Hauke Brunkhorst’s Critical Theory of Legal Revolutions

From the perspective of social theory, the great theoretical achievement of this path-breaking investigation lies in the fact that it draws attention to the importance of the ‘papal revolution’ for social evolution. Previously, this was a matter of importance for lawyers and historians, who were interested in medieval Europe. Harold Berman had already articulated the significance of this caesura for modern social history. Hauke Brunkhorst has expanded this perspective still further by discussing the moment in which ‘Christian Europe’ entered the stage of social modernity as primary evidence to support a more far-reaching theory. From this perspective, important innovations such as the emergence of the modern state system, the differentiation of a market society from the political context, the constitutional revolutions of the 18th and 19th centuries and the rise of mass democracies since the 20th century cannot be explained in exclusively functionalist fashion through reference to processes of adaptation. Instead, it is necessary to choose a theoretical framework which allows us to appreciate the interplay between the observed increase in the complexity of social systems and those cognitive, sociocognitive and normative learning processes, which must be reconstructed from the participant’s perspective. ¹

In this regard, the papal revolution, initiated by Gregory VII, serves Brunkhorst as the classic example of an event, which can be understood as exploiting, revitalizing and institutionalizing the transgressing egalitarian and universalistic ideas of justice contained in the living tradition of the monastic ethos. The conception of ‘freedom of association’ formed the normative core of the new legal system, which differentiated itself from the religiopolitical complex in the course of the 12th century. The legal figure of the self-administering corporation marked the beginning of the functional differentiation of a hierarchical society, which had hitherto found its culminating point in the figure of the political ruler. As an unintended consequence of that medieval transformation, the secular state developed in the course of subsequent centuries. Following this dialectical pattern, Brunkhorst construes the Protestant Reformation and the emergence of the constitutional state as relevant stages in the evolution of law.

Brunkhorst’s alignment of the legal innovations of the Middle Ages and early modernity to the revolutionary character of the acts of constitutional formation in the late 18th century may be due to the fact that he links his argument to certain basic concepts of historical materialism. In a manner which is essential for his theoretical strategy, Brunkhorst makes a distinction between adaptive learning processes and increases in complexity on the one hand, and social–cognitive or moral–cognitive learning processes – leading to new normative constraints for adaptive learning – on the other, ² although he notes that Marx himself did not distinguish with sufficient stringency between the normative achievements of successful class conflicts and the technological progress of the developing productive forces. The reliance on the theory of class struggle helps to draw attention to the connection between innovations in law and social conflicts, but it also leads to an overgeneralization of exemplary cases. The available historical sources would probably better fit the abstract statements regarding ‘legal revolutions’ if debates and social conflicts occurring at the same time were not always presented as revolutionary events. ³

This is not to diminish the fact that Brunkhorst is able to penetrate an enormous amount of historical material in a theoretical manner that shows depth and acuity at the same time. The theoretical appropriation of the results of legal and historical research raises questions, which I leave to the experts. In the following, I will limit myself – proceeding from a fundamental agreement with the intention and design of this fascinating sketch – to a discussion of certain aspects of its theoretical construction. Above all, I will briefly deal with five questions:

1: Does the linear arrangement of the subsequent functional differentiation of the legal, the political, the economic and the educational system not draw an oversimplified (and, with regard to the legal system, somewhat misleading) picture of the thresholds, which punctuate the course of cultural and social modernization of Western societies?

2: How can we explain the dynamics of those transgressing normative ideas, which gave rise to the papal revolution, which inspired all subsequent socioevolutionary bursts, and which culminated in creating the ‘Kantian mindset’? This mindset is supposed to provide a somewhat mysterious potential which inspires social evolution from the outset?

3: Does the fact that law is embedded in the context of world views mean that we have to see the pacemaker function of legal innovations as dependent on the evolution of world views? Does this mean that we need to see the evolutionary learning mechanism as located at a deeper level in society?

4: If we ascribe greater weight to the critical role of the development of world views, what is the actual importance of the ambivalent description of ‘post-metaphysical’ thinking for a diagnosis of modern society?

5: What is the appropriate framework for a theory of social evolution, which attaches weight to the interplay between normative learning and systemic adaptation?

1: In typical fashion, Brunkhorst characterizes social modernity by arguing that society, which was originally constituted holistically and held together and structured by the political system, has been progressively differentiated into functionally specialized subsystems. This development leads from a hierarchical towards a heterarchical structure, and it can equally be described as a progressive ‘decentration’, in which ‘the political’ is increasingly removed from the imaginary all-embracing centre of society towards the periphery. The political, which appeared in the form of Ancient Empires or Classical City Governments, was an amalgam of two elements: it fused the power of government, including jurisdiction and administrative organization, with the spiritual power of the priesthood, which had responsibility for worship and which, through its administration of the means of salvation, also commanded resources for the legitimation of political authority.

The differentiation and the stabilization of the tension between regnum and sacerdotium, which developed throughout the late Middle Ages until the Golden Bull (1356), is a peculiar characteristic of Western culture. The papal revolution, which, following the academic reception of Roman law, refined the canon law into a medium for far-reaching reform of the ecclesiastical organization, formed a caesura in the competition and the ever-changing relation between Pope and Emperor. The reformed church presented the first example of a legally constituted corporation, and, as such, it embodied for the first time public law as differentiated from private law. As a result, it was now the exercise of the corporate power that was constrained by law. This innovative step can be described as a functional differentiation of the legal system. But we should not assimilate this internal differentiation within the complex of politics and law to the differentiation of law as a social subsystem of its own vis-à-vis the political system. In other words, the internal differentiation of law from politics does not proceed at the same level as the subsequent decentration of a society which initially was structured by an embracing political system. Subsystems such as economy, family, education, health, and so on would withdraw themselves from the reach of political imperatives in a way law never did.

Since the emergence of the state on the eve of the third millennium before Christ, law and politics have formed, together with the sacred resources of legitimacy administered by religious authorities an amalgam. From the beginning of state-organized societies, law and political power have been mutually constitutive for one another. This reciprocal relation is so close that the legal system cannot differentiate itself from politics in the same way that, through the secularization of state power, even the other component of the political complex – that is, the religious component – was able to do. The result of the papal revolution was an internal differentiation within this complex. Since that moment, law has no longer functioned merely, as was previously the case, as a means of organizing and channelling political domination; law assumed a further function beyond conferring on the decisions of the ruler a collective binding force and imposing binding norms of action on subjects. As public law, law became at this point also a medium for constraining the exercise of domination itself. To the same extent that the legally organized ‘freedom of the church’ became a model for other sectors of society, political authority in turn assumed the form of a corporation. In so doing, a once pervasive political power which had penetrated all spheres of life moved away from the centre of society, but it integrated at the same time the politically most powerful corporations – above all, the three estates of church, nobility and the cities within the early Parliaments.

From this double movement, we are able to appreciate how the trends from a hierarchical towards a heterarchical social structure can be understood. Politics was gradually able to withdraw from a step-by-step functionally differentiated society whilst disposing over modern law as a means of communication which could be circulated throughout all of society. The emerging functional subsystems were themselves legally constituted, so that modern governments can in virtue of their legislative and administrative power continually influence, even shape and steer them in an indirect fashion, without adversely affecting the internal logic of those self-regulating systems. It is only this dialectical mode of decentering society which explains why, according to the model proposed by Brunkhorst, normative learning processes and forms of legal evolution allow for new levels of functional integration whilst keeping them in balance with social integration. We need to see the decentration of society as a process, in which a functionally specialized administrative state ultimately remains still connected with an internally pluralized lifeworld of citizens. That network of overlapping lifeworld, for short ‘the lifeworld’, is the undercomplex residue of the formerly dominant ‘centre’ of society. The connection between state and lifeworld is formed by a political public sphere, which is sensitive, and able to give resonance, to crises in society. Only on this basis can we explain the fact, still evident today, that people continue to expect the state to offer a kind of final deficit guarantee for the solution to those problems that result from failures, for example, external costs of individual functional subsystems.

The functionally differentiated market economy possesses a distinct position among the set of functionally specialized subsystems because the non-linguistic medium of money makes it possible for macroeconomic processes to remain recursively closed in relation to non-economic environments. The excessive generalization of this special case in systems theory distracts our attention from the fact that none of the other functional subsystems can avail itself of a comparable capacity for blackmailing the political system. The tensions built into the relation between constitutional state and capitalist economy are time and again stimulated by critical demands of the population for further inclusion in the growing variety of more and more specialized subsystems. By the way, the educational system is in this respect only one among many subsystems. However, because of its role regarding the political expectations of citizens of a ‘just’ status distribution, it has gained particular political importance. This might explain why Brunkhorst follows Parsons in stressing the ‘educational revolution’ of the 20th century. The growing sensitivity towards, and the intensification of protests against, exclusion in general may well be the result of the progressive inclusion of growing parts of the population in higher education.

The conflict which, if we follow Brunkhorst’s presentation, is currently beginning to appear in the form of an ‘egalitarian world revolution’ will decide whether the legislative power of politics will be able, via a transnationalization of democracy, to subordinate a capitalism running wild to normative constraints. If this attempt fails, the scenario projected by systems theory will prove to be a self-fulfilling prophecy: the medium of law, decoupled from democratic will formation, will, in the context of an entirely decentred society, detach itself finally from nationally marginalized political systems, and – as advocated by legal pluralists – it will make itself available, as an instrument of self-organization, to the imperatives of self-regulating subsystems and in particular to the economic system, which has assumed a leading role in social evolution. It is only if such a scenario were realized that law, decoupled from politics, would become a subsystem of its own.

2: If, however, we follow Brunkhorst in assuming that normative learning processes are the guides of social evolution, how should we conceive of them? Brunkhorst construes moral learning, following Piaget and Kohlberg, as the progressive decentration of one’s own self- and world understanding in view of normatively relevant conflicts of action. Moral learning processes lead, step by step, to the overcoming of egocentric perspectives and to the mutual inclusion of the perspective of corresponding others in an expanded and shared perspective. The levels of a person’s moral consciousness can be assessed in the first instance in her moral judgements and actions. However, they are also embodied in cultural patterns and social norms, especially in judicial procedures and in the legal system in general. ⁴

Brunkhorst starts from the assumption that post-traditional consciousness in terms of an egalitarian–universalistic individualism has become increasingly widespread in modern societies. In the West, this consciousness has its historical roots in monotheistic communities of faith. The Kantian mindset translates this religious potential into secular language. Brunkhorst introduces the deontological mindset as the reasonable counterpart to the ‘managerial mindset’ – the rational choice type of calculation. He presumes that this potential has existed since the Axial Age. That is why the Kantian mindset repeatedly appears like a deus ex machina in his construction. However, this raises a question about the particular conditions which explain why this latent potential was activated at the end of the 11th century. In this respect, I would like to refer to two interesting developments. The eschatological impulse of Gregory VII towards radical reforms of church and society and the fact that the church was able to channel and transform heretical forms of social protests against scandalous poverty and exploitation into a revolution of the law must be explained through local factors, of which I would like to emphasize two in particular:

on the one hand, the Roman Catholic Church assumed that improbable dual position as a power that was simultaneously spiritual and political, which it had acquired through its leading role in the long process of constructing a ‘Christian Europe’;

In relation to (a), how can we explain the fact that Gregory VII assumed leadership of a movement which sought to release the priesthood and the church from their close entanglement in dubious ‘worldly’ matters and to mobilize them for the purpose of transforming society as a whole in accordance with the principles of a monastic ethos? Naturally, the Christians demand that people should transform their personal life in the expectation that the end of the world was approaching had always also contained an impulse towards the renewal of life in the community; and the sacrificial death of Jesus Christ had been always connected with the idea of the incarnation of a God, which assumed earthly form in order to provide a historical sign of a new beginning, the beginning of a new world age. Each of the great world religions was forced to resolve the problem of the inner-worldly representation, of the transcendent and in Christianity this problem was solved by the central theologoumenon of the crucifixion. But what became a unique feature if Christianity in the course of its early history was the worldly form of the imperial organization of the church.

The design of the Catholic Church mirrored the administrative structure of the Roman Empire. After the collapse of the imperial administration, it remained the only organization in the West, which could preserve the unity of the populus romanus in the shape of the ‘Christian people’. In the period of reconstruction which followed the decline of the Roman Empire, the church played a vitally important role. It did this both through its missionary activities in assimilating the migrant Germanic people and because it was the only remaining custodian of the cultural knowledge to preserve the continuity of Roman civilization. The church, which had been integrated into early medieval feudal society and acquired political influence, was, in the 11th century, no longer at the disposal of the Emperor as a source of legitimacy, as had been the case before. In the possession of the monopoly of legitimation it had finally assumed a dual religiopolitical role, acting both as the collaborator and as the rival of the worldly powers. Only in this special constellation of a balance of political and religious powers was it possible that a Pope was able to make demands his own, which had been repeatedly renewed in monastic orders and radicalized by heretical mendicant movements. Gregory VII translated and generalized demands for the moral self-purification of the priesthood and the church (struggling against simony) in the political quest for radical reform and the emancipation of society as a whole from misery and oppression; at the same time, he declared the almost theocratic claim of the church to leadership over the civitas terrena.

In relation to (b), Brunkhorst rightly accentuates the fact that the canonists deliberately tried to find handwritten copies of the Corpus Justinianum and he stresses the connection, surely not coincidental, between the meticulous systematic reception of the ius civilis and the contemporaneous founding of universities, beginning in Bologna and Paris. For the successors of Gregory VII were only able to use the canon law to reform the church into what became in certain respects the first ‘modern state’, because by that time an academically reflected attitude to traditional legal knowledge had been formed. Using the dialectical method, which had by then become standard at the universities, Gratian and his colleagues in Bologna read the traditional material as if it were those unfamiliar Aristotelian writings translated from Arabic. The goal of this first generation of legal scholars was not to apply Roman law practically but to reconstruct it in a logical manner and to organize it transparently. The immediate goal was academic, not practical, for contemporary social conditions had changed so much that law, handed down from late imperial times, could simply not be applied in a straightforward manner. This task would only be fulfilled by the chancelleries of courts and urban administrations in times to come.

To be sure, already in the classical age of the Greek polis, legal norms and procedures had been differentiated from the religiopolitical sphere; nomos was distinguished from ethos. And the professionalization of law, which was taught by learned practitioners, is renowned as one of the major achievements of Roman civilization. But law did not acquire a systematic autonomy in relation to politics until the legal practice became dependent on legal studies as a scientific discipline. Berengar of Tours (died 1088) and Anselm of Canterbury (died 1109) were contemporaries of Gregory VII. Their theological thought marks the watershed between the Augustinian endeavour to harmonize faith and knowledge and the rationalist response of the philosophers of the 12th century. They responded to the challenge posed both by Aristotle (and especially by his Posterior Analytics) and by the growing interest in the scientific insights of Arabic natural philosophy. And this rationalist response included a completely different interpretation of the venerable topos of the ‘credo ut intelligam’, namely a self-conscious ‘sola ratione’. The Aristotelian concept of science, which became standard at this time, demanded a precise distinction between faith and knowledge. And it is this burst of reflection which explains the methodological disposition, through which also law was transformed into an object of scientific inquiry, as if the universe of legal norms and regulations constituted a kind of second nature.

This change in methodological attitude, which for the first time, focused on law, separate from politics, as a realm of ‘objective’ spirit (Hegel), developed from a discourse about faith and knowledge which reached back into the time of the first encounters between early Christianity and the Hellenic culture of the Roman Empire. The controversy regarding the relation between fides and ratio remained at once a central source of disquiet and a productive stimulus for the Christian understanding of the self and the world. This was the case because, from the outset, Pauline Christianity was obliged to take a reflexive stance towards two conflicting precursor religions: towards the religious legacy of the Old Testament on one hand and towards the philosophical wisdom of the educated Roman elite on the other.

This retrospective is to remind us of the fact that the development of law was embedded in the context of the development of religious and metaphysical world views: legal innovations are located in the context of the development of world views. It was not solely the methodological approach which distinguished the canonists’ perception of traditional material. If they had not had Christian natural law in the back of their minds, and if they had not classified Roman civil law, derived from the Corpus Juris, in that hierarchy of laws already familiar to theologians, the reform of ecclesiastical law would never have given rise to anything close to the public law of modern state institutions.

3: If we bear in mind the extent to which law and morality are embedded in world views, the function that law assumed as a pacemaker in the development of Western modernity cannot be seen as an isolated phenomenon. Of itself, the interesting fact, brilliantly articulated by Brunkhorst, that the development of modernity began with the papal revolution raises questions about the whole complex of ‘the political’, which includes both religion and law. So far, we have looked at how law differentiated itself from politics (without, however, dissolving the constitutive connection between both components, which had developed with the emergence of the state in early high-cultural societies in China, India and the Near East). ⁵ At the same time, the papal revolution also initiated the development towards the secularization of state power, that is, towards the withdrawal of religion from the sphere of law and politics. The differentiation of the church from the state is the first step in the modern decentration of society, in which the political is increasingly removed from the imaginary centre of society.

Brunkhorst describes plausibly how this development led, via the Protestant Reformation, to the constitutional revolutions of the 18th century. Religion became an independent subsystem (although one that still participates in democratic will and opinion formation) as the contractualist theories of rational law and democratic legislative procedures replaced the traditional religious or metaphysical legitimation of political authority. In this process, the positivization of law went hand in hand with the secularization of state power. ⁶

Seen from a social-evolutionary point of view, religious world views and forms of worship formed a vital component of the complex of law and politics until the 19th century. Up to that time, and the papal revolution is merely one example of this, innovative legal ideas drew force from potentials which they borrowed from world views. This can be illustrated by the epistemic revolutions of the Axial Age, when those five or six world religions, which retain powerful influence up until now, were founded and supplanted the mythologies of the early literate cultures. This meant a break with the symbiosis of ‘salvation and domination’ (Jan Assmann), which had initially developed in all state-organized societies.

In the mythologically-interpreted world, the Mortals and the Immortals had still encountered each other as inhabitants of the same universe. By creating a transcendent point of reference, be it a monotheistic God creating and saving the world or an essential world order founding nature in its entirety, the dualistic world views of the Axial Age exploded the immanence of the mythical world. From that point on, ruling dynasties were no longer immediately related to, and connected with, heaven. As political rulers were now themselves subject to the transcendent authority of divine or cosmic laws, teachers of wisdom and prophets were able to criticize the exercise of political domination in the light of those laws. From that time onwards, religiously legitimated authorities were bound by universalistic standards of morality and justice – as the Emperors and Kings of medieval Europe were bound by standards of Christian natural law. This higher law could become ominous if circumstances arose in which the subjects of the stratified Classical Empires rebelled against repression and exploitation (Bellah, 2011: Chapters 5–9). I mention this step towards religious and metaphysical world views in the Axial period as a reminder that we must draw a clear distinction between these processes of epistemic revolutions and steps of legal development (however much they may be intertwined).

For the construction of a theory of legal evolution, these reflections suggest the assumption of a two-level learning process. I would propose to proceed from the problem that arises when the systemically rising complexity of a society produces functional imperatives which overstretch the capacity of an existing form of social integration (whether a society is integrated by the structure of the kinship system, or the domination of an embracing political complex or of the interplay between the tax-based administrative state and a capitalist economy). Two conditions must be fulfilled for this problem to be resolved through an evolutionary step, leading to a new form of social integration with an expanded capacity for processing complexity.

The world view which stabilized an existing form of society is called into question by intellectual elites and confronted with a new ‘world view’. ⁷ The new one results from empirical and normative learning processes, which were triggered by cognitive dissonances. These were in turn caused by the failure of the established patterns of explanation in view of the phenomena of an increasing social and technological complexity.

The innovative potential of the new world view is utilized, under appropriate conditions, for another kind of normative learning processes; these give rise to a criticism specifically directed against the legal orders and political arrangements, the legitimation of which has become problematic in the light of transgressing ideas.

Since the archaic transition from societies, based on kinship, to societies organized around states, new social formations have been connected with changes in the formation of the political complex. This is why such learning processes have been connected with innovations in law.

4: Brunkhorst rightly identifies the act of ‘saying no’ of communicatively acting subjects as the primary mechanism which, in the assimilation of experience, makes cultural learning processes possible at all. However, with regard to class conflicts, which we can assume could not have existed in egalitarian pre-state societies, he boils the driving forces of social evolution somewhat too hastily down to the rejection of upcoming normative claims to validity: that is, to questions about justice, ‘The beginning of the evolution of language is not the beginning of social evolution. The latter can only emerge once normative communication is invented within an already existing linguistic environment’ (Brunkhorst, 2014). In view of the major evolutionary threshold of the emergence of language, giving rise to human development, this statement requires at least some further explanation. If, for example, in the social pragmatic fashion of Michael Tomasello (2009), we explain the emergence of gestural language through everyday pressures for cooperation, the question regarding the origin of normative vocabulary and of the corresponding normatively binding expectations and norms remains open. Anthropologists in the Durkheim tradition maintain that the origin of normativity resides in ritual practices. In terms of their formal attributes, these strange practices present a form of communication which is similar to everyday gestural communication. The complementary relation between the quotidian and the extra-quotidian form of communication supports the hypothesis that our grammatically constructed everyday language is the result of a symbiosis, which followed the stage of simple gestural communication. Seen from an evolutionary perspective, the semantic expansion of everyday communication, the origin of which Tomasello explains in the functional terms of imperatives for coordinated interaction alone, may have been the result of translating meanings, hitherto implicit in the mimetic behaviour of ritual practices, into those of linguistically available symbols (Habermas, 2012a, 2012b).

Through this process, ritually generated energies of social bonding would have been drawn into the medium of language and made explicit. Such a lexical expansion of vocabulary is indicated by the illocutionary forces of regulative speech acts such as ‘to command’, ‘to promise’, ‘to nominate’, ‘to declare’, ‘to marry’, ‘to baptize’, ‘to bear witness’, ‘to give force to’, ‘to find’, and so on, which still depend on authorizing institutions in the background. These expressions can be understood as the result of a process in which meanings of archaic origin assumed conventional linguistic form. In a different way, the linguistification of sacred meanings occurred in the form of mythical narratives, which decode the content of, or retrospectively interpret, ritual practices.

Mythical world views reflect the systems of norms of society in the conspicuous features of surrounding nature. In world views, religious knowledge is generally fused with empirical knowledge that has been acquired through everyday interaction with the natural environment.

At the same time, the connection between religious knowledge, tied to the sacral sphere, and profane knowledge, derived from pragmatic experience, was not without tension. Mythical explanations could in the end not withstand their cognitively dissonant encounter with empirical knowledge. This antagonism was perpetuated at the level of religious and metaphysical world views. Within Christianity, the same tension returned in the differentiation between faith and knowledge. After the nominalist revolution, faith finally isolated itself in its fideistic form from the allegedly corrupt natural rationality. The Protestant Revolution in the 16th century and the formation of modern physics in the 17th century placed a seal on the decoupling of the truths of faith from the independent growth of profane knowledge in science. Kant and Hume shaped the empiricist and the rationalist branches of what then became a post-metaphysical mode of philosophical thought. In this constellation, science and philosophy hence lay claim to be able to substitute religion and metaphysics with a completely secular understanding of the self and the world.

The increasing mass atheism in Europe seemed to confirm this self-understanding of the enlightenment of the 18th century. This would have the implication for a theory of social evolution that, as a result of its functional specialization, religion had not only forfeited its connection with the completely secularized sphere of law and politics but had also become increasingly superfluous for the social integration of the everyday lifeworld. From this perspective, rationally motivated moral principles will be sufficient to maintain the required level of social integration of communities, just as rational law is sufficient to support the political integration of citizens. It is this reason that assumes from religion the task of providing encompassing interpretations of oneself and the world as a whole. Moreover, on what does reason base its claims, if not on science? In view of this connection, Brunkhorst mentions some doubt, since the project of the 18th century, which identified scientific progress with enlightenment, has become problematic in the meantime, since science loses its impact on any comprehensive understanding of the self in connection with what we know about the world. ‘Enlightenment’ had been a philosophical concept that differentiated between the growth of scientific knowledge and the implications that this growth of knowledge of the world acquired for us in understanding ourselves. Enlightenment is not itself science, but rather an explanation, conducted in a scientific spirit, of what progress in knowledge of the world contributes to our self-understanding.

This dimension of self-understanding and world understanding is decoupled from research and development propelled by capitalist imperatives of economic growth. Science is detached from its former connection with philosophy, which, even in its post-metaphysical form, still has the function of self-understanding and world in common with religion. As part of the same process, the pseudophilosophical belief in science, actually in physicalist reductionism, claims to take the place left vacant by philosophy and insists on an objectivistic self-understanding. Though we acquire performatively, through participation in practices of the lifeworld, the kind of pragmatic and intuitive knowledge which is hermeneutically appropriated, rationally reconstructed, and transformed into those facts from which both the social sciences and the humanities proceed, we are told by hardcore naturalism to bracket this whole continent of knowledge and to understand ourselves exclusively in terms of the scientifically objectivized world. Instead of developing our self-understanding and world understanding well on the basis of scientific knowledge, but from within the reflexively transparent horizon of our lifeworld, we are supposed to understand ourselves solely ‘from the perspective of an objectified world, that is, in light of what the natural sciences say about us’. When this project merges with a socioevolutionary perspective, that scientistic self-understanding of humanity suggests itself as the obvious end point of the world historical trend towards the linguistification of the sacred, which began with myth, was perpetuated in the antagonism between worldly knowledge and faith in religious teachings and led to the humanist self-understanding of the enlightenment. Brunkhorst is well aware of the fact that he cannot adopt this conclusion without undermining his own project.

Brunkhorst is anyway enough of a dialectician to recognize that each legal revolution not only brings the benefit of a new dimension of freedom but also leads to an unintentionally extended space for different kinds of repression and violation of justice. Thus, the egalitarian revolution of the 20th century also triggered a dialectic of a digitalized global capitalism out running the steering capacities of a politically fragmented world of nation states. This leads to an alliance of post-democratic fatalism and scientism, which threatens to undermine our normative consciousness as such. However, if once the anthropologically deep-seated dimension, in which human behaviour is bound by norms, were day to dry out, normative statements would lose their connections with contestable reasons. And as the force of saying ‘no’ to normative validity would wane, talk about normative learning processes would become meaningless. It is a scenario like this which explains why Brunkhorst keeps off from allowing secularization to end with the post-metaphysical desiccation of religious consciousness. He sketches, instead, a mode of post-metaphysical thinking, which remains committed to tracing, in terms of Adorno’s Negative Dialectics, the utopian core of reconciliation which is encapsulated in the tradition of negative theology.

5: These roughly sketched observations contain commentaries which are more complementary than critical. I see these as preliminaries for certain corrections to the vulnerable parts of Brunkhorst’s theoretical model. His investigation is located in a framework defined by the basic concepts of a revised historical materialism. Brunkhorst intends to overcome the unreconciled conflict between political economy and class theory. He attributes to the former a functionalist approach in the style of Luhmann’s systems theory, whilst he appropriates the latter in terms of contemporary theories of action. It is my impression that Brunkhorst grafts somewhat too immediately a dimension, in which communicative action and normative learning assume prominence, on the functionalist theory of social evolution. The endeavour to link learning processes which are manifested in class conflicts to systemic processes of adaptation is not quite persuasive. As a theorist of evolution, Brunkhorst follows systems theory, which conceives ‘society’ as a process of the mutual adaptation of self-regulating subsystems which form environments for one another. Yet, as a historian of legal revolutions, he cannot ignore the learning processes of subjects socialized through cooperation and conflict in ‘lifeworlds’ that are intersubjectively shared. Statements about processes of ‘adaptation’ and ‘learning’ apply to different object domains, which are observed from different perspectives.

In a comprehensive sense, we should conceive of society as systemically stabilized networks of action and communication among members of socially integrated groups who are embedded in the context of particular but overlapping lifeworlds and capable both of conflict and of cooperation. Seen against the background of this comprehensive conception, the concept of society, which systems theory offers, is the product of an abstraction. For systems theory, the mass of communicatively interlinked actions is coextensive with ‘society’, whereas for the theory of communicative action this dimension merely forms one component – namely the societal component – of the lifeworlds. This social component only forms the structure of a lifeworld together with two other components – ‘culture’ and ‘person’, that is, with intersubjectively shared and culturally stored knowledge on the one hand, and with socialized subjects, capable of language and action, on the other. From my point of view, one has to refer to this complex notion of a society, encompassing culture and person in addition to the flows of communication and interaction, when we reconstruct learning processes, because ‘learning’, the acquisition of insights through the negation of errors, only occurs through the participant’s perspective. Learning processes are assessed through the solving of problems which the observing sociologist has first to make intelligible from the perspective of the participant himself/herself in order to describe them. ⁸

Socioevolutionary caesuras, which can be traced equally to cognitive and to sociocognitive and moral learning processes, can be identified with thresholds in the progressive differentiation between the three components of the lifeworld, whilst the components themselves become increasingly reflexive: ⁹ the trend towards critical examination renders cultural traditions discursively fluid, while science and technology, law and morality, art and aesthetic criticism are differentiated at the same time from one another and from encompassing religious or metaphysical world views and constraining ritual practices;

the trend towards the generalization of values gives way to the universalization of norms and principles;

the patterns of socialization shift towards both, the individualization of life-histories and the growth of personal autonomy through the increasing internalisation of norms and the intensification of self-reflexion. ¹⁰

In contrast, processes of functional adaptation can only be identified by their observed impact on stabilizing processes of communication and action; and they can only be explained with the help of theoretically postulated mechanisms. As in such cases, the self-understanding of the performing subject is not taken into consideration, and inquiry can focus solely on analyzing observed chains of action and communication: that is, the societal component of the lifeworld. Whilst ‘society’ (in this more narrow sense) is conceived as a self-regulating system, ‘culture’ and ‘person’ are conceived as environments for this system.

This decision on the level of theory construction has an implication which is of special relevance in our context – the move requires that we endorse, without further justification, a questionable ethical non-cognitivism. As a consequence, normative learning processes must be re-described in concepts of adaptation. However we assess the strengths of this theoretical strategy, we will not be able to have both things at the same time. We cannot explain social evolution in strictly systems theoretical terms, whilst linking this normatively blind paradigm of evolution with learning processes which, as they are measured by the reasonable correction of errors, need to be described as directed processes of an accumulation of knowledge.