Tag: Brunkhorst

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

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

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

1. The Kantian mindset ‘at work’?

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

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

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

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

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

2. An ordo-liberal victory?

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

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

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

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

3. How to counter the neoliberal inspired austerity policies?

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

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

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

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

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

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

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

4. By way of concluding

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

Introduction

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

– Franz Kafka, Before the Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

1. Cognitive and normative learning processes

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

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

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

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

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

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

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

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

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

2. Agency and structure

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

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

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

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

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

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

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

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

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

3. System and lifeworld

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

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

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

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

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

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

4. Conclusion

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

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

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

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

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

Evolutionary paths or path dependency?

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

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

Path dependency and memory politics

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

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

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

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

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

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

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

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

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

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

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

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

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

The managerial mindset and the virtues of constraints

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The European market, in its present form:

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

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

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

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

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

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

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

To sum up, I have four questions for Brunkhorst:

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

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

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

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

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

Luhmann on law, norms and evolution

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

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

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

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

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

The problem of social evolution

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

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

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

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

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

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

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

The Kantian mindset

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

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

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

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

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

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

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

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

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

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

Side comments

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

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

 

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

Brunkhorst 2014a, 445-446

 Introduction

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

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

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

 Corporate power and post-democratic law-making

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

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

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

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

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

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

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

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

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

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

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

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

Beyond the private/public dichotomy

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

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

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

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

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

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

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

TRIPS: A quiet revolution in international economic law  

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

 

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

I

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Ratcheting up vs. Ratcheting down. The ratchet (or constraint) functions as a kind of barrier against regression to earlier stages of moral and legal insight of social groups and individual human beings. In this case, the ratchet effect causes a ‘ratcheting up of the Kantian mindset’. In 1798, nine years after the outbreak of the French Revolution, Kant has called it “the human race’s continually progressing and improving in relation to its present level of moral attainment” (Kant 1970, 178). Once such moral progress “has taken place in human history”, it “can never be forgotten”, even if the revolution is “filled with miseries and atrocities”, and finally “fails” (Kant 1979, 182 and 184) However, Hoye argues that the “ratcheting up of the Kantian mindset has a ratcheting down effect on revolutionary memory”. His “concern is that under the aegis of Kantian universals that cannot be forgotten there is a whole world of other universals that have been forgotten or exterminated.”[9]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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