From: MSalter1-AT-aol.com
Date: Thu, 21 Aug 1997 11:14:15 -0400 (EDT)
To: bhaskar-AT-jefferson.village.virginia.edu
Subject: Re: BHA: Bhaskar, dialectics and immanent criticism


In "Dialectic" RB offers us a series of different and in some respects
complementary types of critique that DCR thought can engage in. Immanent
critique he defines in terms of the revelation from within of theory/practice
inconsistencies within ruling ideologies, in contrast to, say, what he terms
"ommisive" and "achilles heel" modes of critique. Within the field of
political & constitutional and legal theory there does appear to be
considerable scope for contrasting discrepancies between what liberal
democratic ideologies of freedom, justice and equal treatment promise as
universal entitlements of citizenship, and what an antagonistic society
actually "delivers up" at the level of the empirical lived experience of
those it victimises.

My own question is what are the limits of, and difficulties for, the
dialectical strategy of immanent criticism, even within this apparently
fruitful sphere of application? Whilst a number of counter-arguments have
occurred to me whilst typing up these points, (not surprising since I have
long been an advocate and would-be practitioner of IC), I wonder what others
on this list think of the following possible objects to this mode of
critique.

1/. It is arguable that immanent critique requires a contradictory mixture of
motivations and presuppositions. Critics must initially presuppose the
existence of a contingent discrepancy between legal rhetoric and reality
otherwise there would be no point in even considering carrying out immanent
criticism. However, internal critics only pretend, in a deceitful fashion, to
accept various legal ideals, whilst this cynical pretence is itself grounded
in a utopian gesture of hope. Yet scepticism concerning an identity between
ideological rhetoric of law and its actuality can often be heightened during
the process of immanent critique, something which inevitably subverts any
element of hope.

2/.  It can also be objected that some absolute form of external
'foundationalism' is an absolute pre-requisite for any social scientific
critique of law without which all evaluation is condemned to the well-known
self-contradictions of moral relativism. And whenever the norms for
evaluation are taken from the target of critique, researchers disable
themselves from being able to criticise those totalitarian and racist regimes
which are most deserving of critique. Here we can ask: "Is it a sufficient
basis for criticising a totalitarian regime to simply exploit how its
practices fall short of its own anti-democratic ideals by still retaining
various semblance of constitutionality? Here the implication is that immanent
criticism is valid, if at all, only when applied to regimes whose
constitutional ideals are, in some sense, 'progressive'. This foundationalist
objection clearly objects to the reflexive claim of dialectical theory that
it forms part, and is implicated within, the historical changes which it
seeks to comprehend, and there is ever reason to doubt whether its criteria,
research methods, concepts and findings will achieve an absolute degree of
finality which remains true for all time. 

3/.   The immanent critique of legal ideologies clearly presupposes an
initial value-judgement in favour of concrete freedom over internally
unjustifiable constraints. Such critique assumes that priority should be
given to self-conscious forms of social self-determination over the
ideological domination of merely traditional, customary or institutional
imperatives that are themselves lacking any form of democratic
accountability. The underlying democratic interest which informs immanent
critique is that of enhancing the capacities of the 'human subject' to
exercise rational autonomy within the context of a unified community. It is
doubtful whether the initial preference for freedom from determination by
irrational social and ideological forces can itself be 'validated'
independently of the results of critique itself. Hence, immanent critique
must simply presuppose the validity of  enlightenment forms of rationalism
expressed through knowledge about law which can - in principle - help
liberate us from unwarranted relations of power, mythology and authority.Yet
to those postmodern scholars, who pronounce the "death" of the subject of
legal and human rights as part of the demise of the entire enlightenment
project will find little reason to accept this pre-supposition.

4/.  A related 'modernist' assumption made by dialectical analysis is that
cultural traditions are still open to a reflexive type of self-understanding
that is sufficient to allow us to develop a genuinely critical standpoint
upon them.  Immanent criticism of law presupposes that its target is
reflexive in the sense of possessing a discernable self-interpretation of the
normative value of its own practices. If this presupposition turns out to be
invalid, then it is not only pointless to expose discrepancies between the
rhetoric and reality of law but also naive to expect this 'disclosure' to
lead to any practical difference in institutional practices. Another related
assumption is any exposed discrepancies will be perceived as a problem by the
institutions themselves sufficient at least to alter their institutional
practices. Lichterman notes: 

"In a sense, academic practitioners of immanent critique and its variants
also accept the premise that law's putative ideal of formal, rational
discourse pervades society, if only by implicitly asserting that mere
exposure of contradiction or incoherence can bring about social change."
(1994: 1053-54).

Michael Salter 


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