The Juridification of Democracy

A sociological view of politics

Part of the complicated generation of ‘post-1968’ European thinkers, Gauchet began his work in close collaboration with Claude Lefort, Cornelius Castoriadis, and their idiosyncratic brand of socialism and social phenomenology. However, when he reached his mid-30s in the year 1980, Gauchet experienced a major renaissance in his thought and work. He became editor of Le Débat—‘the single most influential intellectual periodical’ of French new liberal thought according to Mark Lilla (2005: 68)—a position Gauchet held from that time into the beginning of the COVID-19 pandemic. He co-authored his first book, Madness and Democracy, with Gladys Swain largely as a critical response to Foucault’s highly influential theory of modern disciplinary institutions (translated into English in 1999). And he published long essays on both Benjamin Constant and Alexis de Tocqueville in which he began to systematically formulate a theory of democracy. ² Nearly three decades later, between 2007 and 2017, he published his masterwork: a four-volume treatise on democracy L’avènement de la democratie (The Advent of Democracy), spanning 2000 pages and culminating in Le nouveau monde (The New World), which presents his theory of neoliberalism.

Drawing on his early work with Lefort, Gauchet’s theory of politics originates in a social ontology merging Merleau-Ponty with a version of psychoanalysis. As outlined in the chapters of Gauchet and the Crisis by Stéphane Vibert and McMorrow, Gauchet stresses the human capacity for symbolic reflexivity: Societies and individuals are fundamentally open and undetermined, and reflect on and represent themselves in various guises. Because of this, the idea of social division is foundational for Gauchet, meaning roughly ‘that the reality of social experience is produced and maintained through an ideal, or illusory, representation of it’ (McMorrow, Ch. 5: 125). Social division underlies Gauchet’s specific conception of the political (as opposed to ‘politics’ in the prosaic sense), which refers to ‘a “doubling” that allows a society to name, grasp, deliberate, and act on itself’ (Singer, Ch. 9: 196). Indeed, ‘One of the founding axioms of Marcel Gauchet’s entire oeuvre . . . consists of erecting the political as a transcendental mode from which the very existence of human societies is derived’ (Vibert, Ch. 3: 63).

A core of Gauchet’s thought is thus the anthropological assumption that human beings are fundamentally incomplete and require symbolic representation and societal institutionalization to bridge an ontological gap (Moyn, 2012). He persists, in his own way, in a long French intellectual tradition of forms of Cartesian subjectivism, which has included Durkheim, Sartre, and his contemporary Alain Touraine (although these thinkers have deployed the concept of a ‘split’ or divided subject in a variety of opposing ways). What is essential for Gauchet is the way in which different political forms articulate and institutionalize the fundamental state of division. In this connection, he believes modern democracy is a major forward step in ‘the central tendency at work over the longue durée of Western history: the tendency toward the reduction of alterity in human life’ (Gauchet, 2016 (1980): 197). For Gauchet,

Democracy is the recognition of the division of the social body and the institutionalization of conflict in its different parts . . . In this formulation democracy is characterized by indeterminancy, with the concomitant ever-present desire—and threat—of wanting to fill that gap. (Bell and Drochon, 2022: xiii)

As described in Daniel Tanguay’s Preface to Gauchet and the Crisis, as well as Gauchet’s own contribution in Chapter 1, Gauchet argues modern democracy consists of three essential dimensions that have manifested in differentially weighted arrangements since the European Enlightenment. These are as follows: (1) the political dimension, related to the complex and elusive phenomenon of representation in democratic societies: in short, how is popular sovereignty instantiated in government? (2) the legal dimension, related to revolutionary discourses of social contract and universal rights, and (3) the historical dimension, related to ‘the temporal orientation of collective activity’ (Gauchet, Ch. 1: 19), which in democracy is future-oriented.

Steven Lukes (1977) once posited the fundamental distinction between Durkheim and Marx was their contrasting emphases on the problems of anomie versus alienation, which he argued were in turn ultimately related to different theories of human nature. Marx assumes that individuals are fundamentally whole and self-sufficient in and of themselves, but that social structures take on exploitative forms which corrupt the labors and self-image of those individuals. Durkheim, on the other hand, assumes that humans are in need of regulation by society, and therefore the ‘anomic’ form of contemporary capitalism is the problem of society run amok without adequate, accurate representation and regulation of itself. This distinction echoes again when we compare Gauchet’s social theory and particularly his account of democracy, neoliberalism, and populism to that of other contemporary theorists. For Gauchet, the problem of neoliberal crisis is essentially a problem of (im)balance among the three dimensions of democracy—as we shall see, he believes neoliberalism represents the deeply problematic juridification of democracy. Considering his social theory in full—as presented in Gauchet and the Crisis—offers an important opportunity not only to re-think the neoliberal moment but also to once again contrast Durkheimian and Marxian visions of social theory.

Gauchet’s social theory: modes of historicity

As McMorrow observes in his chapter on Gauchet’s political anthropology, the structuring of power within a society is legitimized and imposed according to one of two fundamental modes of historicity:

Human history [is] oriented towards two distinct modes of historicity, each of which is based on the way a community handles the division of its instituting power: by either denying this division, dispossessing itself of its instituting power (i.e., heteronomous societies), or harnessing its instituting power in order to act upon itself (i.e., autonomous societies). (McMorrow, Ch. 5: 122)

This is a categorical distinction as fundamental to Gauchet’s theory of modernity as that between mechanical and organic solidarity was to Durkheim’s. Gauchet observes in heteronomous societies a denial of the processual autonomy of society, as well as its projection and externalization in a ‘debt of meaning’ to original ancestors, spirits, and Gods. As noted in the Introduction by Doyle and McMorrow, this analysis owes much to Louis Dumont and Mircea Eliade, but above all Gauchet uniquely builds on the ideas of anthropologist Pierre Clastres (1987 [1974]) from Society Against the State. Like many modernization theorists, Gauchet sees in the religion of small-scale societies a disavowal of human creative capacity; he ‘reworks the notion of alienation, coining his own expression, dépossession (dispossession), which emphasises humanity’s blindness to its own power’ (Doyle & McMorrow, Introduction: 5). However, like Clastres, he also sees in small-scale or heteronomous societies the genius of a particular articulation of power that prevents the rise of a State and the massive forms of social stratification this has historically entailed. ³

The major aim of Gauchet’s (1997 [1985]) Disenchantment of the World is to offer a theoretical overview of how the chronological emergence of the State and then Judeo-Christianity historically alters this typically ‘premodern’ political arrangement. If at first consolidation of State power increases the autonomy of the ruling class at the cost of engendering considerably greater oppression of the masses, Gauchet proposes that modern monotheistic religion gradually erodes this edifice. Notoriously, he proposes, ‘Christianity proves to have been a religion for departing from religion’ (Gauchet, 1997 (1985): 4) because of the way in which it accelerates an autonomous historicity in the political self-articulation of ‘Western’ societies. The mode of transcendence accessible in Abrahamic religions restores a sense of autonomy to the individual subject insofar as it externalizes power beyond and above the State and restores a future-oriented sense of autonomous action on the material world. Thus, Gauchet proposes Christianity set the stage for the slow emergence of two pivotal phenomena in the 18th century: modern democracy and modern individualism.

Modern democracy enacts a move from social heteronomy to autonomy (see McMorrow, Ch. 5)—with the government seen as reflecting the will of the people (rather than dictating their place in a naturalized hierarchy) and society as legally justified through the natural rights of individuals and historically working toward collectively determined goals (rather than justified by and oriented toward the actions of ancestors). As overviewed in Chapter 6 by Mark Hewson, Gauchet sees the rise of modern individualism as a parallel movement to that of democracy. However, the proper causal relationship between these phenomena is often confused in democratic ideology. Whereas social contract theories form part of the legitimization of the democratic state, it is in fact the case that ‘The individual as such was born out of this materialization of a new power in the form of the modern state’ (Gauchet, 2016 [1980]: 215). It was the idea of a political power representing popular sovereignty, to which each individual could theoretically directly appeal in defense of their rights and interests, that gradually eroded the web of interlocking multilevel solidarities and obligations which exist in heteronomous societies. The ideas of political equality and universal rights were essential in this process, as was the general recognition of a ‘society’ independent of, and indeed in some sense sovereign over, the State (what we now call ‘civil society’).

Nevertheless, Gauchet proposes (again in Durkheimian fashion) that the modern individual pays a psychological price for their newfound autonomy. They do not emerge fully formed and self-possessed from the crucible of social revolution, but rather embark on a long and continuing era of crisis since the 18th Century. If the transition from societal heteronomy to autonomy represents a reduction in alterity for society, then at the psychological level individualization represents the opposite process: ‘a history of personal dispossession or subjective destitution’ (Gauchet and Swain, 1999 [1980]: 255):

Modern reabsorption of religious otherness may be understood as rearticulating individual and collective experience in the order of the other. . . an other who is we ourselves. It is an immense problem to establish your identity when it is no longer given by others. (Gauchet, 1997 [1985]: 166)

The aspect of Gauchet’s social theory that differs so dramatically from popular contemporary approaches is his bid to craft a philosophical history of the political as a ‘transcendental’ category. Here he diverges from the route that other French theorists took in developing the Nietzschean insights of Clastres into the historical evolution of the State form from small-scale society – namely, the route of biopolitics and theories of embodiment, force, and assemblage found in Foucault, Deleuze, Guattari, and their descendants. This divergence is all the more striking when we recognize the overall parallelism between Gauchet’s theory and that of one of the leading biopolitical thinkers, Roberto Esposito. In the place of heteronomy and autonomy, Esposito (2013) speaks of the communitas of traditionalist and the immunitas of modern societies—in short, communitas consists of a social orientation characterized by feelings of indebtedness to society, whereas immunitas is an orientation marked by the endeavor to protect the self against external infringements and obligations. This closely maps onto Gauchet’s presentation of ideas such as the ‘debt of meaning’ in traditional religions and the role of modern rights discourse in ‘immunizing’ the individual against society. ⁴

However, Esposito (2008) himself aptly identifies the source of the distinction when he opposes the paradigm of biopolitics to the paradigm of ‘totalitarianism’ he discerns in Gauchet’s work. The latter paradigm is a philosophy of history that frames modern society as chronologically wavering between democracy and totalitarianism as a function of its originary potentialities, a view that describes both Durkheim’s analysis of capitalism’s ‘abnormal’ forms and Gauchet’s analysis of populism. By contrast, according to Esposito, biopolitical theory takes a Nietzschean approach of deconstructing the search for origins, seeking to unearth the philosophical meanings latent in historical events (rather than constructing a totalizing philosophy of history).

Juridification in the neoliberal era

Especially for readers already familiar with Gauchet’s earlier translated work, the major advance of Gauchet and the Crisis is the way this volume articulates his more recent theorizing on neoliberalism and the contemporary upsurge of (authoritarian) populism. Gauchet’s own contributions in Chapters 1 and 2, as well as the chapters by Paul Blokker, Julian Martin and Natalie Doyle, and Brian Singer all focus on this thematic. These chapters are less squarely focused on Gauchet’s theorizing and deal with more concrete socio-political observations. They are united in their consideration of Gauchet’s ideas about the juridification of contemporary democracy, the role that the concept of human rights has played in this process, and the way that this process has in turn evoked populist reaction.

Speaking in generalities, there are currently two major critical theoretical approaches to neoliberalism (Choat, 2019). According to the ‘Marxist’ view, epitomized by David Harvey and the team of Gérard Duménil and Dominique Lévy, neoliberalism is a class-based project and political-economic agenda that is simply covered over with ideological elements; in sum, it is one more phase in the cyclic operations of capitalism. According to the ‘Foucauldian’ thesis, epitomized by Wendy Brown and the team of Pierre Dardot and Christian Laval, neoliberalism inheres above all in novel historical forms of subjectivity and governmentality, consisting of the marketization of all aspects of social life and the evolution from understanding individuals as human selves to understanding them as human capital.

Gauchet offers an interesting alternative perspective, which has more in common with the Foucauldian approach but features different emphases. Because Gauchet’s social theory was fully developed prior to the unfolding of the neoliberal moment, he can engage it through the lens of his theory and has done so to a greater extent and with more satisfying results in comparison with contemporaries such as Habermas. Unsurprisingly, he takes the long view of this epoch and sees it as an ‘abnormal’ or imbalanced form of democracy; he insists on the importance of the political (rather than the strictly economic) facets of neoliberalism and the crises it has brought about. On the one hand, neoliberalism can be seen as simply an intensification of the general process of individualization and exit from heteronomous society that Gauchet discerns in ‘Western’ history. On the other hand, what is distinct about neoliberalism is the hegemonic strengthening in recent decades of the juridical, as opposed to the political and historical, dimensions of democracy (Gauchet, Ch. 1).

In Gauchet’s historical philosophy of the 20th century, the totalitarian crisis of democracy occurred with 1930s Fascism, which represented an artificial inflation of the political dimension above the others (essentially, Nazism was an attempt to force a representation of society onto itself that would restore the heteronomy of pre-democratic social organization). This was superseded by the Fordist/Keynesian era in Anglo/European settings, which Gauchet describes as a ‘liberal democratic synthesis’ (Ch. 1: 24–25) that ostensibly balanced the three dimensions of democracy by stewarding a welfare state oriented toward the project of social justice, an executive branch oriented toward authentic representation of the people, and an administrative apparatus utilizing science and technology to direct collective power in a future-oriented manner. However, since the 1970s, Gauchet asserts that doctrines such as natural law and human rights have combined with growing individualistic delegitimization of the State and elites (facilitated, for instance, by modern media) to over-empower democracy’s legal dimension. A result, he proposes, is that people’s very understanding of democracy has changed: ‘The touchstone is no longer the sovereignty of the people, but the sovereignty of the individual defined by the ultimate possibility, if need be, of over-ruling the power of the collective’ (Gauchet, Ch. 1: 27).

Thus, for Gauchet, neoliberalism is an imbalance of democracy characterized above all by ‘juridification and economism, the latter referring to the tendency of Western societies to see their power of historical innovation as simply the outcome of their economic capitalist systems’ (Doyle, Ch. 10: 235). In a sense, neoliberalism is the ultimate case of ideology determining the political-economic base: ‘It is as if the fiction of a state of nature has now become reality, as if the primordial norm, defined with reference to a time before society, has merged with the social condition’ (Gauchet, Ch. 1: 28). The key problem here is that democracy is understood by Gauchet to be at base a collective project oriented toward autonomous mastery of society’s future. It cannot function without internal conflicts being brought before representative bodies and deliberately resolved in a manner of compromise under the guarantee of shared allegiance to citizenship. An imbalanced prioritization of the legal dimension and individual sovereignty is inherently opposed to this: ‘more rights for everyone means less power for all’ (Doyle, Ch. 10: 230).

This analysis of neoliberalism compellingly connects with some other, less widely recognized treatments. Gauchet’s emphasis on juridification can combinatorially account for two important but often underappreciated aspects of the neoliberal reality, namely, the emphasis on the expansion of governmental powers of penality in contrast to the rhetoric of governmental restriction (Harcourt, 2011), as well as the hollowing out of representative democracy (Brown, 2015). ⁵ Interestingly, although Gauchet is primarily interested in the European context (and the transnational juridification engineered by the European Union and human rights courts, for example), his analysis is strikingly relevant to the contemporary United States, given the rise of the penal state as well as the politicization of the judicial branch as part of the agenda of the Federalist Society and US conservatism more broadly. In line with some other commentators (e.g. Judt, 2010), Gauchet’s critical emphasis on human rights discourse also affords consideration of the role post-1960s identity politics and oppositional culture have played in neoliberalism (particularly the extent to which ideas of individualism and equality have served as a superstructure for technocracy and oligarchy).

Approaches to contemporary populism: Gauchet and critical theory

In many ways, Gauchet’s understanding of transformations in 20th-century political economy mimics the approach of classic critical theory and the Frankfurt School. In his earlier writings (such as Madness and Democracy), Gauchet presents a thesis of ‘totally administered’ or ‘totally socialized’ society—the bureaucratic state expanding into all aspects of life, which in turn produces a kind of false individualism (i.e. the individual psychologically believes they are at liberty to control their fate, when in fact their behavior has never historically been more influenced or monitored by external forces). This is essentially akin to the analyses provided by Horkheimer and Adorno in the 1940s–1960s. In his more recent discussions of neoliberalism, Gauchet further outlines how the implosion of the mid-century liberal-democratic synthesis means the state recedes from view even as it controls ever more aspects of our lives:

The nation-state has a greater structuring role than ever, but it now operates in a purely infrastructural mode, without the aspect of imperative transcendental authority that religious structuration had given it. The withdrawal of such attributes appears like a defeat (whereas, in fact, if the nation-state has ceased to command the economy, it is so that it can serve it even more as a support) . . . Mass society has been subverted from within by a form of mass individualism, which detaches the individual from his or her group membership. (Gauchet, Ch. 1: 26–27)

From here, it is not hard to trace the lines which for Gauchet lead to the current epidemic of populist demagoguery, which he frames as a ‘revenge of the political’ (Gauchet, Ch. 2). The operations of the state are now subterranean; they are perceived as simultaneously invasive and offensive, yet completely unrepresentative and undemocratic, by many diverse factions of society. At the same time, the ideology of juridification and individualism has led to a problematic intensification of ‘identity politics’, which has allegedly neutralized and split the political left while amplifying people’s desire for symbolic representation. Here is a thesis broadly familiar to commentators in the United States of cosmopolitan/rural divides and the resentful White working class. In Gauchet’s own words,

Populism is a major symptom of the now endemic crisis that is corroding democracies. It has arisen above all due to the forgetting of the dimension that is at the centre of the populist claims: the need to constitute a political community . . . The logic of globalisation replaces the work of self-reinvention with a ‘presentist’ activism, which is indifferent to the past, and which only sees the future as the prospect of its own expansion. The reaction against this vertiginous erasure of the past therefore takes the form of a call for identity that is as vague as it is desperate. (Gauchet, Ch. 2: 47, 54)

This is also broadly consistent with recent applications of first-generation Frankfurt critical theory to the problem of contemporary authoritarian populism (e.g. Jones, 2020; Morelock, 2018). Perhaps unsurprisingly, however, Gauchet’s approach lacks a psychological depth that is precisely the strength of the hypotheses and studies produced by the Institute for Social Research in the 1950s. In particular, he does not offer—at least in the currently translated works and secondary excurses—a satisfactory discussion of the role that racism and scapegoating play in animating authoritarian populism, nor of the dynamic of symbolic representation at play between populist followers and populist demagogues.

This speaks to a larger lacuna in Gauchet’s social theory and specific account of the populist reactionary wing—namely, his tendency to take from the Hegelian tradition a diachronic account of the internal historical unfolding of ‘Western’ societies but not a synchronic account of dynamics of power and oppression within and between societies. This is noted at multiple intervals in Gauchet and the Crisis—for instance, both Craig Browne (Chapter 4) and Doyle (Chapter 10) acknowledge that Gauchet has not sufficiently engaged with the problem of colonialism. As Doyle (2018) has critically noted in her monograph on his work, Gauchet’s predilection toward secular and nationalist meta-narratives makes it easier for him to theorize religious radicalism as a reaction to the anomie of the modern State than to investigate the ways in which populist scapegoating of (religious, ethnic) minorities has long served to bolster the power of the State and elites. Along similar lines, Singer contends, ‘Gauchet . . . is too quick to accept populist rhetoric, which presents the people it represents as the heart of the national community, while playing down the politics of enmity’ (Ch. 9: 204). A reverse side of this is Gauchet’s failure to sufficiently recognize the importance of rights-based rhetoric and identity politics for advancing the autonomy of disadvantaged minority groups and truly integrating them into the democratic project:

Legal mobilisation by civil society actors is not reducible to individualistic projects that only entail narrow goals of individual justice, but potentially includes broader societal and political projects in which rights claims play an important role, not merely as calls for individual emancipation but as cornerstones of a larger, alternative view of society and democracy. (Blokker, Ch. 7: 171)

Conclusion

Surveying the large number of theses contained in the present volume, representative of Gauchet’s voluminous scholarly output over more than four decades, it would appear that the great strength of his unique perspective is simultaneously its chief weakness. Durkheimian sociology has always had its blindspots. Although Gauchet’s approach generally avoids functionalist pitfalls such as evolutionism, it still has a proclivity to ignore the agency of individuals—an ironic state of affairs given his apparent belief that autonomy is a guiding force in social history. Even his most recent translated work—a philosophical biography of Robespierre (Gauchet, 2022 [2018])—reduces a powerful figure in history to the spokesperson and embodiment of historical ideas. Gauchet’s view at times seems to be that humans alternate between a state of submission to religious forces (in small-scale societies) and a state of paralyzing internal crisis (in modern society). This manifests as a weakness in his account of neoliberalism and populism. Without being able to analyze the agency of the elites who have engendered these movements, nor the potential collective agency of minority groups fighting against them, Gauchet is at something of a loss for concrete recommendations of a way forward.

Nevertheless, there is something to be said for grand theory which takes the long view and does not lose itself in the mire of data science and policy. Gauchet’s normative focus on democracy as a political form not only provides a unique and increasingly relevant perspective on neoliberal perversion but also an inspiring vision to work toward. Surely we are suffering from both alienation and anomie today, and surely sociology needs all hands on deck to cope with a period of multifold crisis. The stalwart optimism of Gauchet (which he carries forward from Durkheim) in the potential to balance the delicate dimensions of democracy might offer a sustaining light to those working in what seems an interminable darkness.