Regulation as cultural transformation: the "educational role" of Brazilian competition policy/Regulacao como transformacao cultural: o "papel educacional" da politica concorrencial brasileira.
| Autor | Onto, Gustavo |
Introduction
"Owing to the long history of protectionism, which characterized the economic strategy of the region, promoting competition in these countries [Latin America] is a far more complicated task than simply implementing an antitrust law. It is a wider struggle to wrest market control from entrenched government-protected monopolists. An educational effort designed to change behavior, attitudes and culture has to be made: Consumers have to be persuaded that price liberalization is better than price controls, and producers have to be convinced that competition is the new name of the game regardless of how painful it is for them. The competition policy must also oppose government attempts to reverse the policies implemented" (Jatar, 1993:80)
From April 17 to 20, 2012, I participated in the 11th annual ICN (International Competition Network) conference, an organization or "virtual network" that, according to its website, "provides competition agencies with an informal space to maintain regular contact and address practical concerns of' competition policy" (ICN, 2009). (1) Coincidentally, this meeting was held in Rio de Janeiro, where I lived and was working towards my doctorate in Brazilian antitrust/competition policy. (2) I was fortunate that personal contact with former members of the Administrative Council for the Defense of Competition (CADE)--the federal governmental agency responsible for the policy in Brazil enabled me to have access to this relatively restricted meeting with the position of a "NGA" (Non-Governmental Advisor), appointed by the Ministry of Finance. This status granted me free access to all the workshops and conferences of the event, whose speakers were officials of antitrust agencies, renowned scholars, lawyers and consultants active in the field of antitrust internationally.
Focused on disseminating best practices in antitrust from around the world, the lectures of the annual international network conferences addressed many different topics. There was discussion of sensitive issues pertaining to the challenges facing national legislation ("How to deal with state-owned enterprises?") or practical issues of the antitrust agencies ("How to build an electronic database to follow the decisions, results and problems of the past?"). These discussions ultimately led to legal, theoretical and administrative recommendations, which highlighted the importance of what CADE annual reports called the "educational role" of the antitrust authority. No less than an entire morning was dedicated to panels on how the world's antitrust agencies could "explain the benefits of competition" to governments, businesses, the press and the "general public". A former CADE advisor, now a lawyer at a leading firm, said in a panel that one of the tasks of an antitrust authority should be to advocate for market competition, causing "economic agents to incorporate competition ethics."
Up to this point in my research, I had believed that this moral discourse--the incorporation of "competition ethics" or the "dissemination of the culture of competition"--was a mere peculiarity of the Brazilian antitrust policy. However, the fundamental importance given to the "educational role" of this public policy at the most important international event in the field caused me to reflect on how this discourse is related to the most recent antitrust regulatory practice, both inside and outside Brazil. In this article, I describe the way this aspect of the policy is drawn up and presented in CADE's annual reports, demonstrating how the government narrative in the 1990s explains changes in the perception of regulators as to how to best govern the economy, resulting in a new conception of the economic reality and of the role of the state. Moreover, this article points out that the use of "culture" by professionals in the field of antitrust in Brazil--in this case the "culture of competition"--contributes to legitimizing and justifying the public policy, thereby producing a historical and moral interpretation of its need and purpose.
Although presented in the council's reports as one of its main responsibilities, CADE's "educational role" (i.e., the importance of the antitrust agency as a disseminator of competitive values and practices) has not been properly discussed in the analyses of economists, jurists or public policy experts. This is partially due to the fact that, as I will point out in the following sections, experts in the filed consider it to be common sense that there is a need to "educate" business people, as well as the companies themselves. Economists and jurists tend to agree with the pedagogical importance of this public policy, linking it to the broader movement of political and economic transformations of the late twentieth century. For example, the economist Lucia Helena Salgado, one of the leading professionals responsible for the development of antitrust in the country says that "in this new environment [born in the 90s], antitrust policies have had an important role to play, inasmuch as they prevent, on one hand, the barriers removed by the government from being restored by those who hold the economic power and, on the other hand, re-educate the market--namely the producers and consumers--in accordance with the rules of intense competition that currently guide international transactions" (Salgado, 1992, p.30).
It is important to note that public policies have increasingly used this pedagogical and culturalistic language in both official discourse and in practice. What, then, would be the reason for the emergence of such narratives in the more recent period and why do regulatory economic policies use them so often? Social science literature has for some time reflected on these pedagogical and discursive aspects of public policies, including economic policy , which are otherwise generally sidelined in the analyses (Shore and Wright, 1997; Steinmetz, 1999). The study of these aspects reveals the way policy makers and those that implement them explain the effects and the importance of their work, thus enabling an understanding of the public policy from an essentially native perspective.
Historical or ethnographic studies in anthropology or sociology, influenced by the literature of governmentality (Foucault, 2007a), have emphasized that economic policies, especially the so-called "neoliberal" ones, have been strongly dedicated to constructing and constituting norms of conduct that must be internalized by individuals or organizations. These "technologies of subjectification" (Miller and Rose, 2008) have sought to consolidate "forms and spaces of self-responsibility, self-government, and self-regulation" (Rabinow and Rose, 2003:25) in which the direct control of actions of the entities that are governed or administered would be replaced by indirect control. This Foucauldian-inspired interpretation of neoliberal policies has the advantage of calling into question the widely accepted idea that "neoliberalism" implies a reduction of the "State" and an increase of the "market". In reality, these policies can be characterized as new technologies of government (Bockman and Eyal, 2002), in which power is exercised "from a distance" (Miller and Rose, 1990), since part of the regulation would be the responsibility of those that are being regulated. As is shown in the following sections, the educational role of CADE is clearly linked to these new governmental technologies. The reading of the agency's reports clarifies how the culture of competition is, according to the regulators, of necessity related to a new relationship between the State and the economy, which should be achieved by transforming them simultaneously.
The resulting narrative produced on the educational role of CADE also illustrates a conceptual use that has attracted the attention of anthropologists --who are the main parties responsible for the construction of the concept of culture. As is shown below, the activity of government regulation is understood to produce a cultural transformation, from the "culture of negotiation" to the "culture of competition". The use of the notion of culture as an "agent of change" (Strathern, 1995), which produces a rupture between the past and the future of the Brazilian economy, politically and morally legitimizes and justifies the activity of regulation. However, as anthropology has long warned, the notion of culture, which allows for a holistic understanding of complex phenomena, can, when used without precise definition, also give rise to inconsistencies and mask pre-suppositions about how specific processes of changing values, practices and behaviors of individuals or groups occur.
The article is divided into three sections, besides this introduction. In the next section, I present the educational role of CADE, reflecting the way it is described in the Annual Reports of the agency. I also describe CADE's actions specifically carried out to this end over the last two decades. In the subsequent section, I examine the manner in which the pedagogical narrative is based on a historical narrative in the relationship between the State and the market or companies in Brazil. Finally, I reflect on the use of the notion of culture in the country's antitrust policy and generally in neoliberal economic policies.
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Transformational aspirations
The Brazilian antitrust authority CADE is under the auspices of the Brazilian Ministry of Justice. Similarly to its counterparts in other countries, the Brazilian antitrust body analyzes and judges applications for mergers and acquisitions of companies, approving only those that will not substantially modify competition in markets. In addition, CADE investigates and prosecutes anti-competitive business practice, such as cartels. A new raft of legislation in the early 1990s made CADE (established in 1962) the final-instance administrative decision-maker on competition law. With a...
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