Date: Sat, 23 Aug 1997 03:20:08 -0400 (EDT)
To: bhaskar-AT-jefferson.village.virginia.edu
Subject: Re: BHA: Bhaskar, dialectics and immanent criticism


In a message dated 22/08/97 22:40:19 GMT, Louis writes:
 Michael,
 
 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
 >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.
 
 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.
 
MICHAEL REPLIES

Yes, I agree but perhaps I should have said that to carry out an IC of
specifically liberal values of constitutionality and public law, I would have
enter into and learn to understand the signifiance of these norms. I would
have both to come to understand but not (at this point) accept/reject these
values. Such acquisition is easily confused with a sham form of being
interested in something because one accepts its value. Put crudely, if I
signed up to the electoral reform soceity or whatever in order to carry out
an ic of liberal constitututionalism, then those in that soceity - on reading
my critique (as if!) could complain of a high degree of cynicism and
deceptive behaviour on my part. The difficult for me would be to retain the
studied neither accept/reject mode during the step by step process of better
acquiring a sense of what is at stake in liberal values, norms etc. My
subjective intent may not be to deceive or cynical but that is not what
determines the signifiance of my action as an IC

 >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.
 
MICHAEL REPLIES

Again yes, but I would try pretty hard to try to find some pt of immanent
contrast, even some of the worse states maintained some semblance of legality
(of some perversely formalistic kind -), only if there was no possible
purchase here would I seek an external line of attack. Some notion of basic
human needs, preconditions for "human flourishing", that are external in some
sense may be helpful here. Put as non-immanent how do they avoid being used
as a trans-contextual "foundation"? Maybe I'm setting up the issue badly as
an either/or here (actually yes I am!) but I'm interested in how you see the
location and status of such non-imm human needs (prior to and indepedent of
their cultural definition)

 >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.

MICHAEL REPLIES

I agree, what via argument can be shown to be the best grounded available
values to date do not have to claim to be eternal, timeless or absolute when
viewed from the end of history etc. Horkheimer was strong on this point. For
us to recognise Historical relativity at the level of our knowledge does not
commit us, indeed it preempts us, from historical relativism in its nihilist
sense.
 
 >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.
 
MICHAEL REPLIES

 I think my point was more that we must initially presuppose a certain
libertarian vlaue commitment in order to even want to carry out IC, or any
act of dialectical grounding of freedom etc, and that this may or my not be
confirmed let alone grounded by any subsequent analysis using IC. Hence how
could I convince an intelligent authoritarian to engage in IC at all (or
dialectical grounding) on strictly cognitive grounds? This might be a dubious
goal on my part, and perhaps we should just "write off" authoritarians, but
this perhaps part of the politics of dialectics to?
What is more the authoritarians would regard such "writing off" as itself
authoritarian on our part, and could see this as more griss to their own
mill. Marcuse suffered from such reactions in the early 70's I recall. 

 >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.

MICHAEL REPLIES

Yes and No. Working through the immanent reasons why PM is wrong,
self-refuting etc, politically irresponsible, etc is a pretty good way of
sharpening up the cutting edge of IC. (Thats what i've done in recently
published stuff on the perverse consequences for human rights of a PM
approach to law, and found that for me it honed up a more differentiated
(well perhaps less crude!) notion of dialectics, reason, knowledge etc in
response to their totalised objections). RB seems to be moving in a little
more appreciative direction re Derrida, after having previously written them
all off. But I would accept that the value of Post Modern Thought lies in the
instructive character of its demise via their contradictions. The problem
with writing them off is that it plays into their hands, i can just hear them
cite this reaction as proof of the totalitarian character of rationalism etc
etc. Habermas's attempted total critique of the totalised critiqye of reason
by PM was pretty counter-productive - I came away more sympathic to Derrida
and Foucault than Habermas after having read it, and i approached it from a
position far more sympathetic to Habermas and CT

 >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?

 MICHAEL REPLIES

yes, that is a far better way of putting it, a half chance for a temporary
foothold

 >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.
 
MICHAEL REPLIES

Yes, perhaps the most we can ask of IC is that it disrupts the smooth
reproduction of legitimating ideologies, confronts purported exemplifications
of instituional "justice" with their theory/practice discrepancies, use the
power of the unrealised part of bourgeois norms of "freedom, justice and
equality" to brush "against the grain" which the ideologies would otherwise
prefer; and seek to give voice to expressions within everyday life where such
critical consciousness has already emerge in an immediate way, e.g., those
who bought their own privatised state housing on the promise of greater
freedom, only then to be cut adrift into the unfreedom of the free market in
private property, interest rates fluctuations, legal repossession etc etc.
 
 
 
 
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