(9781786438881 - Research Handbook On Critical Legal Theory) Critical Theory and The Law - Reflections On Origins, Trajectories and Conjunctures

JOBNAME: EE10 Christodoulidis PAGE: 2 SESS: 6 OUTPUT: Mon Jul 29 11:08:28 2019
1. Critical theory and the law: reflections on origins,

trajectories and conjunctures
Emilios Christodoulidis
1. A BRIEF ARCHAEOLOGY
The tradition of critical theory has its roots in Hegelian Marxism. While its organising
insight can be clearly traced back to Marx, its systematic development, if ‘systematic’
does not overstate the development of this dispersed and diasporic tradition, does
not begin until the end of the First World War. We will look sequentially first at the
origins – Marx’s profound debt to Hegel and to Feuerbach as expressed in the 1844
Manuscripts and the Theses on Feuerbach respectively – then at a brief history of some
of the postwar trajectories of its diaspora. Second, we will identify key moments of the
critical–theoretical enterprise, the basic premises of critical theory construction, by
providing an inventory of terms and a (necessarily brief) explanation of them: the
constitutive relationship of theory to practice or praxis; the dialectic and in particular
the moment of negation; the idea of theory’s task of mediation as it is situated and
embedded in history and the materiality of social reproduction; the genealogical
viewpoint; and finally the specific reflexivity that develops and is expressed in and as
immanent critique. Third, we will visit these concepts and the ways they interrelate by
way of a close reading of Max Horkheimer’s essay on ‘traditional and critical theory’,
a text that, despite certain limitations, allows the differentia specifica of critical theory
to emerge. Finally we apply these insights to law, to look at whether and how legal
method might carry the organising premises of critical thinking into the organisation of
law’s semiotic field, into legal discourse and legal practice. The analysis here is
somewhat skeletal; it falls to the rest of the volume to develop the themes of critical
theory along a rich variety of legal trajectories.
Already one is likely to encounter the objection that the critical project was
inaugurated by Kant rather than Hegel, because it was Kant who famously answered
his own question ‘what is Enlightenment’ with the injunction ‘dare to inquire’ (‘sapere
aude’), which releases ‘man from his self-inflicted immaturity’ by placing knowledge
on a critical footing. Hegel objects that Kant’s conception of critique is self-defeating.
For him, Kant’s categorical severance of what is (Sein) from what ought to be (Sollen)
undercuts the critical project by withdrawing from it the comprehension it requires to
figure as critique. Hegel introduces the dialectic to remedy the devastating disjunction
that we might call, with Johan van der Walt,1 Kant’s incurable hermeneutic deficit, and
what from the point of view of critique is an incorrigible incomprehension. We will say
1 See Christodoulidis and van der Walt, ‘Critical Legal Studies: Europe’, in Dubber &
Tomlins (eds) Oxford Handbook of Historical Legal Research, Oxford University Press, 2018.
2
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Critical theory and the law 3
more on this later, in looking at how critical theory promises to recollect the fragments
of the ‘real’ in terms of the ‘rational’. In the meantime Hegel invites us to note a
second crucial shortcoming of Kant’s critical project. What can duty (Pflicht/Sollen)
mean for us, he asks, in the realm of pure reason, if it is not conceptualised as a
response to the historical circumstances in which we are called to act? The dialectical
method is introduced by Hegel to remedy both shortcomings: both to sustain a
relationship between what is and what ought to be, and at the same time to locate it
within the historical situation, that is, in relation to finite circumstances. Only when
embedded in this way does the critical project acquire its necessary purchase in the
world. The Marxian notion of immanent critique, as situated in the concrete material
practices that reproduce society, pivots on this key insight that emerged from Hegel’s
critique of Kant.
We will pick up the strand of ‘immanence’ again, of course, as that which drives
critical theory methodologically. But first, to radicalise, with Marx, that first prong of
critique regarding the bridging of the domains of ‘is’ and ‘ought’, we turn to his
engagement no longer with Hegel but with Feuerbach, with whom Marx was in the
process of settling his accounts in 1845 when he produced that explosive text that came
to be known as the Theses on Feuberbach. It emerges most clearly in the famous ‘11th
thesis’, in which Marx argues that ‘[t]he philosophers have only interpreted the world,
in various ways; the point is to change it’. Marx of course does not mean that
philosophers should cease to try to understand the world; he means that comprehension
engages them in a task whose requirements are significantly steeper than ordinarily
assumed. The 11th thesis tells them that their attempt to understand cannot be and
should not be divorced and distinguished from an activity that has a certain telos, which
alone for Marx yields objective truth. As he puts it in the second thesis: ‘The question
whether objective truth can be attributed to human thinking is not a question of theory
but is a practical question.’ Herbert Marcuse, who was influential in introducing the
work of the Frankfurt School to the US academy, puts it nicely nearly a century later:
‘What exists is not immediately and already rational but must be brought to reason.’2
We will have a lot more to say about praxis and its relationship to theory in the next
section, but we can already discern in the invitation to bring to reason something of an
‘active element in cognition’, as Max Horkheimer put it. Hegel insists on a distinction
between the terms Understanding (Verstand) and Reason (Vernunft) that may help to
elucidate the modality of the critical intervention. The activity of ‘bringing to Reason’
involves an ambitiously synthetic activity that contrasts with the more superficial,
commonsensical perception of the givenness of phenomena as discrete and separate
entities. Reason asks the question of what is the mode of their individuation, what
evaluative criteria are deployed to individuate facts and events that appear as given at
the level of simple Understanding: evaluative because they carry a judgement over
salience regarding the criteria of selection. And then, to return to Marcuse, now with
even clearer echoes of Hegel: ‘As the given world [is] bound up with rational thought
and, indeed, ontologically dependent on it, all that contradicts reason or is not rational
2 Marcuse, Herbert, ‘Philosophy and critical theory’, Negations 6.1 (1989): 147–54,
emphasis added.

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4 Research handbook on critical legal theory
is posited as something that has to be overcome. Reason [is thereby] established as a

critical tribunal.’3
It would not be an exaggeration to say that these two poles – of reason and praxis –
are what the dialectic spans, poised to ‘probe the forcefield’ between consciousness and
being, subject and object, in Adorno’s formulation.4 Adorno along with Horkheimer
was at the forefront of the recovery of this Hegelian Marxism as the Frankfurt Institute
for Social Research (the ‘Frankfurt School’), established in 1923, took a radical turn
towards Marxism in the 1930s (only to turn away from it after the Second World War).
The rediscovery of the early Marx of the ‘Paris Manuscripts’ of 1844, a text that was
first published more than half a century after it was written, was crucial to the rise of
critical theory after the First World War, with its key emphasis on praxis, precipitated
by George Sorel’s theorisation of workers’ spontaneous political action and Rosa
Luxemburg’s theorising of the auto-gestion of revolutionary workers’ councils.5 In
terms of the philosophical turn to Marx, the great Hegelian Marxist Georg Lukács was
hugely influential in the 1920s with the publication of the History of Class Conscious-
ness, as was Karl Korsch with Marxism and Philosophy. These works raised a distinct,
and distinctly heterodox, voice against the orthodoxy of the socialist thought of the
Third International, critical because of the constitutive connection to praxis (more on
this soon) and echoing the early Marx, who had argued, against the givens and
assumptions that founded bourgeois society, that in fact the only given was human-
kind’s ability to forever create itself anew.
In this introduction to the rise of critical theory in Europe, both the history of that
rise and the theoretical trajectories and work of its protagonists, fascinating as they are,
will be kept to a minimum, in order to reserve some space for conceptual analysis. A
few words are nevertheless necessary to identify a tradition that stems from the work of
Marx in the 1840s and spans a number of generations after him. The annals of critical
theory in its European trajectory would include the influential work of Lukács and that
of the Italian ‘school’ (De la Volpe, Colletti), of which Antonio Gramsci was the
towering figure. The emphasis in the tradition drawing from Gramsci was predomin-
antly on the political moment of the production of political unity as the latter proceeds
through processes of ‘condensation’ and ‘distension’6 of social forces and the mobili-
sation of collective subjects which provide the ‘efficient cause’ of the development of
the material constitution – a theme radicalised later in the work of the leftists of the
Operaismo and Autonomia movements that emerged out of the Italian trade unions.
Perhaps one could extend the reach, though their inclusion is highly controversial given
their clear anti-Hegelianism, to a current of critical thought at the École Normale
Superieure in Paris, around the leading figure of Louis Althusser – a current that would
include Nicos Poulantzas, Étienne Balibar and Alain Badiou, and the recently much
ibid 937, emphasis added.

3
Quoted in Jay, Martin, The Dialectical Imagination, University of California Press, 1973,
4
at p54.
5 Sorel, Georges, Reflections on Violence, Cambridge University Press, 1999/1908.
6 See among others Laclau, Ernesto and Chantal Mouffe, Hegemony and Socialist Strategy,
Verso, 1985.

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celebrated work of Jacques Rancière.7 The work of Foucault at the ENS developed
largely in dialogue with that tradition. But most crucially the key protagonists and
representatives of critical theory are the theorists of the Frankfurt School, which
emerged during the Weimar Republic when the Institute for Social Research was set up
in Frankfurt, and brought within its ambit important thinkers such as Herbert Marcuse,
Erich Fromm, Karl Lowenthal and Walter Benjamin, under the directorship of
Horkheimer and Adorno. After the war, some of the protagonists returned from exile to
the Institute, and their thinking took a ‘negative’ turn away from the notion that the
dialectic might deliver emancipation. After Auschwitz, Adorno would largely surrender
political critique to the ‘aesthetic turn’, while for Horkheimer the prospect of
emancipatory action became increasingly remote in the face of the instrumental logic of
bourgeois society.
Today critical theory spans a heterogeneous field. On the one hand we have the
second and third generations of the Frankfurt School, orbiting the key figure of Jürgen
Habermas. Alongside him worked his contemporaries Alfred Schmidt and Albrecht
Wellmer, and among the exponents of the third generation were Axel Honneth, Peter
Burger, Oskar Negt, Claus Offe and Hauke Brunkhorst. Habermas’ highly influential
‘communicative turn’ was aimed at redirecting critical theory towards a theory of
Reason achieved now as mutual understanding, pursued in a political dialogue that,
given its conditions, presupposes and aspirationally achieves the equal competence of
all who enter it. But democracy in the form of communicative reason arguably gives up
on the tradition’s Marxist legacy, divesting it of much of its radicalism, to reconcile it,
eventually, to law in the form of the ‘co-originality’ and mutual implication of
democracy and rights, public and private autonomy. Pitted against this development we
find the critical projects of deconstruction (Derrida infinitely closer to Adorno and of
course Benjamin than to Habermas) and other currents of poststructuralist and
postmodern thought. Many of these currents are discussed in contributions to this
collection.
Perhaps the changes and mutations of critical thought tracked in the above are not
only to be expected but are actually faithful to a thinking that locates itself in history, in
a way that makes its insights forever partial, provisional and incomplete. For the
purposes of gathering the assumptions that are shared by the many currents of critical
theory, and that therefore underpin and inform its very identity, its self-proclaimed
historicism is one such shared assumption. The term immanence captures this with its
understanding of reason as located in history and its refusal to cast reflexivity as
something that might lift itself above the situation that informs its iteration. ‘Conjunc-
ture’ is the term that, in the radical tradition, typically captures both situatedness and
opportunity. If immanence is the first pole, the second is the emancipatory element of
theory: theory is the activity of ‘bringing to reason’ by confronting the contradictions
and tautologies with the explanatory frames within which they are encountered and
which supposedly provide the coordinates of meaningful engagement and action. While
how ‘immanent critique’ navigates this tension is a key theme that we will visit later
7 For competing accounts of the significance of this tradition see Badiou, Alain, ‘The
adventure of French philosophy’, NLR 35 [2005] 67–77, and Lecourt, Dominique, The
Mediocracy: French Philosophy since the Mid-1970s, Verso, 2002.

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on, for present purposes we note that in the move that invokes, confronts and
potentially transcends the context of its iteration, critique places itself on a certain
boundary. In its insistence that the givenness of phenomena, the ways in which the
fragmented world installs itself as the necessary context of action, may be navigated,
critical theory renegotiates the boundary between contingency and necessity. In the
third section of this chapter we will see that Horkheimer identifies ‘necessity [as] a
critical concept’8 that ‘contains a protest against the order of things’.9 By this he means
that its reach is not given, but that it harbours political contestation (‘protest’) by those
whose horizon of action it reduces. The term ‘liminal’ connects the critical insight with
thinking the border, in an understanding of ‘liminality’ as that which concerns the
distribution of necessity and contingency across it.
Despite the continuities we are in the process of tracking, there is one staggering
difference between the earlier generations of Marxist thinkers on the one hand, and the
exponents of Western Marxism after the First World War on the other. It has to do with
the question of revolutionary agency, or how to conceptualise the subject of praxis.
Between the 1840s and the 1920s, the working class was the projected bearer of the
revolutionary project. At the time of the resurgence of critical theory after the war, the
subject was already becoming a question to itself. As the issue of how to conceptualise
revolutionary agency under conditions of the rise of mass culture, the multiple
fragmentations of the working classes across the globe, anti- and postcolonial struggle,
and so on became increasingly problematic, critical theory took two different direc-
tions, both Hegelian, but of a radically different tenor. In the first, more mainstream
expression, the question of agency is recast as a struggle for recognition, with a view to
exploring the structures of reciprocity and agonistic engagement that embed actors in
social contexts and habitats.10 In the second, more radical marxisant expression, with
an emphasis not on agonism but on antagonism, the critical gaze largely turned away
from theorising the ‘subject’ and towards theorising the ‘event’ of revolutionary action.
Alain Badiou is a recent example of this tendency,11 while for Jacques Rancière, who is
much closer to the Hegelian roots (and Lukács’ idea of an emergent subjectivity), it is
in the event of staging resistance that revolutionary agency is enacted.12 It may be
worth noting here that Rancière’s intriguing turn owes much to his resistance to the
lesson of his teacher Althusser,13 and he dedicated much of his earlier ethnographic
work to recovering the workers’ own revolutionary voice in order to let them, so to say,
speak for themselves. Against Althusser’s dogged structuralism, where the ‘subject’ is
never more than the surface phenomenon produced by the structure (the ‘absent
8 Horkheimer, Max, ‘Traditional and critical theory’, in Critical Theory: Selected Essays,
Continuum, 1932/1976, p. 230.
9 ibid 229.
10 Honneth, Axel, The Struggle for Recognition: The Moral Grammar of Social Conflicts,
MIT Press, 1996.
11 Badiou, Alain, Being and Event, A&C Black, 2007.
12 Rancière, Jacques, Disagreement: Politics and Philosophy, University of Minnesota Press,
1999.
13 Rancière, Jacques, Althusser’s Lesson, Continuum, 2011. For his return to the Marxism
that Althusser rejected, see Rancière, ‘Le concept de critique et la critique de l’économie
politique des “manuscripts de 1844” au “Capital”’, in Lire le Capital, PUF, 1998.

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cause’), and where the subject position that the proletariat is ‘called’ to inhabit is an
ontological support or ‘placeholder’ in a field that ‘always-already’ represents the
economy of capital,14 Rancière’s is an attempt to carve out another stage for
revolutionary agency. The struggle for recognition here, unlike in Honneth and the later
Frankfurt School(s), involves ‘a class giv[ing] itself a name, in order to exhibit its
situation and respond to the discourse of which it is the object’.15 The reflexive
name-giving, however improbable, is set against the recursive folding back into the
processes of misrecognition that underlie identity formation under capitalism. The
significance of these acts of forging speaking positions against available distributions
must be borne in mind today: they are key to how the critical project understands the
processes of subject formation, and the distribution of attention and disregard that they
entail.
2. AN INVENTORY OF TERMS
This section looks at terms that are pivotal to the conceptual range and novelty of
critical theory. It attempts to provide an understanding of them, and track key
interdependencies between them.
2.1 Praxis
Critical theory borrows the term for ‘action’ from Aristotle, who distinguishes praxis
from the contemplative theoria. But it realigns it: praxis is no longer contrasted with
theory, as in Aristotle, but dialectically tied to it in a relation of mutual constitution. In
this relation neither concept precedes the other: ‘the old question – which has priority?
– is meaningless as it is posed’, insisted Marcuse. We saw in discussing the 11th thesis
that, against the reduction of reason to surface understandings that ‘interpret the world’,
Marx argued that reason was properly deployed in thematising the ‘existent’ with the
view to forging social change.16 The thematisation calls forth the facts and events as
relevant to the telos of restoring rationality to a ‘sunken’ world, if we can extend
Schelling’s beautiful formulation to capture something of the ruinous effects of
capitalism.17 Against the irrationalities with which class society is fraught, irrationali-
ties that emerge as contradictions, tautologies and impasses, against the irrationality of
14 See Althusser, L., Lenin and Philosophy, New York, 1971.

15 Faure, A. and J. Rancière, La parole ouvrière, Paris, 2007, p. 9.
16 The connection is clearly a great deal more subtle than what Ernst Bloch, the highly
original Marxist theorist, found ‘misconstrued’ in America under the banner of pragmatism,
‘which derives from an area altogether remote from Marxism, spiritually inferior, and indeed
alien to it’, despite the fact that it is being ‘constantly latched on to, as though it were identical
to American cultural barbarism. The basis of American pragmatism is the view that truth is
essentially nothing more that the social utility of ideas.’ Bloch, Ernst, On Karl Marx, Verso,
2018/1968, p. 90.
17 ‘Does not everything announce a sunken life? … The whole earth is an enormous ruin,
whose animals dwell in it as ghosts, and men as spirits, and where many hidden forces and

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a system that promises justice as it relentlessly delivers injustice, the aim of the
philosopher of the 11th thesis is to restore a properly human rationality. On the one
hand, theory equips practice with its coordinates; on the other, practice situates and
resituates theory within new coordinates that will inform its possibilities anew. A
dialectic develops between theory and practice in a dynamic process that is caught up
in history and in the making of history.
The theory/practice distinction installs a border between the two terms, across which
the dialectic operates. The boundary is, so to say, that which gives traction. Theory
measures itself against its ability to rationalise practice, and practice emerges as
meaningful with the help of theory. The dialectic keeps them combined and in tension.
Any asymmetry that installs itself between theory and practice can work both ways. A
deficit on the pole of practice leaves theory as mere contemplation of, and apology for,
the status quo; a deficit on the side of theory leaves practice underdetermined. The
latter is a more difficult deficit to appreciate, so an example might be helpful – an
example, that is, of theory failing to give adequate expression to praxis as self-
determined activity. In The Making of the English Working Class, Edward Thompson
described the communities of handloom weavers in Lancashire and Yorkshire at the end
of the eighteenth and the beginning of the nineteenth centuries that sustained
independent forms of production and exchange ‘without the distortions of masters and
middlemen’18 but were unable to protect and maintain those forms in the face of the
advancing capitalist economy. Alasdair MacIntyre makes the important point that what
these communities lacked was a ‘theory that would have successfully articulated their
practice’ of solidarity in the organisation of production and that would have equipped
them epistemologically to resist the supposed inevitability of the defeat of their very
own principles of association emerging out of jointly held conceptions of the common
good. They lacked the theory that would help them to articulate, as he puts it, ‘virtues
adequate to the moral needs of resistance’.19 The demands placed on theory are steep
here, and for MacIntyre it is not Marxism that will meet them. Because if Marx offers
a theory of resistance for the weavers – he was indeed impressed by the militancy of
the uprising of another community of weavers, in Silesia in 1844 – it engages them as
proletarians, a constituency incongruous to them in their professional association, not
attuned to the life form that made their engagement and resistance meaningful, and,
crucially, one that already assumes the defeat of their form of past life. I am reminded
of a similar deficit that Tom Nairn attaches to the ‘revolutionary explosion’ of May
1968. If 1968 failed, he says, it ‘failed because it was too novel, and inevitably dwarfed
most of the circumstances around it. It was heavy with a significance too great for our
times to bear, a premonitory significance which the events of May could only sketch in
treasures are held fast as if by unseen powers or magic spells.’ Schelling, Werke, 1927, quoted in
Anderson, Considerations of Western Marxism, p. 81.
18 Thompson, Edward Palmer, The Making of the English Working Class, Open Road Media,
1963/2016, at p. 295.
19 In the 1994 text ‘Theses on Feuerbach: a road not taken’, included in K. Knight, The
MacIntyre Reader, 1998, at 232. This point is also developed in MacIntyre, A., ‘Epistemological
crises, dramatic narrative and the philosophy of science’ The Monist 60 (1977): 453.

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outline.’20 How eloquent the incomprehension that attaches to that surge of collective
action: of an event that broke with the theoretical models available to interpret it.
Practice here was in advance, to paraphrase Rimbaud on the Paris Commune. And the
responsibility that befalls theory, once conscious that it lags behind, is to lend praxis
expression in terms that are adequate to it, and in time that is still opportune!
If the unity of theory and praxis is what is distinctive of Marxist method, it is also
what threads together the variants of critical theory, and collects the tradition around a
common premise. So far I have attempted to show how the connection can be
conceived at the level of conceptual analysis and the rationalising, emancipatory
gesture (that is, action) of the theoretical undertaking. But there is a second level at
which the connection between theory and praxis is forged, and this level explicitly links
theory to collective action. It can be read in Marx’s own rejection of pure theoretical
work as a means of social change,21 his conception of a humanism that comprehends
itself in action. And it is renewed and enhanced in the insistence that the unity of theory
and practice finds its culmination and completion in the mass revolutionary movement.
If today this connection, with few exceptions, appears increasingly remote (see section
1), one must remember that for the generation of thinkers that immediately followed
Marx and Engels the connection with practice was part of the lived reality of
theoretical engagement; clearly in the case of Lenin and Luxemburg, of course, but also
for the subsequent generation, among whom Lukács wrote the constitution of the
Hungarian communist party and Gramsci organised the workers’ insurgencies of 1919
and 1920, when he led the Turin factory councils, and then founded and led the Italian
Communist party in the mid-1920s.22 The examples are numerous. It was only after the
Second World War and perhaps, ironically, with the Frankfurt School of Critical
Research itself that had proclaimed with Adorno that ‘theory is a form of practice and
practice itself is an eminently theoretical concept’23 that the connection with praxis was
renounced, while the communist parties of Europe’s South sustained an often difficult
relationship with ‘their’ theorists (as for example in the tense relationship of Althusser
to the PCF). And yet the connection with practice remains the task against which
critical theory measures itself, not in the relatively easy lexical identification (‘theory is
practice’) but in the difficult articulation that demands a certain synchronicity between
the two, that demands, in other words, that theory does not outpace the real historical
rhythm of popular mobilisation or substitute for the masses’ own modalities of
engagement and self-understanding, while remaining alive and relevant to those
processes.
20 Quattrocchi, Angelo, and Tom Nairn, The Beginning of the End: France, May 1968, Verso,
1998.
21 ‘Just as philosophy discovers its material weapons in the proletariat, so the proletariat
discovers its intellectual weapons in philosophy’ (a contribution to the critique of Hegel’s
Philosophy of Right).
22 For Perry Anderson, ‘it is a token of his greatness’ that Gramsci ‘alone embodied in his
person a revolutionary unity of theory and practice, of the type that had defined the classical
heritage’. In Anderson, Considerations of Western Marxism, Verso, 1976, p. 45.
23 Adorno, T, Negative Dialectics, Routledge, 1966/1990, p. 144.

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2.2 The Dialectic and the Role of Negation
While the dialectic is absolutely central to critical theory, even at the outset a question
presents itself over its designation as method or system.24 ‘System’ ties it too closely to
Hegelian philosophy, where it receives its most profound statement but at the same
time becomes locked into a logic of history; ‘method’ on the other hand invokes
means–ends thinking that not only belittles its constitutive (rather than instrumental)
significance to critical theory but also begs the question of what ends critical theory
deploys the dialectic as the means of. However we describe it, nevertheless it is the
dialectic that lends critical theory its very dynamic, and places it within the movement
of history that it is tasked to at once understand and intervene in.
Against both the metaphysics of systematic philosophy, of which Hegel’s was the last
major iteration, and empiricism’s invitation to the ‘commonsensical’, critical theory
invites the observer to hold up to reason the givens of experience, the understanding of
factual situations, replete as they come with antinomy and contradiction. No fact
situation is to be deemed final or complete in itself, but always should be seen as an
instantiating aspect of the total situation as it is caught up in historical change. ‘Men
make their own history’, Marx famously remarked in the 18th Brumaire, ‘but not under
conditions of their own choosing’. Theory delineates that which opens up meaningfully
as the field for praxis, the constraints it must navigate and the vistas it may yet uncover.
For the interplay to be maintained, the gravity of the factual situation, the ‘mere
immediacy of the empirical world’ (Lukács), needs to be suspended for alternatives to
be glimpsed and, once comprehended, acted upon. This glimpse – the ‘Augenblick’ –
takes, in Lukács, an altogether different significance,25 but we cannot presently follow
him along that path.
We will remain instead with the significance of the negative in the unfolding of the
dialectic. The dialectic, as is well known, moves from an initial positive (thesis)
through its rejection (antithesis) to a transcendent synthesis or ‘sublation’ (Aufhebung
in Hegel) that maintains both moments, and preserves the transcended in the act of
overcoming it. These, for Hegel, are the markers of the unfolding of reason in history,
and the concept of negation, while crucial to that unfolding, is nonetheless transitory,
subject in turn to its own negation as history moves forward towards its telos. Against
Hegel’s projection of this smooth passage through the negative, Marx fastened onto the
contradictions that persisted in the reality of capitalism, identifying negation as
constitutive to the formation of subjectivity (degradation reaches its acme with the
dehumanisation and objectification of the proletariat: the negative form of absolute
deprivation of the ‘Nothing that would become Everything’),26 and suggesting leverage
in the unresolved contradiction that – as negation – sets reality against itself.
24 On this see Jameson, Fredric, Valences of the Dialectic, London, Verso, 2009.
25 Lukács, Georg, History and Class Consciousness: Studies in Marxist Dialectics (R.
Livingstone, trans), London: Merlin, 1971/1923.
26 See Marx, A Contribution to the Critique of Hegel’s Philosophy of Right. On the
constitutive role of negation see also the chapter on critical legal theory and Marxism in this
volume.

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Taking up Marx’s insight, the theorists of the Frankfurt School also fastened onto the
moment of negation, and insisted on viewing critical theory as the site of the negative
thrust of Reason. In their earlier work, indeed, the critical impulse sustained itself in its
opposition to the order of society as it appears, insistent on the nonidentity of the actual
and the rational, and installing itself, as intervention, in that faultline between the two.
‘A given social order based upon a system of abstract labour and the integration of
needs through the exchange of commodities is incapable of asserting and establishing
a rational community’, argued Marcuse. The contradiction cannot be ‘sublated’ by
means of pursuing the systemic logic of bourgeois society; it requires a utopian
moment (utopian because unavailable in the given situation) and therefore a commit-
ment to negativity. Horkheimer will also warn in 1942: ‘Dialectics is not identical with
development … [Social revolution] is not the acceleration of progress but rather
the jumping out of progress [der Sprung aus dem Fortschritt heraus].’27 And later: ‘The
new society arises from praxis. It goes back to 1871, 1905, and other events. The
revolution has a tradition on whose continuation theory is dependent.’28
But where Marxism never abandons the idea that the extreme degradation and
alienation visited on the proletariat will become the point of dialectical reversal, the
critical theorists of Frankfurt – writing in the shadow of the rise of Nazism – came
largely to abandon the idea that an emancipatory dialectic might be forged out of the
situation they faced, and became increasingly insistent on the moment of negation
without sublation. In other words, where the conditions offered no possibility of being
put to question against any credible alternative or potentiality, the dialectic was
blocked.29 Horkheimer wrote in The Eclipse of Reason that ‘inasmuch as subject and
object, word and thing cannot be integrated under present conditions, we are driven by
the principle of negation to attempt to salvage relative truths from the wreckage of false
ultimates’.30
2.3 Mediation and Ideology
We will remain with the meaning and use of negation but generalise it beyond the
extraordinary circumstances of the rise of fascism, and across the very ordinary
operation of capitalist social reproduction. In a letter to Carl Lowenthal in 1934,
Adorno wrote of ‘the agonising development of the capitalist total situation whose
27 Quoted in Jay, The Dialectical Imagination, p. 157.

28 Horkheimer, Max, Autoritärer Staat: Aufsätze 1939–1941, de Munter, 1967, at p. 138.
29 ‘Their legacy would be to place the very notions of historical subjectivity and the idea of
an emancipatory dialectic between subject and object in question. Their coauthored essay on The
Dialectic of Enlightenment (1944) already commenced with an equation of subject-formation
and reification. The subject itself is as such a product of reification and dominance and can
therefore not be invoked for purposes of contemplating a revolutionary de-reification of social
relations, they argued. Negative Dialectics (1966) is one of the crucial statements of critical
theory’s despairing withdrawal from the philosophy of the subject.’ Christodoulidis & Van der
Walt, ‘Critical legal theory: European perspectives’, in The Oxford Handbook of Legal Research
(forthcoming).
30 Horkheimer, Max, The Eclipse of Reason, Continuum Books, 1974/1947, at p. 183.

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horrors exist so essentially in the precision of the mechanism of mediation’.31 We are

already familiar with the term ‘mediation’ and what it expresses for us. Here are some
examples: the operation of the capitalist economy and the material reproduction of
society are constitutively mediated by legal, political, moral and economic concepts
that simultaneously organise the network of commodity exchange and give it expres-
sion as the coordination of acts of freedom and autonomous agency; the operation of
the labour market that secures the extraction of surplus value is expressed as freely
contracted labour, and so on. There are key features of material organisation of society
that are thereby distorted, misrepresented, eclipsed or elided in the process of giving
them expression. Critical theory here measures itself against the operation of ideology.
If ideology in common parlance usually means a body of ideas and beliefs, in the
understanding of critical theory it is related to a function. This function is to sustain
relations of domination through a move at the level of representation.32 Marx invites us
to think about how real relations are represented and lived, and locates ideology as that
system of representation that mediates man’s relationship to the material conditions of
his life. Ideology here names a certain misrepresentation, a certain misreading of the
conditions that allows the continuation of a system of domination that presents itself as
free. As John Thompson has put it:
the concept of ideology calls our attention to the ways in which meaning is mobilized in the
service of dominant individuals and groups, that is, the ways in which the meaning
constructed and conveyed by symbolic forms serves to establish and sustain structured social
relations from which some individuals and groups benefit more than others.33
There is a connection here between material production and the control of intellectual
production, but that is not all. Ideology covers the multitude of ways in which
capitalism diffuses resistance and critique through subtle moves and strategies at the
level of representation. To reproduce itself over time, capitalism must ensure that
relations of production are reproduced, and that class struggle is prevented from
irrupting in a way that might challenge the capitalist distribution of advantage.
Our earlier insistence on negation, and the stance of ‘being-against’ that it informs,
can be comprehended as levelled against the ways in which systems of meaning and
dominant representations are mobilised ideologically to install false givens and
assumptions at the point of recovery of the meaning of the possibilities of association.
Critical theory faces a difficult task against the pervasiveness of ideology, especially
when the dominant interests it serves combine in hegemonic constellations.34 Organised
and transmitted through the network of predominantly cultural institutions, the system
31In Jay, The Dialectical Imagination at p. 66, my emphasis.

32Here is Marx in The German Ideology: ‘The class which has the means of material
production at its disposal, has the control at the same time over the means of intellectual
production, so that thereby, generally speaking, the ideas of those who lack the means of
intellectual production are subject to it.’ (1846/1932, p. 176).
33 Thompson, John B., Studies in the Theory of Ideology, University of California Press,
1984, at p. 73.
34 For the meaning of hegemony see Gramsci, Antonio, Prison Notebooks, Columbia
University Press, 1992/1931.

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of power becomes hegemonic to the extent that it can minimise the level of repression
it requires in order to secure its continuation, because the organisation of the totality of
dialectical mediations in such constellations extracts allegiance and secures consent.
How, asks Marcuse in One-Dimensional Man,35 might the negative thrust of reason be
asserted in a society that thus controls the consciousness of its members? Ultimately its
achievement will be to allow language to voice the protest of the oppressed, and
prevent it from mutating into a stream of affirmations or at best concessions before
‘false ultimates’. Our discussion has revolved around the question of how a critical
reflexivity might be forged out of these inert or suppressed material, the resources of
the society in which we find ourselves, the ideas, stock of meanings, interpretation of
history and imaginaries that contain them: a critical reflexivity that may be able to
resist the reproduction of the systemic givens.
Critique strives to put itself at some distance from the conceptual forms that
determine identity and action, if what is given over to ‘understanding’ (Verstand) by the
dominant imaginary is to be prevented from establishing itself as unquestioned and
unquestionable context for thought and action. In a crucial sense this involves the
introduction of contingency where there is necessity. Certainly, as we discussed already,
the reflexive move is emphatically not a stepping outside of the context that might
afford an objective (as opposed to class-inflected) view, but always carries the partiality
of contextually situated and historically conditioned perspectives. But where founding
assumptions carry self-evidence into the imaginary constitution of society by mobilis-
ing specific systems of signification and material support, critical theory demands the
recognition of the contingency of those foundations. This is both key to critical
thinking and one of its steepest requirements – one that Althusser, for one, thought
impossible in relation to the fundamentals of capitalist relations.36 Marx’s analysis of
the fetish phenomenon was for him a case in point: if the commodity form installs itself
from the outset as the very way in which we conceptualise social relations, action and
agency, then they cannot be stepped behind to recover them in a nonalienated form.
The distinction in fact of what is necessary and what contingent lies at the heart of
the task that critical theory sees itself as addressing, sometimes described as ‘anti-
necessitarian’ thinking.37 The idea is to resist the temptation to describe the realm of
freedom from the vantage point of (supposed) necessity; to resist the argument,
typically, that given human nature, such are the options available for the exercise of
freedom. Famously, for example, Thomas Hobbes extracted the reason for the
constitution of civil society from the givenness of human nature. The granting of
absolute sovereignty to the Leviathan connects to what motivates human behaviour –
35 Marcuse, Herbert, One-Dimensional Man: The Ideology of Advanced Industrial Society,

Sphere Books, 1964.
36 For Althusser’s rejection of the Hegelian tradition and the direct reconnection with the
scientific theory of historical materialism, see Reading Capital. For Althusser, Hegelian
‘historicism was a ideology in which society becomes a circular expressive totality, history a
homogeneous flow of linear time, philosophy a self-consciousness the historical process,
capitalism a universe essentially defined by alienation, communism a state of true humanism
beyond alienation.’ See Anderson, Considerations on Western Marxism, p. 70.
37 See e.g. Unger, Roberto Mangabeira, False Necessity: Anti-Necessitarian Social Theory in
the Service of Radical Democracy, Cambridge University Press, 1987.

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fear, given the nature of man that makes ‘[him] wolf to man’ and the ‘natural state’ as
that of ‘constant fear, and danger of violent death; and the life of man solitary, poor,
nasty, brutish and short’. An argument that begins with the supposed ‘givenness’ of the
nature of ‘man’ and what moves him allows the constitution of civil society to be
understood as coincident with its subjugation to the sovereign. In other words, at the
point of the recovery of the meaning of civil society, a point that cannot be stepped
back from, is installed the necessity of its subjugation. The assumptions over necessity,
whatever their content, across the theories of social contract premise the ‘political’ on
necessary assumptions about human nature. To this Marx responds with an argument
that attributes near infinite plasticity to the possibilities of human association.
But to return to the key term under scrutiny, the focus and stake of ‘mediation’ are
the processes of meaning construction. If, as we read it above, the 11th thesis aimed to
elevate Understanding to Reason, it was because understanding of the world, the
observation of reality, is never immediate to itself; it is instead mediated through
categories, structures and conceptual schemes. These mediations are of course abstrac-
tions; they select and classify the ‘raw’ material of observation, individuate events,
establish causal connection, generalise specific features of the situation while suppress-
ing others, and in that mediation they configure the real. The creation of meaning
occurs in terms of specific imaginaries, with their vocabularies and rules of significa-
tion. It also occurs in the context of specific sets of social relations, institutional
arrangements and processes of social reproduction. In both senses meaning construc-
tion is always in media res: situated in history, partial and perpetually incomplete. It
may appear surprising that critical theory directs us to the mediating function that
involves abstraction, since Marx famously denounced precisely capitalism’s transform-
ation of concrete labour into ‘abstract labour’, the concreteness of social life into the
abstract lawlike forms of exchange-dependent civil society. But what Marx was
denouncing in these abstractions was not abstraction itself, which is a constitutive
moment of thought, but the specificity of bourgeois abstractions that involve specific
substitutions: of use value for exchange value, of living labour for dead labour, of
social being for individualism, and so on. Critical theory calls for attention to the fact
and the nature of mediation; understands it as historical and therefore as revisable; and
in that sense is both attuned to the ways in which social change might be pursued and
more importantly attuned to the distinction between what is contingent, and could
therefore be thought of, thematised and undertaken otherwise, and what is not.
But if negation invites us to resist ideology and hold the present up to reason,
because it divests realities of the self-evidence with which they present themselves to
our understanding, it fulfils a similar function when it comes to the past. Here the
emphasis of the critical project is on how reason fixes its gaze on, and uncovers, the
past. For this we turn to another important concept of the lexicon of critical theory, that
of genealogy.

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2.4 Genealogy
‘A true dialectics was the attempt to see the new in the old instead of simply the old in
the new’, wrote Adorno in the Metacritique.38 This is clearly not a statement to the
effect that ‘history matters’, as easy references to the notion of genealogy so often
assume. It is instead a dialectical intervention in the temporal dimension of the
present/past: it alerts us to the fact that every new constellation that we inhabit as
political actors repositions us before the challenge – and renewed capacity – to read the
past as it becomes available to our understanding at each turn. This repositioning
introduces a new level of contingency across the temporal dimension of meaning
construction. It works against the assumption that the contingency of the future is set
before and against the determinism of the present and the past. Instead the ‘active’ role
of the contestation of the past in the present sets the latter, too, on a contested basis; a
certain fluidity is introduced across both borders (past/present/future) and along the
entire axis of the temporal. And if genealogy is often associated with ‘subjugated
knowledges’, as the literature on and around Foucault frequently reminds us, it is the
disruptive thrust of genealogy that allows their recovery against the way in which
dominant historical trajectories establish lineages and causal continuities that ‘sub-
jugate’ them.
‘What I would call genealogy’, Foucault famously wrote in 1977, ‘[is] a form of
history which can account for the constitution of knowledges, discourses, domains of
objects, etc, without having to make reference to a subject which is either transcenden-
tal in relation to a field of events or runs in empty sameness throughout the course of
history’.39 For Foucault (who takes his inspiration from Nietzsche), ‘there is nothing
primary to interpret’: everything is already interpretation. If genealogy is a history of
the series of interpretations, it is also a history of how things have come to be seen as
objective. The genealogist, Foucault puts it memorably, is tasked with ‘recognis[ing]
the events of history, its jolts, its surprises, its unsteady victories and unpalatable
defeats’; tasked with understanding the ‘hazardous play of dominations’40 against what
comes to install itself as the apparent objectivity of the present. That is why Foucault’s
emphasis is on the events of history, and that is why his genealogy is disruption: a
contingency read back into histories to destabilise them at the junctures where they
assert objectivity and constitute themselves as a knowledge. Let us be clear about this
point of method: the genealogical coupure allows us to cut into historical trajectories to
look at how, at crucial junctures, certain options were discarded and certain options
were installed as conditions of the range of further developments. With attention
focused on how discourses harness the power of truth, genealogy points to the
contingent constitution of those objectivities. Accordingly, a profound possibility and
urgency attaches to the genealogical method: urgency because histories – in their
paradigmatic form – are caught up in trajectories that offer nothing as alternative; and
profound possibility because genealogical method holds the historical framework itself
38 Quoted in Jay, The Dialectical Imagination, at p. 69.

39 Foucault, Michel, Language, Counter-Memory, Practice: Selected Essays and Interviews,
Cornell University Press, 1977, p. 144.
40 ibid, p. 148.

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to question in a way that both exposes the points of foreclosure on which current
certitudes depend, and directs historical insight back to the discarded histories of those
certitudes.
Foucault’s genealogy is tied to what he calls the archaeological method. What
the archaeology ‘excavates’ along the temporal path-dependency of meaning are the
junctures where determinants set the present on its path. It asks: what were the
possibilities and contingencies that might have been thereby passed over, elided or
obscured? And while Foucault was most interested in uncovering the histories of
discursive formations as a series of interpretations on which ‘violent or surreptitious’
direction was ‘imposed’,41 he points critical theory in the directions of what it means to
reappropriate the past, ‘bend it to [a different] will’ and restore it to alternative
interpretations that might challenge current certitudes; to return the past, as it were, to
its potentiality.42 A critical intervention of this kind addresses the question of the
conditions of possibility of the formation of knowledges; it addresses, in other words,
the gathering work that explanatory frameworks and contexts perform, with their
specific forces of rationalisation at play. Rationalisation would include here the range
of classifications, causalities, imputations, the array of techniques of selection, through
which the past is rendered operative for the present. And in a move that today we
associate with the notion of deconstruction, it attempts to trace their genesis and
operation; if the past is going to be released from such determination, to question their
functionality; and, if negation is still what drives critical intervention, to thereby render
them inoperative. Only in this way will the foreclosing of options be resisted, and an
enhanced reflexivity restored to the present in a way that equips it to revisit the
distinction between necessity and contingency outwith the seemingly intractable
path-dependencies that hold the present captive to the past.
3. IMMANENT CRITIQUE: THEORY AS ‘GENUINE FORCE’

In Max Horkheimer’s essay of 1932,43 traditional and critical theory are contrasted in
a series of stark binaries. The inaugurating move of traditional theory involves the
separation of questions of fact from questions of value, research from evaluation,
description from prescription. In ‘traditional theory’, conceptual systems (methodolo-
gies) that organise our knowledge of the world receive correction according to their
own criteria of salience and weight, in accordance, that is, to their capacity to sustain
their own internal coherence. The observer perceives herself as passive in the act of
reception, as if, says Horkheimer, s/he brings nothing to the process. At the same time
the perceived fact stands independently of the act that recognises it as fact. For
41 To quote the passage in full: ‘If interpretation is the violent or surreptitious appropriation
of a system of rules, which in itself has no essential meaning, in order to impose a direction, to
bend it to a new will, to force its participation in a different game … then the development of
humanity is a series of interpretations’ (Foucault, ‘Nietzsche, Genealogy, History’).
42 Returning the past to its potentiality is the aspiration that sustains Agamben’s method in
Signatura rerum. Sur la méthode, Vrin, 2008.
43 Horkheimer, ‘Traditional and critical theory’.

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Horkheimer, this dual misapprehension misses the crucial insight that ‘facts which are
presented to our senses’ are ‘socially pre-formed in two ways: through the historical
character of the object perceived and through the historical character of the perceiving
organ’.44 The perceived fact is, in effect, codetermined by ideas and concepts. The act
of perception is clearly connected, says Horkheimer, with material processes of
production that effect ‘the mediation of the factual through the activity of society as a
whole’.45 But it is ‘easy at this point to confuse two questions: the mediation of the
factual through the activity of society as a whole, and the question of the influence of
the measuring instrument’.46 Both are relevant but in distinct ways. ‘As man reflec-
tively records reality, he separates and rejoins pieces of it, and concentrates on some
particulars while failing to notice others.’ It is these processes of selection, of
disassembling and reassembling the ‘pieces’, with the full complement of anticipatory
assumptions, projected path-dependencies, and ‘hidden conflicting forces’, that
Horkheimer suggests that ‘traditional theory’ misses or elides in the perception and
representation of the world of ordered concepts that forms its object. Take bourgeois
society, he suggests, ‘in which the life of the society proceeds from the economy only
at the cost of excessive friction, in a stunted form and almost, as it were, acciden-
tally’.47 The problem is, he says with extraordinary foresight, that ‘contemporary
political economics are unable to derive practical profit from the fragmentary questions
they discuss’.48
Against the fragmentation that pervades traditional theory, a fragmentation that is
constitutive of the fundamental divisions (fact/value, subject/object) through which it
operates and therefore unaddressable by it, Horkheimer will invite the critical recupera-
tion of reason. The critical engagement ‘leads to a re-assignment of degrees of relative
importance to individual elements of the theory, forces further concretisations and
determines which [scientific insights] are significant for critical theory at any given
time’.49 ‘The world that is given to the individual is the product of the activity of
society as a whole.’50 A crucial insight about the unity of theory emerges in this
suggestion of the recuperation of reason. In the face of everything that has been said
about fragmentation above, the unity of theory is only achievable vis-à-vis the unity of
the situation that confronts it. This dialectical tie is crucial for the role of theory that
confronts, under capitalist conditions, a reality riddled by contradiction, in other words
a reality that cannot be theorised as a unity. And the importance of this insight is this:
the fact that theory in its current conjuncture cannot achieve the sufficient level of
internal coherence vis-à-vis contradiction does not make it deficient; instead the
recuperation of reason forces the theoretical undertaking not in the direction of internal
critique and the readjustment of its own methodological assumptions, but in the
44 ibid 200.
45 ibid 201.
46 ibid 200–1.
47 ibid 203.
48 ibid 228.
49 ibid 234.
50 ibid 200.

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direction of making rational the disunity that confronts it, equipped now with the
reality-transforming force of immanent critique.
What would the self-awareness of thought51 – what we have called its reflexivity –
achieve confronted with its object under conditions of fragmentation, substitution, and
so on – conditions, that is, of disunity? How might this stunted reflexivity – available to
‘understanding’ – be recuperated as self-awareness in the reflexivity of reason? Since
‘theory [as] a unified whole has its proper meaning only in relation to the contemporary
situation’,52 the task against which the critical attitude measures itself is to achieve
‘its proper meaning’ by addressing in a coherent way what in effect confronts it as
a dispersal of social totality. Inevitably theory will be drawn into an ‘evolution’ as a
result. It might be useful to note that this was never an issue for Kant’s critical
enterprise. For Kant, the primary transcendental move of critical thought, which is the
transcendental condition of knowledge, presupposes the existence of its object and
reflects on the a priori that conditions the possibility of our knowledge of it. To Kant
the question of the ‘evolution’ of theory in tandem with the reality it comprehends is in
any case lost, since the things-in-themselves are unavailable to perception and to any
sense of equivalence to the concepts that mediate them. To Hegel the transcendental
moment, the overcoming of Reason’s limitation, is a matter of history or of the
‘cunning of reason’. It is only with the Left-Hegelians, and Marx in particular, that
‘reason comes to stand over against itself [that is, over against its instantiations] in
purely critical fashion’.53 The Hegelian moment allows us to recover the critical vein in
Marxism from the standpoint of its own philosophical foundation.
But we do not need to dwell further on the philosophical foundations for present
purposes. Instead, let us return to the task that philosophical critique sets itself in view
of the thesis, Marx’s 11th thesis, that lies at its root. All theory, critical or traditional,
derives its statements about real relationships from basic universal concepts. But unlike
traditional theory, in critical theory these universal concepts do not install themselves
on one side of the distinction between diagnosis and cure, description and prescription,
but on the boundary itself. Because if in traditional theory the object is not affected by
the theory that describes it, critical theory casts its descriptions (its universal concepts)
as relevant to its own emancipatory function vis-à-vis necessity. That is why
Horkheimer says that ‘a consciously critical attitude is part of the development of
society’; because the diagnosis of the pathology is not independent of its overcoming.
The judgement passed on the ‘necessity’ inherent in the previous course of events
engages also a struggle to change it from ‘a blind to a meaningful necessity’. Hence for
Horkheimer, as we saw, ‘necessity is a critical concept’;54 and that is why ‘it contains
a protest against the order of things’.55 Where in traditional theory ‘necessity means the
independence of the event from the observer’,56 critical theory as the ‘tribunal of
51 ibid 209.
52 ibid 238.
53 ibid 204.
54 ibid 230.
55 ibid 229.
56 ibid 230.

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reason’ theorises a world in which the necessity of an object becomes the necessity of
a ‘rationally mastered event’.
And that is also why ‘the tension between the concept and being’, theory and the
social world, ‘is inevitable and ceaseless’. Critical theory installs itself in the instituting
gap between the two and what drives it is not some speculative commitment to
coherence, but to a deficit that is experienced by social actors, as alienation. ‘The
critical theorist finds himself confronted with the real experience of disharmony or
alienation.’ The transmission of theory is aroused by prevailing injustice, says
Horkheimer, ‘today, when the whole weight of the existing state of affairs is pushing
mankind towards the surrender of all culture and relapse into darkest barbarism’.57
Much of Horkheimer’s critical enterprise is directed to tracking the ‘productive’ tension
between processes he deems ‘objective’ and the ‘subjective’ experience they generate in
those who find themselves subject to them. The embeddedness in experience is crucial
for immanent critique in this respect: it means that the representation of discrepancy
and contradiction is not merely an expression of historical reality but a force of change
within it. ‘Immanence’ always-already implicates the historically poised, necessarily
unfinished nature of human engagement, which suggests that the engagement is not
something subjects can stand back from, but one that comes upon them with the ‘force
of present distress’ which they need to ‘make rational’.58 The emphasis in all this is on
the experiential dimension, the lived experience of suffering. ‘I do not know’,
Horkheimer wrote, ‘how far metaphysicians are correct … But I do know that they are
usually impressed only to the smallest degree by what men suffer.’59 The incomprehen-
sibility of suffering as such calls forth a response by the subject.
The response may take – and indeed, at least at first, it often does – the form of pure
negation: an injunction that this is unjust. In an important essay, Paul Ricoeur identified
that very injunction as one that crucially precedes the theories of justice that one might
engage to justify it and lend it weight. ‘The cry “it is unfair”,’ he writes, ‘often indeed
expresses a clearer intuition regarding the true nature of society and the place that
violence still holds within it, than any discourse over what justice rationally or
reasonably requires’.60 This temporal ‘anomaly’ connotes something important about
the crucial function of negation as we developed it above. Let us return to it, now with
the help of a real example.
In autumn 2005, the deaths of two young people in the Parisian suburb of
Clichy-sous-Bois sparked rioting on an unprecedented scale. In a period of a few weeks
the riots had spread to banlieues across France. In and around these suburban ghettos
insurgent crowds burned cars, damaged buildings and clashed with police. The scale of
the violence was such that it resulted in the French government’s decision to implement
emergency laws dating from the Algerian war of independence. The reactions from
57 ibid 241.
58 ibid, see 215.
59 In Jay, The Dialectical Imagination, at p. 46.
60 This is what Paul Ricoeur says in a tantalisingly short extract from his L’acte de Juger:
‘Nous n’accédons au sens de la justice que par le détour de la protestation contre l’injustice. Le
cri: “C’est injuste!” exprime bien souvent une intuition plus clairvoyante concernant la nature
véritable de la société, et la place qu’y tient encore la violence, que tout discours rationnel our
raisonable sur la justice.’ In Ricoeur, Le Juste, Paris, Esprit, 1995, p. 190.

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both government and public intellectuals were characteristically damning. For the
prominent Gaullist intellectual Alain Finkielkraut, the riots sprang from a religiously
motivated hate for the Republic; Nicolas Sarkozy, at the time Interior Minister, adopted
‘warlike semantics’, promising France that he would get rid of the ‘thugs’, the ‘rabble’
(‘les débarrasser des voyous … de la racaille’) and using the metaphor of a ‘Kärcher’
(a high powered cleaning hose) when speaking of his intentions to clean the suburbs of
the ‘scum’ inhabiting these areas.61
If on the one side the malaise des banlieues was offered only misrecognition
(‘religious hatred’, ‘thuggery’), if it was altogether denied the dignity of the signifier
‘resistance’ to the violence of systemic marginalisation that generated it, on the other
side the normative dynamics of the uprisings were neither harnessed nor structured into
meaningful political claim or strategy by the insurgents. Nor was there anything like
collective agency.62 As far as the banlieusards were concerned, their action was played
out on the field of negation: their objection to the advancing diminishment of life
chances took the form of an objection – ‘not this’ – whose ‘expression’ was violence. A
political claim for recognition had not yet been fashioned or articulated. We might
venture the suggestion that the ‘not yet’ at stake here is the stake of critical theory.
Since we have explored at some length above the meaning of negation and the forging
of its own particular understanding of reflexivity at the juncture of theory and praxis, let
us attempt to see how this might elucidate for us the meaning of the uprisings. What
negation marks is a break with the understandings that have been offered to rationalise
the situation. To borrow a formulation from the increasingly influential work of Jacques
Rancière, it is a break with the available ‘distribution of the sensible’, the way in which
political discourse attributes meaning to actions and events. But negation does not yet
equip the insurgency with a ‘scheme of interpretation’ or of ‘intelligibility’; it does not
equip it with an alternative signification. At the level of negation it is merely a marker
of a normative gap between the normative language available and a social experience of
the diminishment of life chances. At one level, then, the insurgents’ action is an
injunction against the ways in which the available categories of political rationality
(democracy, rights, equality) fail to collect rationally, and to give expression to, their
experience as French citizens. This falling short of the categories available to signify
the dispossession experienced registers only as a suffering that cannot find articulation.
And the mobilisation, thematised from the point of view of political order (the ‘order of
the police’, Rancière calls it) as a meaningless lashing out, has no language to dignify
it as anything but that. This inadequacy walls in the suffering as necessary, written into
the lives of the inhabitants of the ghettos, and immanent with the full weight of the
impasse.
It is on this terrain that critical theory’s promise of recuperation is inscribed. But
inscription presupposes a register, and it finds it only in the categories (citizenship,
See Libération, 31 October 2005.

61
In his work on the sociology of the uprisings, Michel Kokoreff states that the riots ‘ont
62
marqué une entrée en politique des jeunes non seulement animés par le désir de détruire mais
par une volonté de confrontation’. See Kokoreff, Michel, ‘Sociologie de l’émeute. Les
dimensions de l’action en question’, Déviance et Société 30 (2006): 521–33, at 528 and
Kokoreff, Michel, Sociologie des émeutes, Paris, Payot, 2008.

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rights, and so on) that the action attempts to place in doubt. This is the moment of
immanent critique. It is immanent in the sense described above, as carried in the
experience of the dispossessed, and thus engaging them normatively. And it is
immanent, too, to the language available to describe that experience, the language of
rights, democracy and equality. Its challenge is to articulate and exploit contradiction:
that which erupted as negation seeks a register in a language that might rationalise it as
the political order’s simultaneous promise and denial of speaking position (citizenship)
and claim (rights, equality, justice). Resistance seeks articulation in terms of the very
categories that the action places in doubt. If the inscription succeeds, then it gains
purchase in a system that promises but is incapable of delivering speaking position or
justice to the insurgents, because its promise is undercut at the level of its material
foundation of exploitative relations of capitalist production. ‘Incapable’ is an important
word here; unlike ‘likely’, it carries a structural limitation. Equality is structurally
undercut in a system that organises production along class lines: it is at once offered
and denied; recognition is a lie where constituencies of the citizenry become superflu-
ous as producers of value; less abstractly, a capitalist labour market cannot deliver on
the promise of ‘full employment’ because a market – in order that it be able to optimise
supply and demand – requires a structural element of unemployment to maintain itself
as a market. In all these cases the promise hits upon a constitutive limitation, and in
this respect, critique distinguishes itself from criticism as simply directed to rectify
inconsistencies.63 In contrast, the object of critique is to expose contradiction and offers
neither rectification nor reconciliation. It is instead poised against the ‘wrong’ where
the wrong attaches to the very ‘recognition order’ that organises the semiotic field, and
also the meaning of resistance to it. At this point the circle closes and theory fastens on
to transformative praxis – because the solution has to be transcendent to the system that
harboured it.
Is it incidental, then, that it is at this juncture that bourgeois theory most vocally rails
against the connection of political action to suffering? The theoretical objection is
raised with predictable anxiety whenever the solution is carried in the mode of
engagement of those who have suffered the injustice on their skin, so to speak – from
the ‘sans-cullottes’ who forced their wretchedness on the streets of Paris during the
French Revolution, to the insurgents of the banlieues. Hannah Arendt warns repeatedly
in On Revolution, with palpable alarm, that if you build a political theory on suffering,
you end up with Robespierre and the Terror. It is a measure of her influence in the
Anglo-American academy that this argument has been taken up as a credo by political
theorists of the antidialectical bend; and yet all theoretical endeavour can and will be
judged on its politics, even where its demand is presented, as so very eloquently in
Arendt, at the metalevel of theory construction.
At this point we might conclude this short excursus with another reference to Marx
on Feuerbach, this time the fourth thesis, where he writes about the ‘cleavages and
self-contradictions’ that circulate at the level of secular society, a society ‘both [to be]
understood in its contradiction and revolutionized in practice’. Critical theory attempts
63 Rancière’s distinction between politics/police is a powerful expression of the impasse that

invites ‘dissensus’ as the form of its transcendence, while J-F Lyotard’s Le Différend remains the
most devastating account of the impossibility of such a move.

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to navigate this terrain of the nexus with praxis as appropriate to the conjunctures in
which it finds itself. At no point has the reflexivity of theoretical reason lifted itself
above history and the specific coordinates that determine the horizon of meaning. The
first, semiotic, route took us through the processes of meaning construction, and the
‘mediation’ of factual situations through concepts that read them no longer as series of
phenomena but as combinations, mediated and related within larger semantic fields and
subfields. Critical thought found its opportunity in the irreducible contradictions that it
attempted to ‘bring to reason’: contradictions between the promise of equality and the
reproduction of an ever widening inequality; between the promise of inclusion and
the reality of marginalisation; between the promise of dignity and the infliction of
exploitation; between the promise to protect the right to work and the generalisation of
job insecurity and underemployment, and so on. By tracking, fastening onto and
‘exploiting’ the contradictions that the imaginary constitution of society incurs, the
critical method is able to engage actors normatively in forms of contestation of the
reality of their situation. Negation, we saw, was a first step to resisting the necessity of
the situation, and critique one to imagining the situation otherwise. And against the
false givens of traditional theory, critical theory harboured ‘the idea of a theory that
becomes a ‘genuine force,’ revolutionising agency (or ‘the self-awareness of the
subjects’)64 in the social dimension, and in the substantive dimension establishing
that the theoretical elaboration of a state of affairs is indeed a step towards changing it.
4. CRITICAL THEORY AND THE LAW

This final section consists in a brief, suggestive rather than systematic, attempt to carry
over some of the key insights of critical theory into legal thought. The history of critical
legal theory as it emerged in Europe in the way described above ties it constitutively,
on the one hand, to the state, as the form of the political organisation of society, and on
the other to the political economy, as the site of its material reproduction. In reference
to the state, critical theory thematises the institution of law as that which organises and
mediates the relation of the state to civil society. The other constitutive reference, to the
political economy, typically grounds this tradition of thinking about the law in the
materiality of the practices of social production and reproduction. It is in these
connections, of the institution of law to the domains of the state and of the political
economy, that critical legal theory locates the function of law, with the emancipatory
potential it affords on the one hand, and the obstacles to emancipation which it imposes
on the other.
Neither of these two constitutive references – to the state and to material production
– can be taken today to have the meaning they had for previous generations of critical
theorists. The demand that theory confront its current historical conjuncture remains
one of Marx’s most valuable legacies, and such an effort today would demand that we
turn – as far as the political economy is concerned – to the modalities and expressions
64 ‘La praxis qui révolutionne la realité’ wrote the young Lukács in his Dialectique et
Spontaneité, only recently unearthed (in 2001) in the ancient archives of the Lenin Institute in
Moscow.

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of capitalist renewal, its new forms of flexible accumulation, the staggering growth of
financialisation, the fragmentation of labour and the new forms of its exploitation, and
so on, and – as far as the state is concerned – to the new functions of the state in the era
of global flows, the new linkages of states and capitals, the articulations and
disarticulations of state steering functions, and so on. As far as critical legal thinking is
concerned, it involves a massive reorientation to the new modalities of organisation
(and dispersal) of economic and political power.
How the organising categories of critical theory described above cross the insti-
tutional threshold into legal thinking is a question addressed across the range of the
contributions to this book. Let me revisit briefly the key terms of our inventory (of
section 2) in order to point out some possible connections, as well as the profound
difficulty and effort it takes for critical theory to pierce the institutional veil. In each
case the conceptual reach of the law and its connection to practice appears to be
disciplined by law’s function. And against this disciplining effect, the critical under-
taking confronts particular difficulties that relate to the institutional nature of law.
First, critical theory’s connection to praxis must negotiate what we might identify as
the constitutive limitations of the institutional. Institutions reduce the contingency of
human interaction; they entrench models of social relationships, and, in doing so, hedge
in imaginative political uses and opportunities. To understand the law, it appears to be
emphatically the case, is not to change it. Second, critical theory’s dialectical
imagination comes up again and again against the dominant (and severely antidialecti-
cal) paradigms, on the one hand, of its autonomous or ‘pure’ self-reproduction (Kelsen,
Luhmann), and on the other, of its heteronomous dependence on politics and the
exception (Schmitt, Agamben). Third, the very particular mediation of legal meaning is
achieved through the ways in which it puts concepts in connection and in sequence and
oversees application through the regulation of procedure. At once both enabling and
limiting, these substantive and procedural rules deliver what Niklas Luhmann calls the
‘reduction-achievement’, which is law whose malleability is controlled through second-
ary rules that contain it and orient it to its proper function to channel and stabilise
expectations. To secure this function the legal system needs to maintain a relative
balance of stability and innovation, or, more precisely, to reproduce structures of
normative expectations through controlled innovation. Innovations can only be grafted
onto what already exists, and what already exists sets the thresholds of what might
count as relevant information, what – and under what circumstances – may count as a
‘surprise’ in the system that might lead it to vary expectations. The legal observer will
appreciate that the balanced renewal of law, of what is new and what business as usual,
can only lean so far in the direction of variety without jeopardising the function of the
law that must at some level meet the exigencies of the rule of law, and yield to
protected expectations. Fourth, if genealogy calls us to unpick the law at the joints at
which it establishes and renews its repertoire of reasons, it must first confront law’s
powers of ‘homology’65 and the unique methods it has to marshal the past in support of
current arrangements, radically limiting our ability to reimagine or disentrench it except
65 I have discussed the mechanisms of ‘homology’ and ‘deliberate deadlock’ in a previous

paper: Christodoulidis, E., ‘Strategies of rupture’, Law & Critique 1 (2009).

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in piecemeal ways.66 Because of course the law overwhelmingly reactivates known

ground. The pattern of what can be varied, what contested comes heavily pre-
determined, not because the borders of law are heavily policed (though they are that
too) but because structures of expectations release opportunities of variation selectively
on the back of what is entrenched as invariant. Hovering above the reproduction of
legal expectations along given pathways is the requirement of coherence, cutting away
at genealogy at its core. Granted, there is nothing deterministic about the givenness of
context (contexts are reconfigured as selections are made), but it is also counterproduc-
tive to exaggerate the leverage that critique is afforded under the conditions of
normative closure and legal self-reference.
And yet, improbable as its conditions appear, critical theory has a vital role to play in
legal thought, enhanced by the urgent need for its intervention in law’s field of the
reproduction of ideology and advantage. It is because law is steeped in tautology,
paradox and contradiction that critical legal thinking can graft itself on the fault lines of
law’s articulations.67 Tautology is renewed in the grand positivisms of the day that
define the law as what the law says it is, a circularity that becomes productive for the
unity of the legal system at the point where rules lock into the system of law through
(secondary or constitutional) rules that recognise them as rules. Critical theory might
address these ‘joints’ at which the constitutional discourse walls itself in, in a gesture of
immunisation. Paradox emerges as law’s other-reference to the interests, persons and
domains that it is called to regulate, mediated exclusively through its own self-
reference. Contradictions emerge at the point at which the law, as tied to the processes
of the material reproduction of society, couches in the universality of its categories the
partiality of its distributions. Critical insight can address such operations, both where
paradox institutes a gap and where contradiction conceals the elision it performs.
Let me end with three examples, three exemplary contradictions, with a view to
identifying what the application of immanent critique might deliver in each case. The
emphasis, remember, is on the experiential dimension. This is to say that legal actors
confront the deficits in theory construction as experiential deficits, and therefore their
engagement in the legal situation is not something that they can stand back from but is
one that, remember, comes upon them with the ‘force of present distress’ which they
need to ‘make rational’. It is the lived dimension that is the potential site of disruption
of the economy of representation that would otherwise organise meaning, seal it over
and, in this state of self-immunisation, place it out of reach.
A first contradiction famously arises between constituent and constituted power.
Here, pitched at the most abstract level of the constitutional register, a certain
irresolution installs itself: constitution-making comes within a pregiven context of
66 Christopher Tomlins writes of ‘a disenchanting mode of historical analysis, that strips

[law] of its metaphysical dignity, unity, and coherence by exposing law as the outcome of
mundane and profane processes and interests’. Tomlins, C., ‘After critical legal history: scope,
scale, structure’, Annual Review of Law and Social Science 8 (2012): 31, 37.
67 I refer here to the way that Hans Lindahl develops the idea that ‘questionability’ grafts
itself onto the faultlines of law to carve a space also for radical innovation. See Lindahl,
Hans, Fault Lines of Globalization: Legal Order and the Politics of A-Legality, Oxford
University Press, 2013.

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‘recognition’ that alone establishes its objective meaning as ‘constitution’. Constitu-

tional discourse thus forever folds back the constituent into the representational space
of the constituted, which means that ‘constituent power’ comes harnessed to the
constitutional order at the point of the very recovery of its meaning as constituent. A
form of deadlock that is ‘constitutive’ of legal agency and legal opportunity underlines
the constitution of democratic capitalism and leaves constitutively immune the regime
of property and rights that it sanctions. To the extent that the articulation of the two
moments is understood as giving expression to democratic constitutionalism, and it is
this that provides the key ground of legitimacy to the constitutional order, immanent
critique in this context would fasten onto the democratic dimension and insist on the
transformative dimension of the democratic impulse as both promised and arrested in
bourgeois constitutionalism.68
A second set of contradictions appears between categories of rights – civil, political
and social. It is largely conceded in the literature that social rights are incongruous to
capitalism and its particular structures of opportunity and reward, which accounts for
the fact of their marginalisation, even eradication under austerity regimes, or their
‘elevation’ to aspirational status. Where the market does all the work of allocating
value to resources among possible uses, the distribution of resources with the explicit
aim to meet needs is, from the point of view of market thinking, irrational. What does
it mean to insist on the incongruity, and to act on this assumed ‘irrationality’? I have
suggested that if social rights are beset by the contradiction between capitalism and
democracy, we should explore the significance of their constitutional iteration, as
enunciated – that is, with constitutional force – and as unyielding to their subjugation
to the logic of civil and property rights.69 With the urgent appeal not to displace the
antinomic significance of social constitutionalism, we might think of the use of
immanent critique here as the insistent strategic use of social rights aiming to import a
real contradiction from which the system cannot retract.70
A third example might focus on the use of immanent critique in terms of criminal
procedure. The most spectacular instance relates to Jacques Vergès’ ‘strategy of
rupture’ in the context of the criminal trial.71 Vergès’ defence of Nazi criminal
Klaus Barbie before the French courts in 1987 consisted in the maximal use of the
68 See Lindahl, Hans, ‘Possibility, actuality, rupture: constituent power and the ontology of
change’, Constellations 22:2 (2015): 163–74. Also Christodoulidis, E., ‘Constitutional irresolu-
tion: law and the framing of civil society’, European Law Journal 9:4 (2003), special issue:
401–32, and Christodoulidis, E., ‘Against substitution: the constitutional thinking of dissensus’,
in Martin Loughlin and Neil Walker (eds) The Paradox of Constitutionalism: Constituent Power
and Constitutional Form, Oxford University Press, 2007, pp. 189–208.
69 Christodoulidis, E., ‘Social rights constitutionalism: an antagonistic endorsement’, Journal
of Law and Society 44.1 (2017): 123–49.
70 A Foucauldian reading of incongruity along these lines is suggested by Ben Golder:
‘[Foucault’s] invocations of rights are strategic in this incongruous sense as they are situated
within the spaces of political formation but are intended to resist and go beyond that formation,
to transcend it.’ In B. Golder, ‘Foucault’s critical (yet ambivalent) affirmation: three figures of
rights’, Social & Legal Studies 20:3 (2011): 283–312, at 295.
71 Vergès, Jacques and Amar Bentoumi, De la stratégie judiciaire, Les éditions de minuit,
1968.

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‘tu quoque’, in a way that would directly confront the French with their hypocritical
denunciation of a crime that Vergès claimed underpinned their own colonial legacy –
and particularly the national policy during the Algerian War. The strategy of rupture
aimed to undercut and reconfigure the historical and didactic nature of the trial,
increase its responsive range, renegotiate past alliances and reopen wounds.
To conclude, let me recapitulate what I take to be features of critique that, in the
Marxist tradition at least, identify it as immanent critique. Normative expectations are
part of institutional frameworks that inform actors’ perception of social reality.
Immanent critique aims to generate within these institutional frameworks contradictions
that are inevitable (they can neither be displaced nor ignored), compelling (they
necessitate action) and transformative, in that (unlike internal critique) the overcoming
of the contradiction does not restore, but transcends, the ‘disturbed’ framework within
which it arose. Against ‘hegemonic’ reasoning, which allows legal reason to organise
and reproduce meaning within given structures and thereby to secure those structures’
continuation, critical theory pushes it to go beyond those patterns of reproduction and
forces transgression, in a move that – to return to Marx, with whom we began – might
‘enable the world to clarify its consciousness in waking it from its dream about
itself’.72
72 Letter to Arnold Ruge, September 1843.

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JOBNAME: EE10 Christodoulidis PAGE: 2 SESS: 6 OUTPUT: Mon Jul 29 11:08:28 2019

1. Critical theory and the law: reflections on origins,

Critical theory and the law 3

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4 Research handbook on critical legal theory

is posited as something that has to be overcome. Reason [is thereby] established as a

ibid 937, emphasis added.

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14 See Althusser, L., Lenin and Philosophy, New York, 1971.

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2.2 The Dialectic and the Role of Negation

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2.3 Mediation and Ideology

27 Quoted in Jay, The Dialectical Imagination, p. 157.

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horrors exist so essentially in the precision of the mechanism of mediation’.31 We are

31In Jay, The Dialectical Imagination at p. 66, my emphasis.

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35 Marcuse, Herbert, One-Dimensional Man: The Ideology of Advanced Industrial Society,

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38 Quoted in Jay, The Dialectical Imagination, at p. 69.

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3. IMMANENT CRITIQUE: THEORY AS ‘GENUINE FORCE’

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Critical theory and the law 17

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See Libération, 31 October 2005.

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63 Rancière’s distinction between politics/police is a powerful expression of the impasse that

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4. CRITICAL THEORY AND THE LAW

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65 I have discussed the mechanisms of ‘homology’ and ‘deliberate deadlock’ in a previous

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24 Research handbook on critical legal theory

in piecemeal ways.66 Because of course the law overwhelmingly reactivates known

66 Christopher Tomlins writes of ‘a disenchanting mode of historical analysis, that strips

Emilios Christodoulidis - 9781786438898