Abstract
It has been my privilege to oversee this special issue of Philosophy & Social Criticism, an issue devoted to one of the most important books in the recent history of critical theory. In 2014, Bloomsbury brought out Hauke Brunkhorst’s Critical Theory of Legal Revolutions: Evolutionary Perspectives. It is a work of tremendous synthesis, an account of the development of modern law from the 11th century to the present day, which attempts to marry systems theory to discourse theory in an account of normative learning processes, and does so by way of a paradigm borrowed from evolutionary theory. The ambition of the book cannot be overstated and in this issue of Philosophy & Social Criticism that ambition has called forth a suitable panoply of responses.
Our first article, by Anne Reichold, interrogates the connection Brunkhorst draws between normativity and negativity. In LR, two sources of evolutionary change are postulated: the slow development of systemic complexity, and the sudden introduction of normative constraints (legal revolutions). The normative claims underwriting the second kind of change are supposed to grow out of a sense of the injustice brought about by the first kind of change. Reichold analyzes this connection in detail, relates it to the work of Peter Strawson on reactive attitudes and questions the role it has been given in Brunkhorst’s account of normative progress: ‘[T]he sense of injustice is itself bound and regulated by communicative, social and legal rules.’
Our second article, by Daniel Gaus, examines whether Brunkhorst’s marriage of systems theory to discourse theory is a success. Gaus argues that because LR prioritizes systems theory, perhaps it cannot claim to be a ‘critical theory’ at all. Critical theory is supposed to be a ‘diagnosis of the times’ with two goals: ‘[T]he first is to contribute to the self-understanding of contemporary society … the second, once the latter process is complete, is to identify possibilities for, and obstacles to, the creation of reasonable conditions of life in present-day societies.’ Does LR fall short of being a critical theory because it relegates the second goal to the unpredictable times of legal revolution? Gaus puts forth Habermas’ theory of social evolution as a better alternative.
Our third article, by Regina Kreide, suggests three inadequacies in the account of social evolution offered by LR. In the first place, it cannot explain why some of the normative claims arising in response to systemic development are forgotten and others borne out in legal revolutions: social evolution theory ‘fails to explain why some readings have been silenced while others became dominant’. Second, LR may be insufficiently dialectical in its understanding of legal revolutions: are such normative developments purely progressive, or can ‘an alleged emancipatory concept … produce … its own opposite’? Finally, Kreide asks whether an account of normative learning that relies entirely upon negation can be properly critical. Does not Brunkhorst also need ‘some “positive” theory criteria that allow us to judge what counts as injustice, as inequality, as exploitation, and what does not’?
Our fourth article, by Thore Prien, eloquently questions whether the continuities of a perspective on normative learning built on an evolutionary model might unduly smooth out ‘the particularities of the colonial and post-colonial resistance to (European) general societal learning’. How can LR account for ‘the desires for something completely different, for the abolishment of state and order, for exodus or theft’? Is this, in the end, the result of an uncritical focus on law, a focus which fails to ask ‘whether the universal core of law doesn’t legitimate [the injustice of global production relations] more than it works to abolish them’?
Our fifth article, by Martti Koskenniemi, draws attention to the emphasis LR puts upon law ‘as both the cause of our problems but also the (last) refuge of critical negativity’. It might seem strange to put such a weight of explanation on the shoulders of law, and even more to treat it as a critical force; by doing so, Koskenniemi shows us, Brunkhorst has added something genuinely new to the tradition of critical theory: ‘[T]he 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 [of law] as the platform for critical negativity.’ The article dwells for a while on the success and usefulness of this association, offering both reservations and advice.
Our sixth and final article, by Tilo Wesche, offers the stirring thesis that in LR Brunkhorst ‘rewrites’ Horkheimer and Adorno’s Dialectic of Enlightenment. Wesche seeks to show this by comparing certain features of the LR to Dialectic of Enlightenment and then asking the questions this comparison prompts: given the shoes LR seeks to fill, does it cover all the necessary bases, such as developing a concept of alienation, and presenting a clear definition of dialectic itself?
In all, these six articles present a tribute of criticism to the significance of Hauke Brunkhorst’s work. They also raise a lot of important questions for those who take his work seriously. It is only fitting, therefore, that our special issue is brought to a close by a gracious, thoughtful and thorough response by Brunkhorst to the most salient of the questions and criticisms raised by his interlocutors.