Category: Essay

The intensity and intellectual quality of the German debate on the sequence of crises – financial-, banking- , sovereign debt, etc. – which starting in 2008 has finally led to a Eurocrisis on the brink of a full European crisis, is more than impressive. With authors like Grimm (2012), Habermas (e.g. 2011a, 2011b, 2013a, 2013b) Scharpf (e.g. 2012, 2013, 2014a, 20014b) and Streeck (e.g. 2013, 2014) throwing their full weight – and anger – into the public debate, the Dutch contribution seems rather bleak. And now a new voice is making itself audible, counterpointing the already established lines of arguments: the voice of Hauke Brunkhorst.  May this special issue of Krisis, dedicated to Brunkhorst’s latest publications, at least make up some ground.

In my contribution to this special issue I will concentrate on Brunkhorst’s essay Das doppelte Gesicht Europas – Zwischen Kapitalismus und Demokratie (Brunkhorst 2014a), and more in particular on his diagnosis of, and remedy for, the current European crisis. In addition I will take into account his Clough Lecture (March 13, 2007) – “The Beheading of the Legislative Power – European Constitutionalization between Capitalism and Democracy” – and the version thereof presented as “The Kantian Mindset under Pressure” at a symposium in Maastricht on 30 October 2014. The lecture and the paper differ sometimes from the essay qua emphasis and political suggestions. Yet, as will become clear, my point is not to deliver a critique on (in)consistency. To the contrary, I think it is only a question of interpretational fairness to point out that Brunkhorst has been conscious of different options and directions, and has explored and assessed them at different moments and in different outlets. And it may well be that genuine reflections on the socio-political state of the European Union (EU) inevitably produce the ambivalences, if not sometimes the paradoxes, that incite critical thought.

This contribution will address three issues: two with a more historical flavour – ‘the Kantian mindset at work’ in the late 40s and early 50s, and the ‘victory of ordoliberalism’ -, and, last but not least, the urgent political question of how to counter the hegemony of the austerity politics.

1. The Kantian mindset ‘at work’?

In Das doppelte Gesicht Europas, as well as in the two papers mentioned above, Brunckhorst depicts – rhetorically quite impressively – the second half of the 40s and the early 50s of the twentieth century as an era during which the ‘Kantian mindset’ took its chance. Opposed to the ‘managerial mindset’ with its incrementalist, technocratic inclinations, the Kantian mindset appears as a revolutionary disposition that celebrates the constitutional act by which an autonomous people gives itself its fundamental political and legal institutions as the triumph of democratic emancipation.  The paradigmatic example of the Kantian mindset at work is still the French Revolution.

According to Brunkhorst, this Kantian mindset was also the inner motive of the constitutionalization processes that took place during the second half of the 40s of the twentieth century within the countries that eventually would become the founding members of what nowadays is called the EU. The most intriguing component of this narrative is to be found in Brunkhorst’s emphasis on the cosmopolitan character of these new constitutions and how it pointed in the direction of European collaboration and integration. Except Luxembourg, the five other founding member-states stipulated in and through their constitutions the principle of ‘Völkerrechtsöffentlichkeit’ – the principle that their governments should positively approach each and every opportunity for peaceful international cooperation and the legal regulation thereof.  As Brunkhorst (2014, 23) puts it: “Verfassungsrechtlich entscheidend für die Gründung und Entwicklung der EU ist jedoch gewesen dass sich die Verfassungsgebende Gewalten aller Gründungsmitglieder sich explizit zum Staatsziel der politische Vereinigung Europas bekannt haben.„ (Italics in original).  This parallels Habermas’ diagnosis that the EU presents a new step in the history of the domestication of (potential) state violence, now regarding the violence between states (Cf. Habermas 2011a).  Yet quite interestingly Brunkhorst provides an empirical foundation for this diagnosis.

One may doubt of course whether the German constitution of 1949 represented the foundational act by which the German people gave itself its political and legal institutions; whether this actually was not a dictate of the Allied Forces, with the US in the lead. One may also doubt whether the constitutions of the other founding members really were an expression of the self-legislation of their people, instead of the (compromise) product of negotiations between the leading political elites. Above all, and this is the point here, one may doubt whether there really was such an important link between the principle of ‘Volkerrechtsöffentlichkeit’ and the founding of the EEC.  Historically the EEC was established amidst a lot of other trans- and international forms of cooperation (e.g. the TIR and the OECD) and attempts thereof – even to the point that one may well deem it a miraculous accident that in the end the EU became the paradigm, the most important instance of European cooperation and integration.  And yet, other attempts to establish European cooperation failed. Perhaps the most genuine attempt to establish a European political union, the Paris Treaty, perished in 1954 in the French parliament, notwithstanding the Völkerrechtsoffenheit principle.

One may well adhere to the idea that the process of European integration that set in with the Coal and Steel Community was indeed a new step in the civilization or domestication of state power, and concerns the relations between states. It should indeed be emphasized that European integration encompasses more than just the reconciliation of former arch-enemies France and Germany, and has aspirations beyond its contribution to a seemingly everlasting Pax Europeensis.  From a normative perspective, it is at least as important that in and by the institutionalization of European cooperation  shape has been given to a multilateral form of politics that is ‘incomparably more transparent and subject to public scrutiny and democratic accountability than the secretive, suspicion based bilateral tête-á-têtes of classical (‘diplomatic’) foreign politics’ (Christiansen 1997).

This multilateral supranationalism entails, moreover, the recognition that international law, including the various declarations of human rights, should be respected as being of a higher order than mere national interests and considerations. Accordingly, it involves the recognition of the judicial competences of European and international Courts of Justice, accepting the possibility of citizens and societal associations litigating their own governments. Finally, it means the acknowledgement of a form of international, if not global, politics that is not founded on intimidation and the clash of arms, but on persuasion and collaboration. Yet, seen historically, European multilateralism was not the result of a new outburst of democracy, but the outcome of an ‘elite project’, a project of political, administrative and economic elites.

2. An ordo-liberal victory?

In an article published in 2002 Fritz Scharpf put the counterfactual question of what would have happened if, during the negotiations preceding the Treaty of Rome, the then French Prime Minister Guy Mollet ‘had had his way’ (Scharpf 2002: 645/646). Mollet, a socialist, wanted not only an economically integrated Europe but also a harmonization of the social policies of the EEC member states. But Mollet lost to Germany (and the Netherlands), a defeat that had the lasting effect of a ‘constitutional asymmetry’, an asymmetry embedded in the European Treaties, between economic and social integration. This asymmetry legally privileges economic integration, i.e. the principles and mechanism of a common market, while eventual redistributive European social policies have been given no foothold in the Treaties.

Brunkhorst recast this early history of European integration as a victory of the ordo-liberal discourse over Keynesian and socialist approaches to economic policy, a victory that paved the way for an even more uncompromising neo-liberalism.  Of German origin, ordo-liberalism holds that the state should not interfere in economic life, but should instead guarantee the legal framework for economic competition. As Brunkhorst puts is (2014: 9 and 11) “The first basic idea of Ordoliberalism is: to get markets rid of state control” and “to get rid of democratic legislative control” (italics in original).  Adenauer and his Minister of Economics, Erhard, heavily influenced by ordo-liberal thought, severely defended its economic constitutional consequences until the French gave in. As an ultimate consequence the European Treaties supported from the beginning the primacy of economics over politics.

One could add to these kinds of diagnoses Grimm’s observation that with the Treaty of Rome market-related substantive law – the four freedoms! – acquired a constitutional status, therewith effectively isolating a large part of EU regulatory initiatives from politics and political contention. Certainly, assessments such as the ones by Scharpf, Brunkhort and Grimm do have merits, but seem to cover only a part of the story. It is also a fact that during at least the first twenty years of the history of the EU the most important policy area, and also the policy area that provoked the first serious political crisis, the ‘open chair’ crisis, was agricultural policy. The EEC´s and EC´s agricultural policies were definitely redistributive policies and very much against ordo-liberal principles, exactly like the introduction of the Structural Funds (1975) and the Cohesion Fund (1993). How could this be? How could the EU´s  agricultural policy be the most important and politically sensitive area during the first twenty years of EU integration if the theses of an ordo-liberal victory or of a constitutional asymmetry are valid? Why would we have EU environmental policies and food and feed safety regulations with their inevitable redistributive effects? Is this Mr. Jekyll´s immediate revenge? That would be nothing but a philosophical, if not metaphorical, re-description of factual history, but not an explanation.

The point is that generic assessments of the European integration process, such as those of Scharpf, Brunkhorst and Grimm, have the effect of almost a priori excluding important questions, such as: under which conditions does European politics and policy-making find itself forced to redress the subjection of politics by economics, to break through the ‘constitutional’ asymmetry between economic integration and social integration? For example, does the current sovereign debt/Euro-crisis present such a political opportunity for countering the discourse and practice of ordo/neo-liberalism?

3. How to counter the neoliberal inspired austerity policies?

Confronting the austerity policies as the EU and IMF’s answer to the sovereign debts crises of Ireland, then Greece, Spain, and Portugal, Habermas committed to an interviewer in 2009 that “what worries me most is the scandalous social injustice that the most vulnerable social groups will have to bear the brunt of the socialized costs for the market failure”(Habermas 2009). This anger concerning the fate inflicted upon those who never had a part in the licentious festival of international financial speculators also infuses Brunkhorst’s engagement with the political-economic approach the (so-called) Troika deems the only beatific recipe for states suffering from a sovereign debt crisis: harsh cuts in state expenditures, not least when it comes to social security and pensions, and a liberalization of the labour market – get rid of labour rights! Yet, how to counter these neo-liberal recipes – or: how to restore, beginning with Europe, the primacy of politics over the globalised world of financial capital?

In “The Beheading of the Legislative Power – European Constitutionalization between Capitalism and Democracy” – and in “The Kantian Mindset under Pressure” Brunkhorst pays due respect to the option of an enhanced democratization of EU policy-making. However, in Das doppelte Gesicht Europas – Zwischen Kapitalismus und Demokratie he places his bet on the emergence of a trans-European labour movement, under the banner of a  Transnationalisierung des demokratischen Klassenkampfes.  Yet there are some compelling reasons for not being very optimistic about a timely arrival of a transnational rally of trade unions that will lead the democratic class struggle against the hegemony of financial capital. In most EU countries trade union membership is declining, sectoral fragmentation serving particularistic interests is predominant, and it is very difficult to detect at the domestic level signs of a transnational, let alone a global, solidarity with the deprived of other countries. The Dutch trade unions were very much against Commissioner Bolkestein´s ‘services directive’ fearing a tidal wave of Polish plumbers. The German trade unions serve the employed, but don’t care much about the unemployed. If we look at the Southern Member States and resistance against austerity politics we see that the Greek trade unions did not align with the street protests, and, as a consequence or not, strikers in the public transport sector easily fell victim to the criminalization tactics of the Greek Government. In Spain the ideological fragmentation of the trade unions pre-empted a unitary front and certainly did not lead to a mass movement. Only in Portugal were the trade unions able to block some austerity measures, but interestingly enough only with the support of Portugal’s highest court of justice. Surely there are transnational European labour federations like the ETUC (European Trade Unions Confederation) or ETUCE (European Trade Union Committee for Education). Did we hear much of ETUC or ETUCE during the last years – were they at the front in organizing a Europe-wide class struggle against austerity politics? These are of course rhetorical questions.

Why this trust in the labour movement, why not more trust in the parlementarization of Europe? Besides the ever-growing competences of the European Parliament (EP) – since the Lisbon Treaty the EP is almost on a par with the Council of the European Union as a co-legislator –  with the last European elections an interesting precedent has been established: from the start the European Parliament had insisted that the leader of the winning European party group should also become the President of the European Commission (EC) – and so it happened. Since the EC has the almost exclusive right of legislative initiative this means that for the first time European elections gave the European citizen the opportunity to influence the policy agenda of the next five years to come.

Moreover, we know from the studies of, for example, Marks and Steenbergen (2002) and of Hix and his collaborators (Hix, Noury and Roland 2005, 2006), that the classical left-right cleavage also dominates the voting behaviour in the EP, and, further, that from the first directly elected EP onwards every new EP has shown that the internal cohesion of the party groups in terms of the voting behaviour of their members has become stronger and stronger. In fact the big party groups of the EU resemble pretty much the parties operating in the national parliaments when it comes to voting discipline. The question is of course whether these tendencies will also prevail when it is about specific solutions for the Eurocrisis. 

If we limit ourselves here to the debates in the EP between the first financial relief to Greece (Spring 2010) and the signing of the Fiscal Compact (March 2012) it can be observed that members of the European Peoples Party (EPP) – let us say: the European Christian Democrats and Conservatives – endorse the austerity discourse, also when they come from the southern member states.   For example, during the EP debate on the 19^th June 2010 the Portuguese EPP member Paolo Rangel stated: “while we are supporting the austerity measures, we would also criticize the Portuguese Government … because it is not cutting spending. To reduce the deficit, it is essential not just to increase taxes but also to cut spending …” (Rangel 2010). During the same debate Theodoros Skylakakis, a Greek representative and also a member of the EPP fulminated: “Why are we in this situation? The main reason is that we have spent beyond our means and run up credit. We spent when there was no crisis, we spent during the crisis, and we are spending now on our way out of the crisis. Anyone who wants to learn what happens when you consistently spend more than you have just needs to come to Greece” (Skylarakis 2010).

Members of the European Social Democrats and the European Greens endorse an anti-neoliberal discourse also when they come from donor countries. For example, the German Rebecca Harms, a member of the Greens, emphasizes the role of the financial sector in the emergence and continuation of the Euro crisis and the need to find a European answer to it: “we believe that there should be a ban on toxic assets and short selling throughout the EU, that hedge funds should be kept under very tight control, and that we must stop talking about introducing a tax on financial transactions and finally do something about it” (Harms 2010). For Martin Schulz, a German and leader of the Social Democrats in the EP, the cause of the crisis is also clear: run amok bankers and financial speculators: “This economic system has taken us into the deepest financial, economic and employment crisis and the deepest crisis in the morality and legitimacy of the institutions since the end of the Second World War. The system is wrong. It is to a certain extent, immoral, and it is also warped” (Schulz 2010).

What does this tell us? Although there is no European ‘demos’ yet, the last decades have witnessed the emergence of political-ideologically motivated transnational collectives in the form of European political families and, more in particular, of the party groups in the EP of which the dominant groups commit themselves unconditionally to the rules of the democratic, majoritarian game. This, together with the already immensely increased power of the EP, seems to indicate a more viable route towards restoring the primacy of politics over economy than waiting for the resurgence of a Europe-wide labour movement.

4. By way of concluding

In all probability Brunkhorst’s reflections on the crooked path of European integration will not be to the taste of those EU scholars who have yielded to the growing dominance of the positivist school in political science and its preference for ever-more-sophisticated statistical analysis. Certainly, now and then there are reasons to criticize Brunkhorst’s approach and findings – as I have tried myself in this article, though admittedly in a rather ad hoc and sketchy manner. Yet, whereas positivist political scientists are starting to complain that no one is reading their (indeed indecipherable) books and articles anymore, except congenial colleagues, Brunkhorst’s writings have the literary and philosophical quality that may rouse an audience much wider than that of his scholarly colleagues. Reminiscent of the German school of ‘Critical Theory’ it seems that the thrust of essays like Das doppelte Gesicht Europas is to provoke critical debate and reflection, rather than claiming to provide ultimate empirical truths which are unquestionable because of the impeccable method by which they were produced.

Introduction

Before the law stands a doorkeeper. To this doorkeeper there comes a man from the country and prays for admittance to the Law. But the doorkeeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. “It is possible,” says the doorkeeper, “but not at the moment.”

– Franz Kafka, Before the Law

These lines introduce a theme that repeats itself throughout Kafka’s parable: the man from the country asks admittance to the law, demonstrating his desire through obedience and submission and patience, even going so far as to bribe the doorkeeper. Yet, the man is repeatedly told that he cannot enter—perhaps tomorrow, but not today. The man dies waiting and the last thing he sees is the door of the Law being closed. The easiest way to interpret this parable is to lament the cruel fate of man from the country and to empathize with his feelings and actions towards the law: ‘the Law, he thinks, should surely be accessible at all times and to everyone, but as he now takes a closer look at the doorkeeper…he decides that it is better to wait until he gets permission to enter.’ Joyce Carol Oates writes that it is a typical Kafkan irony, ‘the gateway is the means of salvation, yet it is also inaccessible’ (Oates 1983, xii). Cornelia Vismann (2008) makes a similar remark on this irony, ‘lured by a law that is unreadable, delayed by a judgment that fails to appear—this is how entry to the law appears (Vismann 2008, 15). But Vismann goes further, recognizing that Kafka’s parable is a forceful reminder that prior to anything resembling rights or norms, ‘questions of law are reduced to questions of access’ (Vismann 2008, 16). Only a privileged few know the law in any way other than inaccessibility.

Hauke Brunkhorst’s Critical Theory of Legal Revolutions (2014) is a less pessimistic take on Kafka’s parable. In the tradition of critical theorists like Max Horkheimer, Herbert Marcuse, and Jürgen Habermas, Brunkhorst’s theory is critical in its contention that legal concepts such as human rights or equality can be used to negate existing reality in light of realistic and rational potentials. Brunkhorst certainly recognizes that the law, for many people, is nothing more than endless administration built on promises of rights and dignities that are routinely denied, despite the willing supplication of those who wish to have access the law. But he argues that this bureaucratic nightmare is inseparable from the emancipatory potentials of the law. Both legalized oppression and legalized emancipation from oppression co-exist in a dialectical unity, bounded by constitutions that all humans and institutions are subject to. Brunkhorst’s critical history of legal revolutions theory traces this dialectical tension between the law as emancipation and the everyday administrative activities of legal practice. He defines this as a dialectic between the ‘Kantian mindset’ (emancipation) and the ‘managerial mindset’ (differentiation and instrumentalization) and he presents examples of these mindsets that correspond with what he identifies as the great legal revolutions othat make up modernity: the Papal revolution (1074-1170), the Protestant revolution (1517-1650), the Atlantic World revolution (1750-1830), and the Egalitarian World revolution (1917-1951). Take, for instance, his description of the evolution of legal rights that followed the French and American Revolutions:

“Once the Kantian Mindset had triumphed and ‘we the people’ were declared to be sovereign and endowed with inalienable rights, the managerial mindset implemented the Kantian mindset and immediately restricted the suffrage of the new sovereign to those of its members who were property holders, and reduced the long lists of human and civic rights to property rights” (Brunkhorst 2014, 253).

Brunkhorst traces this dialectic across a millennium of socio-cultural-economic legal history: the Kantian mindset inaugurates legal revolutions that extends the scope and applicability of human rights only to be interpreted and implemented by a managerial mindset that uses these rights to further administer and entrench class domination.

For Brunkhorst, the law is everything. It is co-original with modernity (which began in the eleventh century). It is the framework through which the affirmation and negation of modern society is possible—the law ‘always already is.’ Foregoing the tradition of Roman law, he confines his idea of the law to the characteristics of the legal codes and Canonical law that emerged with the Papal revolution in the eleventh century.[1] It was here that the law began to take on those features that made it distinctly modern, specifically the idea of law as a body of codes and rules that is independent of the crown, church, and feudal lords. ‘The office of the king was now explicitly separated from his person…the turn from a ruler who keeps order in his family-like state to the idea of an independent legal and constitutional order that has to be preserved by the ruler’ (Brunkhorst 2014, 98). Compare this with Roman law, which Brunkhorst writes cannot be considered modern because it was no more than a legal order. Roman law ‘had developed only a sophisticated order of legal concepts, but no concept of a concept of law. Only with a “concept of a concept” (Hegel) is a system reflexively closed. A legal system is not the same as a legal order. There was no legal system prior to the eleventh and twelfth century’ (Brunkhorst 2014, 94). Legalized differentiation and rationalization became possible in the eleventh century and after this point the law could be interpreted and administered in such a way that it enabled the formation of autonomous institutions that were bound by legal codes (universities, guilds, cities).

As a sociologically inclined critical theorist, lineages can be identified between Brunkhorst and like minded theorists, most notably Jürgen Habermas. There are also resonances with Max Weber (it is inevitable that any theorist who writes about the Protestant revolution will be compared with Weber), Martin Heidegger, and first-generation Frankfurt School writers like Herbert Marcuse and Max Horkheimer. However, I found that the closest comparison with Brunkhorst’s work does not come from the pantheon of great German social theorists, but rather from the American philosopher and historian of science Thomas Kuhn. The legal revolutions that Brunkhorst describes have affinities with Kuhn’s (1962) scientific revolutions. Both the law and science, in the work of these writers, are subject to the similar processes of stability and revolutionary change. For Kuhn, scientists work within paradigms that provide them with a worldview; paradigms define what the world consists of and the questions that can be asked of this world. Over time, anomalies appear that problematize the fundamental assumptions of paradigms, which can lead to crisis, revolution, and the development of a new paradigm. Compare this with Brunkhorst’s description of the crisis that precipitated the revolutionary spirit of the late eighteenth and early nineteenth centuries:

“The constitutional revolution was caused by the global crisis of the eighteenth century, which lasted from 1720 to 1820…Everywhere in Eurasia and America, a need for reform and ‘modernization’ arose, due to the growing financial pressure on government which primarily was caused by bigger and better trained armies and more expensive military technologies. At the same time, economic productivity could not balance the steadily growing costs anywhere…The fiscal crisis of government became structural. It finally resulted in a crisis of motivation. The reluctance of the landed gentry, merchants, and common men to pay taxes and duties and to give away their sons as soldiers was answered with more oppression and despotism which, in a vicious circle, caused growing disloyalty, popular riots, peasant insurgencies, civil wars, and finally, revolution…Growing protest was intellectually shaped by the successive global dissemination of egalitarian ideologies. In particular, in societies with a legal system that already included  universal subjective private and political rights of a certain degree, the exacerbation of the fiscal, motivational and rationality crises increased the likelihood of a legitimation crisis of the whole societal system of old Eurasia dramatically” (Brunkhorst 2014, 238).

In Burnkhorst’s history, the legal paradigm that had ordered the socio-cultural-economic world had begun to become unraveled by inevitable and unpredictable instabilities (anomalies) that led to crises that, in turn, led to the Atlantic World legal revolution. Just as ‘good science’ necessarily follows the path of paradigm-normal science-anomaly-crisis-revolution, for the law to be modern it has to undergo periodic revolutionary punctuations that open up new articulations of what can be legal rights and norms. However, the similarities between these two theorists of revolutionary change end if we consider their attitudes towards revolutionary change and evolutionary change. For Kuhn, paradigms are incommensurable with each other, both historically and across different scientific disciplines. Paradigms are discrete entities that can be studied and examined as worlds unto themselves. There is no continuity. For Brunkhorst, the history of legal revolutions is evolutionary; legal revolutions open up different iterations of evolutionary universals that, although not identical, can be found across the different epochs of modern law. Constitutionalism is one such evolutionary universal. Constitutionalism is the legal core of the normative constraints established by legal revolutions and implemented in the legal and constitutional systems of modern society. Thus, constitutionalism is the universal through which the dialect of modern law is expressed; for law to be modern, meaning that it contains the contradictory unity of managerial and Kantian mindsets, it has to be constitutional (Brunkhorst 2014, 57). 

Legal revolutions also trigger ‘evolutionary universals’ that work as normative universals within specific constitutional mindsets. These normative universals provide a conceptual framework and direction through which the Kantian and managerial mindsets can be realized. Brunkhorst identifies cosmopolitanism as one of these normative evolutionary universals. Cosmopolitanism, as a normative universal, predates the creation of modern law by more 1000 years. Brunkhorst writes the during Axial Age (800 BC – 200 BC), monotheistic religions endowed the Greek idea of cosmopolis ‘with the norm of universal individual equality and equal freedom for each human being,’ which ‘allowed even early Axial age cosmopolitanism to offer a radical criticism of the existing political order’ (Brunkhorst 2014, 69). This transcendent realm of egalitarianism was internalized and projected as an immanent reality against which lived reality could be critiqued. Thus, an idea of cosmopolitanism provides the conditions through which communicative negation and normative learning processes can occur.

For Brunkhorst, a Kantian notion of cosmopolitanism serves as a critical concept against which existing ideas of universalism (global capitalism, for example) can be critiqued. His evolutionary history of the legalization of cosmopolitanism reveals a dialectical tension between the universalization of human rights and the reification of abstract universal entities like property, imperialism, and capital. During the Papal Revolution, universal monotheistic cosmopolitan ideals were expressed in the ‘unique legal implementation of the most basic theological assumption of Christianity, namely that all human beings are created equally and equipped with equal and unalienable dignity’ (Brunkhorst 2014, 103). During the protestant revolution, cosmopolitan ideas of equality were extended beyond Europe to account for all people. The egalitarian idea that all humans have the right to have rights enabled a radical critical perspective, ‘the political and social radicalization of the revolution of the common man transcended the horizon of local and particular injustice. It was no longer directed against oppression by a certain particular ruler…but against any oppressive ruler…using general concepts, the insurgents universalized the critical negativity of the revolution’ (Brunkhorst 2014, 180). The dialectical darkside of this iteration of cosmopolitanism became implemented and stabilized as a property-oriented regime of class domination, leading to the universal legalization, and hence normalization, of possessive individualism. During the Atlantic Revolution, cosmopolitan legal rights led to an idea of law that balanced universal equality with popular sovereignty: The managerial mindset of this was, as mentioned previously, the transfer of human and civic rights to the exclusive purview of property rights. These examples highlight the rational, and utopian, aspects of cosmopolitanism against universalizing systems intended to entrench class division through economic and legal differentiation.

The temporal and geographical scope of Brunkhorst’s book is an open invitation for reflection and critique upon his ideas. In what follows I take up this invitation by first, subjecting Brunkhorst’s historical insights against a perspective taken from media history, asking what, if any, role is afforded to media of communication in his critical theory of legal revolutions. Second, I want to move away from asking how existing fields of study can be integrated into Brunkhorst’s theory and explore how ideas from this theory can potentially benefit existing fields of study. To this end, I will conclude this short review by exploring how cosmopolitanism, as a critical concept, can contribute to a critical philosophy of technology.

The Materiality of the Law & A Cosmopolitan Critical Theory of Technology

The ‘significant’ issues that Brunkhorst describes in his book are immaterial: rights, norms, emancipation, managerial and Kantian mindsets, etc. All of these are considered to be distinct from material objects. The most notable technology that is referred to is the printing press, which is presented as an important tool for encouraging and disseminating the ideas of the Protestant revolution. ‘The polemic against scholasticism was reinforced by the unleashing of the communicative power of the printing press’ (Brunkhorst 2014, 160); “the reformation…was an urban movement, and based on the communicative use of the printing press. The Protestants were the party of the new media” (Brunkhorst 2014, 175). At worst, this take on the printing press can be interpreted as an all too familiar triumphant history in which communication media leads social progress (the empty rhetoric that digital media, for example, are spreading democracy is a variation of this deterministic history). At best, Brunkhorst’s take on the printing press is an avoidance of the deeply intertwined nature of media of communication and legal revolutions by assuming that the printing press is a neutral medium. Against this, one could argue that the printing press was not merely a neutral medium in the service of legal revolutions, but rather that the Protestant/legal revolution was a consequence of the uniformity, repeatability, and the individualized fixed point of view that emerged alongside the printing press. To put it another way, Protestantism, as the basis of a total legal revolution, was a media phenomenon, impossible without the printing press.

An attention to media of communication as an integral dimension of the legal history that Brunkhorst explores can highlight how, a priori, the law is media. This is the perspective taken by media historian Harold Innis (1894-1952). If, for Brunkhorst, the law is everything, for Innis media of communication are everything; it is impossible to think or write or communicate from a position outside of media. Innis developed his media history through a re-thinking of the history of the great empires that make up world history (like Brunkhorst, Innis’s ambitions are not bounded to a single case study). By concentrating on the relationship between the institutions of an empire (government, religion, education, law) and the dominant media used by these institutions, Innis was able to explain how empires are able to endure. Innis explained this by arguing that media are biased towards the dissemination of knowledge through time or across space. Empires are able to endure across time through the use of durable media like stone or architecture and they are able to spread across space through lighter (and more ephemeral) media like paper or digital code. Empires emerge and expand when a balance has been struck between space and time biased media: 

“Concentration on a medium of communication implies a bias in the cultural development of the civilization concerned either towards an emphasis on space and political organization or an emphasis on time and religious organization. Introduction of a second medium tends to check the bias of the first and creates conditions suited to the growth of empire” (Innis 1972 [1950], 170).

Innis uses the two Christian empires that followed the decline Roman Empire as examples of this. In the East,

“The Byzantine Empire developed on the basis of a compromise between organization reflecting the bias of different media: that of papyrus in the development of an imperial bureaucracy in relation to a vast area and that of parchment in the development of an ecclesiastical hierarchy in relation to time” (Innis 1972 [1950], 115).

And in the West, the growth of monasticism ensured that the spatial monopoly of the Roman Empire was checked by the temporal bias of the parchment codex:

“The bureaucratic development of the Roman Empire and success in solving problems of administration over vast areas were dependent on supplies of papyrus…the problem of the Roman Empire in relation to time was solved by the support of religion in the Christian church. The cumulative bias of papyrus in relation to bureaucratic administration was offset by an appeal to parchment as a medium for a powerful religious organization” (Innis 1991 [1951], 48-49).

The Christian empire that endured from the fall of the Roman Empire until Protestantism was the result of a successful balance between space-biased media (papyrus) and time biased media (parchment codex), a balance that was were well suited to the demands of organization and control across space and time.

Following Brunkhorst, the Christian empire that developed out of the Papal revolution was, in part, the result of an infrastructure of monasteries in Western Europe that enabled the administration of this legal revolution. These monasteries, foremost amongst them the monasteries of the Cluny, were reform minded, “obsessed by the idea of law, the idea of justice, the reform of this world and salvation through law” (Brunkhorst 2014, 110). This mission could only be justified through law, which led reform-minded monks to frantically search for a specific text, “a copy of Justinian’s Corpus Juris Romani—a collection of Roman civil law arranged according to certain groups of legal textbooks… They finally found a copy in a library in Pisa in 1050, 25 years before the outbreak of the revolution” (Brunkhorst 2014, 111). For Brunkhorst, it is the content of this book that contributed to a legal revolution and its subsequent empire. He says nothing concerning the form of this text and how this form contributed to the revolutions that he attributes to its content. Following Innis, we can assume that the form of this text was parchment codex, and as such was uniquely suited to interpretation and legal revolutions. “The durability of parchment and the convenience of the codex for reference made it particularly suitable for the large books typical of scripture and legal works. In turn the difficulties of copying a large book limited the numbers produced. Small libraries with a small number of large books could be established over large areas” (Innis 1991 [1951], 48). The parchment codex was replaced by paper and the printing press, which because of its spatial bias, enabled a different type of legal revolution to take hold.

The preceding was not meant to imply that Innis or any other media theorist should be used to re-interpret Brunkhorst’s legal revolutions as media-legal revolutions. Rather, my intent is to highlight how an attention to media of communication can strengthen the historical narrative that Brunkhorst develops in his book. To conclude, I want to maintain my focus on materiality through an exploration of how ideas borrowed from Brunkhorst can open up new directions in the critical philosophy of technology.

The starting point for a serious critical philosophy of technology begins with Herbert Marcuse who examined how the technological infrastructure of modern industrial society produces the wants and needs of that society. The cost of maintaining and fulfilling these needs is quite high: unnecessary competition for dreary and unsatisfying jobs that provide us with the resources to buy things, a throw away culture premised on planned obsolescence and waste, and an attitude towards environmental degradation that is appalling. Marcuse’s solution to this problem was quite ambiguous—he hypothesized that the logic of art and aesthetics could serve the same purpose that the technocratic rationality of calculation and efficiency serve; a model premised on the Greek concept of techné. In the decades that have followed Marcuse, critical theorists have largely abandoned Marcuse’s more essentialist takes on technology and have argued that a critical theory of technology should aim towards the democratization of technical design (Bijker 1995; Feenberg 1999). The empirical study of technological design has revealed that design is culturally and historically contingent. Democracy, in this framework, is a concept through which the negation of technological society can occur by pointing to workable designs that better reflect humanistic and environmental goals instead of profit and exploitation.

The democratization of technological design is a fruitful base from which a critical theory of technological society can be articulated. However, I think that democracy should not be limited to technical design. A focus on technological design is very much the privilege of an engineering culture largely located in the global West while outsourced manufacturing processes, not to mention outsourced disposal processes, tend to remain out of sight and out of mind. Design may be democratized, but production and consumption are not. As historian David Edgerton (2006) writes, a focus on design is part of an ‘innovation-centric’ theory that is very much the purview of a view of technology familiar from books written for ‘boys of all ages’ that fetishize invention and innovation at the expense of a more a more global view of technology that is not ideologically oriented towards the West’s fascination with innovation. A focus on design tends to reify innovation as a permanent part of technological society, regardless of the necessity of innovation.

Following Brunkhorst, dialectical cosmopolitanism could be used to better understand the universalizing tendencies of technological society. The dreams of a global technology that could enable, for example, a truly global sense of communication and community needs to be balanced with the reality of a global division of labour that enables the universalizing dreams of techno-enthusiasts to be limited to the global West. This is a sort-of democratic cosmopolitanism that would give equal value to the perspectives and needs of those who build our technologies as is given to those who design technology.

Articulating an idea of what Critical Theory is and what the task of Critical Theory is has been the impetus for many treatises, including Dialectic of Enlightenment, One-Dimensional Man, Negative Dialectics, and The Theory of Communicative Action. It would be premature to add Critical Theory of Legal Revolutions to this list, but it is written in the same spirit as these texts and as such contains the potential to make significant contributions to the development of Critical Theory in the twenty-first century. A good book is always the beginning of a conversation, not the end of one. Following this dictum, Brunkhorst has written a very good book. The turn to cosmopolitanism as a critical concept to better understand the history of modern law opens up interesting possibilities for other types of critical theory. In particular, a critical philosophy of technology informed by dialectical cosmopolitan opens up new potentials for a truly global critical philosophy of technology.

 

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.

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 16^th and 17^th centuries. As Brunkhorst notes, one the crucial junctures in the 17^th 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 18^th 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 20^th 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.

Hauke Brunkhorst’s book Das doppelte Gesicht Europas and the article based on this book ‘European Crisis: The Kantian Mindset of Democracy under pressure of the Managerial Mindset of Capitalism’ are very interesting to read (Brunkhorst 2014 and 2015). Many years ago I wrote my dissertation about the classical Frankfurt School (Koenis 1990) and I remember that after a while I was a bit put off by the gloomy pessimism that – for perfectly understandable reasons – characterized the critical project of Horkheimer and Adorno. Hauke Brunkhorst places himself in the tradition of Critical Theory, but he is far from gloomy, and that is refreshing.

Whether or not critical thinkers are optimistic or pessimistic should not determine our appreciation of their work. In this case the optimism is relevant, though, because it seems to be written into the model with which Brunkhorst tries to make sense of the evolution of the European Union. To be more precise: the optimism is located in the Kantian mindset which represents the logic of emancipation – Dr Jekyll – the location of normative learning processes and cognitive adaptation processes. These processes determine what is possible in terms of solidarity and emancipation, whereas the managerial mindset – Mr. Hyde – the logic of technocratic administration, represents the realm of processes of blind adaptation.        Brunkhorst denies that this is a modernist vision, since there is no telos in this process, no end-state in which the final victory can be celebrated, and things can go seriously wrong. But the sheer fact that he locates normative rationality on one side of the dualism still makes him in my mind a member of the modernist family, maybe better called an ‘everyday modernist’ who believes in progress, in what Cristina Lafont in a review of Critical Theory of Legal Revolutions has called the Cunning of Law (Lafont 2014).

The logic of emancipation embodies rationality and normativity, whereas the logic of technocratic administration lacks this rationality and normativity. It represents blind systemic adaptation. Here we recognize the old distinction between emancipative and instrumental reason. But the dialectic between the two is in the case of Brunkhorst a lot more complicated than in that of the classical Frankfurt School. One of the claims in my dissertation, which I’m sad to say is not available in English, is that whereas in their philosophical work Horkheimer and Adorno don’t really get a grip of what politics and democracy are and can do, they do develop a more realistic and perceptive conception of politics and democracy in their scientific work, for instance in their cooperation with the American psychologists working on The Authoritarian Personality. Apart from this, scholars like Franz Neumann and Otto Kirchheimer, not really members of the inner-circle of the Frankfurt School, also had a much more perceptive and interesting conception of politics and democracy than Horkheimer and Adorno. Now, being realistic may not be a recommendation for a critical theory, but I want to point to a couple of elements in the reconstruction of the Werdegang of the European Union which I find problematic.

First, by locating reason in the logic of emancipation, in the Kantian mindset, and blind adaptation in the managerial mindset, we get an interpretation of democracy which doesn’t do justice to modern democracy. True democracy, according to Brunkhorst, resides in the classical form of popular sovereignty, epitomized in the ‘Kantian power of the people’. That is the locus of egalitarian decision making, and this true democracy (my word, not his) is threatened by the hegemony of the managerial mindset. The former stands for democratic government and parliamentary responsibility, whereas the latter represents the grey networks of informal government, so-called good governance, administrative accountability and also deliberative democracy. The former represents emancipation, the latter individual empowerment. In this way of looking at democracy the only true way of representation of the people comes through elections, whereas we see in Europa (just as in our national democracies) all kinds of forms of what Rosanvallon has called counter-democracy (surveillance, oversight and critical evaluation) which are crucial for the democratic working of nation-states and the EU (Rosanvallon 2008). They don’t produce the legitimacy of popular sovereignty through elections, but they represent other kinds of political participation not dependent on elections. It might very well be that in the current age of distrust (again: Rosanvallon) in which the ‘voice of the people’ is not very ‘Kantian’ in the sense of calling for egalitarian emancipation, these forms of counter-democracy are becoming ever more important. Relegating these forms of counter-democracy to the managerial mindset, as forms of blind evolutionary adjustment from which by definition no emancipation can be expected, is too simple, in the same way that the overestimation of popular sovereignty which is ideally established at constitutional conventions, is dangerous. Democracy thrives by the interplay between the direct articulation of the will of the people with various forms of institutionalization of this will, including forms of surveillance, denunciation and evaluation. It is true that these forms of institutionalization, let’s say the institutional framework of the European Union, have been more the projects of political elites than of the people, but they were not blind adjustments, and they form an integral part of democracy in the European Union. And with the slowly but steadily increasing power of the European Parliament, the balance is shifting step by step to more parliamentary responsibility and popular sovereignty.

Towards the end of Brunkhorst’s book it becomes clear that the Kantian mind speaks the language of socialism or social-democracy. It is these political ideologies which contribute to the learning processes that will bring Europe to the next stage of emancipation. This place of honour is not reserved for liberals, who usually appear under the name of Ordo- or Neoliberals, both equally suspect and relegated to the managerial mindset, and so blind to Mr Hyde – kind of evolutionary adaptations to the progress of Emancipation and Reason. You don’t have to be a (neo)liberal to feel a bit surprised by this representation of politics in the European Union. The methodological choice of juxtaposing the emancipatory Kantian mindset and the managerial mindset translates itself into a skewed picture of European Union politics. Critical Theory prides itself in being able to both analyse and criticize society, but here criticism translates to a biased view of politics and the role of political ideologies. At the level of analysis we should treat social-democrats and socialists in the same way as liberals, ordo, neo or whatever, and as conservatives and populists, as representatives of the voice of the people, as political ideologies which should be taken seriously for what they are: ideologies that have different and divergent interpretations of what emancipation amounts to, where we should go with the European Union, et cetera. Then at the level of criticism we may single out one party above the others, we may feel that neoliberals have sold out Europe and that populists (conspicuously missing in Brunkhorst’s analysis) are exploiting the false consciousness of the ordinary people, but we should not confuse this political choice with scientific analysis.

Speaking of populism: what if ‘the people’ – think of the referenda in France and the Netherlands in 2005 – have lost all faith in the European Union? If it was only up to ‘the voice of the people’, Greece would probably not be a member of the European Union anymore and Le Pen, Farage and Wilders would lead a much more powerful group of Eurosceptic parties in the European Parliament and breaking down the European Union from the inside. Populism doesn’t represent a blind adaptation in the evolution of the European Union, but a serious expression of the popular will. Only by taking it seriously as one of the expressions of the will of the people can we avoid the mistake that political elites at the national and European level have made in the last few decades, that is, in thinking that in due course these expressions of xenophobia and Euroscepticism would be swallowed up by the process of rational modernization and Europeanization. In this respect, the logic of emancipation of the Critical Theory of Hauke Brunkhorst and the logic of modernization in which the political elites of the European Union have been captured, amount to the same undervaluation of politics. Instead of reading too much of Rousseau into Kant (‘the Kantian voice of the people’) I prefer the Kant who embraced political pluralism instead of putting all our cards on popular sovereignty.