Critical Theory Conference Write-Up

Last weekend a friend and I drove up to Northwestern University to attend the 2014 International Critical Theory Conference. Although we weren’t able to attend all the panels, having to leave on Sunday morning, we managed to hear a number of interesting presentations, including the keynote address by Jurgen Habermas on Friday afternoon. The following is a brief write-up of the conference, based on my notes and recollections.

Habermas’s talk was titled “The Troubled Future of Democracy: Inside and Outside Europe.” He began by stating that the process of transnationalization involved the establishing of democracy above the organization level of the state. A transnationalized democracy would have a federal character, lack the monopoly on legitimate force that would still be bestowed upon the constituent states, and based on the application of federal laws.

The current global situation, according to him, is the site of a tension between a fragmented state system and an increasingly interdependent global order. Today, states exist within systemic relationships and are increasingly incapable of addressing global problems. The European Union faces economic and structural constraints that need to be reformed through greater political integration. The need to effectively deal with these global problems, beyond the purview of any single state, makes transnationalization a necessity.

Habermas envisioned that this shift toward a transnational democracy would occur through a process of constitution-making in which European peoples would participate on an equal footing. This would be an act of democratic self-legitimation and the formation of public opinion, featuring the inclusion of all citizens in political decision making that would be mediated at a number of levels: sub-national, national, and trans-national.

In order for this to occur, we would need to resolve the problem of integrating international law and the laws of particular states into a single, federal framework. The integration of governments would mean a pooling of the sovereignty of the people in each member state. The key is that such a federal state would be supported by the national citizenry, not by their governments; the legal equality of states within the federal framework was meant to ensure the equality of its constituent peoples. In that sense, state sovereignty must be seen as a derivative of popular, constituent sovereignty.

Could this kind of process succeed in the face of rising nationalism and mistrust among the people of the EU? Habermas argued that the process of European unification has stalled because of a lack of trust on the part of citizens. But, importantly, this suspicion is not of an ethno-nationalistic kind, since nations today are primarily legal entities rather than ethno-national ones. Rather, the democratic suspicion of European integration is directed against the anonymous bureaucracy that the supra-national government of the EU has become.

Therefore, in order to mitigate this problem, Habermas was insistent that in a supranational entity the higher level should not overwhelm its constitutive parts. Instead, a form of shared sovereignty would need to be established – one that involved a limited conferral of power to the transnational entity and conserved the substance of national citizens’ claims that their constituted states have an emancipatory history. For this reason, the priority of EU laws over those of its constituent states would need to be of a functional, case-by-case sort rather than a legal sovereignty that was final and absolute.

Cristina Lafont, tasked with responding to Habermas, agreed that political decision making has migrated to the upper levels of the EU bureaucracy. She saw Habermas’s project as basically having two interlinked goals: 1) Overcoming the EU’s democratic deficit, and 2) Preserving the equal status of European peoples in a federal framework. But Lafont challenged Habermas’s affinity toward the nation state, and in particular his view that they are guarantors of their citizens’ autonomy, especially vis-a-vis the undemocratic bureaucracy of the EU. Is this a normative fiction? she asked. Furthermore, to maintain that it is every state’s responsibility to ensure the well-being of its citizens occludes the problems of economic integration. In other words, the reality of the transnational economy is at odds with the normative thrust of Habermas’s view of the state as a social guarantor.

Seyla Benhabib’s “International Human Rights and Democratic Sovereignty” addressed the question of how we can integrate democratic self-determination within a global, cosmopolitan framework. The notion of global constitutionalism raises a number of questions: Is it to occur with or without a state? Will it be constitutionally monist (international law would be integrated into the legal framework of individual countries) or dualist (the international and national legal dimensions would be kept separate)? Furthermore, is democratic self-determination at odds with global cosmopolitanism? And in that case, is a constitutional dualism or pluralism the best middle ground that we can hope to achieve?

Shifting to the example of human rights, Benhabib argued that transnational human rights norms strengthen democratic sovereignty rather than weakening it. She distinguished between two forms of cosmopolitanism: a moral form, and a legal form, where legal persons are entitled to rights as moral people regardless of their citizenship status. A legal cosmopolitanism with human rights at its core would include, first and foremost, the right to have rights, and bear on ideas of human dignity and equality.

At the same time, she also distinguished between the concept of human rights, and various conceptions of human rights. The concept of human rights is a general principle; conceptions, in contrast, are specific norms translatable to a variety of contexts. The latter are the reason why the right to self-government is a necessary condition for the translation of human rights principles into practice. Without self-government, human rights would stop being rights and instead become privileges granted by a higher authority. The normative gap between human rights principles (the concept of human rights) and their specific conceptions is precisely the space for the exercise of democratic sovereignty. Democratic authorship means that the people are both the authors and the beneficiaries of human rights.

Conceptions of human rights are then various “democratic iterations,” in which these principles are interpreted and given new content by democratic citizens in the public sphere. This involves a series of disaggregation processes, in which human rights principles are adopted at a variety of levels: the local, the national, and the transnational. These rights are also what prevent democratic sovereignty from becoming democratic populism, an absolute of its own that can violate rights in the name of the majority. The boundaries of the demos are not a given but need to be democratically iterated themselves; as such, the formation of democratic sovereignty involves a moment of normative transcendence.

Rainer Forst’s “A Critical Theory of Human Rights” took Benhabib’s argument to a more philosophical, neo-Kantian level by looking into the transcendental conditions that make grounding human rights possible. Forst saw human rights as social weapons that outline certain standards of mutual treatment. He argued that the moral and social/historical account of rights forms a single unity, insofar as that the transcendental point of critique is the most historical one – the countless times in history in which people stood up to defend their integrity against oppression. For this same reason, critical theory must begin not from the ideal conditions of a freely constructed discursive situation but from the assumption that domination is a regular occurrence of human interaction.

Forst outlined three elements of human rights, which together amount to a critique of domination without reason. First, humans claim to have a right not to be subjected to an order they have not assented to or that has not been justified to them. Second, justification is a practice; rights express the autonomy of the people and make the right to justification a substantive principle. Third, rights possess an emancipatory function in that they make possible a discourse-theoretical view of non-domination.

In contrast to functionalist, consensus-based accounts of human rights such as found in John Rawls’s Law of Peoples, as well as the minimalist views of Michael Ignatieff and Jean Cohen, all of whom share an account of rights as politically effective even if morally ungrounded, Forst argued that it is possible to ground rights on the principle of justification. Although human rights cannot be grounded on a notion of the good life that extends to all cultures, the principle of justification can be used as a grounding point insofar as people cannot be forced to live in an order that has not been justified to them. In that sense, human rights are veto rights against impositions.

Is this a foundational conception of human rights? Forst argues that it both is and isn’t. The principle of criticism of authority is the foundation – but this makes it a self-destructive foundation. Such a “foundational” conception necessarily involves a larger list of human rights than one that uses rights as “thresholds” to legitimate humanitarian intervention. This is because human rights are not a possession of liberal societies (contra Rawls) but of all those denied equal political rights; there is a notion of dignity that each individual possesses when it comes to not being subjected to rules that others define for him or her. For this reason, rights contain three dimensions: those of authorship, interpretation, and use. Like Benhabib, Forst argued that a constructive argument involves both general rights that consist of what we owe others in a normative social order, and particular, democratic iterations where these rights take specific legal forms.

Coming from a radically different perspective, Wendy Brown’s “Undoing the Demos: Neoliberalism and the Economization of Political Rights” drew upon Foucault’s genealogical approach to argue that neoliberalism is converting democratic institutions into economic ones. Although the origins of neoliberalism lay in a historical accident – the unexpected rise to prominence of a marginal economic theory (Milton Friedman and the Chicago school) – today it has expanded far beyond the realm of the economy, growing into an entire order of normative reason and governing rationality. This development has resulted in the merging of a national security apparatus with an ongoing process of neoliberalization that turns all facets of social life into the production of human capital.

In Brown’s point of view, the traditional homo economicus of classical and neoclassical political economy has been reshaped into financialized human capital. Whereas previously this meant the harnessing of human productive power for the purposes of generating surplus value, the economization of today is not reducible to this older conception of wealth generation. Competition and financialization, not exchange, are the dominant logics of this new order. Alongside this, the neoliberal hostility to the political has remade the purpose of the state from being a public power to a corollary of the economy.

The final (and best) presentation I attended was Nancy Fraser’s. Unfortunately, I couldn’t write down its title in time, although her argument was largely based on her recent piece in New Left Review titled Behind Marx’s Hidden Abode: For an Expanded Conception of Capitalism.” Fraser argued that Marx’s socio-economic critique contains many important insights about the nature and functioning of capitalism that have been unfairly dismissed. In particular, Marx was prescient enough to see that at the heart of capital is a self-expanding value, and that in a capitalist society, capital itself, not human beings, becomes the subject.

At the same time, her critique was premised on the idea that certain elements of Marx’s thought cannot be reconciled with our contemporary problems, such as ecological crisis and the aspects of social reproduction concerned the formation of human subjects, such as gender divisions. For one, Fraser disagreed with the Frankfurt School’s understanding, taken from Georg Lukacs, that capitalism is a reified view of ethical life characterized by the expanding commodification of all life. In contrast, she sided with Immanuel Wallerstein in suggesting that capitalism to this day depends on non-commodified goods and forms of social life in the periphery, including the gendered division between wage labor and unpaid domestic labor. Wallerstein’s idea of “semi-proletarianization” figures largely here, in the sense that capital can only sustain itself by siphoning off value from informal gray zones that are not entirely under its sway. Markets depend on non-marketized social relations. As Marx alluded to in his chapter on primitive accumulation in Capital Vol. 1, exploitation is driven by expropriation.

Therefore, there are three epistemic shifts that we need in order to supplement Marxism: 1) The shift from focusing exclusively on commodity production to social reproduction (the formation of human subjects outside markets and in public institutions such as schools), and the gendered division; 2) The ecological turn, since capital treats nature both as a source for raw materials and as a deposit for waste; as well as the development of new enclosures and technologies that blur the relationship between the natural and the human; and 3) The question of public power, since neoliberal capitalism is mutating the structural division between polity and economy (public and private power) upon which the territorial system previously rested.

All three are potential flash points from which capitalist crisis could emerge. Fraser argued that we need to see capitalism not simply as a form of economic organization, but as a structurally differentiated social order, containing a number of distinct and functionally-interrelated ontologies. As an institutionalized social order, it is akin to the integrated form of life previously found in feudal societies, including gender oppression, political domination, and ecological degradation. Since the notions of “society,” “polity,” and “nature” arose alongside “the economy”, they are its Others rather than being wholly external standpoints of critique. But precisely because they are the boundaries (or as she put it, the background conditions) of capitalism, being both internal and external to it, they, and not the internal contradictions of the economy, are also the points from which a systemic crisis could unravel.

As I wrote, Fraser’s account resonated the most with me because it provided the kind of materialist, historical critique that I think was also the best aspect of Marx’s work, while supplementing it with a number of other elements that he did not address. Habermas’s, Benhabib’s, and especially Forst’s accounts, while important, remained too distant from the socio-economic conditions of the present moment, since their primary focus was almost exclusively on the political dimension (namely, rights and sovereignty). Brown’s talk, while insightful, too often seemed to reify neoliberalism into a totality. Not only that, but her emphasis on the decline of public power in the face of neoliberalization revealed a blind spot to the Marxist critique of the state, which has always posited the interrelation between state and economy as an outcome of the capitalist mode of production.

This will have to be it for the time being. I hope to return to this soon in another post, in which I will try to draw some broader implications of these arguments, in terms of what contemporary critical theory (if we can even talk about it as a single discourse) gets right and wrong in its analysis of the current moment.

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