Power, Rule and Violence in Orders of Justification

As many discussions within and outside of our research cluster during the first funding phase revealed, an understanding of “normative order” as an order of “justifications” faces the objection that it represents a form of idealism: Does such a conception of order leave any room for concepts such as power, rule, domination, and violence, or are the latter seen merely as disturbances? The aim of this cooperative research project was to refute this objection and to show that the concept of a “justification order” is suitable for reconceptualizing the above-mentioned concepts of power, rule, and domination in fruitful ways. This also has consequences for our understanding of the law.

(1) Noumenal Power (Forst)

In this research project, the concept of power was theorized – somewhat paradoxically – as an intelligible or noumenal phenomenon. If we understand power as the capacity of agents to motivate others to think or to act in ways that they would not otherwise have thought or acted, then we must situate power in the “space of justification” if we want to distinguish the modalities of power from mere physical effects. For exercising power means that A “gives” B reasons, which means in turn that power actually operates at the level of reasons. This does not predetermine how power is exercised – whether, for example, through a convincing argument, an act of seduction, a lie, or a threat – or whether the reasons in question are good or bad ones; it implies only that “having power” means (in ascending order) using, influencing, occupying or even “sealing off” the space of justifications that is determinative for others – for example, through dominant or hegemonic justifying narratives. To hint at a taxonomy of forms of power, “rule” exists when a specific order of justification has taken shape in which the social and political relations of classification and subordination are stabilized in ways that are based on acceptance. Domination appears where such relations cannot be justified because of their asymmetrical character and are legitimized by restricting the space of reasons in a one-sided way. Oppression, (illegitimate) coercion and violence arise where those who are subjugated count less and less and are increasingly unable to act as subjects of justification – the limiting case being where the space of justification is replaced by mere physical facticity, that is, pure violence. Power takes shape and is reproduced, therefore, exclusively in the space of justifications, and power struggles are conducted in this space. When the justifications of a system of rule are questioned, it may be able to endure through lies, threats, or recourse to means of violence; but its power diminishes to the extent that it is increasingly reliant on such measures without an accompanying narrative.

In the context of the cooperation with Klaus Günther and our collaborators Malte Ibsen and Johann Szews we received a number of visits from international guest researchers for talks and on fellowships and to conduct joint workshops – among them such world-renowned theorists of power as Amy Allen, Seyla Benhabib, Allen Buchanan, Nancy Fraser, Helen Frowe, Sally Haslanger, Bob Goodin, Carol Gould, Duncan Ivison, Tony Laden, John McCormick, David Owen, Michael Rosen, Philip Pettit, Anne Phillips, Bill Scheuerman, James Tully, and Melissa Williams. Our work was also presented at a large number of national and international venues.

The theoretical approach to “noumenal power” (in particular the paper in the Journal of Political Power [see below] and accompanying essays in Normativity and Power) prompted numerous discussions. In an earlier book co-authored by Rainer Forst with critics entitled Justice, Democracy and the Right to Justification (London: Bloomsbury, 2014), Amy Allen, Kevin Olson, and Tony Laden took issue with this approach. A further dialogue followed with Amy Allen and Mark Haugaard, which has also been published (see below). A set of critical essays by Albena Azmanova, Pablo Gilabert, Mark Haugaard, Clarissa Hayward, Matthias Kettner, Steven Lukes, Max Pensky, and Simon Susen is due to appear in the Journal of Political Power. Three further collections of papers on Forst’s work are underway which will contain critical contributions on the concept of noumenal power: Amy Allen, Sarah Clark Miller, John McCormick, and Melissa Yates will devote their papers to this theme (in preparation for Penn State Press); in another volume (in preparation for Manchester UP) Patchen Markell, David Owen, Melissa Williams, and Daniel Weinstock will contribute papers on power; and in a volume in preparation for Oxford UP, Mattias Kumm, Arthur Ripstein, Enzo Rossi, Andrea Sangiovanni, and Bernhard Schlink will discuss the relation between justification and power. Rainer Forst will write replies to all these essays. A large number of other articles, such as Lois McNay’s in the most recent edition of the European Journal of Political Theory in which she criticizes the theory of noumenal power, have already been published or are currently in preparation.

Rainer Forst’s research associate from 2013 to 2016 was Malte Ibsen (MPhil University of Oxford). During his time at the Cluster he wrote a dissertation on “The Idea of a Critical Theory of Global Justice” under the joint supervision of Rainer Forst and Axel Honneth. The dissertation aims to unearth the theoretical resources within the Frankfurt School tradition for developing a critical theory of global justice, ranging from Max Horkheimer’s early attempt to elaborate a materialist theory of society to Rainer Forst’s more recent theory of transnational justice. The dissertation argues that the tradition of Critical Theory provides us with both a characteristic conception of what constitutes a theory of justice and a conception of what justice is. The above mentioned conceptions of rule and domination within an order of justification play a major role in Ibsen’s approach.

(2) Justification as Law-Making [Recht-Fertigung] (Günther)

In modern legal systems, “positive” law is often referred to as “congealed politics.” But when analyzing and describing this phenomenon, it may be necessary to start earlier: law arises out of “congealed reasons.” What has proved itself in the space of reasons is stabilized with the help of the law and is equipped with the authorization to use force by additional justifications. But law is also a means for authorizing someone to impose his or her reasons against possible conflicting reasons. In this way, power becomes legal rule. This conjecture was deepened in several essays, in particular with reference to Joseph Raz’s characterization of authoritative reasons as exclusionary reasons. If a legal order can be traced back reconstructively to a decision by free and equal individuals to regulate their social life with the means of modern law (in Habermas’s terms: to form an association of legal subjects), then in doing so the latter also give rise to the type of exclusionary reasons. However – contra Raz – these reasons must be capable of being criticized (and altered) in turn in legally regulated procedures if the legal community of free and equal subjects is to be able to reproduce itself in its only adequate form, namely, as a democratic constitutional state.

The distinguishing feature of this research is its emphasis on the discursive and communicative dimension of power. Here it can be shown that the concept of exclusionary reasons is modeled, so to speak, on the prototype of noumenal power as this has been described by Rainer Forst. Exclusionary reasons function as reasons that are able to prevail against the reasons subjectively recognized by the actors involved. This, according to Raz, is because they are traced back to a legitimate authority that takes the place of the subjectively acknowledged reasons. In contrast to noumenal power, the authoritative power of the legal reasons is generated constructively by the legitimate authority. Nevertheless, it relies on the same mechanism of noumenal power. In further essays on justification narratives and on developments in criminal law it was shown that public criticism of the legitimate authority of exclusionary reasons can be bypassed or neutralized by embedding legal reasons in justification narratives. With such narratives, legal reasons can be relativized, bypassed, or even transgressed without having to expose the reasons to public criticism in legally regulated procedures.

The doctoral project (still in progress) of project collaborator Johann Szews entitled “Zahlungsmoral. Untersuchungen zum Zusammenhang von moralischer und ökonomischer Verschuldung” (Payment Morality: Explorations of the Relationship between Moral and Economic Debt) deals with a current aspect of the relationship between law and power: the debtor relationship. This project addresses basic social-philosophical and normative questions to the contemporary social order of indebtedness: What forms of subjectivity are implied by debt? To what extent can we speak of a “social pathology” of indebtedness? The study focuses on a core problem: How should the connection between moral and economic debt be understood? This research question is motivated by the intuition that neither functionalist, economic-theoretical problem diagnoses that emphasize the increasing economic instability resulting from high levels of indebtedness, nor critical approaches based on theories of justice that accord central importance to question of distribution, are sufficient for an adequate understanding of the form of the indebted life. The doctoral project argues that the conceptual framework of an ethical critique of capitalism is required to work out its immanent critique-worthiness beyond economic dysfunctionality and distributive injustice. The purpose of these reflections is to show that the form of the indebted life not only gives rise to unjust effects (for example, poverty), but also produces relations to self and to the world which are inherently worthy of ethical criticism. Building on a critical interpretation of Friedrich Nietzsche and Max Weber, the dissertation argues that forms of indebtedness are marked by a specific form of temporality. The central thesis is that the social promise of future freedom as a result of voluntarily assuming debt by taking on loans turns into a continuous subjective consciousness of guilt under conditions of over-indebtedness and the dependencies associated with indebtedness. The relationship between freedom and dependency in subjectifying relations of debt/guilt (Schuldverhältnissen) is analyzed by drawing on Michel Foucault's conception of relational power (thus going beyond Nietzsches und Webers conceptions of power). The form of the indebted life is criticized from the perspective of an ethical critique of capitalism and alternative forms of subjectivization are explored.

The theses of this sub-project have regularly been discussed in the “Colloquium on Legal Theory“ of the cluster, in which professors, post-docs and PhD-students are participating and to which occasionally external guests are invited (e.g. Fred Schauer, Robert Alexy, Richard W. Wright, Larissa Katz, Matthias Mahlmann). An important impulse for Guenther’s paper on “Parapractical Narratives of Justification” (Parapraktische Rechtfertigungsnarrative) was the workshop “Narratives of Justification – Terror and Violence in Cinema” (March 2014). Two international workshops were organized in cooperation with the “Research Center on the Theory and Ethics of Criminal Law“ (Prof. Andreas von Hirsch) on the topics of “Retribution and Censure“, (December 2014) and “Philosophical Foundations of International Criminal Law“ (April 2017). Guenther’s theses were presented and discussed also at an international conference on “Transitional Justice“ (August 2016) in Bogotá (Columbia), which was organized in cooperation with the faculty of law of Rosario University.

The most important publications of this project:

Forst, Rainer: Normativität und Macht. Zur Analyse sozialer Rechtfertigungsordnungen, Berlin: Suhrkamp, 2015. English Translation (by Ciaran Cronin): Normativity and Power, Oxford: University Press, 2017.

Forst, Rainer: “Noumenal Power”, in: The Journal of Political Philosophy, 23(2), 2015, pp. 111–127.

Forst, Rainer: “Transnational Justice and Non-Domination. A Discourse-Theoretical Approach”, in: Barbara Buckinx, Jonathan Trejo-Mathys, Timothy Waligore (eds): Domination Across Borders, London/New York: Routledge, 2015, pp. 88–110.

Ibsen, Malte: “Global Justice and Two Conceptions of Practice-Dependence”, in: Raisons Politiques, (special issue on the theme “Practice-Dependence and Global Justice”) 51(3), 2013, pp. 81–96.

Günther, Klaus: “Parapraktische Rechtfertigungsnarrative“, in: Jochen Schuff and Martin Seel (eds.): Erzählungen und Gegenerzählungen. Terror und Krieg im Kino des 21. Jahrhunderts, Frankfurt am Main/New York: Campus, 2016, pp. 101–124.

Günther, Klaus: “Zur Rekonstruktion des Rechts: Das System der Rechte“, in: Peter Koller and Christian Hiebaum (eds.): Jürgen Habermas: Faktizität und Geltung, Klassiker Auslegen, Vol. 62 (ed. by Otfried Höffe), Berlin/Boston: Walter de Gruyter, 2016, pp. 51–68.

Günther, Klaus: “De nihilo aliquid facit – Zur Kriminologie des effizienten Regelbruchs“, in: Henning Schmidt-Semisch and Henner Hess (eds.): Die Sinnprovinz der Kriminalität. Zur Dynamik eines sozialen Feldes, Wiesbaden: Springer VS, 2014, pp. 121–136.

Szews, Johann: Zahlungsmoral. Überlegungen zum Zusammenhang von Schuld und Schulden mit Nietzsche, Weber und Bourdieu, Normative Orders Working Paper 2/2017 (25 pages).

 
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