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Contribution to Book
O Estatuto jurídico do Económico
Livro de Homenagem ao Prof. Doutor Gomes Canotilho (2011)
  • Victor J. Calvete
Abstract
Ordo-liberalism seems the perfect excuse for European antitrust decisions being different from American ones. (In fact, nowadays Ordo-liberalism seems to be a perfect excuse for a growing number of things.) Within the alloted space (20 single pages) I tried to warn against such an easy way out – and failed (in the end there were 21). First of all, under the umbrella of Ordo-liberalism, the so called “Freiburg School” (Walter Eucken, Franz Bohm, Grossmann-Doerth, ...) goes hand in hand with the quite different “Social Market Economy” (Alfred Muller-Armack, Ludwig Erhard, ...), and with several conceptions of Authors not so socially inclined. Meaning that, by picking carefully among that generous sample of Ordo-liberal ammunition, one can shoot from almost everywhere. As if that hadn’t prove convenient enough, the main goal assigned to competition policy differs (economic freedom? – see Walter Eucken; watering down economic power? – see Wilhelm Ropke; consumer welfare? – see Franz Bohm). You name it – Ordo-liberals are bound to have it. A good turn deserves another, as they say, so you have to consider the far side: despite this being almost forgotten, in the begining the Sherman Act was actually about freedom to compete – so competition fashions apparently moved on in America but not in Europe. There was actually a discussion where members of the Bundeskartellamt turned the tables on this and argued that their concern with freedom was an American legacy, nursed by occupation laws and advocacy of antitrust US’ style (see note 53). Paradoxically, there is also a slightly totalitarian shadow hanging over the Ordo-liberal conception of an economic constitution (and I am not the one saying so): by removing all other options from the discussion field, the market order becomes coherent, yes, but also unavoidable. I even boldly quote Walter Eucken out of context (“Events have taken a strange course—first towards freedom and then back again to bondage.” - 1989, p. 34). The small, strong state Ordo-liberals long for, is the perfect fit for the homo oeconomicus ideal – and, besides, it does not show so. Not that much, at least. One can understand why it has becoming fashionable in Europe.
Keywords
  • Ordoliberalism,
  • Freiburg School,
  • Social Market Economy,
  • Germany
Publication Date
2011
Citation Information
Victor Calvete, "O Estatuto Jurídico do Económico", Estudos em Homenagem ao Prof. Doutor José Joaquim Gomes Canotilho, Vol. II, Coimbra Ed., 2012, pp. 143-166.