions like "a little more or less," or "which is

better: half empty or half full glass". If digitalization

algorithms minimize the human factor, then this also

applies to the future destinies of the project called

“neoliberal empire”.

7 RESULT DISCUSSION

The following conclusions can be drawn from the

administrative-legal concept of Maurice Oriou:

 private-law relations, in principle, do not need

support from the "state authority": they arose

before the state, they can exist outside the

effective control of the state and, in principle,

can generally "work" in a competitive mode

with state structures (for example, the system

of hawala cross-border payments) (Korolev,

2016). "Therefore, private law can be imagined

without the state" (Hauriou, 1930).

 the administrative state as a system of public

administration is primary, and the

constitutional state as an organization of

supreme power and as an institution of human

rights is secondary. In terms of the founder of

the German school of administrative law, Otto

Mayer, this conclusion sounds like this:

"Verfassungsrecht vergeht, Verwaltungsrecht

besteht" (German: "constitutional law will

pass, administrative law will remain") (Stor

and Schröder, 2010).

 From the reasoning of Ulrich Jan Schroeder,

the following conclusions can be drawn:

 Digitization, speaking metaphors, transforms

the image of a whole, indivisible, polysemantic

person in his/her natural analogue environment

into a certain digital code, into a certain number

of pieces (bits) of information about this

person. In this case, there is a digital

"diversification" of information about one and

the same individual. The digital person turns

into a "database", so his/her digital medical

record is in principle separable from his/her

digital tax card, digital educational card, digital

travel card, and etc.

 In principle, each of these cards can be

“blocked”, made a priority, or, on the contrary,

irrelevant. In other words, from a “digital

person” it is possible to construct any

configuration from his/her “digital cards” and,

thereby, manipulate and even blackmail a real

(analog) person as a “reflection” of his/her

digital twin.

 During the current pandemic, not even a

“digital medical record” is becoming a priority,

but its “covid heading”. This happens not only

for objective reasons, i.e. in order to curb the

pandemic.

The benefits for the neoliberal administrative state

are clear:

 firstly, the entire spectrum of political

opposition in the context of a pandemic, for

objective reasons, is formalized under one

syncretic heading "antivaxers"; it is much

easier to keep under social control (no matter

how) a consolidated group, than many

heterogeneous groups and, especially, an

immense multitude of individuals with their

personal qualities and differences;

 secondly, "antivaxers" actually oppose

themselves to the rest of the population, tired of

the pandemic, and, therefore, turn into a

convenient target for preventive or repressive

measures on the part of the neoliberal

administrative state;

 thirdly, “antivaxerism” is becoming an

aggravating connotation in the future for those

who became “antivaxer” as an initial democrat,

Christian conservative, Islamic preacher, trade

union activist, and etc.; in other words,

“antivaxerism” becomes a kind of political

“shibboleth”, making this or that political

spectrum “asocial”;

 therefore, a purely special mark in the "digital

passport" of an individual works in principle

the same way as the criminal history of one or

another individual when looking for work.

8 CONCLUSIONS

Since the last third of the last century, the world's

population has been subject to systematic pressure

from neoliberalism, they proclaimed the "end of

history" (Fukuyama, 2006) including the

"depoliticization" of public life, which is allegedly

governed by "economic laws" based on the principles

of competition and economic individualism.

In fact, neoliberalism has no scientific basis: the

"economic laws" proclaimed by the apologists of

neoliberalism are only a means of systematic

indoctrination of national elites and a tool for

manipulating the minds of the masses. The emphasis

is on, first, to deprive people of a sense of social and

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political solidarity, to convince people of the

"correctness" of neo-Darwinian individualism and

personal struggle for survival. Second, in order to

neutralize the political will of the individual, who is

no longer able not only to implement, but even to

understand one of the main aspects of human dignity:

"In the struggle you will acquire your right", which

Rudolf von Iering made the epigraph of his famous

brochure "Struggle for the Right" (Jhering, 1872).

Oddly enough, the objective process of

digitalization, with all its threats and risks, can

become the gravedigger of neoliberalism as the main

enemy of human civilization. However, objectively,

this result is unattainable without interaction with a

subjective, first of all, political and moral-

psychological factor.

ACKNOWLEDGMENT

The reported study was funded by Russian

Foundation for Basic Research (RFBR), project

number 18-29-16012.

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