further problems with/defenses of immanent criticism,

[MSalter1@aol.com]

In this posting I have responded to Giles comments; and listed some further
criticisms and defences that can be made of Adorno-esque versions of Immanent
Criticism. Its a shame nobody on this list is going to the Dublin, Critical
Legal Studies sept 4-7th 1997 at UCD which has a full conference stream
devoted to the theme of doing critique


Giles 
Just a last quick word on formalism before any moving on is done. I was 
 unclear yet again, I think. I didn't mean to suggest that you were 
 applying an abstract model per se, but rather that the problem was with 
 the "within the field of". My concern (probably misplaced, but suggested 
 by your terminology) was that to see a 'field' of application is to set 
 disciplinary boundaries, or criterea of relevance for the directions and 
 results of any IC. 

Michael Replies:

 I'd accept this clarification: The question of the relationship between
abstract/formal method, vs concrete particularity is unfortunately posed when
set up undialectically as an either/or dualism. My response to the criticism
of abstract/formalism fell into this dualistic trap. Also the issue of
discipline-specifity vs. abstract methodological models is quite distinct
from that of abstract/formal method, vs concrete particularity, I conflated
them. I would argue that IC forms one part of dialectical analysis which,
given that dialectics is the counter-practice to reductionism, can only be
interdisciplinary in nature because the social totality as a complex and
differentiated relational totality both mediates its parts, and is mediated
by them.

Giles

To presume that it is 'about' law (or art) per se 
 means that it will be expected to show us what is wrong 'in' law or in 
 art which can be put right by action within those fields. The upshot is 
 that IC would become a method of and within the discipline/field. What if 
 the direction an IC led in was towards a critique of the terms and 
 institutions of the field itself (not, I think, an impossible or even 
 unlikely outcome)? The 'field' is already part of the object of IC (Law 
 is immanent in any law, Art is immanent in any art practice, etc etc) and 
 therefore cannot enclose the critique. I know this is simplified, but the 
 point stands, I think.

Michael Replies

Your the analysis works well. IC may begin as immanent to a singular
discipline but its interdisciplinarity meams that even law (or art) is never
wholly reducible to its exclusively legal-specific (art-specific) content
since this a mediated point with a relational network. Hence "legal" content
is distinct but inseparable from political content whilst both are distinct
but inseparable from economic content etc. Consider for example, conservative
deregulation of employment protection legislation. The point is that a
legally focused IC should join up with a politically focused IC of the "same"
legislation etc.
 
Gilles: 
>From your mention of a critique of phenomenological research into crime 
 and the legal process, I could well be wrong again. If so, my apologies. 
 But you suggested that this involved a 'more or less unreflexive' use of 
 IC. Perhaps the reflexive moment is when one's own work 'in the field' 
 becomes problematic? That would be my experience...

Michael: 
Yes and No. I was not subjectively being unreflexive in how I wrote these
critiques but did not even try to incorporate the "methodological" aspect
into the explicit discussion (despite pretty well knowing what I was doing
when applying it). It was this sense of only partially expressing the results
of my IC at the expense of the intelectual source of the procedure of
critique which I found problematic; not any internal or external blockages
contradictions etc. Of course my application and understanding of IC is
limited, partial etc etc but I expect this to be and remain the case, albeit
hopefully to a declining extent. I am still waiting any reply from the
traditions I criticised. Hopefully they will point out the problems with my
critique which I cannot see. 

More generally: here are some further arguments which can be made against
immanent criticism. Once again, I offer these up for criticism, partly to
promote discussion, and partly to help me work out my own replies to those
who attack my own application of CT in the legal area.

1/. There are a number of different ideological responses available to those
legal institutions who have become the target for immanent criticism, and who
seek to counteract its force. Rather than upgrade their deficient
institutional, legal institutions could restate their claims in a manner that
downplays the significance of their own immanent ideals, thereby blunting the
cutting-edge of immanent critique. Clearly this type of institutional
reaction to legal critique could be as relatively painless from the
institution's perspective, as it would be counterproductive from that of the
critic.
   
2/. Immanent critique also makes a specifically sociological presupposition
that legal and constitutional practices still continue to reproduce social
order through the rhetorical use of justificatory ideals. Yet whilst this
mode of social reproduction may characterise both emerging and new formed
social regimes, it is unlikely to apply to their middle and twilight phases
where more technocratic factors may become more important. As Lichterman
notes:
"Classical" bourgeois legal doctrine and its close associate, political
economy, were apt objects of immanent critique because they still represented
the core of an active ascendant ideology.  This ideology represented the
interests of an emerging class that was still in the process of extending its
influence ... Immanent critique loses much of its effectiveness when the
central justificatory claims of a society no longer inhere in the realms
officially demarcated as "law" and "politics," but rather in a technics that
is justified to the mass of the population. (1994: 1051)

3/. From Hegel onwards,  immanent criticism has made the assumption that
presence of social divisions, atomistic fragmentation and cultural alienation
is inherently problematic. It has therefore understood irreconcilable
conflicts between alternative value-systems as symptoms or `crisis'  since
these effectively undermine the possibility of ever finally achieving social
solidarity within a coherent ethical community (Benhabib 1986: 10). Here,
immanent critique draw upon the questionable presuppositions its own
distinctive version of a 'philosophy of the subject': one that implies a
certain "end-goal" to social history in which humanity realises a higher
developmental stage of effective self-determination (Benhabib 1986: 10-12,
104). It is doubtful whether those dialecticians who use this mode of
criticism will be able to formulate reasons which are both consistent with
their other principles and sufficient to persuade either natural lawyers or
postmodernists that such 'meta-narratives' of historical progress are
convincing.

4/.  Arguably the reliance of immanent critique upon norms that are
historically specific has, it could be argued, shown itself to be inadequate
even to its own practitioners with both Marcuse (1956) and Habermas (1996)
eventually having to draw upon non-immanent and foundationalist criteria,
i.e., a theory of "natural instincts" and "counterfactual" ideals presupposed
by communication as such (Salter 1997a). Even the work of Adorno, the most
accompished practitioner of immanent critique within the critical theory
tradition, expresses concerns about its historical limits following
developments within consumer capitalism. He suggests that as processes of
ideological closure became ever-tighter as part of the global triumph of
bureaucratic administration, it may no longer be possible to clearly
differentiate constitutional ideologies from the experience of social
reality. This is because the latter degenerates into a secondary product of
the former (1974: 211). 

5/. Adorno argues that during the second half of the twentieth century we
have witnessed a "withering away" of the role of traditional ideologies.
Within our closed and totally administered societies, ideologies of
justification no longer play an important functional role in the cultural
reproduction of social and legal relationships. Consequently, the content of
ideologies have lost any claim to truth at all since social control is
achieved through more immediate, if localised, exercises of power,
surveillance, self-censorship and direct manipulation.  Hence, it is arguable
that recent regressive historical developments within the evolution of
consumer capitalism mean that exploitable discrepancies between ideological
justification and the lived-experience of social reality have evaporated.

6/.  Finally, those who reject immanent criticism could argue that it assumes
that a single norm can be distilled from the target of legal critique. Yet,
as modern societies become ever-more pluralistic, their "ideologies" will
contain a wide range of contradictory normative implications from which no
cohesive normative criteria can be discerned; at least not without making a
further value-judgment in favour of one element over the others. Although, in
practice, immanent critics may simply have to choose between different
possible criteria, it is not clear how their distinctive mode of critique
could ever provide an internally consistent justification for the normative
basis for this type of selectivity.

SOME DEFENCES OF IMMANENT CRITICISM

1/.    Whilst mounting a full-scale defence of immanent critique against
these various criticisms would require a article in its own right, a number
of possible counter-arguments exist. For example, even if many of these
criticism are valid true their practical implication is not to falsify
immanent critique, but only to limit its applicability and jurisdiction.
Within so-called western democratic states, we can still use this mode of
critical engagement in a selective manner which minimises the practical
effects of its limited scope. Here it is worth pointing out that there is no
reason to expect any single mode of critique, even the most powerful mode, to
carry the entire load of social criticism alone.

2/. Furthermore, many of the alleged limitations of immanent criticism cited
above can only be identified as such by those who make explicitly
foundationalist presuppositions of a somewhat absolutist kind. These
presuppositions are themselves structured by various either/or dualisms which
then contrast the alleged "relativism" of immanent critique, to some other
supposedly "absolute" factor, such as universal human rights, basic human
needs, humanity's "species being" etc. Yet one of the justifications for
immanent critique is that its dialectical framework provides the resources
for overcoming such dualistic and absolutist modes of analysis. 

3/. It is arguable that the political dangers created by absolutism, of which
politico-religious fundamentalism is only one variant, far outweigh those of
a self-critical and reflexive type of legal analysis which is ever-vigilant
concerning the immanence, contextual dependency and ideological limits of all
critical thought. Indeed, such vigilance implies the very opposite of a
relativistic pluralism which has forsaken all criteria of truth in legal
knowledge by treating relativism as the one true absolute. It does not follow
from our (always partial) efforts to be maximally self-conscious about the
contextual limitations of one's own internal critique of law, that the
findings of such critique are no more valid than those of opposing
standpoints. Immanent critique aspires to be the best available (or the least
flawed and contradictory?) interpretation of legal experience partly because
of the comprehensive way in which it incorporates its own contextual limits
into both its methods and findings (Adorno 1967: 28).  Immanent critique
strives to call examples of institutional injustice by the most appropriate
name, by the title which best fits the most convincing interpretation of the
available empirical evidence (Horkheimer 1974: 179-80). In this sense, it has
not forsaken social scientific criteria of truth, knowledge or science in
favour of radical relativism. Immanent criticism insists upon the superiority
of what Horkheimer termed those "relative truths" that are reflexively aware
of their own provisional status and specific contextual limits (Horkheimer
1974: 182-3). The trivial fact that the standards that immanent criticism of
law uses are not themselves immutable, eternal truths - and, together with
the significance of the results of such criticism, is always subject to
future revision - does not necessarily invalidate this mode of critique.
Indeed, those who attack immanent critique on the grounds of its alleged
"relativism" must themselves first secure a "transcendental" basis for their
own fundamentalist value system by first rebutting the powerful dialectical
criticism of transcendentalism generally and rational natural law in
particular (Hegel 1975 cf. Habermas 1990: 195-217). What is more, this
criticism of immanent critique falsely presumes (again on the basis of
dualistic assumptions) that an initial commitment to immanence must
necessarily exclude any element of "transcendence from within".

4/. It is not possible to draw any significant conclusions from the
abandonment of immanent critique by some of its former practitioners such as
Marcuse and Habermas, especially given the disappointing results that emerged
from their alternative modes of analysis.   Indeed, it is arguable that this
retreat is more likely to be judged a retrograde step from which legal
scholarship can certainly draw no general lessons about the relative
inferiority of immanent criticism. Finally, although immanent critics do make
rationalist assumptions about the possibility of freedom, subjectivity, truth
and historical 'progress', it is arguable that this is unavoidable for any
form of critical scholarship; and that this also applies even to those
postmodern theories which purport to 'argue' for the very opposite