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

MSalter1@aol.com MSalter1 at aol.com
Sun, 24 Aug 1997 04:16:50 -0400 (EDT)


In a message dated 24/08/97 02:10:52 GMT, Gilles write:

 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.

MICHAEL REPLIES:  yes I largely agree, perhaps the tension is between an
overly naive hope and disenchantment. If IC leads to a stronger sense of the
latter, then it undermines the former which is itself required as a condition
for wanting to do IC at all?

 >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?
 
MICHAEL REPLIES: I think I have not made myself too clear on this one. The
foundationalism (including appeals to "species being" "universal human
rights" basic human needs etc is arguably required for the critic to avoid
the implications of moral/historical relativism which otherwise flow from IC.
I would agree that dialecticians should not resort to dualistic either/or
alternatives that posit transhistorical foundations as the polar opposite of
cultural relativity, perhaps this points the way out.


 >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.

MICHAEL REPLIES: Yes but if CT is to be radical in the theoretical sense,
then it should not leave latent presuppositions and commitments unexamined;
one of these, a prior commitment to freedom. self-determination,
democratisation etc  is presupposed as the prior basis for doing IC, hence
any specific instance of IC can only rest on "foundations" that it cannot
confirm or deny independently. Now maybe thats no big deal, may be all
knowledge will always have some lack of total transparency, some ideological
grounding etc, but I don't think we can simply accept the conservative
implications of that line of thought (not yours)

 >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.
 
Michael replies, I think your last point mischaracterises my point (perhaps
through lack of clarity on my part). I was contrasting foundationalism of
transcendent critique (as Adorno put its, to the relativistic/historicist
implications of IC - not holding IC to be foundationalist. Indeed the latter
is mixed up incoherently by Habermas as I tried to show in my review essay on
his Between Facts and Norms. Also bear in mind that - as I said at the top of
the posting - I am exploring the contradictions within the standard
objections to imm crit - in order to strengthen not weaken its underlieing
rationale.

Thanks you Gilles for your helpful response

Michael Salter
Dept of Law
lancaster Univ
UK
 
 
 
 
 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
 
 
 
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 Subject: Re: Bhaskar, immanent criticism, Adorno, Lukacs, Rockmore--oy!
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