The assymmetries of Hauke Brunkhorst’s critical theory

Hauke Brunkhorst explicitly places himself in the tradition of critical theory (Brunkhorst 2014a; 2014b). He wants to contribute to a critical theory of the world society. This means that he not only intends to develop ideas that are helpful for explaining all sorts of phenomena in the world society, but also for delivering the intellectual tools to criticize the status quo. For his ideas about phenomena in the world society he mainly appeals to sociology, and for his critique to philosophy. Nevertheless, he also elegantly integrates the research results from many other disciplines in his critical theory. Even though he focuses in his thought-provoking book Critical Theory of Legal Revolutions on the development of law, he presents in it fruitful concepts for a more general critical theory of the world society.

It is the emancipatory claim of such a theory that makes of it a critical theory. A theory of the world society should help “to overthrow all those conditions in which man is an abased, enslaved, abandoned, contemptible being” (Marx 1974, 385). Philosophers should make explicit the ‚sense of injustice‘ of these people and reflect upon it. On being asked, philosophers must be able to justify why one should speak in a specific case about injustice.  Often they advocate an egalitarianism that pleads for the removal of inequalities among people that cannot be justified.

In addition to this more normative enterprise, it is also important to describe as well as explain phenomena of the contemporary world society, such as the growing gap between rich and poor, environmental pollution, and all kinds of fundamentalism. Like Michel Foucault, Brunkhorst envisages a history of the present: historical research as a means of critical engagement with contemporary issues (Foucault 1977, 31). If one wants to understand and change the status quo one should understand what has made the world society what it is, especially when the possibilities and limitations of emancipation are to be be explored. To this end, Brunkhorst rightly appeals to an evolutionary perspective.

He distinguishes social evolution from natural evolution. The development of social evolution is a matter of communication. Communicative negations fill the variety-pool of evolution. As Niklas Luhmann puts it: “Variation is triggered…by communication that refutes or rejects communicative propositions….The refutation contradicts the expectation of acceptance. It contradicts the tacit consent that everything continues ‘as always’. All variation therefore is contradiction as disagreement, that is, not in the logical sense of contradiction, but in the original dialogical sense” (quoted in Brunkhorst 2014a, 15-16). According to Brunkhorst the growth of variation induced by communicative negation is based on “the game of giving and asking for reasons” (Sellars).

This evolution has two temporalities: gradual and revolutionary change. After a revolution things are radically different. One of the main theses of Brunkhorst’s book is that legal revolutions are crucial breaking-points in history. After every legal revolution the base-level is completely different. So, revolutions should be conceived as a specific kind of evolutionary process. The development of productive forces and class struggles are the two driving forces of evolution. Brunkhorst points out “class struggles are not just the midwife of the unleashing of all productive forces of society, but also the power engine of normative and moral learning processes which sometimes lead to the revolutionary institutionalization of a new constitutional order” (Brunkhorst 2014a, 7).

In my comments on Brunkhorst’s challenging book, I will focus on learning processes, the so-called agent-structure problem and the distinction between system and lifeworld. I will argue that his critical theory suffers from three asymmetries that need to be overcome. First of all there is an asymmetry between cognitive and normative learning processes. Secondly, when it comes to the explanation of social evolution Brunkhorst treats agency and structure in an asymmetrical way. Thirdly, his critical theory struggles with an asymmetry between system and lifeworld.

1. Cognitive and normative learning processes

One of the presuppositions of scholars like Brunkhorst who operate with the concept of learning processes is that one cannot not learn. However, in Critical Theory of Legal Revolutions he elaborates much more on normative than on cognitive learning processes. According to him “normative learning processes are specific kinds of evolutionary developments which not only proceed automatically as blind natural occurrences (naturwüchsig), but also express and perform our plans, intentions and ideas” (Brunkhorst 2014a, 9). Brunkhorst acknowledges that there are also cognitive learning processes, but seems to reserve this concept mainly to autopoietic systems. He perceives these self-referential systems as learning systems (Brunhorst 2014a, 55). It is remarkable that he gives the normative learning process a positive connotation and seems to limit the role of the cognitive learning process to a corrective force: “It needed heroism and costumes, the ‘conjuring up of the dead of world history’ to perform the normative learning process of the revolutionary social classes. But then, the cognitive learning process of the social systems corrected the revolutionary dreams” (Brunkhorst 2014a, 318).

Because Brunkhorst pays so much attention to the development of law, it is obvious that he considers normative learning processes to be more important than cognitive learning processes. But the unintended consequence of this is that he presents a distorted view of the evolution of the world society. This comes to light in the way he treats the history of science, especially the scientific revolution in the seventeenth century.

With regard to the history of science many scholars still make a distinction between an internalist and an externalist approach (Nauta 1979; Elkana 1986). According to the internalist approach the scientific revolution in the seventeenth century should be seen as a cognitive transformation of the endogenous development of science. For instance, Eduard Jan Dijksterhuis explained this transformation in terms of the mechanization of the world picture (Dijksterhuis 1950). According to the externalist approach cultural and economic factors are decisive when it comes to the explanation of the scientific revolution in the seventeenth century. Robert Merton, for instance, elaborated on the influence of the protestant ethic and economic interests on the development of science at that time (Merton 1938).

Like Merton, Brunkhorst has an externalist approach. Both emphasize the impact of Protestantism on the emergence of modern science. Brunkhorst asserts: “Like the Papal Revolution, the Protestant Revolution was accompanied by a veritable scientific revolution. (…) Even if Protestantism is not indispensable for the emergence of modern science, it caused the strongest push, particularly towards the organization of science as a corporative endeavour. No doubt the specific combination and reciprocal reinforcement of science and Protestantism has accelerated the evolution of modern society considerably. Not only the rise of a Protestant work ethic together with the class interest of the rising class of merchants explains the affinity of Protestantism to the new sciences, but also and even more so, the theologically motivated interest in legal studies. There were very close links ‘between law and the scientific revolution of the seventeenth century’. (…) The logical method of reaching general statements for scientists was inductive, not deductive inference. Against Bacon and Descartes, the new empirical scientists considered the experimental method the only one which could reach ‘moral’ certainty: that is, not absolute truth, but at best a high degree of probability. (…) What for the scientist was probable truth, for the lawyers was a judgement without reasonable doubt” (Brunkhorst 2014a, 168-169). By arguing like this, the scientific revolution becomes obscured by the protestant revolution. In addition, it is suggested that normative learning processes have paved the way for cognitive learning processes. That is the reason Brunkhorst doesn’t do justice to the particular character of the scientific revolution: the introduction of the experiment by Robert Boyle and the institutionalization of science.

The experiment, conceptualized by Francis Bacon and especially applied by Boyle, is one of the most important characteristic features that distinguishes modern science from classical Aristotelian science (Zilsel 1976; Franklin 1986; Hacking 1989). Assuming that scientific knowledge should be based on sensory perceptions, the experiment is the attempt to acquire them actively. Modern science assumes that the experimental practice leads to better sensory perceptions than the classical Aristotelean science that is based on the passive observation of nature. The experimental practice consists of keeping some factors that are relevant with regard to the object of research constant, and to vary other factors that are also relevant. Instead of only a passive observation of nature, knowledge of nature is actively acquired through the use of material resources (laboratories, telescopes, etc.). Brunkhorst is wrong when he claims that “the experimental study of nature was an important aspect of a Protestant’s methodical conduct of life” (Brunkhorst 2014a, 170). Apart from the fact that he remains silent about the precise mediation between the two, science and technology studies show that his externalist approach cannot explain why the experimental practice became successful in the seventeenth century and left its stamp on science to this day. According to Brunkhorst the social context (reduced to ‘a Protestant’s methodical conduct of life’) explains the scientific innovation (‘the experimental study of nature’). He assumes a priori an inside and outside of science that de facto is the result of the demarcation of science from non-science Boyle and others initiated (Gieryn 1983). Shapin and Schaffer show in Leviathan and the Air-Pump how they created space for their experimental practice. Boyle cum suis decoupled normative issues from cognitive issues in order to bring to light matters of fact (Shapin and Schaffer 1985). For Shapin and Schaffer the distinction between an inside and outside of science is not the basis of the explanans, but the explanandum. The seventeenth-century scientific revolution involved the differentiation of science and other social spheres. Because the difference between an inside and outside of science came into being at that time, one cannot present retrospective external factors for explaining the introduction of the experiment.

As a result of the institutionalization of science a subsystem arose with its own norms of action and a special organizational structure (Van den Daele 1977, 134-135). The foundation of the Royal Society (1662) in England and the Académie des Sciences (1666) in France were crucial for the institutionalization of science. This could only be legitimized by the demarcation of these institutes from politics, religion and morality. In his draft for the statutes of the Royal Society Robert Hooke underlines: “The Business and Design of the Royal Society is: To improve the knowledge of natural things, and all useful Arts, Manufactures, Mechanic practices, Engines and Inventions but Experiments – (not meddling with Divinity, Metaphysics, Morals, Politicks, Grammar, Rhetoric, or Logic)” (quoted in Mendelsohn 1993, 29).

The introduction of the experiment and the institutionalization of modern science imply that cognitive constraints arose with respect to political and moral issues. Since the scientific revolution the effort is to keep politics and morality as far as possible outside science. Because of the relative autonomy of science and the introduction of the experiment the truth-claims of scientists achieved  a status that challenges third parties, in particular the representatives of the church (Artigas, Glick and Martínez 2006; Livingstone 2014). For instance, Darwin’s theory of evolution soon became a cognitive constraint for the truth claims that underlie the Creation story defended by Christians. There is no god that delivered all living creatures ready-made on earth, because they are constantly changing. Darwin undermines the cognitive claim that underlies the so-called argument from intelligent design. In order to explain the complexity of living creatures it is not necessary to rely on an intelligent supreme being. That Darwin’s theory of evolution is a cognitive constraint is also proved by the fact that the ideas of the so-called creationists didn’t become part of the curriculum of secondary schools and universities. Before Darwin’s theory of evolution became widely accepted many allies had to be mobilized to support his cognitive claims. As his theory of evolution became accepted by more and more people it became increasingly a cognitive constraint for cognitive as well as normative claims that are incompatible with this theory. The discussion concerning creationism shows that the cognitive constraint that Darwin created has also moral implications (Kitcher 2009).

Because of the asymmetric treatment of normative and cognitive learning processes, Brunkhorst gives much attention to normative constraints and hardly any to cognitive constraints. He asserts normative constraints channel social evolution. But social evolution is also channelled by cognitive constraints. In a world society where science and technology belong to the main production forces, cognitive constraints refer to limits set by broadly accepted truth-claims. Just as normative constraints they can be direction-givers of the social evolution.

With regard to social evolution Brunkhorst fails to develop a dialectical perspective on the relationship between cognitive and normative learning processes, is and ought, facts and values, cognitive and normative constraints. Such a dialectical perspective examines how actors in the course of history associate or dissociate cognitive and normative claims and try to strengthen those claims by mobilizing allies (Gabriëls 2001, 177-181). In order to investigate historical transformations one has to consider the impact value-driven critique has on reality (association) as well as the fact that in many cases values are so detached from reality that they sound odd, as if coming from a priest (dissociation). Whether the gap between is and ought encourages actors to change the status quo or leads to resignation cannot be said a priori. To investigate the possibilities for such a change, it is not only the perspective of actors that has to be taken into account, but also the tension between is and ought has to be examined in the light of what is structurally possible.

2. Agency and structure

One cannot say that Brunkhorst doesn’t address the so-called agent-structure problem (Giddens 1984; Wendt 1987). He acknowledges that individuals are free agents who create and change structures that at the same time limit their actions. Structures are both limits and outcomes of actions. The theoretical framework with which Brunkhorst conceives the agent-structure problem reminds me of the distinction Habermas made between the developmental logic (Entwicklungslogik) and developmental dynamic (Entwicklungsdynamik) in history (Habermas 1976, 12 and 154).  The developmental logic sets the way the game has to be played. Brunkhorst argues that after every legal revolution the game has to be played differently, because the path-dependencies are not the same as before. The developmental dynamic is all about contingent realisations of possibilities given by the logic, i.e. within the framework given by some normative constraints. Marx would say that the developmental logic as well as the developmental dynamic is the outcome of the transformation of the forces of production and class struggles.

My point is that when it comes to the explanation of social evolution Brunkhorst treats agency and structure in an asymmetrical way. He emphasizes more strongly the structures established after legal revolutions than the actions which triggered them. This is due to the fact that he operates mainly as an historian of ideas. The flaw of the history of ideas is that the way actors make use of ideas in a specific context is often neglected. A serious evolutionary perspective on historical developments should link semantics and pragmatics, i.e. couple the history of ideas and the actors who make implicit or explicit use of these ideas (Toulmin 1974, p, 255). Here, again, the history of science is helpful for illustrating what I mean.

Science is an organized way for  systematically contesting (i.e. on the basis of theories and methods) truth-claims. Brunkhorst rightly emphasizes the importance of the act of negation as a driving force of social evolution. If actors communicate (verbally or non-verbally) a ‘no’ to others they increase the variety-pool of social evolution: “It is only the negation and not the affirmative statement that enables reflection and deliberation: the dissociation, dissolution, deconstruction and differentiation of concrete recognition and perception. (…) Only negation is a reflexive operation that can make affirmative meaning explicit” (Brunkhorst 2014a, 18-19). The constant communicative contestation of cognitive and normative claims, together with social selection, leads nolens volens to social change.

Brunkhorst distinguishes three mechanisms of social selection: functional imperatives, social differentiation and (counter-)hegemonic opinions (Brunkhorst 2014a, 14 and 295). When it comes to social selection he seems to emphasize the primacy of structure, because he talks in terms of “social structural selection” (Brunkhorst 2014a, 382) and identifies it with adaptation. Such a one-sided structuralist view of the mechanisms of social selection cannot do justice to the social evolution, because it obscures the role of agency and leads to the phrase “adaptation through social selection” (Brunkhorst 2014a, 465). Social selection isn’t a priori adaptive. Uwe Wesel rightly states that the adaptive systemic re-stabilization comes after the act of social selection (referred to in Brunkhorst 2014a, 14 footnote 17). Social evolution consists of two kinds of negative speech acts: communicative negation that leads to the increase of the pool of varieties and communicative negation that is responsible for the social selection.

The evolution of science has the same pattern as the natural evolution: variation and selection (Toulmin 1972 and 1974). From a pool of possible solutions to a scientific problem one is selected that meets certain criteria. These criteria are obviously not given once and for all, but are in turn the result of the evolution of science. In contrast to the variety of possible solutions to a scientific problem the selection is not contingent. The selection is, after all, to some extent tied to the communicative rationality of a scientific community, i.e. its collective rules for dealing with dissent. The communicative rationality also marks the difference between natural and social evolution. Within the social evolution there are mixtures that are unequalled in the natural evolution. For instance, on the basis of reasonable doubt about the existing taxonomy within science, molecular biology was created around 1950 out of crystallography and biochemistry (Toulmin 1974, 269-270).    

In order to understand the evolution of the content of science the externalist approach à la Brunkhorst has shortcomings. Attempts to trace substantive changes in science back to external factors (for example the protestant revolution) have only led to a biased picture of the content. To answer the question of why scientists select from the pool of scientific variants certain variants and not others, one has to reconstruct the rules that consciously or unconsciously govern their actions. In order to understand contentwise the evolution of science one should not study ready-made science, but science in action (Latour 1987). Instead of fixating on the already acquired scientific knowledge and how it is affected by external factors, it is better to see how scientists have acted on the basis of specific ideas. To understand the significance of their actions it is useful to explore scientific controversies (Collins 1985). So it is not only good to contrast Boyle’s experimental practice from a diachronic perspective with classical Aristotelean science, but also to study from a synchronic perspective Boyle’s rivalry with scholars of his time. Shapin and Schaffer show that the rivalry between Boyle and Hobbes is especially illuminating for an understanding of the scientific revolution (Shapin and Schaffer 1985; Shapin 1994).

Although Boyle and Hobbes disagree on some issues, they agree on others. Both embrace the mechanistic worldview, want to put an end to the civil war, and prefer a king and a parliament. Their disagreement concerns the issue of whether a vacuum exists. Like Aristotle and his followers, Hobbes denies the existence of a vacuum. By means of an air-pump Boyle tries to produce a vacuum. This experiment implies that he creates a vacuum by draining a ball. He struggles with the question of whether the information based on conscientious observation of what happens during an experiment leads to knowledge. In his time many philosophers made a distinction between knowledge and opinion. Only views that can be proven with absolute certainty may claim to have the status of knowledge. The rest is opinion. Boyle cum suis put the distinction between knowledge and opinion into perspective by asserting that physics is all about probabilistic knowledge. This means the rejection of any form of epistemic dogmatism. Boyle asks the question of under which circumstances the experimentally-generated information will be accepted as a fact. His answer is inspired by legal procedures: only when during an experiment several credible witnesses (gentlemen) have the same experiences can something be considered as a matter of fact. In addition to the credible witnesses, the detailed descriptions of what happens during an experiment and the copper engravings that are made of it are important for considering something as a matter of fact. Boyle points out that the experiment requires certain manners. A fruitful scientific discussion is only possible when the participants of the experiment possess self-control and communicate openly and honestly.

In the laboratory it is not only human witnesses reporting what they perceive who play a crucial role, but also non-human witnesses (Latour 1991, 38-41). For example, the air-pump shows that a vacuum exists. The laboratory is designed as a courtroom where both human and non-human beings bear witness. The non-human beings are inanimate instruments with a semiotic power that is detached from politics and religion. That is for Boyle a reason why the experiment according to him carries more weight than for people with prejudicated opinions: “The pressure of the water in our recited experiment having manifest effects upon inanimate bodies, which are not capable of prepossessions, or giving us partial information, will have much more weight with unprejudiced persons, than the suspicious, and sometimes disagreeing accounts of ignorant divers, whom prejudicate opinions may much sway, and whose very sensations, as those of other vulgar men, may be influenced by predispositions, and so many other circumstances, that they may easily give occasion to mistakes.” (Boyle quoted in Shapin and Schaffer 1985, 218). The experiment is a collective process in the course of which the discovery of matters of fact means that scientists set up instruments, observe, report what they observe and discuss with colleagues.  The importance of the material side of the experiment, the use of instruments, is usually ignored by the historian of ideas. The historian of ideas is fixated on representation and neglects intervention (Hacking 1983). Most of the historians of ideas are blind to the actions of scientists, i.e. what they actively do with their ideas. It is also true for most of the philosophers of science that they “constantly discuss theories and representation or reality, but say almost nothing about experiment, technology, or the use of knowledge to alter the world” (Hacking 1983, 149).

Brunkhorst would have abandoned the idea that the protestant revolution had a decisive influence on the emergence of modern science in the seventeenth century if he would have recognized the semiotic power of the pump, which consists of demarcating science from religion and politics. The semiotic power of the air-pump could only be reconstructed by studying science in action, i.e. to explore the acts of scientists. It was the agency of Boyle, Hooke and others that has ensured that the experiment to this day is a tool for distinguishing science from non-science, facts from values, and cognitive learning processes from normative learning processes. Because of the asymmetrical treatment of the tension between agency and structure Brunkhorst ignores this.

3. System and lifeworld

Cognitive and normative learning processes are embedded in the lifeworld. The lifeworld refers to background resources (shared cultural frames of reference, institutional arrangements that stabilize patterns of interaction, and individuals with a personality structure that is the outcome of a socialisation that fits to a specific context) that enable actors to coordinate their actions on a consensual basis. As a space of symbolic embodied reasons it gives actors the opportunity to deal with dissonances and contest the limits of their agency (Habermas 2012b). Communicative action is essential for the reproduction of the lifeworld. Put alternatively: the unproblematic and all-encompassing character of the lifeworld is essential for communicative action.

Like Habermas, Brunkhorst makes a distinction between lifeworld and system. The latter refers to a way of coordinating action in which the demands of communicative action have been scaled down. For instance, the coordination of action that sustains subsystems such as the market or the state is based on media like money and administrative power that reduce the burdens of communicative action. Whereas the lifeworld reproduces itself via communicative action, the system reproduces itself autopoietically via strategic or instrumental action. Brunkhorst is right that classical Marxism overemphasized the impact of one subsystem – the market – and didn’t recognize the role of law in a proper way. Classical Marxism doesn’t acknowledge that there are other autopoietic subsystems which also have a great impact on the world society. Law, education and – neglected by Brunkhorst – mass media are other important autopoietic subsystems.

In Critical Theory of Legal Studies he reflects on several aspects of the lifeworld without assigning the concept a central place in his theoretical framework. One aspect of the lifeworld is the politically subversive potential, because against this background critical questions can be generated about the imperatives of the market and the state. Brunkhorst expresses this subversive potential by systematically paying attention to the role of class struggles in social evolution. Via class struggles citizens express their sense of injustice. The lifeworld doesn’t only offer the possibility to discuss the injustice that was done to them, but also to consider political resistance. Whereas the concept (sub)system plays an important role in Brunkhorst’s theoretical framework, the concept lifeworld doesn’t. He uses the concept lifeworld only a few times. The consequences of this asymmetry between system and lifeworld reveal a shortcoming of his theoretical framework. I will discuss two consequences.

The first consequence is that Brunkhorst doesn’t address properly how relatively autonomous subsystems are embedded in different ways in the lifeworld. The double-bind relationship between system and lifeworld is based on the fact that functionally specialized subsystems are relatively autonomous and at the same time dependent on being considered legitimate by citizens. That explains why a systemic crisis can trigger a legitimization crisis (Brunkhorst 2012). According to Brunkhorst, the latter can induce collective learning processes: “A crisis of legitimization is the trigger of (progressive or regressive) normative learning processes of the affected society as a whole. In an extreme case, a crisis of legitimization can cause revolutionary change. The great legal and constitutional revolutions, therefore, are the paradigmatic cases of a collective learning that is normative. They are not the result of gradual and incremental change that leads to the improvement and growth of the adaptive capacity of the society, but of rapid, catalytic or revolutionary change that leads to a new constitutional order. The constitutional order is path-opening and path-directing because it constrains social selection normatively” (Brunkhorst 2014a, 59).     

In order to figure out how even relative autonomous subsystems are embedded in different ways in the lifeworld it’s important to study the possibilities and limits of agency in everyday life. It is not only normative constraints inherent in the constitutional order that have an impact on the actions of individuals, but also normative and cognitive constraints inherent in the lifeworld. The shared cultural frames of reference, institutional arrangements that stabilize patterns of interaction, and individuals with capabilities that enable their participation in society, prestructure the actions of people. If one wants to know how these components of the lifeworld prestructure the actions of people one has to make their tacit knowledge explicit, i.e. to translate their know-how into a know-that. Such a translation might be helpful for showing that it is not only the constitutional order that can be path-opening and path-directing, but also the transformations of the worldviews that are embedded in the lifeworld (Habermas 2012a). It’s an open empirical question as to what the weight is of their path-opening and path-directing power. Significant transformations of worldviews go hand-in-hand with collective learning processes that can result in a new constitutional order, and thus new constraints. The second consequence of the asymmetry between system and lifeworld in Brunkhorst’s theoretical framework is that he cannot do justice to learning processes that are embedded in the lifeworld. He not only pays a disproportionate amount of attention to normative learning processes, but connects them almost exclusively with law. To avoid the pitfalls of a legalistic reductionism, it is very important to pay attention to learning processes that are embedded in the lifeworld. The lifeworld is constituted by undisputed background knowledge which consists of an amalgam of cognitive and normative claims. This tacit knowledge evolves because of the communicative actions of people. The rational reconstruction of that knowledge is important for understanding learning processes. Individuals and collectives learn something if they make progress in solving problems. Collective learning processes are the basis of individual learning processes (Miller 1986). 

In order to explore learning processes that are embedded in the lifeworld and are relatively independent of the development of law, one should study the evolution of worldviews. For instance, the denaturalization of worldviews that took place during the so-called axial age is mainly the result of cognitive learning processes that also affected the way people deal with normative issues. The more people ceased to perceive the inequalities in society as an immutable natural fact, but as the outcome of actions for which they are responsible, the more they developed new ideas about justice. The exodus story of the emancipation of the Jews from the repression of the Egyptians is the product of this transformation. It tells the story of people who didn’t perceive their fate as a given fact, but as something they have to take into their own hands. In a brilliant essay Brunkhorst stresses this as follows: „Related to the normative meaning of the exodus story is the social one. Injustice becomes denaturalized (…) Behind the exodus story is a categorical transformation of the entire ancient worldview: the cognitively advanced insight, that the oppressive humid summer days and the oppressive bondage are incomparable burdens” (Brunkhorst 1990, 276 [translation: R.G.]). The denaturalization of the way people conceive of the world is the outcome of cognitive learning processes that can trigger (relatively independent from law) normative learning processes. The cognitive insight that repression, exploitation and sexism are not immutable natural facts but are man-made, opens the path for new moral reflections and emancipation movements.

4. Conclusion

The great merit of Critical Theory of Legal Revolutions is that it presents a theoretical framework that is fruitful for further investigations. The heuristic value of it can be increased if Brunkhorst can avoid the three asymmetries I discussed. The first asymmetry is that he pays much more attention to normative learning processes than to cognitive learning processes. One of the consequences of this asymmetry is that he doesn’t do justice to the impact science has on social evolution. His externalist approach to science cannot explain the specific character of the scientific revolution in the seventeenth century. Because of the asymmetric treatment of normative and cognitive learning processes Brunkhorst ignores the impact of cognitive constraints. The second asymmetry of his critical theory is that he more strongly emphasizes the structures established after legal revolutions than the actions that triggered them. This asymmetric treatment of agency and structure affects the explanation of social evolution. When it comes to social selection he emphasizes the primacy of structure and obscures the role of agency. In the case of the evolution of science the externalist approach of Brunkhorst fails to do justice to what scientists actually do with their ideas and instruments.  The third asymmetry of Brunkhorst’s critical theory concerns the relation between lifeworld and system. In contrast to the concept of (sub)system, he doesn’t pay much attention to the concept of lifeworld. A consequence of this asymmetry between system and lifeworld is that he cannot properly clarify how relative autonomous subsystems are embedded in the lifeworld. Another consequence is that he cannot do justice to cognitive and normative learning processes that are embedded in the lifeworld and are relatively independent of the development of law. Research on the evolution of worldviews can contribute to a better understanding of these often path-opening and path-directing learning processes.

Without these asymmetries Brunkhorst would have presented a more appropriate picture of the social evolution. He would, for example, not only have given more weight to the impact of cognitive learning processes, but also have recognized that collective learning processes get their strength from the way in which cognitive learning processes are intertwined with normative learning processes. A collective learning process is spinning a thread of different fibres. Wittgenstein rightly argued that “the strength of the thread does not reside in the fact that some one fibre runs through its whole length, but in the overlapping of many fibres” (Wittgenstein 1986, par 67). In order to understand the intertwinement of cognitive and normative learning processes it’s important to study how they are embedded in the lifeworld and to address the way actors as relatively free agents create and change structures that limit their actions. When Brunkhorst manages to avoid these three asymmetries, he will enrich his project of a critical theory of the world society. This project is of great value with regard to the growing gap between rich and poor, environmental pollution, increasing xenophobia, all kinds of fundamentalism and the incompatibility of the neo-liberal form of capitalism and democracy.



The German philosopher and sociologist Hauke Brunhorst is considered as one of the most interesting representatives of the third generation of the so-called Frankfurt School.  That means that as have the members of the first generation (Theodor w. Adorno, Max Horkheimer, Herbert Marcuse, etc.) and the second generation (Jürgen Habermas, Claus Offe, Albrecht Wellmer, etc.) he has developed a critical theory that not only describes and explains the transformations of modern societies, but also criticizes them from a normative perspective. A critical theory assumes that a theory of modern societies cannot get rid of the normative perspective of actors. Actors often criticize the society of which they are part. As far as their criticism is implicit, it needs to be made explicit and the subject of criticism. In contrast to the positivism of mainstream theories critical theory doesn’t want to neutralize normative criticism through the use of specific methods.

Even though Brunkhorst is particularly inspired by the work of Adorno and Marcuse, he expressly distances himself from the first generation of the Frankfurt School (cf. Brunkhorst and Koch 1987; Brunkhorst 1990). The reason for this is that he endorses the linguistic turn of critical theory accomplished by Habermas. This turn is not only helpful for throwing all shortcomings of the subject-object model overboard which are inherent to the epistemology developed by Descartes, but also for building bridges between critical theory and American pragmatism (John Dewey, George Herbert Mead, Richard Rorty and Robert Brandom). While Horkheimer and Marcuse criticized pragmatism because its alleged positivism would give expression to instrumental reason, Brunkhorst stresses that pragmatism just as critical theory rejects the correspondence theory of truth and embraces the emancipation-focused project of Enlightenment (Brunkhorst 2014c). There are many similarities between the radical democracy that Brunkhorst has in mind and the democratic experimentalism of Dewey (Brunkhorst 1998).

Brunkhorst distances himself to a certain extent also from the second generation of the Frankfurt School. For a long time the critical theory of this generation was guilty of methodological nationalism because of an identification of the society with the nation-state (Wimmer and Glick Schiller 2002). In a sense this is also true for Habermas’s Faktizität und Geltung (Habermas 1992). However, after its publication he broadened his horizons by examining the post-national constellation (Habermas 1998). At an early stage Brunkhorst leaves the methodological nationalism far behind by focusing primarily on the world society (Weltgesellschaft). In order to grasp this he relies on the system theory of Niklas Luhmann for which many of the second generation have cold feet. Nevertheless, he has an eye for the shortcomings of Luhmann’s system theory (Brunkhorst 2014 d). Against the background of the rise of neoliberal authoritarianism, a world-wide environmental pollution and an ever-increasing gap between haves and have-nots, Brunkhorst represents a historical materialism that explores the opportunities to do justice to human rights and democracy.  He defends a cosmopolitanism that assumes that the nation-state is no longer able to solve the problems that many politicians (especially populists) promise to solve at that level. According to him, politicians must realize that solidarity nowadays implies a shift from civic friendship to a global legal community (Brunkhorst 2005).

In October 2014 the Faculty of Arts and Social Sciences of Maastricht University organized a symposium on the critical theory of Brunkhorst. The symposium focused on two books that were released that year: Critical Theory of Legal Revolutions and Das Doppelte Gesicht Europas (Brunkhorst 2014 a en b). In the former book Brunkhorst reconstructs from an evolutionary perspective the development of law. He is obviously more interested in the social evolution than the natural evolution. In his opinion, communication plays a crucial role in the social evolution, because the variation is triggered by the rejection of communicative propositions. Through social selection a social system can improve adaptation to its environment. Social evolution can be gradual as well as revolutionary. Brunkhorst argues that legal revolutions are crucial breaking-points in history, because they imply that the basic structure of society radically changed. The driving forces behind the social evolution are the development of productive forces and class struggles. Brunkhorst uses a broad concept of class struggles; it encompasses more than just the antagonism between two classes. Class struggles cannot only unleash productive forces, but also trigger normative learning processes. Under specific historical circumstances, normative learning processes can lead to the institutionalization of a new constitutional order. A constitutional order consists of normative constraints that channel social evolution. They can channel social evolution because of what Brunkhorst calls the ratchet effect: a barrier against regression to earlier stages of the moral and legal insight of people. After a legal revolution the constitution can establish normative constraints on certain forms of purpose-oriented adaptation of a social system. These normative constraints create the opportunity to transcend the status quo of a society from within. If the normative constraints are implemented in the legal system they give people the opportunity to articulate their sense of injustice and fight for their liberation. Emancipation implies the destruction of the illusion of an unchangeable world. The more the egalitarian ideas of personal and political autonomy, or of human rights and popular sovereignty, have been globalized, the more they can be mobilized to challenge or even change the power structures of the world society.

In Das doppelte Gesicht Europas Brunkhorst makes use of the evolutionary perspective that he has developed in his book on legal revolutions. He sees the European Union as the product of both normative learning processes and systems adapting themselves to their environment. According to him the adjustment processes and normative learning processes correspond to a Kantian and managerial mindset. The Kantian mindset consists of the universal ideas of justice and popular sovereignty that are part of daily praxis. Although these universal ideas are immanent, i.e. part of this world, they transcend it. Therefore they are a resource of resistance and emancipation. The managerial mindset operates in praxis incrementally, contributes to the consolidation of power structures and preserves evolutionary advances by adaptation. With this distinction Brunkhorst doesn’t want to sketch a Manichean image of Europe, but rather point to the dialectic relationship between both. The point is that the Kantian mindset and the managerial mindset are the two faces of Europe. According to Brunkhorst the history of Europe shows both the repression and the recurrence of the emancipatory potential of the Kantian mindset. Now that the European Union is struggling with both an economic and political crisis the tension between the two mindsets is clearly visible. Like nearly every crisis the one in which the European Union now finds itself also entails dangers and opportunities. Brunkhorst points out that there is a danger that politicians who embody the managerial mindset and stick to a neoliberal political agenda and austerity policies support nolens volens right-wing populism in Europe. But he also points to the emancipatory potential that is part and parcel of many European treaties and can be used in the fight against the increasing social inequality and democratic deficits. This fight can only be won when the socially deprived in the various European countries understand that they have the same interests, and realize that class struggles should take place on a transnational level.

This dossier on the Critical Theory of Hauke Brunkhorst is based on the papers that were presented during the symposium on both books. The contributions of René Gabriëls, Darryl Cressman,  Matthew Hoye,  Willem Schinkel and Ludek Stavinoha concentrate on Critical Theory of Legal Revolutions. And the contributions of Sjaak Koenis, Pieter Pekelharing and Tannelie Blom focus on Das Doppelte Gesicht Europas. Brunkhorst responds to the challenging objections of all these scholars. Krisis hopes that this dossier contributes to the further discussion of his Critical Theory.