From the perspective of social theory Brunkhorst’s approach is based on the assumption that in history there are two cosmic forces at work, forever battling it out with one another. On the one hand there is the good force of reason and emancipation, informed by the ideal of egalitarian freedom. On the other hand there is the bad force of domination. Christina Lafont (2014) aptly visualizes the battle between these cosmic forces as a fight between David and Goliath. David stands for reason and emancipation, Goliath for domination and subjection.

Once you get this point you can see the struggle taking place in all spheres and at all levels of society. Here is a description of how it goes: all of a sudden, amidst blind change, a new insight, an inspiring ‘idea of freedom’ erupts. In the wake of this idea, a battle ensues between the opposing forces of emancipation and of domination, with one party attempting to steer the idea of freedom in the direction of further emancipation, and the other trying to bend it towards the goal of domination.

Cristina Lafont, rightly I think, points out that it’s difficult to see the struggle, as Brunkhorst sometimes does, in terms of an opposition between a blind evolutionary force, on the one hand, and an emancipatory agent on the other. To be able to visualize the struggle as a class struggle, you have to posit not forces but opposing collective agents, involved in what Lafont calls a ‘clash of ideologies’. In such a clash both parties are trying to figure out which direction society should take in order to meet their opposing goals. 

One may feel uneasy with this idea of a cosmic battle between good and bad. But I believe that, as philosophers, it’s quite natural for us to visualize the world in this way. It’s part of our business to separate what’s good from what’s bad, and to find out which side we should be on. Philosophy is about making wise choices, and sometimes it helps to see the world in terms of opposing agents or forces. As Einstein said, “everything should be made as simple as possible. But not simpler”.

This is certainly the case when we are dealing with an issue that is so conflict-ridden as the ‘idea of Europe’. Who stands for David here and who for Goliath? And what are their chances of winning or losing? What role can or will Europe play in the attempt to achieve smart, sustainable, inclusive, forms of economic growth which respect human dignity?

Interestingly, Brunkhorst often describes the struggle over Europe in terms of two opposing mindsets. On the one hand there are those who defend the ‘Kantian mindset’, and on the other those who defend the ‘managerial mindset’. The Kantian mindset is usually ‘good’, the managerial mindset usually ‘bad’. Sometimes Brunkhorst rephrases this opposition as one between ‘democracy’ and ‘capitalism’. Overlapping with the other two, Brunkhorst also refers to a third opposition between ‘embedded’ and ‘disembedded’ forms of capitalism.  

In what follows I will take my lead from this last opposition. The distinction between embedded and disembedded forms of capitalism stems from Karl Polanyi. In his classic The Great Transformation, originally published in 1944, Polanyi described the rise of capitalism against a background in which he assumed that the work provided by the laboring classes had always been embedded in social relationships that made the construction of market institutions and impersonal exchange extremely difficult. This remained so until the advance of capitalism and the commodification of labor finally led to the creation of “disembedded” markets, thus inaugurating what Polanyi called the ‘great transformation’.

In reaction to the rise of ‘disembedded’ markets and the commodification of labor, workers mobilized and demanded protection from the state against the strictures of the market. This was Polanyi’s great insight, the ‘double movement’. By this he meant that those dislocated by the market will make use of the state to protect themselves, the consequence of which is large-scale institutional change.

However, Polanyi concluded that the new institutions which states developed in response to the double movement of his time – welfare states within an institutional order that heavily regulated the movement of capital and scope of markets – marked a permanent change in the institutional make-up of capitalism. In other words, the great transformation was seen by Polanyi to be a one-way process. We had arrived at the end of history.

Which of course we haven’t.  As Mark Blyth (2002) recently pointed out, there isn’t one, there are many ‘great transformations’. If disembedding the market led to a double movement where labor demanded protection through an institutional re-embedding, then wasn’t it reasonable to expect, in turn, a reaction against these “embedding” institutions by those most affected, namely capitalists? What one sees after Polanyi’s Great Transformation took place is a constant political struggle, a series of repeated contests to disembed and re-embed the market, a battle which continues until this day, even though its contours have dramatically shifted since the first transformation. The contemporary neoliberal economic order can be seen as merely the latest iteration of Polanyi’s double movement.

The neoliberal disembedding of embedded markets began in the 1970s and early 1980s. It was triggered by the oil crisis during which states in the Western world started to experience problems such as stagflation, which neither of the contending parties seemed able to address. Existing ideas and institutions were simply not prepared for this new phenomenon, in which both prices and unemployment rose to unsustainable heights.

In the wake of these developments institutions that had once served as the basis of the embedded liberal order themselves became objects of critique and contestation. Institutions and instruments such as dependent central banks and active fiscal policies were now diagnosed as “part of the problem” rather than as “part of the solution”. The existing policies lost their legitimacy and the old central banks were systematically dismantled.

In contrast to the previous double movement, organized business groups and their political allies displaced states as the principal actors responding to economic dislocation. Such business groups used a variety of monetarist and other “neoclassical” ideas to redefine the boundaries of political economy away from the Keynesian emphasis on redistribution and growth and toward the neoliberal emphasis on inflation control and monetary stability.

Just as labor and the state reacted to the collapse of the classical liberal order during the 1930s and 1940s by re-embedding the market, so business reacted against this embedded liberal order during the 1970s and 1980s and once more sought to “disembed” liberalism.

In this effort, business and its political allies were quite successful, and by the 1990s a new neoliberal institutional order had been established in many advanced capitalist states with remarkable similarities to the regime discredited in the crisis of the 1930s. That is, both ‘classical liberalism’ and ‘neoliberalism’ are characterized by high capital mobility, large private capital flows, market-conforming tools of macroeconomic management, a willingness to ride out balance of payments and other disequilibria by deflation, and a view of the rate of employment as dependent upon the market-clearing price of labor. During the 1980s and 1990s Polanyi’s double movement was put into reverse gear.

All went well for business until the outbreak of the Great Depression of 2008. Since then everything is up for grabs again. It is now 2016, and we still do not know how to get out of this crisis. David and Goliath are not only battling it out, they are also becoming more deeply divided within. We are again in one of those periods when nobody really knows what direction society ought to take. The contending forces find themselves in a situation in which they must constantly argue over, diagnose, proselytize, and impose on others their views of what the crisis is actually about. There is no clear definition of the situation, making the clash of ideas all the more poignant.

Brunkhorst’s view seems to be that the only way to fight big business, re-embed markets and achieve sustainable and inclusive forms of growth, is through developing a new and inspiring idea of Europe. He may be right about this. But where does his appeal to Europe leave the state, which for so long has been one of labor’s most important allies? And who or which collective agent or coalition of collective agents is going to fight big business? I wish Brunkhorst would be more clear about this, because Europe, at the moment, is not a very inspiring idea. It is in the hands of big business. Europe as it now exists is their idea.  

To rephrase this problematic in Brunkhorst’s terms: if you have your doubts – which Brunkhorst evidently has – about the managerial mindset, then there is much reason to be worried about Europe, where this mindset reigns unopposed, and where democratic opposition is weak -much weaker than democratic opposition on the level of the nation-state. Europa is not an institution that has done well in re-embedding markets, quite the reverse.

The European market, in its present form:

• Has not brought sustainable and inclusive forms of growth. Individual states like Denmark or Sweden have done better in that respect.
• Contains differences in wage levels which are much more extreme than wage inequalities on national markets, which make it all the more difficult for labor to organize on a European level.
• Has not enhanced the powers of the welfare state but has tended to undermine them.
• And has, through the obsessive concerns with sound finance and budget balancing of the managerial-mindset-gang (monetarists, supply-siders, rational expectations theorists, and public choice theorists), pushed us into an ever-deepening recession, with only now slight signs of growth.

In sum, it is not clear what the advantages will be of Brunkhorst’s appeal to Europe. ‘The idea of Europe’ has been captured by the managerial mindset, and Brunkhorst doesn’t make clear how he thinks this idea can be recaptured by those sympathetic to the Kantian mindset.  

Let me conclude by spelling out my worries about Brunkhorst’s appeal to the idea of Europe by means of a trilemma derived from the development economist Dani Rodrik (2012). Instead of a choice, an ‘ideological clash’ between either Europe or barbarism, we face a much more difficult choice between different kinds of Europe:  

1. We can choose for the ‘advantages’ of the European market in combination with strong (authoritarian) states, but with little democracy: the technocratic solution based on the managerial mindset.
2. We can choose for the ‘advantages’ of the European market in combination with democratized European institutions, but with states which have lost much of their sovereignty (and hence run the risk of having to conform to one-size-fits-all solutions set by Europe): this seems to be Brunkhorst’s solution based on what he summarizes as the ‘Kantian mindset’.
3. We can choose for the ‘advantages’ of the European market, but only on the condition that European nation-states, each, preferably, with strong democracies, and with a currency of their own, can, within internationally coordinated limits, decide when and how to integrate: a solution, which might be bad for big business and for consumers, but is good for citizens. This solution, though different, is also based on what you could call the ‘Kantian mindset’.  

In the first case you get disembedded markets. Although the second and third cases exclude each another, they are both versions of the attempt to embed markets, which is why you could present them as expressions of what Brunkhorst calls the ‘Kantian mindset’. 

Seen in this way we face a three-way choice. Moreover each choice has unavoidable trade-offs. I think it is difficult to reconcile this idea of a three-way choice with Brunkhorst’s picture of a stark choice between two opposing forces with no alternative solutions.

David and Goliath may still have to battle it out, but winning the peace, for each of them, will unavoidably be a matter of accepting trade-offs, seeing alternatives and convincing the losers. For the choice is not between either freedom or domination, but between different freedoms, with different benefits and costs.

To sum up, I have four questions for Brunkhorst:

1. What to make of the difference between the Kantian and managerial mindsets and how to accommodate complexity into this starkly dual framework?
2. How and to what extent do the notions of (a) different mindsets, (b) embedded and disembedded markets, and (c) the opposition between capitalism and democracy overlap?
3. How to reconcile the story of blind societal evolution with Brunkhorst’s other idea that much of history is determined by ‘ideological clashes’ between two or more collective agents?
4. Finally, what to make of Europe given the fact that (a) the idea of Europe is now governed by the managerial mindset, and (b) we face a trilemma with unavoidable trade-offs?

Wanting to have the cake and eat it may be a trait of scholars in the Critical Theory tradition. Illustrative of this is the following quote from Brunkhorst’s manuscript:

“To explain the take-off of the social evolution I will combine the Hegelian notion of negation with Luhmann’s idea of communicative variation, Marx [sic, WS] concept of class-struggle, and Habermas [sic, WS] assumption that normative validity claims are unavoidable once Alter understands a symbolic expression of Ego.” (Brunkhorst 2013, 8).

Although this sentence seems to have disappeared from the final version of the book, it does very accurately describe what happens in the book. And I actually like this a lot. I want to be convinced, and so I’m going to problematize the effort Brunkhorst undertakes somewhat. This band of four men, Hegel, Luhmann, Marx and Habermas, is no doubt easiest to deconstruct – that is, to take apart and to reconstruct anew from the inside – by focusing on the role of Luhmann. For having your cake and eating it too here seems to mean to speak of the system of law, of its evolution also, in terms of its mechanisms of variation, selection and retention or stabilization, and to yet combine this with a conception of a normative driver of evolution that is related to class struggle. Quite simply, this is impossible. On the one hand, having your cake and eating it too is an inability to choose, and maybe it’s just being greedy, or being a miser. Maybe it’s part of the universalistic claims typical of Critical Theory. But on the other hand, having your cake and eating it is a paradox, which is a very Luhmannian figure of thought. I’m going to take it as such, and I’ll continue to like it. And, to have said this as well, I want to admire the brightness of the analysis in Brunkhorst’s book.

So I’ll interpret the main problem Brunkhorst’s book struggles with as the problem of combining an evolutionary perspective with a normative perspective. I’ll first take on the role of the Luhmannian critic. Then I’ll try to step away from that somewhat, and present a few issues from more esoteric angles. Let me first say though, that I struggle with this myself, and I know that many colleagues do as well. As for the systems-theory point of view, one cannot easily escape from the hold it has on one. As soon as one starts to combine it with other elements, critical elements for instance, troubles ensue. And from the perspective of critical theory, the potential gains are obvious – they lie in a much more consistent conception of system and environment – but the losses are immense because they lie in the normative core of the theory, which basically threatens to get jettisoned. The feeling one gets with Luhmann is that he already ate all the cake there is. What’s left are crumbs, and so, at best, we appear to be ‘after virtue’, to borrow Macintyre’s terms.

Luhmann on law, norms and evolution

Let’s start from Luhmann’s lapidary statement that “Die Gesellschaft ist, zum Glück, keine moralische Tatsache” (Luhmann 1987, 318). It indicates right away that social evolution cannot – at least in Luhmann’s view – be moralized. That is to say that social evolution never entails a driving role of normative claims, and neither does it result in some form of normative learning that is not internally induced. Likewise, under conditions of functional differentiation, the codes of functional subsystems are morally indifferent. There is no congruency between what is true and what is good, between what is powerful and what is good, or between what is lawful and what is good. The world is definitely unplatonic, hence not a unity but functionally differentiated. Even the unity of the world appears many times in many systems and in equally many ways – and when it appears, it always appears as the unity of the difference between system and environment. So I’m starting off with some hardcore Luhmania here. I have no illusion of teaching Brunkhorst anything here, but I’m laying it out in order to highlight the tensions in his approach. Fundamentally, Luhmann’s conception boils down to the incongruence between law and morality, or between law and universal reason, or between law and anything it considers environment. That means there may be legal revolutions, or at least legal evolution, but what is legal has no bearing whatsoever on what is normatively good beyond the realm of law.

Moreover, norms do not codify the system of law, and hence they do not make up the core of its self-organization. Any functional subsystem that operates on the basis of a specific medium and code does not operate through a normative code, nor can a normative code – under conditions of functional differentiation – be a functional equivalent of the codes of subsystems. Secondarily, certainly, one can normatively ground legal, political or economic action. But primarily such action is grounded by systemic codes that are normatively indifferent (cf. Luhmann 1993, 85). Therefore, Brunkhorst’s thesis that social evolution is driven by normative claims, argument or dissensus seems hard to maintain. It can be maintained, but only as one contingent take on social evolution that must then give up on connecting with the primary form of modern differentiation. In other words, norms are not social supermedia. At the level of subsystems, such as the legal system, norms are replaced by forms as drivers of autopoiesis, and hence ultimately of evolution – forms such as the binary code of law, lawful/unlawful.

Luhmann in fact takes issue with the very notion of normative ‘learning’ in any other form than an internally induced learning (Luhmann 1993, 81). To connect normative learning to externalities, such as class struggle, seems to me to have effects akin to efforts at turning the hermeneutic circle into a spiral upwards towards better, more universalized understanding. For Luhmann, on the other hand, norms are expectations that are kept even when they are disappointed. That is, norms are primarily ways of not learning. Likewise and relatedly, Luhmann says of values: “unsolvable problems par excellence are today called ‘values’.” (Luhmann 1994, 19). Where Brunkhorst emphasizes normative learning, Luhmann considers norms as ways of not learning. One can argue, of course, that there are ways of learning in this not learning, but this would not exist as externally induced, and it is certainly hard to maintain that learning not to learn is a driver instead of a consequence of social evolution. Likewise, norms only function internally in the system of law. The legal system can refer cognitively to its environment, but not normatively (Luhmann 1993: 85).

In a sense, evolution in Luhmann’s terms is nothing other than the possibility of social systems to ignore expectations – including normative ones – in order to produce variation, and the temporalized restabilization of new variations. In that sense, the normative plays a role in evolution only insofar as it exists in a range of variation and can be selectively ignored. Most generally, social evolution is a process of demoralization, in which neither morality, nor values, nor norms are a source of integration. Rather, evolutionary complexity entails the heightening of implausibilities.

This provides some background for the main issues I would like to highlight.

The problem of social evolution

A crucial issue concerns Brunkhorst’s conceptualization of evolution. He distinguishes between evolutionary adaptation to a system’s environment, and to evolutionary constraints on such adaptation. Given the above, the question is how norms, or anything normative, could ever be a constraint on cognitive evolution? Because evolution concerns the primary differentiation of society, which is evidently not normatively supercoded, this seems altogether unlikely.

But in my view, this conception of evolution is problematic in a more fundamental respect. In one particular sense that I wish to highlight, it marks a decisive break, although I don’t believe this is made explicit in Brunkhorst’s book, with Luhmann’s conception of social evolution, and it makes it harder yet to perform the balancing act between Hegel, Luhmann, Marx and Habermas. Brunkhorst says, for instance, that

“…modern law is not only the result of morally neutralized, gradual evolutionary adaptation of social systems to their environment (and hence of the cognitive learning of social systems which do not care about their negative externalities), but also the outcome of class struggle and revolutionary change (and hence of normative learning processes of social groups who demand rights for the victims of history, but with ambivalent effects).” (Brunkhorst 2014, 2-3).

Throughout the book, Brunkhorst refers to evolution in the cognitive sense as a form of adaptation. But this is not at all how social systems relate to their environment. In fact, one uses a biological, organism-centered conception of evolution when adaptation is central. Evolution of social systems does not occur through adaptation, but through the maintenance of the incongruence between system and environment by means of irritation. Crucial to this is the relative degree of complexity between system and environment. The autopoiesis of social systems prevents them from ‘adapting’ to their environment. Their evolution is internally triggered by irritation from a self-induced environment, and it does not constitute adaptation because social systems do not thrive by adaptation to their environment, but by incongruence with their environment. In such an evolutionary perspective, there can be no question of linear – or quasi-linear – development (Luhmann 1994, 7).

This distinction between adaptation and irritation has consequences for Brunkhorst’s conception of law as providing normative constraints on adaptive evolution. First of all, as I just said, there is no adaptive evolution. But secondly, even if one were to hold that there is, it is altogether hard to imagine how law could provide normative constraints on it. After all, this would mean that the system of law could interfere in other autopoietic systems, and that is fundamentally impossible in autopoietic systems. And for the same reason, it is hard to see how social evolution in the form of normative learning in law could be considered as externally triggered, namely by class struggle, which, as Brunkhorst literally says in his conclusion, ‘causes’ legal revolutions (Brunkhorst 2014, 464). For that would mean that class conflict directly interferes with law, in which case there is no functionally differentiated system of law. Luhmann (1993, 77) maintains that the system of law is normatively closed and cognitively open, but that still means it can be directly steered neither normatively nor cognitively – nor, for that matter, by class conflict. Class struggle here emerges as an equivalent to what musical innovation was for Plato, when he wrote in The Republic: “for any musical innovation is full of danger to the whole State, and ought to be prohibited. So Damon tells me, and I can quite believe him; – he says that when modes of music change, the fundamental laws of the State always change with them” (Plato 2000, 93). For Luhmann, that too would be a quite impossible impingement of the system of art on the system of law. Let me summarize the points I’ve just made as the first two main problems I see:

1) Normative learning in law is construed as externally triggered, but normative learning can only be internally triggered, and anyhow social systems do not undergo direct external influence.
2) Law appears as a constraint upon its environment, which is considered here as an outside of the law, but social systems do not undergo direct external influence.

These issues come out of Brunkhorst’s, in my view problematic, use of adaptation as central to evolution, which is then constrained by normative learning.

The Kantian mindset

Let me now move on to a second set of problems of a less orthodox Luhmannian nature. These center around what Brunkhorst calls the ‘Kantian mindset’. This he relates to the role of normative dissensus, as well as to the role of rational argumentation and the forceless force of the better argument in social evolution. I find the role he accords to normative dissensus or conflict, as well as the role of the Kantian mindset in this, problematic.

If we, for starters, because it is the conceptual framework Brunkhorst uses, look at what Luhmann says about the evolutionary mechanisms of variation, selection, and retention or stabilization then it immediately becomes clear that norms do not figure anywhere. Variation has to do with language and its potential for negation; selection has to do with codes, and not with norms as Brunkhorst seems to imply; and stabilization has to do with system differentiation (Luhmann 2005a, 188). The point is that communication itself gives rise to negation and thereby to variation and evolution. In Brunkhorst’s book there is a constant slippage from “communicative variation” to “dissent over normative expectations” (Brunkhorst 2014, 16). In contrast to this, Brunkhorst seems to want to identify a driver of social evolution that is itself quasi-external to social evolution. He says for instance that:

“…only interaction that generates argument and contest can explain how negative communication reaches such a large quantity that social evolution can and must take off.” (Brunkhorst 2014, 16-17).

I believe this is problematic in a number of ways. First of all, it assumes that social evolution can only take off after the occurrence of what is itself a complex evolutionary achievement, namely argumentative, normative contestation. So I would take issue with normative contestation as a precondition, when it occurs in a certain ‘quantity’, for social evolution. But more importantly, I would criticize the entire move to find an external, perhaps even universal, driver of social evolution. For this is, ultimately, the role Brunkhorst accords to the Kantian mindset. The Kantian mindset operates in his theory as a universal driver of social evolution. He allows that it develops in social evolution, but at the same time it is, albeit in perhaps rudimentary form but existing since the Axial Age, a precondition and driver of social evolution. What happens is that in the negative potential of communication, which drives evolution, he sneaks in the Habermasian features of rational argument and its forceless force, which moreover gain certain universality. The decisive move is the sneaking in of rationality. From that moment on, he can claim that social evolution provides normative constraints for cognitive evolution. And from that moment on, the Kantian mindset can assume its magical function of allowing us to have a cake and eat it. It is also how Brunkhorst can make the following slip:

“my main thesis is that of the co-evolution of cosmopolitan and national statehood. Throughout the evolution of modern law and politics, cosmopolitan state formation (…) has preceded and enabled particular and national state formation.” (Brunkhorst 2014, 7).

The slip is from ‘co-evolution’ to ‘cosmopolitan state formation has preceded…’ Because the Kantian mindset operates as First Mover in Brunkhorst’s theory, the cosmopolitan is not really a co-evolutionary achievement, but it can precede national state formation.
Most importantly, I would argue, normative dissensus, and ultimately what Brunkhorst calls the Kantian mindset, thus becomes a pre-evolutionary universal, which, en passant, divorces the take-off of social evolution from natural evolution, i.e., from the evolution of the capacities of language or communication more generally. So, in addition to my earlier two points, I’ll summarize my remarks on this issue in two further points:

3) Social evolution does not take off as a consequence of a certain quantity of normative argument and contest. Such contestation is itself a product of social evolution, which emerges out of the inherent drive to negation and variation of contingency in communication. Not rational argument, but communication is in the driver’s seat.
4) There is no external trigger to social evolution, other than, perhaps, natural evolution. In Brunkhorst’s book, the Kantian mindset functions as a pre-evolutionary universal. That is a lot of work to do for a mindset, even if it is a Kantian one that predates Kant by over 2000 years.

Let me venture a guess as to why the Kantian mindset plays this role of a First Mover in Brunkhorst’s theory. The effect it has is one of moralizing social evolution, and I would say that that is what provides critical theory with its task and raison d’être. On the first page of his book, he immediately comes clean as to the purpose of critical theory:

“Critical theory is about the paradox of reason within an unreasonable, brutish and random history. Methodologically, critical theory operates as an instrument to find the traces of reason and truth within a reality that as a whole is unreasonable and ‘untrue’.” (Brunkhorst 2014, 1).

I have to say I’m not such a fan of this type of gesture. It seems to me that it denies the rest of the world conscious access to that – namely Reason – to which it in the same move claims a monopoly on discovering. Now, inserting a Kantian mindset in between the three evolutionary mechanisms of variation, selection and stabilization as a universal driver of social evolution inserts just enough reason in the world for critical theory to have a job. And as a corollary consequence, the negation still appears in some form as the way toward the positive, which here appears as the normative. The situation is akin to the response to the marginalization of the subject in modern society according to Luhmann: “Das theoretisch marginalisierte Subjekt kehrt als normatives Postulat menschenfreundlicher Ausrichtung der Gesellschaft zurück oder es rächt sich durch ‘Kritik’.” (Luhmann 1981, 251). Instead, I would argue that the negation does not help universal reason to unfold through normative learning processes, but that it merely enhances the contingent.

Side comments

Let me end with some side comments, four in total, and perhaps admittedly somewhat esoteric to Brunkhorst’s concerns.

1) A first one has to do with an issue that runs through Brunkhorst’s argument and which I find interesting. The growth of the Kantian mindset can, I believe, be read as an alternative theory of secularization, in which the unfolding of reason through rational argumentation and the appending normative contestation grows out of initially religious developments and then, perhaps, evolutionarily frees itself from them. In many other approaches, including for instance Marcel Gauchet’s and Charles Taylor’s, the religious gives birth to the secular, but here, my question would be simply if, taken to its evolutionary logical extreme – if not end-point – this conception, unlike at least Taylor’s, means that religion in the end will turn out to be a Weberian ‘vanishing mediator’. Does this development of the Kantian mindset entail the slow but gradual disappearance of religion? Probably not, at least I don’t see this empirically confirmed, but I would be interested in Brunkhorst’s take on the issue.
2) A second comment concerns the contingency of Brunkhorst’s starting points. I have taken the route via Luhmann to deconstruct Brunkhorst’s approach, but what if we were to, for instance, take up Walter Benjamin’s perspective on law as laid out in Zur Kritik der Gewalt? In Benjaminian terms, the Kantian mindset operates as myth in Brunkhorst’s theory. And it remains locked in the vicious circle of instrumental language and law. The consequence is that it does not adequately grasp the violence of law in the way the exception continues to manifest itself in law. Empirically, there is much to be said for this (cf. Frankenberg 2010).
3) Third, Brunkhorst explicitly denies Eurocentrism. But really? These four white German men informing his theory, do they get him beyond Eurocentrism? Obviously, just because certain trends, such as modern international law, are global does not mean they are not Eurocentric or, more generally, hegemonic in various ways. I doubt whether Brunkhorst actually has the tools, in his approach, to be reflexive about his own position. In the end, this is all a very modern story, which claims universality. Many a postcolonial scholar might almost consider that a definition of Eurocentrism. No doubt Brunkhorst starts with the papal revolution and not with, say, the Code of Ur-Nammu or the Code of Hammurabi, because the latter did not yet constitute a differentiation from politics. But they did constitute written law, and as Luhmann says, law is extremely vulnerable to evolution already because it consists of text, which is loaded with the potential for negation and variation (Luhmann 2005b, 223).
4) Finally, when I try to take a wholly ‘external’ perspective, the entire focus on ‘constraints’ appears to divert attention away from what social evolution has meant in terms of natural evolution. A primary characteristic of what human world society does to the world is not to constrain anything. Brunkhorst focuses on constraints because his is an internalist focus within world society. But does that not draw attention away from the role of world society on a planetary scale? The only model that adequately describes the evolution of human world society is that of the plague. Is that, finally, and putting it evocatively, not something a critical theory would want to scrutinize, rather than the various internal normative constraints humans amuse themselves with, all the while eating away at the world in a richer sense of the word?

 

“The basic constitutional idea [of] neo-liberalism is the idea of changing law from something that functions as the immune system of society into something that functions as the immune system of transnational capitalism, triggering an autoimmune disease by declaring civil war against the rest of the societal body and its legislative organs.”

Brunkhorst 2014a, 445-446

 Introduction

Near the end of his fascinating socio-historical account of two millennia of legal revolutions, Hauke Brunkhorst (2014a) offers a scathing critique of the rise of the neoliberal constitutional mindset in the European Union (EU). Brunkhorst argues that the neoliberal project, in constitutional terms, aims at nothing less than dismantling ‘democratic legislative control’ and subsuming the ‘political constitution’ – the set of fundamental democratic rights and freedoms hard-won through social struggles – under that of ‘law and economics’ and the prerogatives of transnational capital. At the core of this ‘great transformation’, unfolding across Europe and beyond since the late 1970s, lies “the transformation of state-embedded and state-controlled markets into market-embedded and market-controlled states” (Brunkhorst 2014a, 446; original emphasis). Brunkhorst’s Polanyian diagnosis closely resembles David Harvey’s dissection of neoliberalism as an elite political project. Its central aim, Harvey maintains, is to ‘disembed’ capital from the post-war Keynesian “web of social and political constraints” (2007, 11) or, in Brunkhorst’s words, to reverse the achievements of the ‘Egalitarian Revolution’, which ushered in the constitutionalization of social and economic rights and the consolidation of ‘democratic capitalism’ since the early twentieth century.

The evolution of EU governance since the 2008 financial crisis has made the pervasive grip of this mindset dramatically apparent, including its tragic social consequences in the EU’s periphery. Following the electoral victory of Syriza in Greece in January 2015, Jean-Claude Juncker, the European Commission president, issued a stark warning to those who wish to deviate from the script laid out by Europe’s elites: ‘there can be no democratic choice against the European treaties’ (Hewitt 2015) nor, by extension, against the constitutionalization of neoliberal orthodoxy. The rule of the Troika, warns Brunkhorst, constitutes an outright assault on the Kantian mindset of collective democratic self-determination, spelling “the end of democracy as we know it” (Brunkhorst 2014a, 452).

In this article, I take a cue from Brunkhorst’s analysis of the hegemony of the neoliberal mindset for the survival of meaningful democratic politics. Focusing on a central pillar of contemporary international economic law – the World Trade Organization (WTO) Trade-related Intellectual Property Rights (TRIPS) Agreement – the aim is to highlight an important limitation of Brunkhorst’s reading of the unravelling of Kantian advancements in international and national law in recent decades. The key argument proposed here is that Brunkhorst’s account is, in a nutshell, too state-centric, neglecting the central role of transnational corporations (TNCs) in shaping the content, interpretation, and enforcement of the international legal framework governing actually-existing neoliberalism capitalism. Recent decades have witnessed a vast expansion in the rights of TNCs vis-à-vis states and their populations, to the point where the ‘global firm’ is now considered by some observers as the “key institution of the post-democratic world” (Crouch 2004, 31; see also Chomsky 1999; Sklair 2002; Wilks 2013). Yet, aside from a brief discussion of the Dutch and British East India Companies during the colonial era, the modern business corporation – a legal invention of the nineteenth century managerial mindset par excellence – is conspicuously absent from Brunkhorst’s otherwise prescient account of the evolution of international law. The expansion of corporate power, I argue, is not only a root cause of the contemporary post-democratic predicament in the Global North but also contributes to endemic violations of basic social and economic rights of the global poor. Therefore, taking the role of TNCs in shaping the evolution of international law seriously is indispensable towards a critical theory of legal revolutions that engages with contemporary struggles for global social justice.

 Corporate power and post-democratic law-making

The modern business corporation is in large part a product of a ‘legal revolution’ in the nineteenth century which saw a dramatic transformation and expansion of the rights of joint-stock companies in the United States (Sellers 1991).[1] Since then, corporations have become a ‘constitutive element of modern capitalism’ (Djelic 2013). Permeating virtually all spheres of the life-world, they have become “accepted…as the irreplaceable organisation constituting the free enterprise system” (Wilks 2013, 168). Propelled by the forces of economic globalization, trade and capital liberalization, and revolutions in communication technologies, there has been an exponential growth in the number of TNCs in recent decades (Sklair 2001). Despite its avowed commitment to ‘free trade’ and ‘free markets’, the neoliberal project has thus greatly expanded the influence of these ‘concentrations of private power’, which now occupy a central role in the global economy (Chomsky 1999, 160). TNCs account for one third of international trade and, in 2007, made up 48 of the ‘100 largest economic units’ globally, with the sales revenues of the world’s largest company, Wal-Mart Stores, higher than the GDPs of all but the 25 wealthiest countries (Wilks 2013, 6).[2]

In capitalist democracies, this kind of phenomenal concentration of economic wealth inevitably translates into political power exerted directly via political lobbying, advocacy and political party funding, and indirectly by shaping the ideological milieu within which policy-making processes unfold and by diffusing cultural norms favourable to corporate interests within public spheres. Indeed, since the 1970s a vast, multi-billion institutional complex of public-relations companies, corporate-funded consultancies and think-tanks has emerged whose core purpose includes diffusing the neoliberal lingua franca of ‘free markets’ and ‘free trade’ across the globe and shaping the laws and regulatory standards governing markets and corporations (Miller & Dinan 2008).

In the Strange Non-Death of Neoliberalism, Colin Crouch (2011) provides a compelling account of how giant corporations have effectively blurred the distinction between the putatively autonomous spheres of the state and the market so sacrosanct to classical liberal thought by gradually colonising both spheres. While global markets in many sectors have become structured along oligopolistic lines, the state has not so much been weakened as captured by corporate capital to its own ends through complex (and contested) processes of deregulation, marketization and privatization (Leys 2003; van Appeldoorn 2000). Consequently, relations between states and transnational capital have become so intimately intermeshed that “the state, seen for so long by the left as the source of countervailing power against markets and corporations, is today likely to be the committed ally of giant corporations, whatever the ideological origins of the parties governing the state” (Crouch 2011, 145).

Sustained by pervasive corporate lobbying activities, in the most advanced post-democracies such as the UK and the US, “the large corporation is a privileged institution integrated into government itself through elite interaction” (Wilks 2013, 62). In the United States, corporations’ rights of political speech were further extended by the Supreme Court in 2010 in the Citizens United case “which effectively lifted all restrictions on corporate political spending” (Wilks 2013, 11). For example, in the case of ‘the health-care-industrial complex’ in Washington DC alone, this has reached beyond US$5 billion since 1998 (Brill 2013). Needless to say, such resources to influence law-making processes at all levels of global governance vastly outnumber those of counter-veiling forces, be they trade unions, activist groups, NGOs, or progressive social movements.

Though ubiquitous in contemporary political systems, the term ‘lobbying’ is, however, somewhat problematic: 

“The origins of the term ‘lobby’ lie in the literal meaning of the word, denoting…a space outside a ruler’s council chamber…where persons wishing to plead a cause with members of the council would a seek a chance to speak with them on their way in …The representatives of today’s TNCs are not in the lobby, outside the real decision-making space of government…They are right inside the room of political decision-making. They set standards, establish private regulatory systems, act as consultants to government, even have staff seconded to ministers’ offices” (Crouch 2011, 131).

A similar process of corporate capture of policy-making is unfolding at the EU level, too; the institutional complex in Brussels has become a key site for corporate political activity. In fact, particularly in the realm of EU trade policy, the relationship between the European Commission and private-sector interest groups at times assumes the form of “reverse lobbying” where “the public authority lobbies business to lobby itself” (Woll 2011, 48).[3]

The neoliberal reconfiguration of global capitalism has been an extremely lucrative affair for the privileged few, generating concentrations of wealth and levels of economic inequality across the industrial world not seen since the Great Depression. Together with the growing political power of TNCs, this constitutes both a key causal factor and symptom of the wider shift towards ‘post-democracy’, a system in which “politics and government are increasingly slipping back into the control of privileged [political and economic] elites in the manner characteristic of pre-democratic times” (Crouch 2004, 6). Post-democracy is the political counter-part to the neoliberal transformation of the economy; they are two sides of the same coin. As Wofgang Streeck (2011) notes, “economic power seems today to have become political power, while citizens appear to be almost entirely stripped of their democratic defences”, a diagnosis lent empirical support by the 2012 Democracy Audit of the UK. The audit found

“very firm grounds to suggest that the power which large corporations and wealthy individuals now wield on the UK political system is unprecedented. Bolstered by pro-market policy agendas and deregulatory measures, corporate power has expanded as a variety of countervailing forces, such as trade unions, have declined in significance…[P]olicy-making appears to have shifted from the democratic arena to a far less transparent set of arrangements in which politics and business interests have become increasingly interwoven” (Wilks-Heeg et al. 2012, 16).

In Habermasian terms, this suggests that the impulses on which the legislative and administrative apparatus acts rarely originate in communicative action between citizens in public spheres but rather in the ‘unofficial circulation of this unlegitimated power’ within national and transnational sites of political decision-making (Habermas 1996: 328). Writing about the European context, Brunkhorst alludes to the post-democratic predicament as

“the hegemony of the managerial mindset, and the reduction of politics to technocracy that today allows the political and economic elites to bypass and manipulate public opinion and democratically legitimated public law on both levels: the European as well as the respective national level. At the same time as it is growing legally, the public power of the people and its representative organs is more and more deprived of real power and replaced by grey networks of informal government”  (Brunkhorst 2014b, 46).     

According to Brunkhorst this ‘evolutionary process was performed under the lead of the managerial mindset of Europe’s political elites and professional experts’ (ibid). While this is certainly correct, it is also the case that this process has been driven by the concerted efforts of Europe’s transnational corporate elites since the 1980s, acting via powerful peak business organisations such as the European Roundtable of Industrialists, as extensively documented by van Apeldoorn (2000). The same argument, as discussed further below, applies to processes of economic constitutionalization at the international level as well. Before we turn to the illustrative case of the WTO TRIPS agreement however, this raises the question of whether the notion of the ‘managerial mindset’ is not perhaps assigned too much explanatory work. At times, it appears as a transhistorical force, assuming the quality of a deus ex machine in Brunkhorst’s account. But if it is indeed the case, as Brunkhorst maintains in his typically dialectical fashion, that the managerial mindset need not be normatively oriented towards serving dominant class interests, then the question arises: who are the concrete political actors relentlessly pushing it in that direction?

Beyond the private/public dichotomy

An attempt to answer this question necessitates a political sociology of corporate power and an account of the specific strategies and practices whereby large TNCs attempt to shape the international legal framework and construct a system of global rules in line with their interests (Danielsen 2005). In other words, the role of ‘private’ actors must be incorporated into an analysis of not only private international law but international public law as well, which far too often is seen as the preserve of states alone. One reason for this is that, historically, international law has been state-centric. Despite recent developments in international human rights and economic law, non-state entities such as TNCs do not as yet constitute clearly defined subjects of international public law (Duruigbo 2008). Nonetheless, the deeply problematic nature of the public-private distinction in liberal theories of international law was recognised by Wolfgang Friedman some four decades ago:

“International companies or cartels – though often controlling enormous assets and exercising vast powers not only over their members in different countries but over economic and political decisions of great magnitude – have been treated as institutions and arrangements of private law. In this field perhaps more than in any other, the unreality of any watertight distinction between ‘public’ and ‘private’ law… is becoming increasingly apparent” (Friedman 1957, 172).

Today, the distinction has clearly become even more empirically untenable. What is more, as Cutler (1997) argues, the public/private dichotomy effectively “operates ideologically to obscure the operation of private power in the global political economy” (Cutler 1997, 279) and the extent to which organised corporate interests have been able to shape the evolution of international public law in recent decades.

Indeed, in parallel to the Egalitarian Revolution and the constitutionalization of social and economic rights around the world, the post-1945 era has witnessed the emergence of an international legal and institutional framework which has greatly facilitated the growing importance of TNCs as political actors in global governance (Wilks 2013). Decision-making in core economic policy domains has shifted beyond Westphalian boundaries towards an institutional architecture consisting of international financial institutions and the WTO, elite clubs such as the G8/20 and the OECD, together with rather more opaque but important bodies like the World Banks’ International Center for the Settlement of Investment Disputes (ICSID). Alongside these institutions, various transnational elite policy planning forums have emerged such as the ERT, the World Economic Forum, and the Transatlantic Business Dialogue – key sites of power inhabited by factions of transnational political, economic, bureaucratic elites who operate with minimal publicity and, thus, accountability to wider publics.

At the same time, a complex web of international treaties from the General Agreement on Trade and Tariffs (GATT) to the WTO, plus thousands of bilateral and regional trade and investment agreements, has significantly enhanced the prerogatives of transnational capital and corporations in the global economy and imposed new legal and normative constraints on state behaviour. A prime example is the instrument of investor-state dispute settlement (ISDS) – a core feature of the international investment regime – which allows foreign investors to challenge a host state in international arbitration courts if they deem that their investments are being harmed by regulatory or legislative changes.[4] ISDS arbitration panels can override domestic courts, penalise states and award multi-billion compensations to investors. What is more, ISDS does not provide for an appeals process, proceedings and rulings are often kept confidential, while arbitration panels consist of elite lawyers trained in international investment law who normally work for corporate clients (Corporate Europe Observatory & Transnational Institute 2012). ISDS thus effectively constitutes a parallel international legal system “intended to shield the market from the intrusion of vulgar democratic politics” (Schneiderman 2001, 531). In other words, it embodies the ‘categorical imperative’ of the neoliberal constitutional mindset: “Give the judges what you have taken from the democratic legislator and the parliamentary controlled government!” (Brunkhorst 2014a, 444).

Yet, while the codification of second-generation human rights in the form of the International Labour Organisation (ILO) and the Universal Declaration of Human Rights (UDHR) is explored in considerable detail, an analysis of international economic law is comparatively sparse in Brunkhorst’s account. This seems particularly odd given the fact that international trade and investment law is supported by precisely those enforcement mechanisms – such as the WTO’s dispute settlement mechanism and ICSID – that are currently lacking in the case of the ILO or the UDHR.

Let us now briefly turn to the instructive case of the WTO TRIPS agreement, the origins of which reveal much about the capacity of TNCs to translate private interests into public law.

TRIPS: A quiet revolution in international economic law  

As Susan Sell argues in her authoritative account, the WTO agreement represents “a stunning triumph of the private sector in making global IP rules and in enlisting states and international organizations to support them” (Sell 2003, 163). In brief, the origins of the agreement lie in the concerted agency of a small number of US-based corporate executives of some of the largest pharmaceutical, chemical and software corporations such as Pfizer, Merck, IBM and Monsanto, who were determined to globalize American intellectual property standards. With privileged access to trade policy-makers and by skilfully framing stronger intellectual property protection as a means to address the perceived loss of competitiveness of the US economy since the late 1970s, the corporate lobby was able to conscript the power of the American state to coerce developing countries into ever-stricter TRIPS standards by imposing trade sanctions for alleged violations of the intellectual property rights (IPRs) of US corporations.

The US-based lobby then engaged in a ‘massive consensus-building exercise’ to get their initially reluctant private sector counterparts and governments in the EU and Japan to endorse a binding treaty that would significantly expand IPRs around the world (Drahos & Braithwaite 2002, 116). The Union of Industrial and Employers’ Confederations of Europe (UNICE)[5] – ‘the key portal of European business influence’ in Brussels – together with influential organisations such as the European Federation of Pharmaceutical Manufacturers and Associations lobbied heavily to enlist the support of the European Commission and key EU member states (Drahos & Braithwaite 2002, 128). By the time the GATT Uruguay Round negotiations were in full swing in the late 1980s, the EU was fully committed to the TRIPS project (Pugatch 2004).

The ideological pre-condition for what became a radical expansion of the rights of intellectual property owners was to tie the protection of intellectual property to the wider project of creating a global ‘liberal trading order’ that ‘would place investors first’ (Drahos & Braithwaite 2002, 68). As Sell explains: “By wrapping themselves in the mantle of ‘property rights’ the private sector activists suggested that the rights they were claiming were somehow natural, unassailable, and automatically deserved” (2003, 51). Henceforth, violations of patents, trademarks, and copyrights were tantamount to piracy and expropriation and, given the massive rise in trade in knowledge goods, antithetical to the neoliberal vision of the global economy that was taking hold at the time. Once intellectual property was grafted onto the ‘free’ trade agenda – hence the term trade-related – the issue was simply how far the new regime would go in expanding those rights. Indeed, early drafts of what eventually became the TRIPS agreement were drafted by corporate-funded lawyers and, in the case of the United States, corporations “provided considerable legal support to the negotiating team” (May 2000, 82). Facing little organised opposition from civil society or the Global South (with the exception of India and Brazil), the corporate lobby ultimately “got 95 percent of what it wanted” (Sell 2003, 115).

The WTO agreement came into force in 1995. As Drahos and Braithwaite note, it marked “the beginning of a quiet revolution in the way that property rights in information were defined and enforced in an emerging global information economy” (Drahos & Braithwaite 2002, 19). In brief, the TRIPS agreement stipulates the minimum level of intellectual property protection that member states must enforce in domestic law, with significant implications for the creation, ownership, dissemination of, and access to, knowledge goods (May 2000). Most contentiously, WTO members must guarantee patent protection for a minimum of twenty years, including in the field of pharmaceuticals. During this period, patent-owners are effectively granted monopoly power. Consequently, “pharmaceutical patents, by design and function, increase the price of medicines to consumers” (Abbott 2002, 18). In the case of life-saving HIV treatment, this enabled pharmaceutical companies to charge more than US$10 000 per patient per year in the late 1990s, including in the poorest countries of the Global South. To fully appreciate the significance of the agreement for public health, we must recall that pharmaceutical products were not patentable in most developing countries prior to TRIPS, or only with significant limitations (Hoen 2009).[6] In India and Brazil, this allowed for the emergence of generic pharmaceutical industries which supply affordable medicines to the rest of the world. One major consequence of the new system has been to significantly diminish the policy space available to countries for promoting their knowledge-based industries and to limit their capacity to provide citizens with affordable essential medicines.

Intellectual property revolves around a delicate balance between private and public interests, that is, “between the private ownership of the fruits of intellectual labour and the social benefit of the distribution or useful ideas or knowledge” (May 2000, 10). The social contract between rights-holders (say, pharmaceutical corporations) and the rest of society is therefore maintained only if the benefits of, for example, developing medicines that extend or enhance the quality of life, outweigh the costs of temporary monopoly power. But, as many critical observers contend (Sell 2003; May 2000), the WTO agreement has shifted the balance between public and private interests decisively towards the latter. It has effectively created an international legal system for the transfer of rents from the Global South to the North or, more precisely, major American and European corporations who are the primary owners of intellectual property and the agreement’s erstwhile architects.

The WTO agreement was a project whose success lay in the ability of the private sector lobby to forge an elite consensus amongst a relatively small number of senior corporate executives and key policy-makers at different levels of global governance. For the senior executive of Pfizer, which spearheaded the campaign since the 1980s, this was about ‘influencing the public policy agenda and ultimately securing the right regulatory agenda’:

“Like the beat of a tom-tom, the message about intellectual property went out along the business networks to chambers of commerce, business councils, business committees, trade associations and peak business bodies. Progressively Pfizer executives…were able to enrol the support of [business] organizations for a trade-based approach to intellectual property. With every such enrolment the business power behind the case for such an approach became harder and harder for governments to resist” (Drahos & Braithwaite 2002, 69-70).

The campaign to establish the existing TRIPS regime thus occurred almost entirely outside the public sphere. The general public simply did not figure in the equation and the mass media played only a subsidiary role in the lobbying effort. Instead, the corporate lobby mobilised influential policy think-tanks like the Heritage Foundation and the American Enterprise Institute to disseminate pro-TRIPS messages within policy elite circles (Drahos & Braithwaite 2002, 70). The TRIPS project thus did not constitute a ‘normative learning process’ (Brunkhorst 2014a) in sociological terms, in so far as mass publics were almost entirely excluded from elite considerations. As international trade negotiations are conducted with minimal publicity, it is unlikely that many outside the insular trade policy arena were aware of the agreement’s existence, let alone its possible disastrous implications for the global poor (see below). Yet, although it occurred outside those momentous historical shifts that are the focus of Brunkhorst’s work, TRIPS is emblematic of how contemporary international economic law is made. It is a product of the ‘factual strength of privileged interests to assert themselves’ by circumventing the public sphere (Habermas 1996, 150) that characterises the exercise of political power under conditions of globalised post-democracy.

Conclusion

TNCs have become key actors in transnational class struggles and the dialectical interplay between the Kantian and managerial mindsets in recent decades, struggles whose outcomes steers the evolution of international law. Through the example of the ‘quiet’ legal revolution in international property rights law, I have tried to illustrate the importance of bringing the corporation into the centre of analysis.

The expansion of the rights of these largely unaccountable institutions is at the root of many emancipatory civil society struggles around the world, including those led by victims of corporate human rights abuses (Amnesty International 2014). Indeed, as Brunkhorst shows time and again, Kantian ideals of freedom, universal human rights, and political autonomy can be repressed but they can, and often do, “strike back against the law’s oppressive (and frequently effective) use as class justice” (Brunkhorst 2014a, 3). The global campaign for access to AIDS medicines is a case in point. At the turn of the millennium, a transnational network of NGOs, activists and ordinary citizens emerged to protest against the injustice of denying life-saving medicines to millions of people dying of HIV/AIDS. The campaign exposed that the high cost of these medicines was not an ineluctable, if regrettable, predicament of the social world. Rather, it was, at least in part, the product of the existing global patent regime and the pricing policies of pharmaceutical corporations which had succeeded in capturing the trade agendas of the most powerful economic blocs, and thus susceptible to political change. And although the WTO TRIPS agreement remains firmly in place and is, in fact, being expanded via various bilateral and plurilateral trade agreements (Sell 2011), the inherent tension between two rights enshrined in international law – the private rights of intellectual property-owners and the human right to health  – can no longer be effaced from public discourse. 

The WTO TRIPS agreement was one of the main grievances around which the alter-globalisation movement had coalesced in the late 1990s, a movement which has challenged the colonization of ever more spheres of social and political life by corporate capital. Most recently, a key arena of political struggle is the Transatlantic Trade and Investment Partnership (TTIP), currently being negotiated between the US and the EU. With potentially far-reaching and detrimental economic, social and environmental impacts, a growing civil society campaign in Europe is challenging the treaty’s substantive content and democratic illegitimacy. One of the most contentious clauses of the proposed agreement concerns ISDS. As Colin Crouch (2014) argues, TTIP is a thoroughly post-democratic treaty and what binds the campaigns against TRIPS and TTIP together is opposition to attempts by transnational elites to undo the ‘normative constraints’ of the Egalitarian Revolution – namely, the system of national and international laws designed to protect public health, workers, consumers and the biosphere from the (self-)destructive forces of unregulated markets dominated by concentrations of private power.

To conclude, if we accept that TNCs are perhaps the dominant institutions of the post-democratic era and demonstrably implicated in systemic violations of basic human rights, then no critical theory of legal revolutions – which Brunkhorst’s work has done so much to advance – can proceed without addressing the question of unaccountable corporate power, a force driving the hollowing-out of democratic systems, or whatever is left of them.

 

First of all, I have to thank my critics who have discussed my books Critical Theory of Legal Revolutions – Evolutionary Perspectives (= CLR) and Das doppelte Gesicht Europas – Zwischen Kapitalismus und Demokratie (EKD) from different points of view. I am again very surprised and honoured by the great variety of sound and brilliant critics, as was already the case with the two earlier published critical exchanges.[1] I begin with the criticisms of the legal revolutions book (I), followed by the criticisms of the Europe book, other papers on Europe, and parts of the last chapter of CLR (II).

I

(1) René Gabriëls objects in particular to the one-sidedly externalist explanation of the emergence of modern science in the seventeenth century as an effect of Protestantism. His point is that there are not only normative learning processes, but also cognitive learning processes that have path-disclosing and path-directing power. Gabriëls’s main objection is that I take cognitive learning processes only from an externalist perspective into account, thereby reducing it to the function of systemic adaptation. I do not think that I completely reduce cognitive learning processes to systemic adaptation. This is only partly true, because first, even if normative learning processes cannot be disentangled from our moral sensibilities, resentments and feelings (they are in fact indispensable for normative learning), I understand normative learning (and in particular the driving force of its presumed and always already ambivalent progress) cognitively as better insight, autonomy, universalization, enlightenment, rational will formation and decentering of egocentrism. These are all cognitive operations inherent to normative learning and the evolution of normative constraints.

Moreover, I understand normative progress as progress in the consciousness of freedom, relying on our growing ability to make our own history consciously and deliberatively. This is why I think that I do not (as Gabriëls assumes) exclude a “dialectical […] relationship between cognitive and normative learning processes”. On the contrary, I presuppose such a relationship.[2]

Nevertheless, I think that I have recognized in CLR that “collective learning processes get their strength from the way in which cognitive learning processes are intertwined with normative learning processes”. It is not only in the quote from my old essay on the exodus-story, where have I argued that normative learning processes deeply depend on cognitive learning processes, but also in CLR. Interpreting the exodus story, I refer in the old essay and in CLR to Jan Assmann’s recrediting thesis that “all power is drawn out of the relations between the people, and recredited entirely to the account of God.” (CLR 27). This thesis reflects upon a cognitive learning process that was triggered by the contradiction between the mythical theodicies of fortune with their implicit meritocratic philosophies of virtue and the poor, shabby and deeply unjust reality of brutal exploitation and imperial class rule of (mostly) unvirtuous aristocrats. The new religious world-views of the Axial Age enabled for the first time a radical criticism of the entire hierarchical society because (as Gabriëls quotes from my old essay) they in a way denaturalized injustice.[3] However, it is not accidental that this complete secular and ideology-critical reading of the old story stems not from biblical sources but from the Hegelian left of the nineteenth century (therefore I did not repeat it in CLR, even if I draw a short outline from Axial Age’s unleashing of negativity to the negative dialectic of the Frankfurt School (CLR 28-9)). The ideology-critical reading is convincing only because young Hegelian ideology critique marks the end and still is part and parcel of the world-historical process of religious rationalization. The young Marx’s statement that all critique begins with the critique of religion is the (or one of the presumable) end(s) and the (presumably) last part of a normative learning process that was primarily driven by religious motives – the belief in God’s love and the hope of ultimate salvation, which are not at all irrational motives.

The point of Assmann’s recrediting thesis is that withdrawing all power from the people, nobles and kings is possible only on the ground of the at once cognitive and normative learning process that led to the dualism of transcendence and immanence. The new transcendental world-view (that is common to all Eurasian religions and philosophies from the Axial Age) solved theoretical and practical (legitimation) problems of the mythical theodicies of fortune (and other contradictions and inconsistencies of mythical and magic thinking which came to the fore and became a problem only in a society of agrarian production and state-like organized political domination). The solution (and here I refer to Weber) was based on an idea and a method, which had a highly dynamic and reflexive, tremendous rationalizing and latently communicative power because both, the idea and the method, were cognitively much more rational (from a Western point of view) than everything invented earlier (in the Western World). The reflexive idea was to understand the entire universe as a kind of axiomatic system, which could be explained and ordered consistently through one single principle alone (called ‘God’, ‘nirvana’ or ‘idea’), and the method consisted in the imperative of getting rid of magic practices which then could be replaced by rational technical arrangements in the secular as well as in the profane sphere of society (Weber 1978, 512).

Second, the internal rationality of science plays an important role for all legal revolutions. There is no great legal revolution without a scientific paradigm shift, and I argue differently from Kuhn (see my reply to Cressman below) and with Gabriëls that these shifts of the scientific world-view are not beyond cognitive rationality. John of Salisbury’s functional theory of society is cognitively better, more rational, and scientifically more plausible than the political theory of the Norman Anonymous, and the same is true with Pufendorf in comparison with Alanus, Kant in comparison with Vittoria, and Kelsen in comparison with Carl Schmitt.

However, Gabriëls is right that I see scientific progress in close relation with religious rationalization, but I did not want to deny that there is an autonomous cognitive, especially scientific, learning process. I shall make this point more clearly in the future. There was always a profane sphere besides the sacral sphere because people had to survive through cooperative labour and the use of instruments. That’s one of the many reasons why I am a Marxist. As we can see from the legal revolutions, even in the course of its functional differentiation scientific cognitivism, legal positivism, and religious and philosophical normativism often reinforce each other (and I discuss the reciprocal influence between probabilistic-empiricist and experimental scientists such as Boyle and the new historical common law lawyers such as Matthew Hale; see CLR 169-73). They often contradict one another (as do the objectively and cognitively ‘counterrevolutionary’ Hobbes and the objectively ‘revolutionary’ Jurists such as Hale, Selden and Coke – to take it with a pinch of salt). I do not intend to ‘obscure’ with what Gabriëls quotes from CLR the ‘scientific revolution by the protestant revolution’, but I think that there are internal relations between scientific progress and belief in sixteenth and seventeenth-century Calvinist countries.

On the contrary, I presuppose and argue (again) with Weber that the protestant religious rationalization was a great step of disenchantment that triggered all forces of autonomous scientific rationality, which soon became a counter-religious power, mighty enough to support strongly the even more radical criticism of religion performed throughout the eighteenth, nineteenth and early twentieth centuries (as I show in the chapter on the Atlantic Revolution). As I understand Weber, religion (1) from the very beginning of its archaic evolution cannot avoid becoming a power of rationalization, disenchantment and secularization, which is not less powerful than the rationalizing power of the profane sphere. But (2) the process of religious rationalization cannot be slowed down, and finally it leads to a self-destruction of religious world-views, and that is why we live after the time of the world-view(Heidegger 1972). The self-destructive forces from within still seem stronger than the forces that attack religion from the outside (today’s religious fundamentalism can be the endgame, but also could become a renewal and further step in the process of religious rationalization, such as protestant fundamentalism in the sixteenth century).

Therefore, seen retrospectively, it is no wonder that the Protestant Revolution was the last Christian revolution in the course of the great legal revolutions. Protestantism disenchanted this world so much that it enabled deeply protestant scientists to make everything (even religious beliefs) a subject of religiously neutralized research that was completely compatible with their religious belief, because the latter was already reduced to a powerful but silent, individualized, and unanswerable belief (sola fide). Therefore, the protestant lawyers in England of the seventeenth century could reform the legal procedures completely according to modern scientific standards (and that of the Foucaultian microphysics of power), which still are our standards in the same way as the experimental method from the seventeenth century is still the method of micro-physics (or physics). As far as the last base of religion in this world is sola fide, and only if the point of no return in a criminal court is reached (when there is no longer any reasonable doubt based on rational, scientifically-backed proof), the judge, before he decides over life and death, prays alone, asking a God who refuses to give any hint of what to do. However, the English Calvinists were not such solipsistic and isolated individuals as Weber thought because they had already discovered the scientific community, therefore the judge also recalls all living and dead judges and the whole history of judgment in the same way as the scientist appeals to the present and the universe of all his fellow scientists to come to a last judgment on his experimental results (CLR 192-198).

When I read what Gabriëls writes about the dispute between the (‘counter-revolutionary’) Aristotelian Hobbes and the (‘revolutionary’) proto-pragmatist experimentalist Boyle, I had the impression that this was just what I wanted and tried to say about the progressivism of the English scientists, jurists and theologians which consisted in all three branches in methodological thinking, experimentalism and the construction of an internal relation between probable truth, experiments and discussions within a scientific, juridical, national, religious and universal community.

So far I think I can defend myself against Gabriëls’s objections, but his trump card is that I do not take sufficient account of the co-evolution of normative and cognitive (scientific) constraints of evolutionary and functionalist adaptation, which are independent of one another. Against Gabriëls I would insist with Weber and Merton that the autonomy and functional differentiation of science was religiously motivated and reaches far back to the age of the Papal Revolution, even if it was completed only by the Protestant Revolution. I hope that I have “recognized the semiotic of the air pump”, but I think (and here Gabriëls and I differ) that it was enabled by religiously motivated agency.

However, I now think that the introduction of an independent category of cognitive constraints is a good idea for enriching the profile and strengthening my categorical framework, even if I do only try to develop a theory of the evolution of constitutional law and not of society as a whole. However, once the functional differentiation of science is completed it becomes an autonomous force of enlightenment, emancipation and progress, which must be taken into account for the rational and empirical reconstruction of legal and other revolutionary changes. There are also from the beginning of human societies independent cognitive constraints, which belong to the already differentiated and profane necessities of survival. They are due first to the necessity of systemic adaptation to the environment (systemic constraints) but also to the independent and cognitively steered evolution of technique and technologies. Gabriëls is right: “Cognitive constraints refer to limits set by broadly accepted truth claims. Just as normative constraints they can be direction givers of the social evolution”. However, the driving force of technical and cognitive evolution up to the threshold of modern science is religious (and metaphysical) rationalization.

(2) Darryl Cressman begins with a very illuminating comparison of my theory of modern legal revolutions with Thomas Kuhn’s famous book on the structure of scientific revolutions.

(a) Kuhn. When I read Kuhn’s book in the early 1970s and followed the then heated debate, I was very fascinated with his new ideas of scientific change. Even if I didn’t buy his relativistic and empiricist explanation of change, I strongly was in favour of Kuhn in his famous debate with the (very dogmatic) Popper-school of “critical rationalism”. When I wrote the book I often thought about Kuhn, and the attempts of people like Lakatos, Apel, and others to reconcile Kuhn with an idea of scientific progress that can be rationally reconstructed.

Actually, there is a close connection between scientific and legal revolutions. Cressman speaks of “affinities”, and he is right. Throughout the book I refer several times to Kuhn but do not make much explicit use of the specific structure of scientific revolutions.[4] However, Cressman is right, it makes sense to compare the structure of legal with the structure of scientific revolutions.

First of all, scientific revolutions are part and parcel of the four great legal revolutions, which I represent in my book. The earliest awakening of modern law in the course of the Papal Revolution was directly related to the invention of law as an academic discipline. This and all the following revolutions did not only invent a new law but also a new scientific representation, philosophical foundation, and methodological performance of the new law. They all invented a new paradigm of law, new research programmes, and a new disciplinary matrix for the performance of normal legal science.

Moreover, the revolutionary invention of a new legal science is regularly embedded in a series of scientific revolutions, which I discuss briefly in my book, in particular under the specific headings 1 Ratchet effect, 2 The immanence of transcendence, and 3 Modernism (CLR 95-110, 151-174, 240-250, 326-357). They reappear in all four chapters on the Papal, the Protestant, the Atlantic, and the Egalitarian Revolution. The Papal revolution, for example, is accompanied by a paradigm shift in political and social theory from hagiographic political theology (Norman Anonymous) to a first version of functionalistic sociology (John of Salisbury). Hagiographic political theology was transcended, as was moreover the highly rationalized Aristotelian paradigm of political theory (CLR 95-98). There is a similar paradigm shift from ‘knowledge for the sake of faith’ to ‘knowledge for the sake of knowledge’ in theology and philosophy (CLR 105-107), together with a radical, post-Augustinian reinterpretation of the doctrine of incarnation (CLR 99-102). During the Protestant Revolution the methodological foundation and new invention of common law was an important first step from the history of salvation to history as science (historicization). The reconstruction of the whole method of common law in the light of the great scientific revolutions in physics and chemistry in the age of the English Revolution clearly can be described as a scientific revolution (CLR 167-174). There was also a paradigm-shift in the public law of the confessional state, and in natural law theory (CLR 151-155). The same is true with the following revolutions, for example the conceptual inventions of constitutionalism and popular sovereignty caused a revolution in legal and political theory in the time of the Atlantic Revolution (CLR 20-23), and the radical critique of dualism throughout the twentieth century caused revolutions in philosophy and legal theory which strongly influenced the revolutionary turn of the century to egalitarianism (CLR 339-357).

Second, in a similar way to Kuhn, I analyse legal revolutions as evolutionary events, and as Kuhn does I combine neo- and post-Darwinist theories of rapid, catalytic, and revolutionary change with orthodox Darwinist theory of gradual change by natural, cultural and social selection.[5] Kuhn systematically combines gradual and rapid change, normal and revolutionary science, adaptation through natural selection and poorly adapted catalytic punctuation. In fact, there are many parallels between Structure of Scientific Revolutions and CLR, and Cressman has quoted a striking example from my reconstruction of the Atlantic Revolution that fits nicely with Kuhn’s evolutionary schema of “paradigm → normal science → anomalies → crisis → revolution → new paradigm”. However, differently to Kuhn’s sceptical account of scientific progress, I try to interpret gradual change in scientific, legal, philosophical and general public discourses as progressive learning processes, in particular if they lead to one of the great legal revolutions. There is still enough continuity in revolutionary punctuations to reconstruct the evolution of modern law as a kind of ‘moral progress’ (Kant), at least counterfactually –counter-factuality is an important and indispensable aspect of social reality. Therefore, as Cressman assumes, I do not agree with Kuhn’s famous incommensurability thesis, and in particular the notion of evolutionary universals (which I borrow from Parsons) opposes incommensurability.

(b) Dialectic of enlightenment. However, the provisional and fragile orientation towards progress does not mean, as Cressman rightly mentions, that the dialectic of enlightenment does not often jeopardize and destroy all advances of evolutionary and revolutionary learning (as I try to show throughout the book, summarized in the four sub-chapters on dialectic of enlightenment). Reason is not only a contingent product of the evolution, but can become extinct at any time through evolutionary contingency. I will come back to this point a couple of times below.

(c) Law and media. Now to the more controversial and critical points on media technology. The book focuses on law, mindsets and normative learning processes, and therefore media evolution and revolutions are not at the centre of my theory. However, I consider Cressman’s dualistic opposition between the presumably “immaterial objects” of “rights, norms, emancipation, managerial and Kantian mindsets”, and the “material objects” of technology, and in particular dissemination media, highly problematic. Instead, I do not only extensively represent the twentieth-century critique of dualism, I also celebrate and follow this main direction of modern thinking. I do not understand rights, norms and mindsets as immaterial objects. They exist only within material practices, moves of physically present bodies, performed speech acts, expressive gestures, on printed letters, in sound waves channelled by architecture, and they are embodied in institutions which exist in space and time.

On this assumption I agree that dissemination media have a close and internal relation to the great legal revolutions. Just taken as technical means, they are neutral. The printing press can be used communicatively (as in Europe) or not (as in China where it was invented even earlier than in Europe). However, once they are communicatively used they are no longer just neutral, as Cressman insists. The internet can be used in an acclamatory way, reinforcing a Schmittian acclamatory ‘democracy’, such as exists prevalently in Facebook – or in a much more discursive way, reinforcing deliberative democracy. The latter seems to be the way it is used by the start-up web Plag (Küchemann 2016). It seems that the difference between acclamatory and discursive modes of communication is not only due to the different use of the same technical means of communication, but is also due to the programming and technical design of the web. Therefore I agree with Cressman that the democratization of the internet (and other dissemination media) is not just external, but is also (in a way) internal to its technology.

Cressman’s further suggestions are essential for an evolutionary theory of law and legal revolutions. However, I do not agree with the more or less causal or world-disclosing thesis of Harold Inis and other media theorists that “media of communication are everything” – and complementarily, I do not say “that law is everything”.[6] On the contrary, I would argue that law, mindsets, world-views, technologies, and media of dissemination or functional steering media (money and power) are different points of significance on one and the same map of modern societies. Therefore I argue that media revolutions are as important for the great legal revolutions as scientific revolutions. Maybe I should have said that more explicitly and more extensively…[7] Let me briefly mention three examples illustrating the point that media as material objects are indispensable for my evolutionary approach:

First, I emphasize the catastrophic consequences of the communicative use of writing for egalitarian hunter-gatherer societies, because I wanted to make clear that from the beginning the introduction of new media does not only enable enlightenment’s progress (which they do), but also enlightenment’s dark side. I call the invention of writing as a new medium of communication the “original sin” and the origin of the “catastrophe of modernity”, because writing and reading is a “twofold sword”. Although it is true that ‘alphabetization is emancipation’ one can also agree with Levi-Strauss that “the primary function of writing” consists in facilitating “the enslavement of other human beings” (CLR  24-25). Therefore, nothing prevents the three great evolutionary advances of new media (writing, printing, electronic media) from becoming technologies of domination.

Second, even if I neglect the importance of parchment for the dissemination of the Codex Justinianum, I underline the importance of other new media of dissemination for the acceleration of innovation and communication in the course of the Papal Revolution. New public places were designed where speakers could reach ever bigger masses of people, and could spread their messages inside and outside the churches, and the new universities and university cities. Church architecture for the first time was designed for mass audiences. Churches and cathedrals, which were built rapidly in the same international style all over Europe, functioned as material intersections of communicative reference and generalization of the new world-view – in the same way as the railways in the nineteenth century functioned as a means of communication. For the first time literati wrote for a mass audience of the illiterate, and already used all modern techniques of modern intellectual and revolutionary agitation and polemics to disseminate their ideas in ever shorter time all over Europe, later supported by woodblock printing and other technical and organizational innovations (CLR 104-108). In sum, I argue that the revolution is grounded in a structural transformation of the public sphere (CLR 107 and 112).

Third, Cressman rightly mentions that I see a close and internal relation between the Protestant Revolution and the first great wave of communicative use of the printing press. However, I again do not underestimate the negative dialectic of this great and deeply ambivalent invention, even if I should have made that more explicit here. Actually, the Protestants were the carriers of the new media, but this enabled their Princes to impose their own confession on their subjects, together with a new disciplinary regime, and an organization of domination that was more effective than ever before (CLR 175 and 223-224). Moreover, the printing-press also enabled the establishment of the first common European racist identity during the wars against the Turks, and it was a racist identity (CLR 213), and it also enabled a little later the Bank of England to print money, and to organize the first great push to global imperialism together with the new (state-like) colonial companies (CLR 201 and 217-218).

Anyway, even if media-theory and history do not explain everything (that would be bad metaphysics), Cressman is right, much more media-theory and history is needed for the further development of the evolutionary theory of law and legal revolutions.

(3) Matthew Hoye makes a very important critical point. Taking up basic concepts of my theory such as ratchet effect and normative constraint, Hoye uses the (narrower) concept of ‘ratchet effect’ in the same way as I use (the broader concept) of ‘normative constraints’. This is fine as long as the respective meanings are clear.[8] Moreover, Hoye points to another dimension of the dialectic of enlightenment that is repressed in my book.

(a) Ratcheting up vs. Ratcheting down. The ratchet (or constraint) functions as a kind of barrier against regression to earlier stages of moral and legal insight of social groups and individual human beings. In this case, the ratchet effect causes a ‘ratcheting up of the Kantian mindset’. In 1798, nine years after the outbreak of the French Revolution, Kant has called it “the human race’s continually progressing and improving in relation to its present level of moral attainment” (Kant 1970, 178). Once such moral progress “has taken place in human history”, it “can never be forgotten”, even if the revolution is “filled with miseries and atrocities”, and finally “fails” (Kant 1979, 182 and 184) However, Hoye argues that the “ratcheting up of the Kantian mindset has a ratcheting down effect on revolutionary memory”. His “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.”[9]

This is a very strong point, and Hoye presents a long list of charges. The Protestant Revolution has ratcheted down the memory of independent republican city-states. The Atlantic Revolution has ratcheted down slavery that has survived until these days (as sex slavery and in many other forms of slave labour) but has been expropriated even of the legal name of slavery.[10] The few survivors of the mass annihilation of the indigenous populations in North America have been expropriated even from their own oral cultures. Nearly everywhere in the world the memory of the Aboriginal mindset that is neither Kantian nor managerial has been exterminated together with the slaughtering of its peoples in the course of the Atlantic and the Egalitarian Revolutions (when affirmative action was white, at least in America) (Katznelson 2005).[11] The same seems to be true of the ‘inconceivability’ of the Holocaust within the Kantian/managerial framework of the Western legal tradition. However, when it comes to the “slaughter of 10 Million Congolese” at the end of the nineteenth century, “for Arendt, this was not a holocaust, it was a war of all against all, a mere footnote”.

(b) The path of the Kantian mindset. Even if in the latter case “Brunkhorst takes exactly the opposite approach”, and even if, as Hoye rightly states, I do not neglect the series of Caribbean revolutions and slave revolts, and the extermination of the indigenous Americans that was reinforced by the revolutionary establishment of the US-Constitution, Hoye’s argument digs conceptually deeper, and calls into question “the general evolutionary path-dependency thesis”. In this respect it seems that the evolutionary theory of legal revolutions involuntarily sits in the same boat as the anti-evolutionary Hannah Arendt “who 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.”

I disagree for several reasons. First of all, I am not a Kantian but do follow the Left-Hegelian (or Hegelian-Marxist) track of evolutionary theory. Therefore, I understand Kantian moral universalism (in particular categories as ‘autonomy’, ‘popular sovereignty’ and ‘representative government’) with Martti Koskenniemi as mindsets, and that means as a bundle of social practices with a background of common knowledge and institutional settings. Moreover, I understand the Kantian and other evolutionary universals (‘bureaucracy’ is also an evolutionary universal that is not ‘Kantian’ but ‘managerial’) as Hegelian existing concepts, and the existing concepts as existing contradictions (CLR 309, 411-412, 464). They exist out there in the same social reality as the observing evolutionary theory.

(c) The existing contradiction of modern law. Modern law is a paradigmatic case because – as I see it now (and this is a further explication of what I have already done in CLR) – it is not a closed conceptual system of semantic antinomies between private and social, or private and political rights within the same (bourgeois) legal form of subjective rights[12], but an open system of pragmatic (dialogically structured) contradictions between unrestricted, even law-transcending universal emancipatory claims, and repressive functions of domination. This implies an evolutionary thesis on the historical origin of modern law that contradicts the mainstream assumption that modern law is a mere product of secularization. In the latter reading it originates in early modernity (frühe Neuzeit) together with absolutism, the functional differentiation of the political system (national state-formation), religious tolerance, and the ideas of Ockham, Thomas Hobbes, and (arguably, maybe controversially) Machiavelli. This grand narrative is conceptually completed only in the age of the French Revolution by liberal legal philosophy (from Locke and Kant to Hegel, Constant and Guizot, including Marx, Tocqueville, Mills and many others).[13] In my alternative reading – motivated originally by the work of Harold Berman – modern law begins with the pre-secular (and pre-confessional) dialectical integration of a universal religious law of egalitarian salvation (‘Kantian mindset’) with old Roman civic law that was a law of functional coordination of the ruling classes of the empire, resulting in the stabilization and improvement of the power of oppression (‘managerial mindset’).[14] This dialectical synthesis was at the origin of modern law.[15] It reveals the existing contradiction between repressive immanence and emancipatory transcendence of the existing (including the existing legal form). It is not the final product of one single revolutionary transformation but the beginning of an open series of great legal revolutions.

If this highly controversial reconstruction of the revolutionary evolution of modern law is right, it has the important implication that modern law has an inbuilt revolutionary structure. If modern law is the existing contradiction of repressive immanence and emancipatory transcendence, then the existing form of law can be transcended by (reformist or revolutionary) political action. This transcendence from within and back to this world has been secularized since the eighteenth century, but still lives from the (utopian) religious heritage, at least partly. It is the openness of modern law for the utopian potential of its religious past that can also transcend the ‘aegis of Kantian universals’, and even the modern form of law from within the modern form of law (CLR 1, 208 and 338). Therefore, it is my thesis that the existing contradiction of modern law has the transcending utopian potential to overcome the repression and exclusion even of the aboriginal mindsets that (presumably) is due to the Kantian mindset of modern law.[16]

That means, that the inconceivable can be made conceivable not only by identity thinking (Adorno’s identifizierendes Denken), but also if one goes beyond the Kantian mindset by taking the non-identical as seriously as Adorno did in Dialectic of Enlightenment, in Negative Dialectic, and in Aesthetic Theory, which all are concerned with the inconceivability of the Holocaust. The same is true for works of art like Peter Weiss’s Ästhetik des Widerstands, Beckett’s Endgame and Adorno’s interpretation (that has become part of it), or Claude Lanzmann’s Shoa. Finally, the memory of the Holocaust became part and parcel of the emerging global collective consciousness. This can be taken as a successful – however fragile – learning process of the world society that changes our traditional political categories and the traditional constellation of the Kantian and managerial mindset (see with reference to the ‘non-identical’: CLR, 339, 341 and 343).

(d) Geschichtszeichen. There is another small but crucial difference to Kant’s use of Geschichtszeichen (sign of history). Whereas Kant seems to think that moral progress, once it “has taken place in human history” it “can never be forgotten”, I think Kant means ‘never’ literally in the sense of “as long as mankind or any kind of cultural memory exists” (Kant still supposed mankind immortal). Differently to Kant, I assume that even the Kantian mindset, any evolutionary universal, and any revolutionary idea, are historical entities in time and space, and so is memory. The Kantian universals can be “forgotten, repressed and deleted” any time (CLR 467). Manipulation, drugs, Wittgensteinian ‘Abrichtung’ to the language game of contemporary neuro-science, and genetic design can be successful. Even the evolutionary emergence of reason is contingent, because reason can also collapse and vanish in the middle of the course of the socio-cultural evolution of mankind, and language use can lose its Habermasian validity claims.

Therefore moral progress that has reached the Kantian level of the French Revolution, can also be devaluated and relativized by later (probably better) insights, due to further learning processes, which show us that there is no final solution of all moral and legal problems as in Kant’s peremtorischem Rechtszustand (eternal state of law). There is no peremtorischer Rechtszustand, all state of law is provisorisch (provisional and experimental). The same is true of the direction of progress. We can learn that progress has many directions, or even that there is no progress. That’s why we discuss it today so vehemently. Current post-colonial discourses on slavery and the rewriting and reinterpretation of American history in the light of slavery (Horne 2015), as well as the discourse on the repression of the legal memory of present forms of slavery, are already part of an inclusive learning process that makes Hoye’s objections to the Kantian mindset a major subject of discussion (and Hoye is part of it, is performing it). This discussion depends on the successful distinction that the participants themselves draw between the force of Foucaultian discursive power techniques, and the Habermasian forceless force of the better argument.

(e) Normative constraints must not be identified with any legal text book or existing constitutional law. Normative constraints are existing concepts but they exist on the more abstract level of constitutional principles. They are common to, and at the core of, all constitutional law of a given evolutionary formation of society. They are a kind of normative deep structure that constrains, enables, shapes and directs a specific path in particular of the legal evolution, but also of related political orientations, cultural knowledge and economic interest formations. They direct the evolution towards a specific path, but the direction can be changed by learning and insight, by the power of ideal and material (class and group) interests, by overwhelming environmental complexity and other contingent occurrences. Normative constraints limit and direct the path of evolution but do not determine it. Normative constraints are normative, and norms can be broken and changed much easier than the scientific laws of physics (which probably are also historical but much more stable). Normative constraints are like embankments that channel a river, however the flood of prevailing interests, power discourses, struggles for cultural hegemony and better or worse arguments, accidents, chance, steadily growing amounts of puzzle solving, adaptation and socio-cultural learning can cause a rising water-level to quickly (‘revolutionary’, ‘Kantian’) or slowly (‘incremental’, ‘managerial’) break through the embankments and open the way for change – for better or worse. The republican city has been discounted as an alternative to state-power during the last 500 years, and republicanism has become a great academic industry of nostalgia, but evolution, blind or enlightened, can bring it back any time, by chance as well as by plan, supported by nostalgia.

(4) Willem Schinkel is not only a Luhmannian leftist, but also a Luhmannian hardliner.[17] The basic idea of my book, to combine evolutionary theory with normativity, is self-contradictory, he argues. You cannot have the cake and eat it. If you eat the cake of normativity that forbids you all sweet fruits, you must consume all normativity, and if you want to keep it, you must submit to the law of the Lord. Systems theory’s protestant polytheism is unavoidable: “We shall set to work and meet the “demands of the day”, in human relations as well as in our profession. This, however, is plain and simple, if each finds and obeys the demon that holds the fibers of his very life.” (Gerth and C. Wright Mills 1946, 129-156 and 156). [18]

Therefore, “having the cake and eat it is […] a paradox” – but a paradox, Schinkel rightly adds, “is a very Luhmannian figure of thought.”  Once an actor observes a paradox, he or she tries to ‘de-paradox’ (entparadoxieren) it, for example by ‘temporalization’ (Temporalisierung), and that means, first (t1) to identify what the problem is (a paradox), and then (t2) to try to find ways out of the paradox, hence to ‘solve it’ (to de-paradox it) (Luhmann 1990a, 98). The process that leads from t1 to t2 is a cognitive learning process.[19] The point is that this learning process cannot be restricted to the special code of the system, because it connects the system with its environment. At the beginning of the systemic learning is an increase of variation caused by processes of learning, which are external to the system. In the case of the social and cultural evolution of talking animals this connection between system and environment cannot be explained by structural coupling that connects only systems, which are self-referentially closed against one another. Whereas structural coupling can explain the connection of my knee with gravity through the medium of gravitational waves alone, the connection of psychic systems of consciousness with the communicative systems of society through language cannot be explained by structural coupling alone. I tried to show in my book that we have to go beyond the structural coupling of law and politics if we want to understand and explain the social genealogy of modern constitutions.

My concern here is that the collective cognitive learning process is not – as Luhmannians see it – only due to an internal construction of the respective social system with an environment that is just white noise that irritates the system. On the contrary, the white noise outside the system is already the product of another learning process of people who are living in the environment of the system. These peoples are not living in systems, which only connect their communicative operations, but as bodies with tongues and teeth in a world that is always already understood by performing instrumental and communicative practices. It is not only systems that exist, as Luhmann says, but also environments, and for the people living in them these are their social lifeworlds. Learning processes, which are triggered by social actions and practices in the system’s environment, are not mere constructions of the system alone, and therefore, the system does not just construct the irritation as a paradox but must reconstruct it from processes of communicative understanding that have already occurred in the system’s environment. The reconstruction translates the environmental language into the special language of the system. For reasons of self-preservation the system can close its ears, and abstract from the social origins of the irritating white noise in its environment, but it must not. It can also listen to the communication of the people in the environment, as can the people also do. They can learn to understand the systemic abstraction because it is an abstraction from the same social reality which they experience in their everyday praxis.

Recently political elites in Germany have learned (in particular cognitively and instrumentally) to understand themselves in abstract terms of systems theory. They talk no longer about people (Volk) and state (Staat) as they did until the end of the 1960s, they now refer to themselves as Gesellschaft (society), and they draw a distinction between system and environment when they refer to their environment as the Menschen draußen im Lande (the people out there in the country). However, not only professional elites, also the people are learning animals in instrumental and normative concerns. They also can learn to understand themselves as a Gesellschaft that no longer is just fixed to stay forever as Volk and Staat. Such a fixation can become a serious learning blockage as we can see (evidently, but not exclusively) in cases of new far right movements such as the Tea-Party, now the entire G.O.P., AfD, Pegida, Front National, and so on. Learning might be successful or unsuccessful, but it is unavoidable anyway. People learn in particular from conflicts, as for example with a bureaucratic system. They can insist to be heard, can fight for a change of the system’s programmes, or for a partial or total repeal of the code. As a result, everything could continue as always. Systems such as the political system are hardly impenetrable realities. However, sometimes recalcitrant protest and resistance can lead to a reflexive learning within systems, to change not only their programmes but also their codes, and the modes of differentiation between system and environment. Depending on the special case, intelligent or stupid, morally bearable or morally unbearable differentiation could be revised and combined with intelligent or stupid, morally bearable or morally unbearable de-differentiation.

Let me take an example from Luhmann’s lectures. A sociologist, who (as a closed system) is working in a train with her computer, suddenly is irritated by a bothering kind of white noise. She cannot resist directing her attention to that noise because it comes from people talking in her environment, and talking is a noise that is (as Luhmann rightly remarks) extremely irresistible. With a lot of training (or two earplugs) the working sociologist can learn to close her ears, and to preserve the working structure of her own psychic system. However, she also could learn reflexively (via first-, second-, third-order observer positions) from the irritating talk, that this might be a good example for her next class (as Luhmann did, and he took it as an example for structural coupling of psychic and social systems). However, to observe this specific level of white noise as irresistible, the observer must already have understood what the people were saying, what they were talking about, or that it was an incomprehensible foreign language she had to listen to, but a language that she could not resist to try to understand. Thus, before systems understand systems (Luhmann 1985, 72-117) people must understand each other. Only because this is possibly prior to any formation of a social system the sociologist in the train could also listen and talk with the irritating chatterers. However, to do that she had to switch from the observer’s to the participant’s perspective where the forceless force of the better argument is effective, and this, finally, might lead her to a revision of systems theory, or even to a paradigm-shift to the Frankfurt school.

In fact, I think, it is not my theory of legal revolutions, but Luhmann’s systems theory that is deeply inconsistent, even if I must admit that Luhmann’s inconsistencies resulted in one of the most productive theoretical enterprises of the second half of the twentieth century. However, the basic inconsistency of systems theory, which I will explain now, finally limits the enormous explanatory power of that great theory. We can overcome these limits only by integrating systems theory’s explanatory power into a neo-marxist theory of social evolution that takes the social reality of normativity, learning and communicative reason seriously.

Let me make my basic objection as clear as possible. If systems are caused by external irritation to construct semantic paradoxes, they must (if they want it or not) reconstruct something that already irritates the actors in their environment. For the actors in the environment these irritations sometimes are experienced as pragmatic paradoxes (schizophrenic family communication), sometimes as resistant materials (‘nature’), cognitive dissonances, or scientific anomalies (fighting the malice of the object, coming under pressure of conflicting expectations, battling with a problem), sometimes as dialogical or social contradictions (opposing discourses, competing paradigms, social class struggles). What appears as a semantic paradox (with a temporalized logical solution) from within the system is already the logical reconstruction of a pragmatic contradiction that must be solved dialogically within the context of the social lifeworld. Luhmann himself admits this when he insists that in the course of the social evolution “all variation […] is contradiction as disagreement, that is, not in the logical sense of contradiction, but in the original dialogical sense.” (Luhmann 1997, 461) .The place of this dialogical disagreement which creates communicative variation is not the system but the lifeworld in its environment. If this is right, it implies that the construction of a semantic paradox within the system is always already the reconstruction of a pragmatic contradiction, and sometimes the contradiction is not just accidental (seen only from the narrow perspective of the system) but the result of a learning process of social groups, living in the system’s environment.

However, once he turns to the system’s second order observer’s perspective, Luhmann transforms all pragmatic contradictions, which are internal to the social reality, into semantic paradoxes, which are real only as ‘real-abstractions’ (Marx) within the artificial world of the functional system. This (finally) is the reason why “paradox is a very Luhmannian figure of thought”, as Schinkel states, but Luhmann’s one-sided idea of semantic paradoxes is not crucial and indispensable for the legal evolution and the legal revolutions of modern law. This is the paradox that ‘law is freedom’ (in Hegel’s famous definition law as Dasein des freien Willens). Luhmann mentions this paradox but has no use for it, and if my memory is not misleading me, it is the only paradox Luhmann mentions but does not use. He even characterizes the thesis that law is freedom as a ‘risky paradox’ (gewagt paradoxe These), which we should not elaborate on (Luhmann 1981, 45-104). Why? Because the social fact that law is freedom is an existing pragmatic contradiction that contradicts its reduction to an artificially constructed semantic paradox. Therefore, the systemic reconstruction of pragmatic contradictions is a real abstraction that presupposes the repression of its origin in the social lifeworld. In my book, I try – as Hegel and Luhmann would say – to ‘unfold’ not the logical paradox but the factual contradiction of law in the course of modern times (CLR 132-133), and this contradiction is based on normative and cognitive learning processes of conflicting social classes and groups.

It is finally for this reason that I cannot see why class-struggles and other structural social conflicts, which are emerging from the external environment, cannot cause evolutionary and revolutionary changes within the legal and other social systems. The class-conflict of capital and labour does not exist within the closed system of modern economy. Following Marx, for the sake of the argument, it originates from the social lifeworld of workers and capitalists, once the workers experience their social situation as subsumption of their living labour-force under the dead labour of capital. The workers, who make that experience within their social lifeworld, are not a system but a social group of human beings, which – as a result of normative and cognitive learning processes (Vester 1970). – is socially integrated as a social class that opposes in its ideal and material interest other social classes. An effect of such a process of social integration can be evolutionary (and sometimes revolutionary) change within the system of law, such as in the paradigmatic case of the political struggle over the legally limited working day that Marx describes in Capital. To have that effect, the workers have to organize themselves politically as public actors, as public voice, and as public campaigners who operate within the political system. The final success of their struggle consisted in parliamentary legislation that changed the structure – at least the programmes – of the economic and the social system.

Marx reconstructed this struggle in nineteenth-century England as progress from economic to political class struggle because it did not only change economic and social programmes but also the bourgeois-liberal codes of law and politics, which reduced the constitution to a strong weapon in the hand of the bourgeois class. Class struggle (external to the system) finally changed a functionally intelligent but morally unbearable differentiation of law and politics (that objectively, not so much intentionally, was designed to silence and exclude the voices from below) into a functionally intelligent, socially appropriate, and morally bearable combination of differentiation and de-differentiation of law and politics, which opened the systems for the voices from below. In this case the society learned from class-struggle and the accompanying irresistible noise of public discourse, that from the perspective of politics, law and public opinion, the complete functional partitioning of law from politics, and specialized political and legal discourses from diffuse public debate, was a mistake, a pathology, a source of critical legitimization problems. What might be good for the economic system must not be good for the political and the legal system. Modern societies have to remedy that by ‘democratic experimentalism’ (John Dewey).

Even the economic system is never completely cut off from the language of the lifeworld, (and is therefore also open to democratic experimentalism). Whereas the economic system internally reconstructs the external irritation as a semantic paradox that can be identified as a paradox of reflexive capital circulation, the social groups, which are external to the system, experience the same occurrence as a pragmatic contradiction between social classes. Because the internal language of ‘capital circulation’ and the external language of ‘subsumption of living under dead labour’ are referring to the same matter and the same social reality, system and environment have a common ground of understanding. System and environment – and I suppose, this is the basic conceptual mistake of Luhmann – are not separated in a dualistic way, such as the two different worlds of res cogitans and res extensa, or of the transcendental subject and its object. In fact, all functional systems are differentiations within the same world and the same social reality. Therefore, functional differentiation can be appropriately described as alienation of the system from the lifeworld, but not as creation of a categorically different reality which is integrated by a code or special language that cannot be translated into the language of the lifeworld, and vice versa.

It is not the Kantian mindset that is the First Mover, as Schinkel suggests, but Luhmann’s deeply problematic basic distinction of system and environment that is conceived as the (however paradoxically) beginning of everything. The distinction or the imperative ‘draw a distinction!’ (With all its reflexive paradoxes) is always already there, and it resembles strongly the Old-European dualisms of essence and appearance, transcendence and immanence, subject and object, that Luhmann has so strongly criticized over again, and rightly so.

The basic conceptual inconsistency of systems theory is not accidental, because with the right insight, which Husserl in his Cartesian Meditations “deconstructed transcendental philosophy by doing it” (Habermas), Luhmann concludes wrongly to drop intersubjectivity (and all its Old-European burdens such as truth, objectivity, reason and philosophy), and to stay with the self-reflexive subject, to generalize it to all self-referential processes of mechanical, living, social and technical systems, to replace subject with system, and to begin with the dualistic distinction of system and environment, which allows no internal connection, no translation and understanding, because it is constructed as a distinction without a common world. However, with this premise, Luhmann, with his very first conceptual move, begins evolutionary theory by destroying the continuum of evolution that makes evolutionary theory (as part of this continuum, as Luhmann rightly assumes) possible.

Fabio Almeida has recently shown that self-referential closure and so-called autopoiesis are possible only under the condition that earlier levels (e. g. chemical systems) of evolutionary advances are represented within the later system (e. g. living systems) as operations of the later system. What is true and indispensable for living and chemical systems (that ribosomes, which are chemical entities outside DNA, do ‘translate’ chemical information into the ‘language’ of living systems) is true and indispensable for psychic and social systems, that (for example) moral consideration of our consciousness (psychic system) is (and in this case literally) translated by use of colloquial language into the specialized language of social systems (Almeida 2014, 1-96; Brunkhorst 2016a). Through the communicative mediation of our moral consciousness with the professionally restricted code of the legal system, the legal system can learn not only cognitively (as Luhmann assumes), but also normatively (Brunkhorst 2016b).

When I use ‘cause’, I do not mean ‘cause’ in the sense of mono-causal relations or closed causal systems, as Schinkel assumes. I use ‘cause’ in a vague everyday meaning of this word, and I use it (depending on the context) sometimes in a singular (narrative) sense, sometimes in a structural sense. Even autopoietic systems (if they exist as autopoiesis) are closed only with respect to their internal operations, but depend on external noise, irritation, energy and so on – already within the orthodox Lumannian theory. This dependence is an important kind of causal pressure, which sometimes comes as ‘normative pressure’ (von Wright) and urges the system to decide and to do something. It is causal, even if it does not determine or steer the way the system reacts on it, but it causes reaction (including the decision not to react) in the same way as my question ‘Is it raining?’ causes your answer but does not determine it. As I describe it again and again in the context of the four revolutionary transformations, class- (and other structural) conflicts are struggles over material and ideal social group interests. They sometimes lead to more or less planned and intended actions, such as the foundation of courts, the establishment of treaties, the invention of new constitutional regimes, and the foundation of law schools and universities. These planned cooperative actions again can (and often do) cause the unplanned functional differentiation of a complex, autonomous, cognitively closed, secular and morally neutralized legal system, which transcends the ideological horizon of understanding of its founders (see e. g. CLR130-131, 140-141, 166, 212-222). But this does not mean that once functional differentiation works, plans, ideas and intentions have become lip services  (‘Machbarkeitsillusionen’, ‘feierliche Erklärungen und Gesänge,’) (Luhmann 1990b) and class-struggle comes to an end in legitimation through procedure (Luhmann 1983). The dialectical relation of class-struggles on the one side (originating in normative learning processes) and systems-formation on the other, does not come to a standstill, and the relations of power remain reversible: “Baxter’s saints wanted a religious republic of universalized and laicized pastoral power, and they implemented the confessional state wherever they came to power. But ultimately they got an autopoietic machinery of secular police power that was blind to the damage it caused in the lifeworld of Baxter’s saints, and that was blind to their religious feelings, their moral convictions and legal claims. Nobody had expected, planned or wished such a real abstract functional machinery. But suddenly the machine was there. And the people had to cope with it, whether they wanted to or not. However, from now on […] the class interests of the wielders of coercive state power and the class interests of the people became more and more incompatible. Functional differentiation of political power had caused the social difference between these two classes. The entanglement of political class rule and functional differentiation of politics lead to the subsumption of the living power of the people under the dead power of the bureaucratic state. The state wanted to consume the money of its subjects and the living bodies of their sons for war, forced labour, administration and Polizey – but the people wanted to keep both their money and their sons. Coercive state power and Protestantism taught them to obey the Obrigkeit that erected a new disciplinary regime, transformed welfare into workfare and covered the gap between the contradictory class interests for a while, but could never resolve them.” (CLR 230).

(5) Ludek Stavinoha indicates the “conspicuous absence” of the “the global firm”, the dramatic “expansion of corporate power” and “modern business” in the last chapter of CLR and in my essays on the European crisis, and rightly so. The absence of “the concrete political actors” leads to an ignorance of the most important reasons of all the phenomena of technocracy, which I describe. Indeed, global firms and corporations are not just functionally well-differentiated economic entities but concrete political actors. So are the “concerted efforts of Europe’s transnational corporations” and their associations, the European and US-American treaty regimes and international institutions such as WTO, OECD, ERT, ICSID, TRIPS, ISDS, TTIP who “operate entirely outside the public sphere”, “circumventing” it in the name of “privileged interests”, and not to forget the many dispute-settlement bodies and courts who construct business corporations as bearers of subjective rights, and concretize these rights, and at the same time deny such rights to Trade Unions and NOG’s. The scandal that the biggest pharmaceutical corporations successfully fought for the safety of their intellectual property rights at the expense of millions of people in the Global South, who died because they had no access to affordable HIV treatment, is only the tip of the iceberg.

I agree, it is not the abstraction of the “transhistorical force […] of the managerial mindset” but the actions of these concrete political actors that must explain why in a specific historical constellation the abstraction of the managerial mindset trumps the Kantian mindset. Stavinoha is absolutely right that the explanatory power of CLR and my papers on the EU would increase once I take these concrete actors more into account, and I will try to correct this fault and integrate all the important hints which Stavinoha gives in his comment in my further publications on this subject.

In my defence, I can only say that first, it is not the managerial or Kantian mindset in itself that explains anything, but it is finally class-struggle and other struggles over structural conflicts which are the basic explanantia of CLR. I illustrate that throughout the book with many historical examples. Most of what Stavinoha points out is explanatory grist to my mill. However, it is a gross negligence that I haven’t focused on transnational corporations, and all the other important organizations and institutions, which are major weapons in the hands of the hegemonial states and the transnational ruling classes.[20] Germany, for example, has covered nearly the whole world with a dense network of bilateral investment protection through hegemonial dispute-settlement bodies. That’s the reason why they now probably will accept billions of losses in the one case they now could lose that is ‘Vattenfall vs. Germany’. The Germans need a reliable system of hegemonial dispute-settlements because they win all the other cases, and this way they can stabilize the hegemony of German investments all over the world.[21] However, also ‘Vattenfall vs. Germany’ shows that – to quote the motto of CLR again – the law, ‘established with insincere intentions […] can strike back’ (Friedrich Müller), even if in this case it is the rich who strike back against the rich.

Second, Stavinoha is (as I see it) absolutely right with what he says about private-public partnerships and the now endemic blurring of the differentiations between political and economic power, and between public and private law. I didn’t address the important (and mostly disastrous) role of private-public partnerships in the present in CLR because I was much more interested in the historical origins at the time of the Protestant Revolution, and the great Calvinist (in particular Dutch and British) innovations in corporation law, which enabled the formation of the first state-like and transnational private-public partnerships, such as the great East Indian Companies and all the other colonial companies that opened the bloody path of European imperialism (CLR 198-202, 234, 261-262, 420). Only in recent publications have I focused on the transnational destruction of public law by hegemonial private- and civil law that leads me to a much gloomier picture of global constitutionalism which could finally result in a modernized return of the old roman law of the empire, and that would definitively make democracy a façade (Habermas), and constitutionalism kitsch (Koskenniemi) (See Brunkhorst 2016c).

II

(1) Sjaak Koenis has two objections to my intertwined normative and empirical reconstruction “of the Werdegang of the European Union”.

(a) Popular Sovereignty. Koenis’ first point is a defence of the managerial mindset based on a criticism of popular sovereignty, and representative government in particular (which are central features of the Kantian mindset). He argues with Rosanvallon that some “counter-democracy”, consisting in the counter-weights of “surveillance, oversight and critical evaluation’ through ‘political participation not dependent on elections”, have become more important for our democratic future than the central constitutional features of the Kantian mindset (Rosanvallon 2008). I disagree. But before I come to my disagreement let me briefly point out where I agree.

As far as Koenis and Rosanvallon point to the importance of decentered, divergent and conflicting arenas of public will-formation, I do not see any difference to what I call the Kantian mindset. I refer to the Kantian mindset not as a theory but as a praxis, and to participate in this praxis one must not be a Kantian but stick to certain normative political convictions, which change in the course of history. These normative convictions primarily include today democratic egalitarianism (Kant was not so close to it, even if the late Kant after the execution of the two bodies of the King of France was much more egalitarian than in earlier stages of his career) and public self-legislation (individual and common self-determination). Both egalitarianism and self-legislation are not at all identical with, but closely related to, legally institutionalized processes of legislation, which paradigmatically are forms of representative government, such as in particular the parliamentary regime, but must not be.

Conceptually, the historical meaning of ‘Kantian mindset’ consists of a broad family resemblance (and only a few Kantians are among the family members). In CLR the Kantian mindset begins with the prophetic religions of the Axial age, long before modern democracy and professionally differentiated systems of law. The Kantian mindset of prophetic religions consists in an egalitarian, cosmopolitan and utopian idea of universal justice, which transcends the existent. This idea returns in all great legal revolutions since the Papal Revolution. It is only since the eighteenth century that egalitarianism, cosmopolitanism and utopianism are connected, first, with popular sovereignty, and later with inclusive mass-democracy, implemented through constitutional law. Today, popular sovereignty, understood as egalitarian and inclusive democracy, is at the core of the Kantian mindset (EKD 31-57, CLR 46-51). I understand ‘popular sovereignty’ not only with Rousseau, Kant, Maus and Habermas as procedural but also as centered in the decentered, ‘wild’ and ‘anarchic complex’ (Habermas) of divergent (often fragmented), contested and conflicting public arenas, which regularly are related to major structural conflicts and social movements (CLR 75-81; Brunkhorst 2016d).

That said, there is still a (probably deep) conceptual and political difference to Koenis and Rosanvallon. What Rosanvallon, with a very counter-intuitive term, calls ‘counter-democracy’, performed through “surveillance, oversight and critical evaluation” of governments and other constitutional institutions and organizations by relatively small social movements and critical minorities, is in fact counter-democratic because it is in contradiction with popular sovereignty, or the constitutional formation of the general will (volonté générale). The idea of Rosanvallon (which Koenis seems to part with) that only minorities together with publicly invisible technocrats are the new democratic powers of counter-democracy seems deeply anti-democratic, in particular because Rosanvallon not only excludes old social movements and their organization in unions from his list of new counter-democratic powers (especially because they are mass-movements with a presumably homogenizing and totalitarian tendency) but sweepingly condemns social movements once they begin to mobilize majorities as populistic. For Rosanvallon critical ‘evaluation’ and ‘surveillance’ are not just conceived as public surveillance of the surveillance apparatus of the state from below. On the contrary, he explains the counter-democracy of surveillance also as “carefully researched, technically sophisticated, often quantified judgment of specific actions or more general politics” with the goal “to bring expertise to bear on governmental management.” (Rosanvallon 2008, 52).I actually cannot see what this idea distinguishes from what the intelligence services and other technocratic agencies actually do. Rosanvallon’s counter-democracy is, politically speaking, nothing else than a new edition of outdated neo-conservatism.

Conceptually, the decentered discourse of divergent, contesting and conflicting public arenas of minorities and majorities is, together with procedurally organized legislation (by parliament or popular referenda) the very performance of popular sovereignty, and the formation of the general will, which is general because (differently from modern liberalism and ancient republicanism) it is related to universal truth (or with Habermas’ universal validity) that is situated within the individual arbitrary will. Truth comes to the individual, arbitrary will, or ratio to voluntas because, once the arbitrary will (voluntas) is articulated in symbolic language it cannot avoid the empirically rationalizing effect of communicating with the actual and virtual articulations of all the other voluntates of the political sphere (ratio). This sphere – at the latest since the mid-nineteenth century – is factually co-extensive with world society. Here, I think, we have a great conceptual difference, because Koenis together with Rosanvallon’s (and many liberal-conservative philosophers, political theorists and jurists) construction of a contradiction between popular sovereignty and counter-democracy must accept the unbridgeable gap of voluntas and ratio that is the heritage of Carl Schmitt’s anti-enlightenment and anti-democratic Verfassungslehre. Therefore, so called ‘counter-democratic’ social movements and institutions (such as constitutional courts), from a Rosanvallonian point of view, can only be understood functionally as a compensatory counterbalance to democracy. This leads Rosanvallon to fall back on the outdated theory of the mixed regime (Rosanvallon 2008, 290-316).

However, the balance of powers in democratic constitutions (irrelevant whether it is French, British, Brazilian, Indian or German) is not (which it might become factually under the pressure of capitalist economy) an arrangement of counterbalance to tame popular sovereignty, but designed normatively as the very performance of democracy and popular sovereignty. The “whole system of the constitutional law of checks and balances, of reciprocal commitments and determinations as election, countersignature, parliamentary legislation, referenda, initiative, and of all the other provisions that determine the competences of presidents, governments, legislative bodies and so on – this whole constitutional apparatus has the one and only legal meaning to enable and guarantee that the power of the government factually originates in, stems from, and is performed by the people.” (Heller 1928, 39-40).[22]

(b) Truth and Democracy. I do not think that I, as Koenis presumes, confuse the political choice between Ordo- or Neoliberalism and democratic socialism (or Rawlsian political liberalism) with scientific analysis, and the competition of scientific paradigms. For sure, political choices are not scientific analyses, but they are not only intertwined in complex societies. Both have universal truth-claims of different origins, the political ones are practical, the scientific ones are cognitive (theoretical). However, both are universal. The political public is a legally enabled combination of:

• egalitarian access to socially, politically and culturally inclusive, formal and informal public arenas and media of oral, written, printed, electronically posted dissemination (which must be open for any topic and sensitive for silenced voices) with
• egalitarian procedures of decision making (elections, referenda, legislation, jurisdiction, governmental and administrative action). However, there is no democracy if
• choices over substantial political, social, economic and cultural alternatives are no longer possible.

If my rough representation of the European and global developments since World War II in EKD and the last chapter of CLR is to some extend plausible, we can observe two cases of loss of substantial alternatives since World War II.

First, the welfare-state formation, that was an egalitarian revolution, was possible because the democratic system was open for democratic class struggle and substantial social and economic alternatives between democratic socialism (Sweden came close to it) and the ordo-/neoliberal project (and that was not until the mid-twentieth century). However, in this time affirmative action was white, male and heterosexual, and substantial cultural alternatives were excluded, repressed, denied, and criminalized.[23] At best, half of the democratic promise was available, and democracy tended to be abolished by Richard Nixon’s ‘silent majority’.

Second, now the global transformation of state-embedded markets into market-embedded states has left democracy after more than 40 years with substantial cultural alternatives between conservatism and progressivism, which has led to one of the probably greatest cultural revolutions ever (reaching from gender equality and equal difference to homosexual marriage, multiculturalism, green food, and a global culture of memory and human rights). However, at the same time democracy ran out of any substantial economic and social alternative to ordo-and neoliberal governmentality. Democratic class-struggle with regard to socio-economic inequalities became nearly impossible, and law in the books. Class-struggle in the narrow sense of orthodox marxism and the classical workers’ movement (which was at best partially marxist) is actual again because the social difference between haves and have-nots has again reached the peak seen in 1900 (Piketty), moreover, what Marx has defined as working class has only now become the vast global majority (but, differently from Marx’s expectations, under highly diversified conditions). Again, democracy tends to be abolished (see below). For the long-term unemployed, female African-American homosexual in the periphery of Baltimore, all the great normative learning processes and democratic advances of the cultural revolutions have no longer a serious value (if they have any).

However, as far as some substantial democratic choice still exists, there is an internal relation of democracy and truth. Democratic truth must not be confused with educated discourse and the deliberations of the scientific community. It comes closer to the truth Jesus was appealing to when he said, ‘I am the truth’. What I mean is that the close and internal relation between democracy and truth is not about theoretical truth and rational decisions over scientific research programmes and paradigm shifts. On the contrary, the truth at stake in egalitarian political deliberations is practical truth, and the generalizability of political will-formation. How then is the relation of truth and democracy to be understood? All elections and voting are worth nothing if they are not kept open every day (and not only on election day) for public electoral campaigns, contests, political and non-political deliberations, protest-movements, class-struggle and other articulations of societal conflicts, including even populism and all kinds of democratic experimentalism: „Majority rule, just as majority rule, is as foolish as its critics charge it with being. But it never is merely majority rule […] The means by which a majority comes to be a majority is the more important thing: antecedent debates, modification of views to meet the opinions of minorities. […]. The essential need, in other words, is the improvement of the methods and conditions of debate, discussion and persuasion.” (Dewey 1954, 207-8).

That means, scientific opinions must have an equal chance of articulation within the diffuse and diversified general public (a good counter-example: G.O.P.’s denying of scientific research on ecological problems, and on evolutionary theory). However, scientific opinions and high-ranked scientists, philosophers, theologians and dignitaries have no privilege in democratic discourse but must argue publicly on equal footing with everybody (another good counter-example: governmental ethics commissions). Even if all scientists would think that neoliberalism is wrong, this – publicly articulated – would be only one of many arguments in the dissonant concert of public opinion. It should have a chance, but this never can determine the outcome of the political deliberation process, which is designed normatively to examine many more arguments than just the special one that is scientifically accepted.

The point is that there is no privileged access to the forceless force of the better argument. The forceless force of the better argument is always already effective in our colloquial language, in gossip and everyday talk as well as in scientific and philosophical discourse, in mass culture as well as in high culture. Gossip and scientific discourse are in equal distance to the forceless force of the better argument, and everyday talk as well as professional philosophy can be organized in a way that gives every voice a fair chance or not, which can be both just the truth or ideologically blinded – depending on societal conditions. In matters of truth there is no difference between illiterates and Plato. This already was the truth of Jesus and the prophets against Plato (who, no doubt, was the better philosopher). However, whereas the truth of political will-formation is practical (because it is the will that claims validity) and complex (e.g. including theory), the truth of scientific opinions is theoretical and simple (specialized to the cognitive dimension of truth).

Here, I think, Koenis misunderstood me, and moreover, we also seem to disagree about truth and democracy in general. Actually, Koenis is right that I am “reading too much of Rousseau into Kant” – but this, I think, is what Kant needs. Despite our small and large theoretical differences, I agree with Koenis’ reformism, and his recalcitrant hope that (against the prevailing bad reality) “the European parliament” finally will shift “step by step more to […] popular sovereignty.”, even if the reality today goes with high speed in the other direction, and is approaching the abyss. However, democratic truth is not in the abyss, and it is not yet an illusion but (however fragmented) part of the existing reality.

(2) Pieter Pekelharing summarizes his paper in four questions. I won’t answer the first three, because I have answered them implicitly or explicitly above. I focus on the fourth: What to make of Europe in the face of the hegemonial managerial mindset?

I agree completely with Pekelharing’s diagnosis of the present state of Europe. The “‘contemporary neoliberal economic order” is the “latest iteration of Polanyi’s double movement” of “disembedment and re-embedment”. It is far from evident that there will be a further iteration, and I strongly support the idea that to cope with the blackmailing power of global capitalism it needs not less parliamentary power and ever weaker trade-unions, but much more power of unions and parliaments, but (and here we disagree) both should be transnationally organized. The very point where I disagree is Pekelharing’s hope that we still have a choice to keep “the `advances’ of the European market, but only on the condition that European nation states […] with strong democracies, and with a currency of their own, […] can decide when and how to integrate.” I think the time for a revival of the national state (and a flexibility often needed for political action) is over.

Since the successful global disembedment of markets there is no longer a trilemma but only a dilemma left. Ordo- and neoliberal globalization already has led to national democracies without democratic alternatives between left and right. Dramatically increasing social inequality causes political inequality with nearly the determining force of a law of Newtonian physics (Schäfer 2015). As a discouraging effect of relatively great inequality (but not of absolute poverty) those below do not vote any longer, and with increasing social inequality voting rates decrease in the under-and middle classes to under 30% and less. Hence, all leftist parties who want to maintain some shaping power must go to the right from election to election, and now all parties on the left which have a chance of coming to power have vanished. Therefore, we suddenly are left with the grim political alternative between right and far right. Today in Germany, as a consequence of the ‘refugee crisis’, all political parties (including the Greens and the Linkspartei) have positioned themselves to the right of Chancellor Angela Merkel (the leader of CDU, which is a moderate right wing party).

For national states, which are not in fact continental regimes (such as the USA, Brasilia, Russia, China and India), there is only the alternative either to submit to global market imperatives of neoliberal politics, or to transfer ever more real state power to continental and even global levels, combined with the hope that this can be done together with the transnational ‘expansion of democracy’ (John Dewey), which has a small chance but is the only real hope.

To illuminate this small chance a bit more, I will consider the existing alternatives. My thesis is that for preserving the present state of a globally disembedded market economy, the political project of neoliberalism must become authoritarian, and the only alternative political program in economic and social concerns is a green version of global democratic socialism.

Disembedded global capitalism needs growth to prevail in the first period of long-term stagnation (and under the threat of economic crises bigger than those of 1929 and 2008). But this leads, under the premises of neoliberal governmentality, to a critical cumulation of:

• growing social differentiation (which under neoliberal premises is needed for economic growth[24]) with the unavoidable effect of political inequality,
• growing social, political, economic and cultural exclusion along national, continental and global lines of differentiation between centre and periphery,
• enduring ecological devastation along the differentiation of system and environment, and
• the globalization of all functionally differentiated social systems with the effect of a successive replacement (marginalization) of international, transnational and national public law by private law.

It seems that disembedded global capitalism can only be stabilized by authoritarian and prerogative measures… These measures would finally transform present capitalist democracy into a new kind of authoritarian “dual state” (Fraenkel) that was already tested at the beginning of the great transformation from state-embedded to market-embedded states in Chile and Argentina.

• The factual virtualization and repealing of the political rights of growing under- and middle-classes (and the devaluation of democratic elections for all classes) has led already to a crisis of legitimization within the national and continental regimes of Western democracies. Without economic and social regime-change this crisis can only be controlled by successive replacement of rule of law by rule through law, emergency regimes, and brute force, applied by private and public police troops to save the rich and to stabilize the worst-off parts of the cities and the countryside. From this point of view mass-incarceration seems no longer an American exception but the future of the entire OECD-world. The constitution regresses from a normative to a nominalist constitution (Murakawa 2014; Harcourt 2011).
• The exclusion of the urban and national periphery and the Global South not only results in long-term (transnational) gang-criminality and terrorist networks, but also destabilizes the societal formation of functional differentiation, and in particular the legal system, through over-integration of the rich (who only appear as plaintiffs in court) and under-integration of the excluded populations (who only appear as defendants in court) – which is a much more serious threat than terrorism (Neves 1992; Neves 1999). Moreover, the differentiation of the economically prosperous centres of the globe (OECD-world) from the excluded periphery of the Global South is already countered by smart and flexible border regimes, which (e. g. in Australia, the USA and Europe) consist in bracketing the constitutional rights of all citizens who are living within the border region. In the USA already two thirds of the entire population are living in the hundred miles zone of reduced constitutional rights around the borders at the coast and the great lakes (Shachar 2015). The norm-state is replaced by the dual state. Frankel’s early masterpiece has become highly topical.
• If the environmental problems are not solved, the voice of science must be silenced, and the problems must be repressed and denied collectively by mass-manipulation, religious fundamentalism, and an appropriate cultural industry (that makes its representation in Horkheimer and Adorno’s Dialectic of Enlightenment all too true), enhanced by legal drugs. Again the GOP is paradigmatic. Today there is no Republican member of Congress left who recognizes publicly the scientific evidence that man-made climate change is a real danger, even if privately ninety percent of them accept those facts deep down – just because they are completely dependent now upon right-wing billionaires and voters (Tomasky 2016). Donald Trump, Fox News, the Murdoch and related media-empires, and the entire American Republican Party are paradigmatic of the measure of authoritarian manipulation that is needed for a gigantic repression of collective and scientific knowledge on ecological devastation.
• Global capitalism and global functional differentiation in general needs a lot of law, but primarily civil- and private law and no democracy at all. Technocratic governmentality needs only a minimum of public law for the stabilization of functional differentiation. All that is needed is functionally restricted basic rights as institutions (which Luhmann has already described in his Grundrechte als Institution in the 1960s). The American Supreme Court has drawn the consequence and equipped corporations (but not Unions and NGOs) with subjective rights: Citizens United v. Federal Election Commission (08-205), 2010 has equipped corporations with subjective rights, whereas Wal-Mart v. Dukes (10-277), 2011 and AT&T Mobility v. Concepcion (09-893) 2011 have dismantled political rights of class action, and Knox v. SEIU (10-1121) 2012 has denied trade unions the same rights as corporations.

The only promising political alternative to save democracy from capitalism (either as alternative within or to capitalism can remain open) consists in at least four big changes.[25] I presuppose here that there might be alternatives to capitalism but probably no alternatives to growth and functional differentiation. Today, any reform that saves the existing market economy of capitalism would lead to democratic socialism of an ever more equal distribution of wealth (managerial social democracy), the comprehensive inclusion of the nationally and globally excluded populations (sublation of the labour market), the global socialization of real estate that enables green growth (utopian socialism) and transnational self-determination (world revolution), and all four reforms together are nothing less than a veritable socialization of the means of production.

• To cope with growing social differentiation in times of secular stagnation, massive redistribution of wealth to the lower and middle classes is needed already for economic reasons, which are valid within the capitalist system. Only massive redistribution in favour of the middle- and lower classes (a) can keep growth running because only lower- and middle-classes buy masses of consumer goods (if they have enough money to spend), and growth in post-industrial societies still comes from mass-consumption. What is charming about this old Keynesian suggestion is that massive redistribution can kill two birds with one stone, because (b) only the prospect of shrinking social differences will lead to a reconstructing political equality. However, this will not be an easy task because there is worldwide no longer a relevant national political party, which has a chance to fight for and implement such a program, and there is no social movement strong enough to transnationalize it. Without transnationalization change is impossible (see point 4 below).
• For the inclusion of the dramatically growing internal periphery of excluded surplus-populations massive investment in educational and socialization agencies is needed together with a decent basic income.[26] Nothing else will work. Again this is no easy task because of the lack of national and transnational parties, trade unions and social movements fighting for it. If the following problem (3) could be solved, even a solution of the global exclusion of the South is possible.
• The only realistic solution of the environmental problems (if there is any) is green growth. Even if there are with regard to this single issue already strong transnational social movements, international treaties and protocols, political parties and partly governments who support green growth, the dimensions of change seem as big if not bigger than with respect to problems (1) and (2) because global property in real estate is at stake once it comes to realistic programmes for CO2-reduction, energy industry, land-grabbing and so on (Edenhoferet al. 2012; Bernstorff 2012; Prien 2014).
• To keep not only the blackmailing power of global capitalism in check by democracy, but also the colonizing and imperial tendencies of all the other globalized functional systems, there is no alternative to transnational regional (e. g. EU) and global constitutionalism. One has to face here the gloomy perspective that 1989 was not the advent but the decay of global constitutionalism (Brunkhorst 2016c).

(3) Tannelie Blom argues that my reconstruction of the origin of the European Union in the bright light of the Kantian mindset is empirically questionable or at least one-sided. I agree that there are facilities to “counter the neoliberal inspired austerity policies”. Again I agree that parliaments are important, and I have underlined in EKD and other essays on Europe that the European Parliament is not only the first transnational parliament of the twentieth century (the American Congress and the Reichtstag were in the beginning also transnational modern parliaments, but became in the long course of their history step-by-step national parliaments). Moreover, what makes it unique is the fact that it is the first parliament of a single citizenry that is formed out of old nation states which keep their nationality and national people. I also agree that the European Parliament gained more and more power within the European concert of powers, and now has a central position in the ordinary legislative procedure. However, I think (and here we disagree) that the democratic building of a transnational European welfare-state is the opposite of what we have now in neoliberal Europe and its member states, and to reach that goal of a continental welfare regime the formation of transnational trade unions would be a great support, even a crucial condition. To build a social or even socialist Europe, it needs the power of workers to strike all over Europe at once, and it needs the parliamentary power to make binding economic, financial and social decisions. I know that this goal is hard to attain, that there is no transnational union-power at all, and the existing transnational parliament is as far away as ever from having the power to re-embed European markets socially and democratically.

Because neither the European nor the national parliaments, nor the workers’ organizations today can balance the power of transnational capital, the social difference grows, destroys political equality, and degrades general elections to mere acclamations to the ever-same politics or to the sad choices between right and far right political options. This is part and parcel of a new structural transformation of the vivid, deliberative and democratic public sphere of the 1960s-80s. The old technocracy debate from the 1960s now has gained topicality again. At the end of the 1960s Habermas called the public sphere of the white, male, paternalistic and heterosexual welfare-state (which probably was – besides the de-colonization – one of the most important evolutionary advances of the egalitarian revolutions and reforms of the twentieth century) a ‘desiccated public sphere’, which at that time was already forming a process of ‘repolitization’ in Western Germany since the Spiegel-scandal and the Auschwitz-Trial (Habermas 1968). Today the structure of public European law in action together with the power structure of the political system and the market-dependent public media of dissemination seem to be desensitized to the perception and discussion of serious political alternatives left of centre.

As it seems, and some empirical research indicates it, this has led to a situation where the latent political mentalities of the population often are of the left, even far left of the political centre that successively has shifted to the right. An international empirical study from 2011, for example, has demonstrated that the readiness of the European citizens (after the crisis of 2008) for supporting the formation of a much more equal distribution of wealth, and the implementation of a European welfare state, is extremely high (e. g. 71% of the Germans would accept significant losses of income in exchange for European solidarity, equality and welfare) (Gerhards and Lengfeld 2013a; Gerhards, J.;  Lengfeld, H. (2013b).  Unfortunately this has been kept secret because it correlates neither with any institutional possibility to realize that idea through democratic campaigns, elections and legislations, nor with a public opinion that is open for a European-wide discussion of a European welfare state. Why? Because such a debate has no real access to institutionalized political action. Here the circle closes. The vast majority of Europeans think that there should be much more European solidarity, but everybody thinks at the same time that his or her neighbour thinks the opposite.

A similar effect could be observed during the recent refugee crisis. My thesis is that the crisis consists in a growing difference between cosmopolitan mentalities of great majorities of the population and a disastrous de-differentiation of a desiccated public discourse, which is structurally coupled to a political system without alternatives (therefore the technocratic European solution finally comes to the same factual effect for the refugees as the far right Seehofer/AfD-solution). The problem again is that the political system and the public media are desensitized to the perception of these mentalities. However, this now seems to lead to a repolitization of the public sphere (with the tabloid BILD-Zeitung on the side of the progressive mentalities!). Triggered by the only two political sentences the German Chancellor Angela Merkel allowed herself in her entire career: ‘Wir schaffen das’ and ‘[…] dann ist das nicht mein Land.’ The first result of repolitization was a huge victory of the far right AfD in a couple of German state-parliaments. So was it in the 1960s. The first result of repolitization was that the NPD made much more than the 5% needed for the elections to the German Bundestag, and the same in the US, where Richard Nixon successfully mobilized the silent majority. Then, less than a couple of years later, the nightmare was over, and the real movement of the left was finally the winner of repolitization. Sometimes history repeats itself, but not always for the worse.