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

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

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

Evolutionary paths or path dependency?

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

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

Path dependency and memory politics

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

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

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

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

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

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

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

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

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

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

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

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

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

The managerial mindset and the virtues of constraints

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

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

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

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

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

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

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

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

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

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

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

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

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.