Law’s (Negative) aesthetic

Paraphrasing Leibniz, one might ask ‘why is there law, rather than nothing’? To this, a long line of European philosophers has responded by some version of the state of nature hypothesis. Without law, the human species would have annihilated itself; without law life would be ‘nasty, brutish and short’; without law, collective action would lead to sub-optimal results. While some have made the iconoclastic point that without law, life actually would be much better – one of spontaneous solidarity – predominant among (western) thinkers has been the melancholy supposition that law is needed as a second best, to compensate for the flaw in our consciences that has disabled each of us from leading a satisfactory life in common without external directives to point the way. Granted, religion may have done this sometimes. But we no longer have religion; from being a solution to our problems religion turned into our biggest problem. If Europeans have accepted to be guided by law this is because we have learned the hard way the dangers of efforts to rule ourselves by religion as ideology.

This assumption, second nature in the West, has hidden a risk, specific to legalism but rarely recalled in celebrations of the move to the ‘Rule of Law’ in transitional societies. This is the danger of absolutism. Under the rule of law, the one who has control over what ‘law’ means also has control over the distribution of social resources and over all of us. This, again speaking historically, is the experience of the move from religion (ideology) to law in 17^th- and 18^th-century European states. In due course, that idea came to be supplemented by specific safeguards – human rights, distribution of powers, system of impartial law-applying mechanisms, parliamentary representation of special interests and so on. Social conflict was channelled to the increasingly complex institutions of modern society, the peak of that complexity being perhaps reached in the altogether 403 pages that make up the official version of the ‘Consolidated version of the Treaty of the European Union and the Treaty on the Functioning of the European Union’. The antidote to absolutism was bureaucracy.

To the question, ‘why is there the European Union rather than nothing’, most people would probably give a resigned response. The treaty is an appendix to a historical experience, specific to Europe’s 19^th and 20^th centuries. Every people is governed with a system it deserves. And in view of what we have done, this bureaucracy is what we deserve. And when the system’s insiders try to present it in the best conceivable terms, they cite the European Union as a ‘system of governance’ that seeks order and welfare through the realization of the rule of law. But the amalgamation of order and welfare with the rule of law is a conceptual Frankenstein; all the language of freedom and justice, the paraphernalia of liberté, égalité, fraternité, grown out of struggle and bitter experience, is captured in endless adjustment of special interests, balancing core values, adjustment to short- and mid-term prognoses, reactions to successive ‘crises’. This is the ‘managerial mindset’.

Hauke Brunkhorst’s massive, powerful reconfiguration of critical theory puts a heavy burden on ‘law’ as both the cause of our problems but also the (last) refuge of critical negativity. ¹ It is in law that the revolutionary victories are consolidated, the revolutionary ethos tamed in a system of ‘functional differentiation’ enshrined in bureaucratic institutions. Law perpetuates hegemony by explaining the powers that be as just because at least they are ‘there’. Each of the four revolutions treated in the book – the papal, the Protestant, the Atlantic and the egalitarian – metamorphosed in due course into legally expressed hierarchies through which winners consolidated their gains. For any new generation of revolutionaries, it has always been the ‘law’ that has crystallized the unacceptability of the old regime as the symbol of its corruption and the immediate target of political action. Who would have embodied its wrongs more clearly than the legal professionals – the bailiffs, the judges, the advocates, the taxmen?

And yet, Brunkhost suggests, law also contains a hidden negativity that will in due course break the old regime, destroy the old constitution and bring about a new order of freedom. In this accounting, law is the home for the critical power of ‘transcendence in immanence’ in which the hopes of the old revolutionaries, the myths and metaphors of freedom, are alive and can be contrasted against the perversions of those who have arrogated the power to speak in its name. This is so because, Brunkhorst suggests, law is more than the institutions it sustains and the functional differentiation that it has helped to bring about. It is a mindset or a form that enables calling the powers-that-be to account, and not only in the (positive) institutions designed to uphold them. To support this counter-intuitive proposition, Brunkhorst uses hundreds of pages to demonstrate how, in each of his four chosen revolutionary moments, law, as a special legal mindset, overcomes its own positivity, turning its utopian moment against its always partial, biased, hegemonic present articulation. The freedom that lies within law, he suggests, cannot be constrained in specific legal rules or institutions. During the ‘papal revolution’ in the 13^th century, principles of canon law both consolidated an ecclesiastical hierarchy but also put it to question in the ‘conciliar movement’ that highlighted the clergy’s freedom while state law provided secular rulers’ emancipation from religious overlordship and the ground on which the struggle against secular absolutism within states was thereafter waged. If the Atlantic revolution highlighted self-determination, the universality of its principles was available to challenge the global hegemony of the Euro- Atlantic nations. Finally the egalitarian revolution whose global consequences are still with us, keeps re-enacting the conflicts between statehood and cosmopolitanism, the mindsets of the manager and the constitutional expert whose presence will ensure that evolution will continue; it will not become better before it has become worse (though Brunkhorst does not say this). Unfortunately.

In a classical critical Theory vein, Brunkhorst depicts world history as a succession of dialectical moves in which like a judoka, the revolution uses the energy of the old regime to make it collapse; the roots of transcendence lie in immanence, no deus ex machina is needed. The aesthetics is pleasing, however much postmodern intuition rebels against the suggestion of an ‘evolutionary history’. Granted, this is not the much-maligned linear or progressive history that no longer finds room in respectable academic conversation. Evolution creates only possibilities and contexts, what we make of them remains open. No doubt, sometimes it is precisely elements of those contexts that can be used in context-breaking ways. But why would ‘law’ be in this respect somehow privileged? (Is this not Eurocentric?) And would not immanent critique remain vulnerable to well-known objections against which the classics of the Frankfurt School had to battle? Peter Sloterdijk’s notion of ‘cynical reason’ is a powerful antidote to faith in any transcendental hiding in the nooks and crannies of our all too immanent lives. It would be great to think it is there. But what if the utopian ideals of positive law have lost their negative potential because nobody really takes them seriously or because negativity itself has become part of ‘affirmative’ legal routine? It is hard to think of a grievance that could not be translated into the language of positive rights, and amenable to the ubiquitous processes of ‘balancing’ by managerial minds trained to accommodate whatever complexity. Even if the transformative powers underlying the system’s public justifications may have been available in the past, are they still so in the present? Can, for instance, the language of ‘freedom’ that appears throughout the book still have purchase beyond economic opportunity and the consolation to speak your mind anonymously on the net as an immigrant family moves in next door? Do ‘rights’ – at issue in each of Brunkhorst’s four revolutionary moments – still mean something beyond a description of whatever interest you may have, and that need to be accommodated against the countervailing interest of someone else? Is ‘revolution’ still available to express the kind of negativity of which this is a grand history? At least on the website http://www.revolution.com/ we find a company that claims it

…invests in people and ideas that can change the world. Our mission is to build disruptive, innovative companies that offer consumers more choice, convenience, and control in their lives. We bring a unique strategy and approach to investing in and building significant companies.

It is doubtless true that we have learned to think of the image of full conformity, the mechanical repetition of structure, as a nightmare. Our most popular narratives are about heroes who transgress the lifeless routines thereby not only providing examples but, perhaps more importantly, substituting for our passivity. Perhaps the moralist’s favourite example of the pleasure-machine no longer arouses horror in a world of computer games? In the cabinet of critical tropes none is more important than the one that breaks the world into routine and context and, avoiding pure transcendence, imagines a space or a quality in routine itself that through some mystic force finally breaks the context creating an ‘event’ where ‘freedom’, ‘truth’, or ‘authenticity’ can finally take place. Of course, there is no agreement on what actually happens in the brief space between the collapse of the old context and the start of the new routine. Each of the three candidates above – ‘freedom’, ‘truth’ and ‘authenticity’ – has been subjected to devastating critiques. The change of gear from pure negativity towards novel and refreshed positivity seems somehow always a disappointment, perhaps a travesty. ‘You cannot always only criticize, you have to think of something positive to say, too’ is the counsel rebel children receive from tired parents; the message of the company director to staff representatives complaining about new structural adjustments. Should one give in? Be positive nevertheless. Because that is something reasonable people should do?

In a world where every influential institution preaches for consensus, the power of negativity remains a vital force while calls for consensus and harmony, especially when preached from above, are equal to ‘shut up’. Probably the most dangerous aspect of China’s rise to the status of world power is the total inability of its political culture to live with, even less benefit from, adversity. As E. H. Carr memorably stated in his critique of consensus and the idea that the rising tide will lift all boats: ‘Biologically and economically, the doctrine of the harmony of interests was tenable only if you left out of account the interest of the weak who must be driven to the wall, or called in the next world to redress the balance of the present.’ ² Calls for spontaneous solidarity may appeal to the romantic imagination but, as feminists have always known, end up by compelling the weaker partner to submit. There is the solidarity of the lion and of the gazelle. The force of positive law is the force of the sharp lines that rules draw in a fluid world of opportunity. This is why neither the revolutionary avant-garde nor the manager of a transnational company likes them.

It is I suppose from this experience that the present volume takes its celebration of negativity and its focus on law as the platform over which negativity – including even class struggle – is articulated. The four revolutions in this book are all legal revolutions, moments of constitutional collapse and reconstruction in which the critique of the old system and the revolutionary imagination of the new one are articulated in ‘mindsets’ embodying the conflict between the justification and experience of routine. The connectedness of legal positivity with larger normative principles that justify it and that provide its standard of criticism is not a novel finding. Generations of legal theorists have juxtaposed ‘legal positivism’ with its underlying ‘natural law’, using the latter for attacking the former. Doing so, they have been accused of projecting the law with a figment of their own imagination, a ‘utopia’ best seen as a veil over their sinister interest, whether or not they themselves are aware of this. Utopian thinking is part of the inheritance of the juridical tradition. But I doubt if it is alive in today’s jurisprudence, the most marginal of the legal disciplines, reduced to reciting the Euro-American canon: Austin, Kelsen, Hart, Dworkin…and the students are already asleep. No wonder that law departments today teach law as craft, and law students look confidently to lucrative careers in offices that can be associated with negativity only by stretching imagination beyond the breaking point. Law can no doubt be associated with critical thought, but it is also a professional culture of privilege and hierarchy.

Avoiding natural law, critical theory seeks to find its negativity in the normative resources of routines themselves, or in their hidden justifications that it then juxtaposes to those routines to achieve their collapse. Instead of jurisprudence, it had better focus on ‘legal thought’ operating in the fields of positive law – contracts, procedure, family law, administrative law, European law, international law and so on – to discover the gap between their ideal and reality. It is no news for critical legal scholarship that the law’s indeterminacy enables its use for purposes other than pure affirmation. But there is some distance from accepting indeterminacy to assuming that there ‘are’ in some concrete and definable way resources at a more ‘fundamental level’ that can be resuscitated and then invoked against the law’s routines. Suggesting this is ‘Law’s Empire’ and jurisprudential orthodoxy. In truth there is no such ‘level’ – even if the argument about ‘levels’ is part of a routine of legal craftsmanship. The view that every positive law presupposes a more or less hidden constitution that makes it seem right and appropriate, valid as ‘positive law’ in other words, is standard legal hermeneutics the effect of which is to solidify and explain the present, however awkward and unjust, as an emanation of just principles. But every system of legal routines (‘positive law’) is amenable to innumerable constructive operations that may, with equal force, claim to present its ‘constitutional’ foundation. Which of these understandings then becomes hegemonic, and which are allocated to the role of heterodoxy is purely a matter of struggle, translated into a bureaucratic learning process in the law school and society at large. This is not to say that one could not, with Brunkhorst, point to determinable sets of preferences, higher or lower levels of abstraction accompanying the revolutionary movements and that aim to be enshrined in the first post-revolutionary constituting. The point is only that once so enshrined, they, like the revolutionary legacy (what did the founding fathers actually think?), will become a platform of conservative exegesis.

But Brunkhorst is not Dworkin, or even Habermas, and instead of celebrating the hermeneutic operations whereby jurisprudence is assumed to be able to provide the ‘best constitution’ for our present practices (the opposite of negativity), he celebrates the revolutionary potential of the pure form of the law that he associates, in part drawing from the present author, with a mindset that is operative in critiques of legal routine. It is that pure form that always enables some critique of existing institutional practices, detaching them from the functional differentiation and distributive choices they routinely produce. The book’s originality and power lie precisely in the counter-intuitive association of legal formalism with revolution and the attendant celebration of the pure form as the platform for critical negativity. In practice, the author suggests, this association takes place in the ‘constitutional mindset’ that instead of demonstrating one type of preferences as the ‘true’ foundation of present routines, incessantly pushes the participants in the routines to seek to justify in the face of large publics what they do – the distribution they have achieved – by reference to principles beyond those routines. The cycle of revolutions is never over; the very force that pushes the revolutionary achievements in the form of a constitution and a set of positive laws also opens those positive laws to critique as merely unprincipled consolidations of achieved power and advantage. The force of legal-revolutionary ‘evolution’ in this sense is endless; the dialectic of the Enlightenment ensures that the more firmly embedded any bureaucratic practices are, the more powerful will be criticisms that may be made against the system of privileges sustained by them.

Constitutionalism is an aesthetic designed to bring order to fragmentation, allowing initially disparate-looking elements to show themselves as logical parts of something grander, understandable and admirable as such. It bears the political weight of consensus and compromise, reconciliation and harmony, pure positivity, in other words. Can negativity be constitutionalized? The question brings to mind the debates among the critical theorists concerning artistic negativity and the role of culture in generating or upholding critical awareness. As is well known, in their late years Adorno and Marcuse were compelled to draw the conclusion that even the most apparently subversive art forms were quite comprehensible in bourgeois terms and amenable for integration as parts of the culture of the market. As a result, even the heroes of critical theory began to seek the power of negativity from religion. ³ The question of the possibility of constitutionalism’s use for purposes of negativity – for purposes other than affirming hegemonic values – resembles the bitter debate among members of the political left about the significance of cultural politics. To think of constitutionalism as an aesthetic raises the old question about the possibilities of a transformative cultural politics within the symbolism law. Is there any reason to believe that the use of legalistic vocabularies about constitutions and human rights could be anything but opium to the masses?

Brunkhorst develops the oxymoronic proposition of ‘negative constitutionalism’ into a view of the law’s two sides: constitutions are means of revolution and instruments of hegemony and stasis. This follows from legal indeterminacy. How then to maintain and support its revolutionary side against its conformist pull? This is the question that participants of the US-based Critical Legal Studies movement (CLS) never ceased posing. After the critique of legal determinacy has done its work, what to do with the freedom that opens up for legal professionals, reconceived now as revolutionaries? How to avoid that they merely insert their biases as ‘law’, perpetuating them by calling themselves a constitutional convention? Brunkhorst writes of the ‘institutionalization of negativity, for instance, in a permanently legalized revolution that includes ordinary as well as constitutional law and the constitution as a whole’. ⁴ This is pure aesthetics, a revolutionary interpretation of Hans Kelsen’s formalism (not at all as implausible as one might initially think). The aesthetic analogy would perhaps be one of Jean Tinguely’s self-destructing sculptures crashing against the wall in MoMa’s backyard. In the early CLS discussion, it was assumed that impetus for transformation might be kept alive against entrenchment by providing for a rotating capital fund to be made available for different groups of ‘workers or technicians’, to be used for production and innovation under constantly renewed principles of distribution. The interest charged for the use of the fund would constitute a significant source of government finance. ⁵ While the proposal might seem wholly utopian if considered in abstraction, the production of such heuristics remains an inextricable part of any revolutionary reflection, especially if operating in a constitutional mode.

Yet I am unsure if the fate of cultural critique in a bourgeois system can be immediately transposed to the level of law. Unlike the cultural system, law constantly juxtaposes the vocabularies of freedom, equality, security and so on against their actualization in institutions such as government, property and the courts, creating a gap between the two where pure positivity cannot dwell. Indeterminacy ensures that the legal system is always available for the critique that it has perverted the values on which it claims to stand. It is, it seems to me, precisely the gap between the indeterminacy of the law and the all-too-obvious determinacy of the social world where the latent negativity of legal thinking as a ‘mindset’ lies. Brunkhorst has wanted to call it the ‘Kantian constitutional mindset’ and while I am dubious about the merits of attributing this critical device to an 18th-century Prussian philosopher, I agree in situating the energy of negativity in a certain bias or preconception that cannot be reduced to any institution or program but is best seen as a tendency, not necessarily in individuals, to grasp at the hypocrisy that attributes institutional choice and the distribution of values to some ‘system’ rather than to itself. In the CLS world, the distinction between routines and contexts and the call for ‘context-breaking routine’ expressed a professionalized sense to work as a lawyer and a revolutionary by using the legal system’s open-endedness to privilege new groups, redistribute values in new ways. The debate on whether that is possible, how tight the system’s prejudices are and how deeply rooted its bad faith, is still going on. If it is hard to imagine law as an instrument of revolution, perhaps thinking of it as an empty canvas might help to use it to design images whose aesthetic effect would not only be to épater les bourgeois but give expression, one way or another, to the gap between managerial ambition and the devastation of the world.