1 Just Law Symposium CUNY Graduate Center May 2012 Jeremy Rayner Contesting the ǮSocial State of Law:ǯ Neoliberalism and Popular Sovereignty in Costa Rica 1 In October of 2007, Costa Rica held a referendum to decide the issue of the ratification of the Central American Free Trade Agreement. The referendum—the first in Costa Rican history and the only one to be held on a Free Trade Agreement anywhere—was the outcome of a decade’s worth of contention over neoliberalization, including four years of mounting controversy over CAFTA. The forces that confronted each other in the referendum were strikingly asymmetrical. The “SÍ” campaign in favor of the referendum was led by the government of Oscar Arias, in alliance with large capitals and the US government. Lacking an enthusiastic base, it could mobilize financial resources, a friendly media, the leadership of state institutions, the infrastructure of a historically dominant party, and access to captive audiences of workers in the export industries. The NO, on the other hand, was a decentralized coalition with few resources except enthusiasm. Law was at the center of this conflict, which not only involved disagreements about what was or was not legal according to statutory law, but also more profound questions about the basis of legitimate legal authority and its relationship to popular sovereignty. These more fundamental questions emerged despite a largely shared language of law and right between the proponents and opponents of CAFTA, including keywords such as “institionality” (institucionalidad) and Social State of Law/Right (Estado Social de Derecho). This was a process of contention within a broadly liberal-democratic tradition (with a marked “social democratic” accent), in a country where commitment to electoral democracy is part of the narrative of national identity. For this reason, the conflict points to some important tensions and contradictions within contemporary liberal-democratic discourse: (1) the tension between a globalizing (neo)liberal order and the ideal of the nation-state as the expression of popular sovereignty; and (2) the political participation by nominally free subjects and the authority of elected representatives. Neither of these tensions are new, of course, but they seem to be newly salient, as is suggested by the rise in recent decades of movements in opposition to both neoliberal globalization and to the highly managed forms of contemporary “democracy”—and often both together. At least in the case of 1 This is a draft for purposes of discussion and comment. Any feedback on the ideas presented here would be very much appreciated. jrayner@gc.cuny.edu