Show me the way To the next whiskey bar
Oh don't ask why Oh don't ask why
For if we don't find The next whiskey bar
I tell you we must die I tell you we must die
I tell you, I tell you I tell you we must die
Oh moon of Alabama We now, must say goodbye
We've lost, our good old Mama
And must have whiskey Oh, you know why
Poul Kjaer, Professor of Governance and Sociology of Law at the Department of
Business Humanities and Law, Copenhagen Business School where he directs
the ERC Advanced Grant Project ‘Global Value Chain Law: Constituting
Connectivity, Contracts and Corporations (GLOBALVALUE)’, has, in the course of work on that project produced a quite interesting forward essay that is itself worth considering. The essay, "What Comes After Critique," was first published on the blog, Transformative Private Law Blog on 16 December 2024.
Kjaer starts with an observation--no one reads Habermas anymore. Those who came to their own after the start of this century would shrug. Those who came to their own before then would perhaps wonder what happened--not just to Habermas, but to that cottage industry of critique that was, like the globalization and universalization visions, one of the greatest products of the post 1945 world order. To ask the question, then, is to ask the broader one--whatever happened to that l
ebenswelt that emerged from the ashes of the wars of 1914-1945, one that now appears to have been consigned to the back shelves in the closet of history, if not its garbage can.
There was a time, not so long ago, when one was marked by one's relation to critique. And critique was marked its its factions and zealots. It was a
lebenswelt that was based, in large part, on dialectical contradiction--and the conviction that the cyclicity of construction-deconstruction was a pathway to stability in a world in which a general sense of orthodoxy was largely unchallenged except at the (religious, indigenous, and institutionalized Marxist-Leninist) margins. There was, indeed, no point to constructing a converging world order unless one could deconstruct it as well. And, indeed, there appeared much worth deconstructing--depending on one's starting point.
But deconstruction, as a form of critique, was also fair game. All of this merged into what now passes for identity grounded critique--one which has taken up the old Frankfurt school economic and sociological critique and rearranged it so that the starting point is not class, but identity--however defined. And that identity politics critique produced its own right wing (mostly) so-called "identitarian" counter critique (on the difference between so-called identity based ideologies and so-called identotarianism see eg here) that like identity based deconstruction has definitive orthodox political objectives. In the process, as is usual for late stage dialectics of critique, the fundamental basis of the order on which critique is itself is founded flounders. Today we live in an age of structural critique in which the glory road to authority--within the life worlds of critique--is grounded in an allegiance to the animating premise that the entirety of social relations (its politics, sociology, morals, law etc.) are built on fatally flawed systems which must themselves be swept away. It is in this sense, perhaps, that one can better appreciate Kjear's insight:
"One
reason for the fading away of ‘critique’ is that conceptually more
refined and epistemologically more powerful theoretical alternatives are
out there now. That does, however, not seem to be the main reason.
Rather large parts of the scholarly space and public imagination have
fallen prey to group logic and identity thinking representing the
antithesis to Kant’s insights and that irrespective of whether it comes
in a left- or rightwing version. ("What Comes After Critique, supra)
And yet it may be as important to recall that deconstruction is only one half of the dialectic that makes critique possible. It exists as a reflection, and is animated by and through, acts of construction. It is to that which has been constructed that deconstruction (critique is the polite form of the description) derives its power and place. Critique, indeed, depends as much on the solidity of the object of its critique as it does on the substance of the critique itself. Indeed, the dialectical nature of construction-deconstruction through the habitus of critique that appears to be the central element of both liberal democratic and Marxist-Leninist systems. So now we continue this great phenomenological theater which might better be titled "Perfection as a Moving Target" (for my view from within the lebenwelt of American jurisprudence: The mechanics of perfection : Philosophy, theology, and the foundations of american law; also see the essay in Recovery Review, Let’s Talk About Critique). That remains the essence of this age of the "great sweep" forward. And thus the habitus, perhaps well described for our purposes here by Bourdieu as
systems of durable, transposable dispositions, structured structures predisposed to function as structuring structures, that is, as principles which generate and organize practices and representations that can be objectively adapted to their outcomes without presupposing a conscious aiming at ends or an express mastery of the operations necessary in order to attain them. (Bordieu, The Logic of Practice (Richard Nice (trans), Stanford University Press, 1990), p. 53)
But perhaps better understood as perception rationalizing technique that establish self-reflective iterative systems that are related to the body (and more so in contemporary identitarian stances). It is, in fact, yet another manifestation of the now ancient rational project (contemporaneously still within the lenbenswelt of the Enlightenment from its 18th century formulations) within which the possibilities and instrumentalization of critique finds its utility (utility itself being an essence, a lubricant, of the Enlightenment world view). Marcel Mauss, in his 1934 «Les techniques du corps» perhaps captured it best:
J'appelle technique un acte traditionnel efficace (et vous voyez qu'en ceci il n'est pas différent de l'acte magique, religieux, symbolique). Il faut qu'il soit traditionnel et efficace. Il n'y a pas de technique et pas de transmission, s'il n'y a pas de tradition. C'est en quoi l'homme se distingue avant tout des animaux : par la transmission de ses techniques et très probablement par leur transmission orale (Ibid., p. 9). * * * C'est grâce à la société qu'il y a une intervention de la conscience. Ce n'est pas grâce à l'inconscience qu'il y a une intervention de la société. C'est grâce à la société qu'il y a sûreté des mouvements prêts, domination du conscient sur l'émotion et l'inconscience. C'est par raison que la marine française obligera ses matelots à apprendre à nager. (Ibid., p. 22). I call technique an effective traditional act (and you see that in this it is no different from the magical, religious, symbolic act). It must be traditional and effective. There is no technique and no transmission, if there is no tradition. This is how man distinguishes himself above all from animals: by the transmission of his techniques and very probably by their oral transmission (p.9) * * * It is thanks to society that there is an intervention of conscience. It is not thanks to unconsciousness that there is an intervention of society. It is thanks to society that there is safety of ready movements, domination of the conscious over emotion and unconsciousness. It is by reason that the French navy will oblige its sailors to learn to swim. (p.22).
And, indeed, the question of critique, in all of its (vain)glorious manifestations. might be said to revolve around the question that Mauss refers to--ought the French navy to teach its sailors to swim? It may be humane to permit sailors to drawn quickly when a ship sinks or they are thrown overboard; the critique posits the opposite it is more humane to teach them to swim to extend the time for rescue and give them a chance to survive. In both cases the operative principle is humane treatment; technology, culture, expectations, and institutional operation change the rest. Fundamental critique on the other hand might suggest that the Navy ought to be operated through ships without sailors (modern technology many make that possible) or that losing sailors at sea suggests the brutality of naval warfare that ought to be avoided. This is the patterned cyclicity within which critique feels most at home. The only interesting issue is the way that critique presents itself (differently) within its local characteristics and as a function of the stage of historical development in which is appears.
Kjaer offers a pathway toward reconstituting critique. "But how could a new theory look like? And what role would law play in it? Essentially it would be a renewed and transformed theory of modernity." ("
What Comes After Critique, supra). Kjaer is sensitive to the critique of modernity; he is right to suggest that modernity is not embedded in time but might serve as its vessel. The fluidity of modernity may well provide a structure within which it is possible to manage new shows for the management of humanity and the rationalization as the best of all possible worlds (though one here cannot but think of Liebnitz . . . and Voltaire's
Candide). and yet sees in the term a basis for rationalizing critique in a more relevant and perhaps useful way around ten themes that are themselves quite interesting.
The first points toward the social collective ("First, the key would be to have the concept of society at the center." (Ibid.). That parallels the discourse of modern Chinese Marxist-Leninism and runs counter to much of the discourse, for example, around human rights. But there has been a tension in liberal democratic cultures around the relationship between individual autonomy (and its rights based tropes) with that of social rights (and its emerging sustainability tropes). This remains unresolved.
If the first nods in the direction of Chinese Marxist Leninist collective social relations, the second rejects modern Chinese Marxist Leninist notions that are grounded in centering local or national conditions. Social collectivization, thus, retains its post 1945 fundamental goal of global convergence ("Second, a society which only can be conceived of as a
world society (Weltgesellschaft) or in English parlance a global society." Ibid.). Contextualization, as such, becomes a second order issue, and one that must accommodate the superior solidarity building structures of the global community. One hears Mauss (quoted above) in the background.
The third nods in the direction of the fundamental reordering of critique from its Marxist economic foundations to contemporary identity-identitarian tropes ("Third, the semantics of class linked to the economic system would have to be replaced by a study of inclusion/exclusion into the broad variety of social roles individuals find themselves confronted with as citizens, consumers, employees, nature-lovers, partners of intimacy, social media users and so forth." Ibid.) . The object is still utilitarian in an Enlightenment sense; the question, and the space for critique, however, would inhabit the realms of value.
The fourth returns one to post-Modern Marxism--a turn away from private to public rights ("Fourth, the concept of rights would have to be reformulated." Ibid.). That certainly has been the thrust of movement in Europe--with its focus on the development of compliance oriented public techno-bureaucracies that manage social relations for the benefit of the social collective operationalized through complex systems of managed delegations to fulfill public policy. The recently enacted Corporate Sustainability Due Diligence Directive provides a marvelous example of the thrust already well underway here. Note that reformulation is not, at least initially rejection of private realms. They remain necessary as the operational space for the fulfillment of public policy and a source of wealth that can be extracted. Here, again, the Chinese Marxist-Leninist principles in their New Era provide a vision of one way this insight might develop.
Kjaer's fifth theme is among the most intriguing--the elevation of the value of time as (a/the) principle marker of value ("Fifth, the only overarching ‘currency’, i.e. capital, in society would be time."). Time has always been an element of valuation; now it might displace other objects as the referent (from the "gold standard" to the "time standard"). Certainly descriptive and predictive analytics already point in the direction of time as the ordering element of value. And our own literature suggests that eventually it may be the only object against which humanity (collectively and individually) can measure "things."
On that basis, Kjaer invests a tremendous amount of expectation in the enterprise of law ("Sixth, departing from the insight that social processes and society at large consist of time and nothing else means that law only can be transformative." Ibid.). I do not share that view and it is not clear to me that law is suitable as an instrument of transformation. Yet one can take Kjaer's point that as a function of time law can only be transformative. Still, law has tended to be as much a memory of the past as it can be a gateway toward a future. And transformative instruments tend to be the tools that can be utilized by those resisting transformations through law imposed by whatever vanguard of social forces seeks to use them. An old story certainly. Law as authentically transformative, however, is worth exploring in the context of a time-value system.
As a function of the centrality of time, and its necessary fluidity, Kjaer would also "ditch" identity based critics (and its inversion in the form of the so-called identitarian movement) ("Seventh, the focus on time and the fluidity it implies means that the notion of ‘identity’ would have to be ditched altogether."Ibid.). And yet fluidity and temporality does not necessarily eliminate the power of identity, or counter-identity, so much as make the concepts fluid; indeed the emerging theories of gender fluidity already point in that direction. That approach can be generalized. The notions of temporality and fluidity has long been the stuff of phenomenology and the post-modern; it has become critical to the transformation of social relations, not through a transformative law but through the inevitable consequences of the move from the natural to the virtual realms and from observed to virtual cognition (my exploration of these concepts in The
Soulful Machine, the Virtual Person, and the “Human” Condition: An
Encounter with Jan M. Broekman, Knowledge in Change: The Semiotics of
Cognition and Conversion (Cham, Switzerland: Springer Nature, 2023)). Nonetheless, the idea is powerful in the sense that generality must in some sense produce collective solidarity that flattens the performance of identity as a political construct and as a means of organizing hierarchies within collectives.
What applies to identity as a cognitive construct also applies to other collectives ("Eight, the idea of ‘groups’ and group rights would have to be sidetracked as well."
Ibid.). Here again Chinese Marxist Leninism in the New Era suggests the means of managing collectivity within hierarchical systems that lend themselves to the constitution of a general solidarity to which sub-collectives can be organized and contribute. That, for example, is the theoretical essence of Whole Process People's democracy--built on the notion that democracy functions best through consultation with all social actors, and that such consultation is best undertaken by assigning every person a place within a collective, the aggregation of which represents society as a whole. Nonetheless, the "minorities problem" inherited from the 19th century European ethno-cultural revolutions and its counter in the "unity in diversity" mantras of the EU represent a substantial dialectical critique the power of which will be hard to overcome absent crisis. That crisis, of course may be at hand with the issue of settler colonialism from the bottom, in the form of migration, now unavoidable.
The ninth insight returns us to the phenomenological challenge of any new ordering ("Nine, in an overall manner, the social world consists of two worlds the factually existing world and the contra-factually, equally real, normative world. Bridging the gap between them is the function of constitutions, public or private, state or societal." Ibid.). Again, an ancient challenge; yet it is one that lends itself nicely to the sort of dialectics for which European society once had developed a great capacity to utilize effectively. Time concepts are critical here to Kjaer's conceptual universe: normative instruments create ordering parameters rather than foxed barriers. In virtual space this is easier to conceive.Yet any shift in emphasis within the normative/experiental binary can substantially change the context in which dialectics occurs; and one still requires to overcome the Nietzschean issue of the corrupting effect of a priestly caste overseeing any such dialectics.
Lastly, transformation requires re-education; and re-education requires an apparatus ("Ten, all this will however not be possible without
a profound recasting of the legal discipline and legal education." Ibid.). Ironically enough, that might well bring one back to the beginning. To that end one might use the academic apparatus and its technicians as tools. But they must be directed. Kjaer might correctly suppose that this apparatus merely discovers, not invents or interprets. That is the essence of the Enlightenment lebenswelt. Still among the less scrupulous the opposite may be true; and that has been at the heart of the orthodoxy/heresy dialectics for millennia.
For Kjaer, the death of critique born of the exuberance and horror of the post 1945 era serves as a doorway back to the theater of reflexive encounters with cognition and its social constructs. New times, different show.
The Frankfurt School of Critical Theory and the US-American critical legal studies movement are now defunct and will not come back to life. A new theory is needed. One where the concept of critique is integrated playing is role as a part of a broader theoretical architecture. * * * Hence, performing critique is the opposite of ideology. Critique is not about pushing through a particular policy program, set of values or the furthering of the interests of a particular group. Rather critique is about continued self-reflection, the empathy involved in seeking to understand ‘the other’ and most importantly to engage in the cool and necessarily distant and non-emotional process of obtaining knowledge in an objective form as possible. ("What Comes After Critique, supra).
Here one encounters a possible liberal democratic counter to the developing notion of self-revolution within Chinese Marxist Leninist systems. The techniques are similar even as the cognition of what is percieved varies as a function of the assumptions with which one approaches perception (
see, e.g., Social
Revolution (社会革命) as Self-Revolution (自我革命) and the New Quality
Production of CPC Modernization: 习近平 深入推进党的自我革命 [Xi Jinping, Deepen the
Party's Self-Revolution] (Part of a speech at the Third Plenary Session
of the 20th Central Commission for Discipline Inspection on January 8,
2024))). A powerful critique in any case, one worthy of further development and engagement.
The essay is reposted below and may be accessed from its original publication site here.
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Poul Kjaer
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