State it?

Legitimate Flaw - Review of Darrow Schecter's Beyond Hegemony: Towards a new philosophy of political legitimacy (Manchester University Press, 2005)

Erik Empson

Beyond Hegemony is an interesting, provocative and at times audacious book.Interesting because it identifies a conflict at the heart of the liberal political brain: its tendency towards political legalism and its inability to give that law a firm ontological foundation in an actual legitimating subject.

Provocative not only because it begins by assuming liberalism is a problem for rather than a solution to political legitimacy, but because it refuses to fill this empty throne of the legitimating subject with anything less diverse and substantial than the plurality of liberalism's own existential ghosts. This whilst acknowledging that any system of consensus such as Habermas's theory of communicative action which does not take up the liberal privilege given to the individual, returns to support the legality of private property.

"Habermas advocates an epistemologically grounded praxis of legitimacy, but he undermines his own project by limiting the epistemological dimension of legitimacy to the cognitive content of the speech acts of life-world participants in functionalist isolation from the economic subsystem of money and bureaucratic administrative subsystems of power."

Audacious because it believes that a positive and transparent, legitimate form of law can be created without the appeal to a simple universal marching blindly to totalitarian consequences, whilst uniting the wayward voices of liberalism's epistemological impasse into an ecumenical chorus of enlightened practice in mankind's collective and mutual relationship to nature and itself. Audacious because, in its self-acclaimed 'critical idealism', it seeks to restate that distinctly political longing for totality: the practiced unity of thought and being.

Beyond Hegemony is also a perplexing book. It is often uncomfortable with its own abstractions and unnecessarily dismissive of other bodies of thought that might well be sympathetic to its argument but for whom it holds little sympathy.

Perplexing then because, even though it sets out to rescue this very materialist idealism, it tends in fact to express an idealism of a very different kind. It is not the concrete and identifiable practicestheoretical superiority. But can or does the intellect alone 'annul' the problem of liberalism? It is not clear whether this annulment is achieved through reform of existing law and institutions that protect it (say Microsoft vs. the Supreme Court), or by the introduction of an entirely different normative and institutional framework (say creative commons licenses). In the account of 'libertarian socialism' that peeps out from behind the coat-tails of Cole there is little mention of how the transition from contemporary capitalism towards it is supposed to take place. Would this not perplex a reader familiar with the literature on post- Fordism, especially when he finds this discourse completely dismissed?

Perplexing then because the very obvious vehicles of transition to the kind of sensuous human practice, the whole range of cooperating singularities unhealthily subsumed under the rubric of 'civil society' which are currently changing the whole face of political life the world over, are strapped together into a single incubus of all this night'=s fornicating shadows and keelhauled on the caustic underside of this unstable vessel called legitimate law. Schecter wants to shake the enigmatic force of law as an ontological and epistemological entity to its metaphysical bones as an auto-legitimating idea without really dealing with the lived practice of law and politics as it labours away daily, pausing only occaisionally to snigger at the ideal type.

In this mix of south paw and Queensbury, social movements are punched directly on the nose for not confronting the theoretical complexity of liberalism and its 'models of law and legitimacy' and then given one in the gut for succumbing to singular and totalitarian notions of human essence. But rarely does one find these days social movements claiming these simple identities, nor are their political practices, many of which by appealing to and creating new forms of international law, operating in a vacuum without reflexive conditioning by the position of others and the reactive forms of old types of hierarchical power. One of the central components both ideally and actually of liberal models of sovereignty, the nation state, has been in a large part transformed as a result of these practices.

In a similar vein, whilst acknowledging that formally liberalism unites individuals at level of state and separating them in civil society, he dismisses the discourse about the 'multitude' as being just another claim in a long line for the chosen legitimating subject from the Old Testament to the industrial proletariat, and ignores that it has become a subject of theorization for exactly the same reasons that the author finds himself calling for a legitimate form of law. The multitude could be seen to be the name for subjectivity that arises at times of crisis of forms of governmentality. The multitude today is particularly significant because a requirement of humankind's contemporary interaction with nature and itself complicates the simple translation of the horizontal contract of exchange into vertical political authority. And in requiring a re-association at the level of civil society, modern capitalist economies are driven to question the kind of discretion given to the individual's public and private autonomy in order to realize profits increasingly dependent upon the provision of goods that satisfy man's increasing need for forms of gratification of his social being. So whereas Schecter is completely right to point out that liberalism is unable to concretise our inner conceptual freedom nor offer any definitive statements about who we are on which to base something more than a formal idea of man, he fails to see that this tension has already been played out to a new level in the actual practices of capitalist production that he rightly would like to transcend. Again, this is an instance of a bad type of idealism because the problematic is developed out of an abstract disassociation seeking to concretise itself.

The critical idealism developed in this book suggests that one can rationally specify and create the conditions for the abolition of instrumental reason and reified consciousness; this can be accomplished through legal abolition of the division of labour, and the transcendence of property relations grounded in different notions of appropriation and re-appropriation.

One might protest that the problem is that by its Kantian resistance to a definitive human essence and by the identity that it draws between essentialist claims and coercive states, liberalism has successful given over the task of detailing proscriptive and creative evolution of human nature to the market economy. The difficulty is that the coerciveness of capital, lies in its power to determine the conditions under which what Schecter calls 'non-instrumental' action is put to work, whilst not holding complete power to dictate their form. Much like bookies are less interested in the race winner than the distribution of the bets, capitalists invest only a phoney psychological commitment to their products, concealing a more fundamental concern with the realization of returns and profits. But increasingly they draw on the producer's own genuine commitment to artistic, experimental and cognitive, non-instrumental action. In so doing they can draw on what Marx termed the 'general intellect' whilst offering little in return: siphoning off the surplus wealth that ensues from cooperation whilst willingly surrendering responsibility for the resulting inequalities to the state.

Schecter is right to see liberalism as the obstacle to a legitimate type of law that would abolish property relations, but by choosing legitimate government as the object of social transformation he acts like a biased referee finding with dismay he must score for his opponent. By conceiving of law in an ultimately metaphysical manner, i.e. as necessitating an epistemological question concerning who we are, he tends to treat it as an inert or simply notional entity rather than the result of a produced practice, palpable only when enforced, but continuously exerting and exacting pressure on all aspects of society at all times. But there is nothing to guarantee that by virtue of its existence a law will be enforced. If we were to ask what types of practice could produce a legitimate type of law, we would no doubt answer that they were political practices. If so however what is to prevent existing powers from impeding its formation by drawing on the existing established practice of law. Is the ideal scenario that Schecter envisages actually rather like the practice of liberalism as it stands now? We have the formal right to table whatever legislation we see fit, but we do so in the context of a political struggle, a certain balance of forces and a coercive integument of human energy with private appropriation. Necessarily ensconced by negativity, 'critical idealism' must give in to existing practices of reform, and like the rest of us, grab whatever type of progress it can get.

Somewhat strangely for a theorist well versed in the theories of liberalism's own inherent tendency to authoritarian solutions to the problems of legitimacy and social order, these considerations have been jettisoned from the critique of legal forms of legitimacy, especially when the liberal state has begun to revise its own principles of abeyance in the face of individual liberty and increasingly moved from reactive legislation to surveillance and criminalisation of subjects before any crime.

Principally concerned with the maintenance of social order, the modern state needs to employ second order justifications of its moral right to arbitrate, enforce and discipline the parameters of acceptable social conduct that increasingly bug its own legislating machine. In modern party politics, the change of government from party to party appears to function as the placation of crisis points within legitimacy problems of the first order i.e. social cohesion itself, by working themselves out in the second order. However, in two party systems this results in the gradual erosion of legitimacy that begins to reflect more severely on problems of the first order. The opposite is true in the case of Italy. This country suffers chronic problems of second order legitimacy crisis, which were historically off set by changes in the first order, such as the fundamental constitutive role given to labour in the political constitution. In the USA and Great Britain the effect of the vacillation between alternatives has led, in recent years at least, to significantly more attention being paid to the various minority alternatives and by drawing in, as Schecter notes, assimilable elements of civil society for a new model of governmentality. In the case of the United Kingdom, since its conception, the parliamentary state has always deferred at some level to a supra-legal facets of social life. The British monarchy as an extra-legal form of recognisable and semi-legitimate authority is a good example of a socially mandated but non-democratic check upon the excesses of legislating authority.

The point is this: the very idea of 'legitimacy' is extra-legal and thus a legitimate form of law approaches the kind of tautology that Schecter abjures in liberal legalism.

"It has been seen why a new form of legality, as distinct from a more inclusive or ostensibly more democratic legality, is needed to re-articulate the supra-individual, dialectical conditions of knowledge outside of the framework provided by the anthropological annexation of those conditions initially offered by liberalism".

Given that the social is de facto supra-individual, and liberalism is can never find an adequate legality to articulate a set of rights on the basis of this, the claim amounts to calling for a speculative point of arrival from an ideal position which could never form the real point of departure for political practice. The struggle over creating a legitimate form of legality might serve as a fruitful definition of politics in general, but it does not suffice as a demand for meaningful social emancipation because such a politics, if it were lively and energetic enough to be worthy of us human beings, could not rest content with an upper limit on what constitutes the possibilities of the political nor allow political struggles to be reduced to the orbit of what can be made universal.

"...one can think about and legislate the conditions under which production and creation become more than instances of the individual and collective affirmation of already existing identities."

It is possible that we could arrive at these conditions, and every indication is that capitalist production itself tends towards this. But legislating for our freedom is a superfluous need if that freedom were to be the lived cognitive and reflexive practice that Schecter and many of us want. This legislation need not be written or enforced as it would at any rate amount to the acting out and practicing of our social lives. By calling for a more emboldened and substantial discussion over who we are and the conditions of human knowledge Schecter has highlighted the fundamental epistemological ambiguity in Liberalism that allows it to be the default safeguard of the powers that be. But by seeking to consummate the vagaries of its claim for the general interest in the ever vanishing point of a legitimate law, the manifold facets within existing social practice of that which might constitute the enlightened practice of a better society have been sidelined and lost in the what appears ultimately as an abstract resolution to a rather too pressing concrete problem.
June 2005