Abstract
Among practitioners and observers of critical theory, some have characterized Jurgen Habermas’ work as leading the way through a “juridical” or “legal turn” in the tradition, one that, its detractors argue, make it increasingly indistinguishable from “traditional” liberal political and legal theories. David Ingram, as a critical theorist, philosopher of law, Habermas scholar, and creative collaborator in the development and extension of discourse-theoretical approaches to a number of legal and socio-political issues, could easily be considered a representative of this juridical approach. It is thus appropriate that his most recent book, World Crisis and Underdevelopment: A Critical Theory of Poverty, Agency, and Coercion, explicitly defends the view that legitimate law is not, strictly speaking, coercive, but is rather a crucial element of collectively exercised human freedom, and thus that, among the key components of global human emancipation is a democratically legitimated cosmopolitan legal framework that incorporates, but does not simply defer to, the established legal framework of nation-states. In this way, though Ingram claims of the book that “its normative bearings derive from Habermas’ theory of communicative action and Honneth’s theory of recognition” (xi), it is ultimately grounded philosophically in the Kantian and Hegelian roots of the critical theory tradition itself, demonstrating that critical theory and its practitioners do indeed bring a unique philosophical perspective to the important debates over cosmopolitan law, human rights, and global political legitimacy. This perspective, as Ingram develops it, is characterized by a basic commitment to human emancipation, the elimination of poverty and artificially maintained suffering as an illegitimate form of coercion, and a defense of collective, democratic practice as the legitimating force behind legal structures at every level, which can in turn act as a bulwark against the anti-democratic forces of global capitalism. The book thus presents a thoughtful, careful, and detailed response to those tempted to see legalistic, rights-based approaches to human emancipation as “ideological” in a pejorative sense.
After providing an empirical introduction to the nature and scope of global poverty, the book begins by articulating particular conceptions of agency and freedom, which then provide the basis for increasingly fine-grained analyses of global socio-political phenomena from migration, to global capitalism, to human rights law. The grounding conception of agency proceeds from a synthesis of Honneth’s recognition theory and Habermas’ discourse ethic (though, I will argue, it ultimately owes a greater debt to Honneth than to Habermas), held together by a Hegelian notion of freedom which, following Honneth’s recent work in Freedom’s Right, Ingram calls, “social freedom.” 1 While the complexity of this re-reading is difficult to capture in brief, the basic idea is that effective agency relies upon a complex, substantive freedom which goes beyond the negative freedom emphasized by the liberal tradition, relies upon the sorts of intersubjective relationships that Honneth details, and is expressed and institutionalized through the discursive means that Habermas describes. This notion of freedom, and the notion of agency derived from it, navigates between what Ingram, following Ann Cudd, calls “autonomy agency,” which emphasizes individuals acting according to their own rationally chosen values and life plans (a roughly Kantian conception of agency), and “identity agency,” which emphasizes the dependence of one’s agency on others, often derived from what Ingram argues are overly simplistic readings of Hegel. 2 Social freedom, by contrast, entails a complex form of agency that involves the negotiation of individual autonomy with recognition needs based in relationships and communal contexts. Discursive practices are presented as embodying just this sort of dialectic, and thereby manifesting social freedom and exercising a form of agency that is inherently intersubjective. Accordingly, Ingram endorses Nancy Fraser’s principle of “participatory parity” as a key normative standard, one which “combines the strengths of Habermas’s and Honneth’s respective theories of discourse and recognition” (48).
This discursive negotiation of autonomy and recognition is illustrated concretely by certain paradoxes and challenges of development policy. For example, women in traditional, gender-structured societies, Ingram argues, must often choose between social recognition and individual autonomy. Those who choose to seek work outside of the home may be stigmatized and ostracized even as they gain crucial resources for increasing their autonomy and material well-being. By contrast, those who defer to their community’s traditional expectations may receive social recognition, but remain disempowered and materially deprived (78–9). Ingram does not provide easy answers to this sort of dilemma, but it does illustrate one of his key points: that individual agency and development is inextricably linked to large-scale (indeed, global) social development and transformation. Consistent with past work, Ingram develops discourse-theoretical solutions to these sorts of conflicts, and articulates and defends a global legal framework as a crucial institutional forum for formalizing such discursive practices. Thus a global, discursively inflected human rights framework becomes the means by which agency and freedom is ultimately expressed and secured, ideally bolstering and protecting local and informal discourses in a complementary way.
Guided by this view, Ingram criticizes anti-poverty approaches that disempower the poor as they attempt to provide for their material needs, or refuse to provide for those needs out of a misguided or disingenuous concern for their autonomy. So-called poverty “experts” disseminate (or withhold) aid – both within relatively developed nations as well as in less developed nations – in a way that disregards or actively undermines the agency of targeted populations. Ingram attributes this defect to the “methodological individualism” that informs both welfare-liberal and libertarian approaches to poverty alleviation, identified, respectively, with the liberal political philosophies of Rawls and Nozick (102). By contrast, discourse theory mandates a collaborative approach in which the poor are empowered to articulate their own needs, and collaborate on equal terms with poverty “experts” and technocrats to determine appropriate solutions. Interestingly, Ingram grounds such an approach in Habermas’ early work, prior to his development of a formal discourse theory of law, specifically in the “collaborative sociology” of Knowledge and Human Interests. 3 Here Ingram finds a “descriptive, interpretive social science oriented by a knowledge-constitutive interest in mutual enlightenment and emancipatory empowerment,” from which development theory and practice could benefit (111).
This discursive, agency-empowering approach guides Ingram’s analyses of global migration and trade as well. Regarding immigration policy, Ingram argues that discourse theory provides a third way between the open border orientation of cosmopolitanism and the more restrictive orientation of communitarianism. Rather than beginning from either the assumption that the rights and needs of national communities automatically outweigh those of non-citizens, or from the assumption that basic rights to freedom of movement, subsistence, etc. make border restrictions morally illegitimate, Ingram’s discourse-theoretical approach “draws quasi-cosmopolitan implications from communitarian premises” (159). The communitarian premise is the idea that individual rights to movement, subsistence, etc. presuppose specific communal and bounded legal contexts in order to be practicable. And yet, there is no inherent reason why the boundaries of such communal contexts must be defined in any specific way and, to the point, no inherent reason why some have more of a right to define them than others. Thus, a discourse-theoretical approach to immigration policy consists most basically in “expanding the community of deliberation to include migrants” (163). This basic insight produces the following principle: “an admission policy is just only if both current members and applicants could not reasonably reject it after fully and impartially discussing the moral rights and interests at stake for all affected parties” (164). Consistent with the general approach of the book, Ingram discusses the implications of this principle not only in theoretical terms, but also in its concrete application to immigration hearings, asylum policy, and the respective roles of legislative, judicial, and informal deliberative bodies in the hashing out of specific immigration policies. This chapter also includes an interesting and timely critique of the distinction between political refugees and so-called “economic migrants,” arguing that the global economic forces that underlie economic migration can be just as coercive as the political forces that cause political refugees to flee oppression.
The chapter entitled “Imperial Power and Global Political Economy” develops this last insight, providing a powerful and unequivocal critique of global capitalism as a coercive order that systematically undermines human freedom and agency and artificially sustains poverty and underdevelopment. Here Ingram challenges the technocratic presumptions guiding the ideology and practice of the institutional managers of the global economy, housed in institutions like the World Trade Organization, the World Bank, and the International Monetary Fund. Guided still, presumably, by the principle of participatory parity, Ingram criticizes these institutions for being instruments of imperialism, by which “the United States and its partners in the developed world leverage their power in imposing costs on poorer, less powerful nations while extracting advantages for themselves” (182). Thus the policies imposed by such institutions appear as the antithesis of legitimate law – law-like, but lacking in genuine democratic legitimation. The coercive conditions that they impose around the world are directly and indirectly responsible for the sorts of deprivation that “development” and anti-poverty programs aim to manage.
It is refreshing to see this sort of critique play a central role in discussions of development and global policy. With few exceptions, contemporary philosophical reflections on development, human rights, and cosmopolitan politics tend to be grounded in a liberal framework that often neglects the economic forces underlying political and juridical structure. And even in the critical theory tradition, explicit critiques of capitalism became increasingly rare in the second generation, supplanted by Habermasian concerns for normativity, rational reconstruction, and argumentation theory, a trend only recently beginning to be reversed. And yet, even with the resurgence of theoretical reflection on capitalism and economic structure, it is still relatively rare for critical theorists to attempt to articulate concrete alternatives to capitalist domination. Ingram does not shy away from such reflections, however. Emphasizing the limits of welfare capitalism for managing the inevitable crises to which it gives rise, Ingram ultimately endorses David Schweickert’s vision of “economic democracy,” a form of market socialism grounded in workplace democracy. 4 Perhaps most crucially, this form of economic organization has the potential, Ingram argues, to stem the crises of sustainability and the extremes of inequality that accompany global capitalism even in its most enlightened forms.
Still, unlike the orthodox forms of Marxism that founding critical theorists rejected, Ingram’s reflections on economic structure do not entail the rejection or neglect of normativity or law. Accordingly, the last section of the book develops a robust human rights framework against which global capitalism can be evaluated, and a cosmopolitan legal framework though which it can be reined in and transformed. Ingram makes this critical capacity of human rights discourse clear at the outset: “if human rights are claims on society to guarantee reasonably secure and equal access to a range of goods, resources, and capabilities for all persons, then much of the legally supported global economic system in fact violates human rights” (223). Here Ingram distances himself from the Habermasian justification of human rights, and in particular Habermas’ view that democratic self-rule and human rights are “equiprimordial.” 5 Such a view, Ingram argues, leads Habermas to prioritize civil and political rights over social and economic rights. By contrast, Ingram places social and economic rights on equal footing with civil and political rights, and provides a novel and compelling justification for the former. Unlike traditional views that associate civil and political rights with negative duties and social and economic rights with positive duties, Ingram argues for an “institutional” conception of rights that sees social and economic rights as entailing a negative duty on the part of institutions to refrain from enacting conditions that are coercive and agency-depriving. In this way, Ingram short-circuits the standard liberal relegation of such rights to a secondary status.
Ingram also argues against the “Mirroring View,” according to which the legal human rights order derives its validity entirely from the morality of specific human rights. Instead, Ingram follows Allen Buchanan in arguing for a pluralistic approach to human rights justification that is “sensitive to the multiple functions and justificatory grounds of human rights” (250). 6 This allows him to hold various forms and levels of legal bureaucracy to differing standards of legitimation. For example (a crucial one), international courts and cosmopolitan legal entities might not be directly democratic in the way that national legislatures might, but could still be justified insofar as they are necessary for holding national legal orders accountable for their own internal failures of legitimation and human rights violations. This argument also draws from Buchanan’s “ecological” conception of the legitimacy of the human rights regime, where “states and international organizations derive their legitimacy from each other” in a symbiotic fashion (259). Still, Ingram’s account of human rights ultimately relies upon his theory of agency and freedom, conceptualizing human rights as directed to the “full realization of social freedom within democratic institutions” (251). Accordingly, the legal human rights regime can be evaluated according to this standard (presumably among others, consistent with justificatory pluralism).
Having defended a particular philosophical approach to human rights, Ingram turns to the concrete specification of the legal human rights order. The primary focus here is on the United Nations, a body that Ingram finds, despite numerous criticisms of its organization and practices, to be the most viable locus of a substantially restructured human rights regime. The key reform Ingram argues for is the “constitutionalization” of the UN, implementing a separation of its powers wherein a reconstituted General Assembly would gain “quasi legislative” power, checked by an international court to which aggrieved nations, individuals, and civil society groups could appeal. Such a regime would be “empowered to pass enforceable resolutions regulating the content and conduct of international trade and security-related agreements pertaining to the resettlement of refugees, the treatment of immigrants and guest workers, and the equitable distributions of burdens associated with climate change and environmental degradation” (265). This vision is contrasted with the reality of an anemic human rights regime focused almost exclusively on a limited set of negative rights, grounded in an inordinate emphasis on security over other, equally pressing concerns. Accordingly, Ingram acknowledges critiques of the UN – and especially the UN Security Council – that emphasize the disproportionate power a small number of nations wield over humanitarian intervention.
Despite these high-level reflections and the complex modes of indirect legitimation that Ingram details, his claim that “the law succeeds in coordinating interaction legitimately to the extent that those affected by it converge in believing that the benefits outweigh the costs,” remains as true of international as domestic law (258). For this reason, among others, Ingram returns in the final chapter to the ultimate source of democratic legitimation in the consent of those who are governed by it, and explores a significant obstacle to such consent: a lack of global civic solidarity. Ingram puts the point succinctly: “the future of human agency hinges, first of all, on whether multicultural differences do not eviscerate agreement on human rights, and secondly, whether the well-being of distant foreigners can become a matter of global concern” (313). There are obvious reasons for skepticism on both of these counts, and Ingram attempts to dispel them, in the first place, by drawing on Durkheim’s distinction between “mechanical” and “organic” solidarity. He argues that while the world’s diverse peoples might lack the strong “mechanical” solidarity of shared values and modes of living, liberal democratic states have evolved, at the national level, “organic” structures for coordinating action that have the potential for cosmopolitan expansion. This weds the potential for global solidarity to the proposal for a “constitutionalized” global human rights regime. Ingram also argues that distinctively modern conflicts driven, in part, by the emergence of capitalism, produced new forms of “mechanical” solidarity, including the liberal notion of fraternite, as well as more radical forms of solidarity grounded in class struggle or egalitarian humanism, which hold some promise for cosmopolitan repurposing as well. Yet, Ingram admits that “our duty to struggle in solidarity on behalf of humanity remains too vague unless it is linked to partisan struggles on behalf of specific injustices and threats” (314). Accordingly, drawing on Carol Gould’s concept of “network solidarity,” Ingram envisions cosmopolitan solidarity as a “secondary expression of our primary solidarity on behalf of regional or sectorial struggles” (315). 7
Since, as he acknowledges, the viability of Ingram’s proposal turns largely on the possibility of this sort of solidarity, it is worth subjecting to serious critical scrutiny. Ingram’s analysis of solidarity raises interesting points, especially regarding its link to democratic institutional mechanisms and oppositional political movements. And he provides a compelling negative response to the question of whether cultural differences undermine basic agreement on human rights. This response includes an analysis of religion, arguing that despite their differences, it is possible for diverse religious traditions to agree upon the value of human rights and democracy. Indeed, Ingram argues that religious traditions, as “the original and most powerful cosmopolitan form of cultural solidarity,” play a crucial role in the development and institutionalization of secular forms of global civic solidarity (329). But this does not answer the second, more difficult question, of whether “the well-being of distant foreigners can become a matter of global concern.” Even if it is true that, say, Islam (which Ingram discusses at some length), can be theologically reconciled with liberal democracy and human rights, the resistance in some parts of the world to expressing solidarity with Muslims is not grounded primarily in a limited or inaccurate understanding of Islamic theology, but in a tribalist, xenophobic psychology that often remains immune to rational discursive intervention. The centrality of this sort of psychology to certain forms of nationalist ideology was well-known to early critical theorists, and is again becoming apparent in the re-emergence of troubling forms of decidedly non-solidaristic nationalism in the USA and around the world. Ingram’s ecological model of the relation between national and global legitimacy would theoretically provide a safeguard against the effects of such movements, insofar as states that violate the human rights of domestic minorities, foreign nationals, or stateless persons could be held accountable by a global human rights regime. But this political safeguard does not address the deeper psychological level at which nationalism takes root, and since solidarity across cultural and ethnic divisions cannot be imposed through solely juridical means, the viability of the cosmopolitan legal safeguard itself depends upon this difficulty being already resolved in some fashion.
This narrower concern about the possibility of global civic solidarity echoes a broader point about the relationship between democratic self-determination and human rights, a key theme of the book as a whole. Despite rejecting Habermas’ argument for the “equiprimordial” origins of democracy and human rights, Ingram nonetheless defends a certain complementarity between the two. In the chapter on solidarity, this is evident in the claim that democratic self-determination and human rights represent “twin pillars” of civic solidarity (324), and the assumption that the “primary” solidarity of bounded, partisan groups is consistent with a “secondary” solidarity with humanity as a whole (and not premised precisely upon the rejection of such a broader solidarity). The assumption of the complementarity of democracy and human rights is also evident in the ecological conception of a human rights regime that both legitimates and is legitimated by democratically structured states. This complementarity, however, could also be viewed as a kind of circularity, and might seem idealistic at a historical moment when democracy and human rights often appear not only as not complementary, but as positively conflicting. To take a concrete example, what becomes of the legitimacy of the UN Human Rights Council if democratic states decide to withdraw their support, as the USA has recently done? What authority would that body then possess to in turn condemn human rights abuses on the part of those very states? There are certainly plausible responses to such a question, but a purely procedural conception of the legitimacy of international human rights is not well equipped to offer them.
Luckily, Ingram’s account of human rights is not purely (nor even primarily) procedural. This is the point that emerges from a close reading of Ingram’s book, a rather surprising one given his career-long development of Habermasian themes. The synthesis of Habermasian discourse ethics and Honnethian/Hegelian recognition theory is weighted heavily toward the latter here. The substantive conceptions of social freedom and complex agency provide the normative core upon which the edifice of human rights law is built. This belies the key discourse-theoretical claim that normativity is generated by the discursive procedure itself. Rather, discursive mechanisms appear ultimately as effective means by which to express and institutionalize agency, as required to actualize social freedom. It is true that discourse might also be viewed as constituting agency to some extent, but it nonetheless does not endow agency with its normative value. Thus, it does not technically generate normativity, but at best secures the conceptually prior normativity inherent in Ingram’s conception of agency.
What does this have to do with democracy? Habermasian critical theory can be understood not only as inaugurating a “juridical turn,” but also a democratic turn in the tradition. Viewing discourse as the source of normativity makes democracy essential to the articulation of legitimate principles of justice, and relegates the philosopher to the role of participant in that process. Dispensing with this key axiom entails – for better or worse – a more ambivalent approach to actually existing democracy. Regarding the darker tendencies of unchecked democracy, one might hold that legitimate democratic practice depends upon background conditions of uncoerced agency and social freedom, but that, in the absence of such conditions, democratic rule is capable of producing and maintaining injustice. Human rights could be justified independently, insofar as they are necessary for securing agency and social freedom, making human rights prior to, and not dependent upon, democratic forms of legitimation. In some ways this sort of view might mirror the liberal view of rights as inherently legitimate checks on democracy, without the attendant liberal bias toward negative rights and atomistic individualism.
To be clear, this is not the view that Ingram defends. In many ways, his view doubles-down on the necessity of democratic legitimation at all levels of legitimate law (and at the economic level as well, evident in his adoption of Schweickart’s model of Economic Democracy). Yet the philosophical foundations he articulates need not be developed in just the way he does, and suggest the possibility of being developed in a way that places human rights on an even stronger normative foundation. And pace Habermas, such a view might also reinvigorate inquiry into the role philosophers, intellectuals, and activists might play, outside of the limited participant perspective of discourse ethics, in articulating and promoting key features of social freedom. 8
In all, Ingram’s book represents a wide-ranging and important contribution to contemporary critical theory, one that demonstrates its relevance to a number of current topics in political thought, including cosmopolitan law, development theory, and the philosophy of human rights, among others. Consistent with critical theory’s emphasis on the link between theory and practice, Ingram’s arguments draw extensively from social scientific understanding as well as philosophical reflection, and tend to articulate the practical and institutional implications of his ideas in some detail. One hopes, then, that his ideas and arguments find their way into the very bureaucracies that he discusses, in a way that might begin to shape them into the sorts of institutions that can transform global capitalism in the way that he describes.