Brunkhorst’s Critical Theory: Evolutionary Paths or Path Dependency?

Hauke Brunkhorst’s Critical Theory of Legal Revolutions marks a significant contribution to our understanding of how law, society, and political economy co-develop. Through a novel methodological approach—studying the social development of evolutionary universals in legal, moral, and political thought—Brunkhorst provides not only a general account of a millennia of human history, but often novel insights into its particulars.

Legal Revolutions intervenes at a specific moment in the critical theoretical tradition. Habermas’s communicative theoretical turn responds to a tradition weighed down by various theoretical monisms (labour monism, bureaucratic monism, and the defeatism of the dialectic of enlightenment), and sets out to overcome these limitations while creating space for an active critical theory. Based on some justified criticisms, much of the post-Habermasian critical commentary has turned away from grand sociological and historical analyses, focusing instead on the aleatory, the immanent, and the partial. This is evident in the recent focus on identity politics in its various forms. We also see this tendency in some of the more (self-proclaimed) radical celebrations of pure-political action, or resistance for the sake of resistance. Though these lines of critique have much to recommend them, they risk over-compensating for the limitations of communicative action, losing sight of both the big picture and, perhaps, the more general critical disposition.

I read Brunkhorst’s work as a reconsideration of the critical theoretical tradition and Habermas’s communicative turn, one that further takes into account both the critiques of that project, and the limitations of the criticism. The project’s heuristic is what Brunkhorst calls the legal-historical “evolutionary perspective.” The evolutionary perspective allows for the incorporation of the best of these systems while addressing many of their critiques. It is a return to grand theory, going against a tradition that has been moving quickly away from it. And quite a project it is, with new heuristics, new critiques, new limitations. In what follows, I will put aside the commendations the first two contributions surely deserve and focus only on the limitations.

Evolutionary paths or path dependency?

For Brunkhorst, the Kantian and Managerial Mindsets—the two schematic antitheses casting all political-juridical orders—are not ultimately drawn towards a specific end. Here, there is no teleology. But the weight of history certainly bears heavily upon it. To Brunkhorst, human history has followed a specific path because of the dialectical logics, because this dialectic is driven by a sort of linguistic vitalism, because this linguistic vitalism unfolds along a historical trajectory, and because that history gives it momentum. These logics delineate the scope and limits of future evolutionary and revolutionary change. Yes, we are historically situated beings, but the weight of history appears to bear heavier in Brunkhorst theory than in others. History does not stand as a repertoire of political strategies and techniques—strategies and techniques that can be used to emancipate or to repress. Instead, it stands as a reservoir of potential energy waiting to transform into the kinetic energy of a revolution. Revolutionary discursive negation of the present managerial stanches is functionally free of memory. Indeed, the memory of previous revolutions is only passed on positively by the managerial mindset itself. The analogy speaks to the evolutionary constraints and revolutionary new faculties which delineate the past, present, and presumably the future of socio-juridical-economic history. This perspective allows us to see the historical variation, change, and endurance of certain ideological, juridical, and economic structures.

Brunkhorst focuses on the positive “ratchet effect” of this soft-dialectic, asserting that what was critical in yesterday’s Kantian inflections is inherent to tomorrow’s managerial systems. Capacities tend towards expansion, and freedoms tilt towards the universal. This process can certainly be stalled, but it does not regress. This is the essence of the managerial mindset. The critical disposition of communicative negation (language’s inherent capacity for negation) is in the here and now. Emancipatory critique addresses today’s injustices. The fault is in institutions of the present, and the goal is realizing certain freedoms tomorrow. Emancipatory struggles are similarly framed by way of this negation. Hence, the Kantian Mindset is a manifestation of the immediate epistemic framework, an immanent critique of the present, which takes its political orientation by way of negation of the actually existing. There are very good reasons why emancipatory struggles should focus on exactly these politics. But some critical scepticism is in order.

Path dependency and memory politics

All of the above commits critical theory to a form of path dependency, and thereby a problem of memory politics. First, Brunkhorst’s critical theory, as expressed by the politics of the Kantian mindset, is strikingly presentist. All previous struggle—those not granted institutional standing by the managerial reaction—are swept away as inconsequential or inapplicable to present politics. Today’s pragmatic concerns take their vitality from today’s enemies, not yesterday’s lessons. That which needs to be negated over-determines the spectrum of emancipatory potential. Consequently, all that held emancipatory potential in the past, but does not pertain to the negation of the present, is left out of the repertoire of the possible. History pushes on these problems, and history frames them. But at  the same time, history is forgotten. Historical alternatives, tactics, strategies, crimes, and utopian revelries have no bearing on these ideas.

Let us look at concrete examples. Consider the role of cities in enabling insurgent republicanism in the 16th and 17th centuries. As Brunkhorst notes, one the crucial junctures in the 17th century came when the sovereignty of the people took an effective role in the constitution of Kantian mindset, as the less transcendent conceptual anchor of popular sovereignty. This move would establish pouvoir constitutent as the preeminent claim against all institutional legitimacy. Brunkhorst argues, quite correctly, that the city was the institutional space where these ideas were realized. The city was a particular social space that was productive of certain forms of counter-power against the revamped Platonism of Jean Bodin, among other things (Bodin 1967). This was the case in Britain, as in the Netherlands before and the American colonies after (Israel 1998; Withington 2005; Carp 2009; Weber 1978; Stasavage 2014). Class played an important role—such as guilds, merchants, new-money urban elites—but these economic forces certainly do not define them. There came a frenzy of ideological advancements (especially in republican and radical democratic thinking), then a matching flurry of critiques, followed by a sort of synthesis of the sovereignty of The People and the state. Nevertheless, the ideas that emerged in this context were quickly usurped—perhaps Hobbes’s most insidious assault on republican liberty was his co-creation of the fictional state, which was quickly taken up by the republicans who followed—and replaced with the newly transcendent and state-compatible notion of The People and The State.

Two further points of critique stem from this example. The first is institutional. While this new ideological-juridical-intuitional framework built the foundation upon which the Kantian mindset was based—pushing forward beyond the state and towards the ideals of human rights beyond the sovereign sphere—it did so while setting aside the potentiality of the city and encompassing the forces usurping tradition. Where rebel cities were once identified with rebelling republicans, the hidden managerial appropriation of the Hobbesian state quietly pushed these politics to the side. The increasing intensity of the Kantian mindset ratcheted down revolutionary memory. Freedom from the state is seen as freedom over the state at the cosmopolitan level, but never as a reversion to the city.

The problem does not only refer to our memory of institutional alternatives; it similarly refers to our memory of ideological alternatives. Here, we could plug in the exact same theoretical manifestation of republican liberty as above (e.g. the notion of freedom as non-domination at the utter loss of this idea to the modern ear) (Skinner 1997 and 2008; Pettit 1999 and 2012). As Brunkhorst notes (quoting Somek and Muller), once the Kantian Mindset is within the legal system, it can “be halted or inhibited. But it cannot be eliminated” (Somek 2012, 8.). It “can strike back.” (Müller 1997, 56). This is true, but what is crucial here is what has been given up, not what has been retained. Consider how alien the present neorepublican language of politics sounds to the modern ear. The idea of freedom as non-domination no longer gains traction.

The effect of “ratcheting up on memory” appears to pivot on the inherent limitations of linguistic negation. Consider slavery as another example. Though slavery has been constitutionally banned in much of the world, it is still rampant, and expanding into new categories of human trade. Yet anti-slavery discourse has been all but abandoned. What does this imply for Brunkhorst’s normative embrace of the Kantian Mindset? Here, there is something like a “ratchet effect” on memory too, wherein previous struggles and their dilemmas are institutionally addressed, yet qualitatively similar but nominally different problems are left out of consideration. What is revolutionary about the critique of slavery, Brunkhorst correctly notes, is that it is an evolutionary universal that applies to all. He asserts that these ideas cannot stay siloed within a specific people; they do not have any specific cultural boundaries. Much of this is tied to the negation of the word itself, as opposed to the negation of the thing itself. Today—if we look at slavery the “thing,” instead of the legal definition—we are in a world where 18th century slavery has been largely banned, but there are more slaves than at any other moment in history. Sex slavery, however, is not simply banned. It has not even been named. The word is absent, but the thing itself is quietly celebrated. The role of discursive negativity—and the whole managerial apparatus instituted to ratchet up old ideological critiques of slavery—are circumvented by means of a simple redescription. Therefore, the Kantian mindset appears to be, subject to the blinders of language and culture. It is closed to history.

Alongside the problem of forgetting is the problem of the wholly new. This problem, along with an evolutionary critical theoretical perspective, create an impediment in positing a critique. How, we could ask, would Brunkhorst respond to Hannah Arendt? Here, I am reminded of Arendt’s response to Eric Voegelin’s review of Origins of Totalitarianism in 1951. In Origins, Arendt assertion that the Holocaust marked a unique event which cannot be accounted for by either our Kantian or Managerial traditions, or their equivalent. “What is unprecedented in totalitarianism” Arendt wrote,

is not primarily its ideological content, but the event of totalitarian domination itself. This can be seen clearly if we have to admit that the deeds of its considered policies have exploded our traditional categories of political thought [. . .] and the standards of our moral judgment [. . .] 
Mr. Voegelin seems to think that totalitarianism is only the other side of liberalism, positivism and pragmatism. But whether one agrees with liberalism or not [. . .] the point is that liberals are clearly not totalitarians[.]

This same retort applies to Legal Revolutions. The managerial mindset is not totalitarianism, we could say with Arendt. But if this is the case, what are we to make of it? If we cannot situate one of the great disasters of the 20th century within any of the traditions that preceded it—managerial or Kantian—then we need to be exceedingly careful in ascribing too much explanatory power to the managerial/Kantian framework. Similarly, we need to call into question the critical potentiality of a theory that so easily moves beyond this major historical departure from the evolutionary process. Indicatively of the difficulty of incorporating the new, Europe and Germany spent decades trying to avoid even talking about the problem (Hoye and Nienass 2014).

Arendt’s example speaks to another problem regarding memory politics. Consider another genocide, likely a far bigger, more thorough one: the mass annihilation of the indigenous native populations in (unceded) North America. Brunkhorst does not miss this at all. Indeed, it is a central discussion of the book. However, one pertinent point was missed. Unique forms of social and political organization were practiced, along with rationalities of justice and injustice. Presumably, there were also unique manifestations of moral and political universals. However, the extent of their destruction has been so thorough that we really have no idea about how these systems were organized. From the angle of evolutionary perspective, we have to ask whether another completely different mindset—an Aboriginal Mindset—may have existed, a competing species of ideas that have gone extinct. The path built into the evolutionary model by dependency occludes this possibility on its drive towards cosmopolitics.

There are some cases of legal systems trying to accommodate these ideas—in Canada, important cases have gone through the courts, and are continuing to do so—but that accommodation has taken place fundamentally within the Western constitutional order nevertheless. It is for the best that these attempts are being made, but we still have no idea what we are missing. The reason for this is important and, perhaps, difficult for any legal order to address: oral cultures that come into conflict with well-developed administrative cultures tend to be obliterated. The Kantian mindset criticizes its immediate managerial context; it looks at the iteration prior to the revolution and prospectively at the ideal future. When it encounters something wholly lost to its own history, it simply plows forward. Brunkhorst quotes Kant’s writing that the French revolution “will not be forgotten”; my concern is that under the aegis of Kantian universals that cannot be forgotten, there is a whole world of other universals that have been forgotten or exterminated.

The question at hand, however, is not only one of forgotten alternatives. It is an issue of actively forgetting those alternatives. Arendt’s own work is a manifestation of this. Arendt writes that when she first heard of the Holocaust, she found it inconceivable, because it did not follow the usual practice of war-making that the west had perfected. Thus, it sparked her subsequent search for its uniqueness. This is a curious statement on Arendt’s part. One could venture to think of what an aboriginal inhabitant of North America would have thought of his or her own Holocaust, or a Congolese of their genocide at the hands of the Belgians (Moses 2013). Arendt is very clear about what she thinks of the slaughter of 10 million Congolese; she is dismissive: “The world of native savages” she begins,

was a perfect setting for men who had escaped the reality of civilization. Under a merciless sun, surrounded by an entirely hostile nature, they were confronted with human beings who, living without the future of a purpose and the past of an accomplishment, were as incomprehensible as the inmates of a madhouse.

“The senseless massacre of native tribes on the Dark Continent” Arendt, channeling Hobbes, concludes “was quite in keeping with the traditions of these tribes themselves.” They have no politics, no human rights, no artifice, no justice. For Arendt, this was not a holocaust. It was a war of all against all, a mere footnote. Arendt’s unthinking racism is not the point, however. The point is that Arendt arrives at these claims by means of the highest manifestations of the Kantian mindset. I am not trying to ascribe anything like this to Brunkhorst (indeed, Brunkhorst takes exactly the opposite approach). But it does allow me to set up a counterpoint to the general evolutionary path-dependency thesis. Arendt is a wonderful exponent of the Kantian mindset. And it is exactly this mindset that sustains her failure to account for the humanity of the Congolese.

The managerial mindset and the virtues of constraints

The previous point brings me to the Kantian potential of bureaucrats. With some uniformity, the managerial mindset is set in strict opposition to the Kantian one. The managerial mindset—and the coterie of professionals who implement it—are functionally reactionary and in the service of dominant class and ideological interests. Here, the Weberian and Arendtian themes shine through. My concern is that this critique encompasses too much, undermining both the progressive and the democratic elements that are often encompassed—and maybe only realizable—by the tedium of the bureaucratic apparatus. If this is true, Brunkhorst risks celebrating the revolutionary Kantian Mindset at the expense of the previous standing managerial democratic feature.

Consider three examples. First, examine the role of the legal system in protecting the aforementioned problem of sex workers (and by extension slavery). The managerial mindset has proven incapable of providing sex workers with the status of even basic labourers, instead readily accepting their ascribed deviant status. The limited protections they have been afforded (I have the case of Canada in mind) have been wholly the function of legal experts working within standing case law and institutional order, and through normal procedures. Though they have met with some success, they are constantly under attack by conservative elements of the Kantian mindset. To these Kantians, the selling of one’s body for sex treats people as a means, instead of an end in themselves. This ties into the previous point regarding memory politics and path dependency. The Kantian mindset presupposes that the problem of slavery has been addressed, and what remains are the simply smaller brushfires. On the level of language, law, and ideology, this is indeed true. However, on the level of practice, the problem of slavery is worse today than before. Slaves in the Americas were treated as tools, but they were at least tools that had to be cared for. The modern slave is not a tool, but a consumable good that is easily replaced.

Consider, next, the death penalty. In the United States, the death penalty has flourished on the backs of a mindset (perhaps not Kantian) that has ordained the rule of law as sacrosanct, with certain crimes are punishable by death. The greatest impediment to these practices has been deeply technocratic and managerial in nature, pushed through by highly sophisticated lawyers. Indeed, the only thing that staunches the flow of death in the American justice system is the pervasive bureaucratization of every step of the procedure. This is not simply evolutionary incrementalism. But neither is it a revolutionary happenstance.

Finally, consider a third example. The negativity of the Kantian Mindset is not simply rational or discursive. The motivating force behind the Kantian mindset (presumably) also has deep emotional energy at its foundation. Injustice is not a logical evaluation, or an application of an idea; it is an evaluation of the heart as well. If this is true—particularly to the Kantian Mindset and less so (or not at all) to the Managerial Mindset—then there are many situations which will lead the well-meaning Kantian to arrive at unjust, undemocratic, and repressive measure. However, as in the point above, these measures are garbed in ideals and apparent justifications. Consider how a population responds to heinous crime involving the use of drugs. One quite rational response, apparently corresponding with the Kantian mindset, would be to have stricter laws on the books. This mindset is realized both by the people and the politicians who want to be voted into office. In the end, these laws could have hugely repressive effects on the population, but they nevertheless pass, with general, enthusiastic and quite rational democratic support. Drug laws in the US, for example, have been a disaster for certain segments of the population. Occasionally, these laws are rolled back–though often after decades of implementation that destroyed communities. Interestingly, however, very often the managers lead these charges. In both cases, there are good reasons to think that the Kantian political mindset and the politicization it drives towards are not inherently linked to democratic legitimacy, simply because of the purported participation of the people in its politics, or the apparent justness of the revolutionary disposition.

Similarly, I argue that this form of administration can often be more democratic—and a better promoter of freedom/justice/community— because of its lack of direct responsiveness. Here, I have in mind Philip Pettit’s work on indicative representation. The argument runs that organizations are often more representative of the people as a whole—regardless of class—when they are not allowed to have immediate influence. For example, consider the representative nature of a jury. The jury is selected at random, because any other system would invite a measure of control by one group or another. Or examine the testing of drugs or the regulation of hospitals, energy systems, etc. In these cases, specialists do the work not only because they are properly trained, but also because any other system would politicize the organization. The power of the people can, counterintuitively, often be expressed most democratically by divesting that power. The point is not that the managerial mindset has the power to implement the evolutionary advances of the Kantian mindset, a point Brunkhorst makes himself. Instead, it is that that there could be specific democratic functions that only pertain to that mindset independently of the Kantian imperative.

Where does the critical theory start and the genealogy of law end? The first chapter concludes by equating critical theory with communicative negativity with the Kantian mindset; they are one and the same. If this is the case, then the role of critical theory is strikingly limited. Critique is an output condition of the negativity produced through communication. But is there no positive role of critical theory beyond the negation of the present? I would suggest, and I will conclude here, that Legal Revolutions may be missing a fourth chapter, one that addresses the role of critical theory specifically. This chapter could make the injustices of the present, unaccounted for in the Kantian mindset, newly comprehensible. It could act as the immanent critique of the that mindset, identify the best of the Managerial mindset, and reassert the value of those historical phenomena which the evolution of society has left in its wake.