File spoon-archives/bhaskar.archive/bhaskar_1997/bhaskar.9708, message 68

Date: Thu, 21 Aug 1997 20:09:26
To: bhaskar-AT-jefferson.village.Virginia.EDU
Subject: Re: BHA: Bhaskar, dialectics and immanent criticism


You raise many fascinating points.  I would like to offer some comments.

At 11:14 AM 8/21/97 -0400, Michael Salter wrote:
>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
>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.

I don't follow who these internal critics are, who are deceitful and cynical 
yet want to engage in immanent critique.  I would have thought that those 
who want to engage in an immanent critique are not deceitful and cynical, 
even if they are to some extent conceptually deceived by that they wish to 
critique.  Those who are cynical about the system and decsitfully use 
ideology to blind others have no interest in immanent critique.  Your point 
that the success of an immanent critique, by making the divide between 
theory and practice wider than previously thought, offers the danger of 
weakening hope to overcome the divide is important.

>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'. 

That is a good point, and it does seem to follow that in order to offer a
critique of a totalitarian etc. regime some other form of critique is
required, presumably an omissive critique.  From the standpoint of
practical politics and everyday life such regimes can rightly be judged
from the standpoint of justice and other moral values.  The key question
here is the justification of those values in turn.  I think such values are
external to the regimes, but I don't think that need commit us to
foundationalism.  An analysis of human needs, for example, is one way to
ground such values.

>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.

A non-foundationalist might also make that objection, but I don't think it
is devastating to dialectical theory.  A dialectical analysis of human need
might be successful in grounding values that permit us to critique the
regimes above.

>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. 

Why could not a dialectical analysis of human need ground freedom?  It does 
seem that the results of such an analysis would be 'external' to immanent 
critique in the way you suggest.  But there is no reason immanent critique 
has to do everything.

>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.

I say write those postmodern scholars off - their fad is fading fast.

>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.  

Maybe not entirely sufficient? Maybe only enough to allow openings?

>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).

Yes, we should not expect immanent critique to do more than allow the
possibility of opening doors.  Whether the doors are opened and people go
through them is a matter of action, whose analysis or dialectic is not part
of immanent critique.  Note that this position does not gainsay historical
materialism, of which immanent critique comprises a part, but not the whole.

Louis Irwin

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