Normativity and freedom

Project management: Prof. Dr. Christoph Menke

The project examined the relationship between normativity and freedom, which is at the center of the understanding of the formation of normative orders in modern philosophy: The emergence of a normative order, be it of a moral, legal or political nature, must, in the modern understanding, be a free one if it is to be a legitimate order. For modern philosophy, therefore, law and freedom are not in opposition (as they were for modern political philosophy), but are mutually explanatory. This new understanding of freedom is sealed by the introduction of the concept of “autonomy”. In six sub-projects, the project examined various forms, conditions and effects of this inner conditional relationship between freedom and law. The basic thesis, which was developed in various forms in the sub-projects, states that freedom and law are only able to mutually determine each other in that they simultaneously dialectically diverge.

In order to develop this dialectical relationship, the project is based on the central insight that autonomy is linked to social membership or participation. According to this insight, social membership, participation in social practice, is both the source of normativity and the place of freedom. This makes the question of how a social practice is produced and given central to the understanding and relationship between normativity and freedom. By examining this question more closely in a critical examination of established explanations of social practice, the relationship between normativity and freedom can be redefined:
(1) The critical redefinition of the structure of social participation or membership takes place in reflection on its genesis. In such a genealogical perspective, the process of becoming a participant or member, of socialization-as-subjectivation, is examined and this process is critically set apart from the teleological concept of “education”: Becoming a competent participant in social practices is, genealogically understood, a process of reshaping a prior (“natural”) endowment, which is not completely reshaped therein (as understood by the teleological concept of education), but remains intact in its difference to the logic of social or cultural abilities. Therefore, from a genealogical perspective, social participation or membership is also structurally broken in itself: The individual is never quite a social member, the “individual” not quite a “subject”, the “human being” not the same as the “person”. The coupling between the (a-social) individual and the (social) subject contains a moment of irreducible contingency or strangeness.
(2) From this genealogical problematization of the social, the relationship between the terms “normativity” and “freedom” must also be reconceived. In a first, abstract approximation, this can be defined in such a way that normativity and freedom can only be defined in relation to each other as different and independent: Normativity and freedom are in a (negative) dialectical relationship. Normative orientations are not dissolved in the fact that they have been produced freely, but retain – for the sake of their normative power – an irreducible moment of strangeness or independence. On the other hand, a free self-relation does not dissolve in the production (or formation) of normative orientations, but retains – in order to be called “freedom” in the emphatic sense – an irreducible moment of distance and play vis-à-vis all normative orientations. This is the only way to explain transformations and innovations of normative orders: Freedom does not dissolve into self-commitment, but still or again goes beyond it.

In a first phase (2009-2010), the project examined the conditional relationship between freedom and law from the perspective of freedom theory, in order to question the constellation from the perspective of the law in a second phase (2011-12). An important result of the research oriented towards freedom theory in the initial phase of the project was the insight that freedom in the production or appropriation of social norms is not only dependent on autonomy, but also on a moment of arbitrariness through which pre-normative or natural impulses come to the fore. In this sense, the law of freedom cannot be conceived without freedom from the law. Contingency thus proves to be an irreducible component of any autonomous order, through which it is internally questioned and at the same time dynamized. This idea was examined in more detail with regard to the individual and social formation of normative orders and their dependence on natural impulses and political processes: If autonomy in the movement of its individual realization is dependent on a natural life in which it is realized, it remains exposed therein to the intrinsically lawful impulses of this life, which constantly challenges the order embodied in it. In the course of its social realization, autonomy is at the same time dependent on a practice of collective political participation of a special kind. The freedom of democratic politics can only be understood in its genesis and implementation if it combines collective self-determination and idiosyncratic impulses in a tense way.

The second phase of the project examined the relationship between freedom and law from the perspective of legal theory. This was done essentially in two ways: firstly, by examining the general concept of law, which is decisive for modern philosophy in both theoretical and practical terms, and secondly, by questioning the juridical form of law in the modern age. With regard to the general concept of law, the project examined the seemingly paradoxical circumstance that the concept of law in the modern understanding is to be linked to the idea of freedom by radicalizing its claims. It is not by reducing the claims to validity of general norms, but by demanding unconditional validity, which is only granted to the most abstract law – the law of legality – that it should be possible to understand the law in such a way that it can itself become a medium and expression of freedom. With regard to the juridical concept of law, the project has dealt with a decisive change in modern legal consciousness, through which law is essentially conceived on the basis of the idea of subjective rights. If the sphere of juridical laws is not primarily understood in terms of obligations, which secondarily correspond to entitlements, but conversely in terms of subjective rights, then the law appears essentially as one that empowers and liberates. However, it does this in two ways: firstly, by enabling participation in the social practice of freedom and, secondly, by setting the subject free and placing participation at the subject’s discretion. Tensions arise between these two aspects of a freedom made possible by law, which the project has examined, as well as the new forms of coercion that can emanate from this form of empowerment.

The joint research project Normativity and Freedom has investigated the dialectic of freedom and law within the framework of six sub-projects, three of which have examined the constellation from the side of freedom (1), three from the side of law (2): (1) Acts of Freedom (Dirk Setton), Paradoxes of Autonomy (Thomas Khurana), The Art of Freedom (Juliane Rebentisch); (2) The Subject of Rights (Christoph Menke), After Sovereignty (Francesca Raimondi), The Gift of Recognition (Dirk Quadflieg). The joint work of the various project participants and parts was organized through two forms of work that were practiced throughout the entire duration of the project: on the one hand through an internal working group in which cross-cutting issues relevant to all projects were jointly examined, and on the other hand through a series of workshops at which the respective interim results of the work were presented and discussed. In accordance with the two phases of the project, the first four workshops (“Arbitrariness“, “Paradoxes of Autonomy“, “Freedom and Contingency” and “Life and Autonomy”, 2009-2010) were dedicated to the freedom-theoretical approach, while the last two workshops (“Before the Law” and “The Political Imaginary”, 2011-2012) examined the conditional relationship from the side of the law. The results of these joint workshops have been published in the form of a book series by August Verlag Berlin on the topic of “Freedom and Law” (Thomas Khurana and Christoph Menke (eds.), Paradoxien der Autonomie, 2011, 2nd ed. 2019; Juliane Rebentisch and Dirk Setton (eds.), Willkür”, 2011; Thomas Khurana (ed.), The Freedom of Life. Hegelian Perspectives, 2013; Felix Trautmann (ed.), Das politische Imaginäre, 2017).

In the final phase of the project, the freedom and law theory considerations of the previous studies were integrated. The results of this integration were published internationally in a focus section of the journal Symposium (17/2013), which was dedicated to the project. In addition, key results of the project were presented internationally at a Humboldt Kolleg at the University of Illinois at Chicago in spring 2013.

In addition to the book series mentioned above, the most important publications that have emerged from the research conducted in the project include:
Khurana, Thomas, Das Leben der Freiheit: Form und Wirklichkeit der Autonomie, Berlin: Suhrkamp, 2017; Rebentisch, Juliane, Die Kunst der Freiheit, Berlin: Suhrkamp, 2012 (2nd ed. 2014; English translation: The Art of Freedom: On the Dialectics of Democratic Existence, Cambridge: Polity Press, 2016); Raimondi, Francesca, The time of democracy. Political freedom according to Carl Schmitt and Hannah Arendt Wallstein, Konstanz: University Press, 2014; Christoph Menke, Recht und Gewalt, Berlin: August Verlag, 2011 (2nd ed. 2012); Quadflieg, Dirk, On the spirit of the thing. On the critique of reification . Frankfurt a. M./New York, Campus Verlag (ed.).