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Critique & Praxis Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2018 Critique & Praxis: A Pure Theory of Illusions, Values, and Tactics, and An Answer to the Question: "What is to Be Done?" Bernard E. Harcourt Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Law and Philosophy Commons, Law and Politics Commons, and the Public Law and Legal Theory Commons Recommended Citation Bernard E. Harcourt, Critique & Praxis: A Pure Theory of Illusions, Values, and Tactics, and An Answer to the Question: "What is to Be Done?", COLUMBIA PUBLIC LAW RESEARCH PAPER NO. 14-601 (2018). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2333 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. BERNARD E. HARCOURT _______________ CRITIQUE & PRAXIS A PURE THEORY OF ILLUSIONS, VALUES, AND TACTICS AND AN ANSWER TO THE QUESTION: “WHAT IS TO BE DONE?” ~~~ A FIRST DRAFT __________ September 1, 2018 New York, New York Version 1.0 Electronic copy available at: https://ssrn.com/abstract=3244764 Critique & Praxis NOTE TO READER This is the first draft of a book manuscript. As such, it is not a final book, but rather a work-in-progress. Because it addresses such pressing issues, at such a critical time of crises, I have decided to share this first draft with readers. I am eager to receive your comments and feedback. I apologize for typographical errors, stylistic infelicities, and substantive errors—all mine. Please send me your thoughts and comments, preferably by way of comments on the website that hosts this first draft, “Critique & Praxis 13/13.” I thank you in advance, Bernard E. Harcourt. © Bernard E. Harcourt 2018 – All Rights Reserved Columbia Center for Contemporary Critical Thought Columbia University, New York City 2 Electronic copy available at: https://ssrn.com/abstract=3244764 Critique & Praxis TABLE OF CONTENTS PREFACE ........................................................................................ 5 INTRODUCTION: A TIME FOR PRAXIS ........................................... 11 PART I: THEORIA — RECONSTRUCTING CRITICAL THEORY .......... 15 Chapter 1: Our Theoretical Quandary ............................................. 17 Chapter 2: The Problem of Truth ..................................................... 25 Chapter 3: Reconstructing Critical Theory ...................................... 31 Chapter 4: A Pure Theory of Illusions ............................................. 45 PART II: UTOPIA — REIMAGINING A CRITICAL HORIZON ............ 51 Chapter 5: Our Utopian Predicament ............................................... 53 Chapter 6: The Political Condition .................................................. 63 Chapter 7: The Illusion of Liberalism .............................................. 69 Chapter 8: A Pure Theory of Values ............................................... 83 PART III: PRAXIS — REMAKING CRITICAL PRACTICE .................. 91 Chapter 9: Our Practical Dilemma ................................................... 93 Chapter 10: The Trouble with Violence ........................................ 115 Chapter 11: A Way Forward .......................................................... 131 Chapter 12: A Pure Theory of Tactics ........................................... 151 PART IV: WHAT IS TO BE DONE? .............................................. 173 Chapter 13: Crisis – New York, September 1, 2018 ..................... 175 Chapter 14: Critique – New York, September 1, 2018 .................. 185 Chapter 15: Praxis – New York, September 1, 2018 ..................... 189 CONCLUSION ............................................................................. 197 BIBLIOGRAPHY .......................................................................... 201 NOTES ....................................................................................... 217 3 Electronic copy available at: https://ssrn.com/abstract=3244764 Critique & Praxis © 2018 Bernard E. Harcourt – All Rights Reserved. 4 Electronic copy available at: https://ssrn.com/abstract=3244764 Critique & Praxis PREFACE We live in dark times. Extreme-right populist movements are on the rise once again. Xenophobic sentiment is mounting in many quarters around the world. Strong-men political leaders are gaining power on the back of a global war on terror and years of neoliberal economic reform. As I write, the democratic process and inclusive politics in the United States—as faulty as they are—teeter on the verge of collapse, and it is no longer unimaginable that the country may be headed toward authoritarianism. Many even worry, not without reason, about the risk of fascism. The question on many people’s minds today is: What is to be done to prevent slipping into chaos and tyranny? Or, even more pointedly: What can I do, personally, to stop this dangerous descent? Others before us faced similar dilemmas—and their fates are what worry many of us even more. France and Germany in the 1920s and ’30s. Chile in the 1970s. Russia and Turkey at the turn of the century. Democratic processes, it turns out—especially faulty democratic regimes that desperately need reform—are fragile, especially when they are confronted by authoritarian leaders bent on fomenting political chaos in order to consolidate political power. History reveals a number of conventional responses to these democratic crises: bolster parliament as a bulwark against an encroaching executive; build a more independent judiciary; enforce the rule of law; produce more and better facts to counter the propaganda; invigorate the public sphere; spark a grassroots counter-movement; or just get more people to the polls. And all of these are, undoubtedly, worthwhile undertakings in such critical times. But for many critical thinkers, these remedies feel like band-aids and stand on fragile footing. They rest, for the most part, on illusions that may well have contributed to the crises we find ourselves in today. The rule of law, for instance, is far more malleable than its proponents imagine and can easily be distorted in the hands of autocratic leaders, as happened under the Third Reich or in post 9/11 America. (Recall the Bush torture memos that immunized unconscionable practices like waterboarding, stress positions, and inhumane deprivations.) Facts also—particularly social facts—are far more malleable than we would like to admit. Many legal facts, for instance, depend on contested notions of materiality, proximity, or intent that are more influenced by relations of power than by objective measurement. Truth, it turns out, is not 5 Electronic copy available at: https://ssrn.com/abstract=3244764 Critique & Praxis immune to politics; there is no wall, but instead a tight relation between truth, knowledge, and power. Now, dressings are of course useful to stop the bleeding. A more independent judiciary, a legislative check, honest law enforcement can have positive effects in critical times like these, and are surely more desirable than raw authoritarianism. They are necessary correctives in these times. But they are not solutions—and, in all likelihood, they postpone the reckoning, particularly when a right-wing populist wave engulfs parliament and packs the judiciary as well. These remedies are not bulwarks against encroaching right populism, but just temporary measures and are easily appropriated by the right. They are no more than stopgap measures in an ongoing political struggle. Contrary to liberal tenets, there are no neutral principles or universal charters of civil and political rights that will protect us against a downward spiral to authoritarianism. There is no institutional fix, no permanent or lasting legal protection against tyranny. The rule of law will not save us—it is plied instead in the hands of brilliant lawyers to the will of their handlers, as we witnessed so starkly under the presidency of George W. Bush. As a result, putting in place these temporary remedies will not suffice. The reason is that our political condition does not achieve the kind of equilibrium characterized by liberal political theory. Our political condition is, instead, a constant never-ending struggle to shape distributions of resources. It is an unending political competition, one that never reaches a stable equilibrium, but rather churns endlessly, dramatically, and often violently, redistributing wealth, security, influence, liberty, well-being—and, yes, life itself. This is a central insight of critical theory, and it remains as sound today as it was one hundred years ago: our political condition is an unremitting struggle over values, ideals, and material existence. It is a constant battle to realize contested visions and ambitions for life and social existence. We are inevitably steeped in these ongoing political struggles. They cannot be avoided through institutional or legal fixes. Another central insight of critical theory is that these struggles are fought, and often won, on the basis of illusions: by getting people to believe so deeply in the truth of social facts that they are then willing to sacrifice their lives for their beliefs. In recent decades, with the collapse of communism and the rise of neoliberalism, the illusion of free
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