Bhaskar, immanent criticism, Adorno, Lukacs, Rockmore--oy!

[Giles Peaker]

Please pardon any incoherencies in this post, it was written late at 
night after a long, if banal day.

>1/. It is arguable that immanent critique requires a contradictory mixture of
>motivations and presuppositions. Critics must initially presuppose the
>existence of a contingent discrepancy between legal rhetoric and reality
>otherwise there would be no point in even considering carrying out immanent
>criticism. However, internal critics only pretend, in a deceitful fashion, to
>accept various legal ideals, whilst this cynical pretence is itself grounded
>in a utopian gesture of hope. Yet scepticism concerning an identity between
>ideological rhetoric of law and its actuality can often be heightened during
>the process of immanent critique, something which inevitably subverts any
>element of hope.
But the sceptisism can only be born of hope. It is not a pure cynicism, 
surely.

>2/.  It can also be objected that some absolute form of external
>'foundationalism' is an absolute pre-requisite for any social scientific
>critique of law without which all evaluation is condemned to the well-known
>self-contradictions of moral relativism. And whenever the norms for
>evaluation are taken from the target of critique, researchers disable
>themselves from being able to criticise those totalitarian and racist regimes
>which are most deserving of critique. Here we can ask: "Is it a sufficient
>basis for criticising a totalitarian regime to simply exploit how its
>practices fall short of its own anti-democratic ideals by still retaining
>various semblance of constitutionality? Here the implication is that immanent
>criticism is valid, if at all, only when applied to regimes whose
>constitutional ideals are, in some sense, 'progressive'. This foundationalist
>objection clearly objects to the reflexive claim of dialectical theory that
>it forms part, and is implicated within, the historical changes which it
>seeks to comprehend, and there is ever reason to doubt whether its criteria,
>research methods, concepts and findings will achieve an absolute degree of
>finality which remains true for all time. 

Hmm. Perhaps the foundationalism (leaving aside any 'species being', 
which I tend to go for, but which doesn't apply here) that you perceive 
is that of the liberal confronted with the extremes of capital and/or 
fascism? The critique of fascism could be made through not its lingering 
'constitutionality' but, (via Benjamin perhaps), of its claims to give 
expression whilst destroying the individual. Cultural more than legal, to 
be sure, but isn't that the point? The 'foundationalism' of IC seems to 
me to be based upon historical possibilities - and the totalitarian state 
is/was also based upon the historical condition of the individual. Now, I 
will admit that this side-steps the cultural relativism jibe by 
prioritising a particular historical drama, but I for one wouldn't object 
to a definition of IC that suggested that its importance lay in 
discerning the key historical factors. To demonstrate that any claim to 
'finality' is inherently contradictory is not simply to sucumb to 
'they're all the same' but to respect the (historical) claim to truth 
that is embodied there. Even fascism - through that claim to expression - 
has its (perverse) moment of truth. Otherwise, this is the cliched 
opposition of an incoherent foundationalism and what you point to as 
moral relativism. Surely, for a Marxist, mounting truth claims of the 
moment, without claims to transcendence, isn't a problem?

>3/.   The immanent critique of legal ideologies clearly presupposes an
>initial value-judgement in favour of concrete freedom over internally
>unjustifiable constraints. Such critique assumes that priority should be
>given to self-conscious forms of social self-determination over the
>ideological domination of merely traditional, customary or institutional
>imperatives that are themselves lacking any form of democratic
>accountability. The underlying democratic interest which informs immanent
>critique is that of enhancing the capacities of the 'human subject' to
>exercise rational autonomy within the context of a unified community. It is
>doubtful whether the initial preference for freedom from determination by
>irrational social and ideological forces can itself be 'validated'
>independently of the results of critique itself. Hence, immanent critique
>must simply presuppose the validity of  enlightenment forms of rationalism
>expressed through knowledge about law which can - in principle - help
>liberate us from unwarranted relations of power, mythology and authority.Yet
>to those postmodern scholars, who pronounce the "death" of the subject of
>legal and human rights as part of the demise of the entire enlightenment
>project will find little reason to accept this pre-supposition.

In part, see above. This is not, per se, a matter of 'the enlightement 
project' as right or wrong in a transcendent sense, but of it offering 
possibilities of freedom that cannot socially be fulfilled. So, the 
question is not one of 'divine' (cf sub pomo scribbles) truth -v- an 
equally transcendental flux, but one of politics - or, more precisely, 
one of history and historical possibilities.

>4/.  A related 'modernist' assumption made by dialectical analysis is that
>cultural traditions are still open to a reflexive type of self-understanding
>that is sufficient to allow us to develop a genuinely critical standpoint
>upon them.  Immanent criticism of law presupposes that its target is
>reflexive in the sense of possessing a discernable self-interpretation of the
>normative value of its own practices. If this presupposition turns out to be
>invalid, then it is not only pointless to expose discrepancies between the
>rhetoric and reality of law but also naive to expect this 'disclosure' to
>lead to any practical difference in institutional practices. Another related
>assumption is any exposed discrepancies will be perceived as a problem by the
>institutions themselves sufficient at least to alter their institutional
>practices. Lichterman notes: 
>
>"In a sense, academic practitioners of immanent critique and its variants
>also accept the premise that law's putative ideal of formal, rational
>discourse pervades society, if only by implicitly asserting that mere
>exposure of contradiction or incoherence can bring about social change."
>(1994: 1053-54).

Indeed. This is the big question. My instant response would be that the 
error is to restrict the critique to 'law'. (I am an art historian by 
training. The equivalent for me would be 'art can change the world', a 
popular misconception.) This is not a straightforward disciplinary 
(academic or juridical) concern. Any IC would have to expand beyond the 
limits that the object had had set for it by its producers. This is 
surely a fundamental tenet. (CF Facism and aesthetics, above). Those 
limits are part of the object of critique - thus, for instance, the legal 
individual and the socio-economic individual would have to meet (or 
rather not meet) in the analysis. Adorno makes this point frequently, I 
think, and for a rather rich example, see 'The Essay as Form' in Notes to 
Literature. As to the 'exposure of incoherence' being the agent of 
change, well, there you have me... or at least if you take IC as a mode 
of intellectual revelation alone. The problem is if one can only see it 
as a mode of intellectual critique. Sometimes people's own life 
experiences can lead them to the contradictions, but then this happens 
all too rarely at the moment.

IC certainly falls down when held to be foundationalist or when 
restricted to an 'internal' discussion, but, if you will pardon me saying 
this, that is to miss the point.

Yours

Giles




Giles Peaker
Historical and Theoretical Studies
School of Art and Design, University of Derby, Britannia Mill, 
Mackworth Road, Derby. DE22 3BL (U.K.)
+44 (0)1332 622222 ext. 4063    G.Peaker@derby.ac.uk
Editorial Collective:Detours and Delays. 
An occasional journal of aesthetics and politics