Power, domination and violence in orders of justification
Project management: Prof. Dr. Rainer Forst and Prof. Dr. Klaus Günther
As many discussions during the first funding phase within and outside our research cluster showed us, an understanding of “normative order” that sees it as an order of “justifications” is exposed to the accusation of idealism: Do concepts such as power, domination, domination and violence even have a place in such a conception of order, or are they merely perceived as disturbances? The aim of this joint project was to show that this is not the case, but that the concept of justificatory order is suitable for understanding the aforementioned concepts of power, domination and control in a new and productive way. This also has consequences for an understanding of the law.
(1) Noumenal power (Forst)
In this research, power was understood – paradoxically – as an intelligible or noumenal phenomenon. If we understand power as the ability of actors to motivate others to think or do something that they would not otherwise have thought or done, then in order to understand the mode of action of power in contrast to purely physical effects, we must locate it in the “space of justifications”. For exercising power means that A “gives” B reasons, and this means that the real power process takes place at the level of reasons. It is not determined how this happens – whether through persuasion, seduction or a threat, for example – nor whether it is good or bad reasons that are at work there; it is only said that having power means being able to use, influence, occupy or even close off the space of justifications that is decisive for others (in an ascending line) – for example through dominant or hegemonic justification narratives. Domination (to suggest a taxonomy of forms of power) thus means that a certain order of justification has been established, which stabilizes social and political relations of inclusion and subordination and is based on acceptance; domination exists where such relations are not justifiable in their asymmetries and are only legitimized by an elimination of the space of reasons. Oppression, (illegitimate) coercion and violence are present where the subjected are less and less able to act as subjects of justification, right up to the replacement of the space of justification by mere physical facticity, i.e. pure violence. Power is thus only formed and maintained in the space of justifications, and struggles for power take place in this space. A ruling order whose justifications are called into question may still be able to maintain itself through lies, threats or the use of violence, but its power dwindles to the extent that it is increasingly dependent on these means without an accompanying narrative.
As part of the joint work with Klaus Günther and our colleagues Malte Ibsen and Johann Szews, numerous visits by international guest researchers took place, combined with joint workshops and lectures – among them the best-known theorists of power such 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, Melissa Williams, and others.Our work has also been presented at a large number of national and international events.
The theoretical approach of “noumenal power” (in particular the essay in the Journal of Political Philosophy (see below) and accompanying essays in Normativity and Power) gave rise to numerous discussions. Already in a book co-authored by Rainer Forst and critics entitled Justice, Democracy and the Right to Justification (London: Bloomsbury, 2014), this approach was critically discussed by Amy Allen, Kevin Olson and Tony Laden. This was followed by a further dialog with Amy Allen and Mark Haugaard, which was also published (see below). A series of critical essays by Albena Azmanova, Pablo Gilabert, Mark Haugaard, Clarissa Hayward, Matthias Kettner, Steven Lukes, Max Pensky and Simon Susen will appear in the Journal of Political Power. Three further volumes on Forst’s work, which include some critical contributions on the concept of noumenal power, are currently in preparation: Amy Allen, Sarah Clark Miller, John McCormick and Melissa Yates will devote their essays to this topic (in preparation for Penn State Press); in another volume (in preparation for Manchester UP) Patchen Markell, David Owen, Melissa Williams, Daniel Weinstock will publish contributions on the topic of power. And in a volume in preparation for Oxford UP, Mattias Kumm, Arthur Ripstein, Enzo Rossi, Andrea Sangiovanni and Bernhard Schlink will publish articles on the relationship between power and justification. Rainer Forst will write responses to all these essays. A large number of other articles criticizing the theory of noumenal power, such as the one by Lois McNay in the latest issue of the European Journal of Political Theory, have already been published or are currently in preparation.
From 2013 to 2016, Rainer Forst’s research assistant was Malte Ibsen (Mphil Oxford University). During his time at the Cluster, he wrote his dissertation “The Idea of a Critical Theory of Global Justice,” which was supervised by Rainer Forst and Axel Honneth. The dissertation aims to uncover the theoretical resources for developing a critical theory of global justice that exist in the Frankfurt School tradition – from Max Horkheimer’s early attempt to elaborate a materialist theory of society to Rainer Forst’s more recently developed theory of transnational justice. The dissertation argues that in the tradition of critical theory we find both a specific conception of what a theory of justice is and a conception of what justice is. The concepts of domination and domination within an order of justification outlined above play a central role in this.
(2) Justification as justification-production (Günther)
In modern legal systems, (positive) law is often referred to as “congealed politics”. It may be necessary to start earlier when analyzing and describing this phenomenon: Law arises from “coagulated reasons.” What has become established in the realm of reasons is stabilized with the help of law and linked to the power to exercise force through additional justifications. However, law is also a means of authorizing someone to enforce their reasons against possible counter-reasons. In this way, power becomes legal domination. This assumption has been deepened in several essays, above all with recourse to Joseph Raz’s characterization of authoritative reasons as exclusionary reasons. If a legal order can be reconstructed as the result of a decision by free and equal people to regulate their coexistence by means of modern law (Habermas: to form an association of legal comrades), then they also generate the type of exclusionary reasons. However, these reasons must – contra Raz – in turn be able to be criticized (and changed) in legally regulated procedures if the legal community of free and equal persons is to be able to reproduce itself in its only adequate form, the democratic constitutional state.
What these studies have in common is that they emphasize the discursive and communicative dimension of power. It was shown that the concept of exclusionary reasons is modeled on the archetype of noumenal power as described by Rainer Forst. Exclusionary reasons function as reasons that can assert themselves against the reasons subjectively recognized by the actors. This is because, according to Raz, they are traced back to a legitimate authority that takes the place of the subjectively recognized reasons. In contrast to noumenal power, the authoritative power of legal reasons is constructively generated by the legitimate authority. Nevertheless, it rests on the same mechanism of noumenal power. In further essays on justificatory narratives and on the transformation of criminal law, it was shown that public criticism of the legitimate authority of exclusionary reasons can be circumvented or neutralized by embedding legal reasons in justificatory narratives. These can be used to relativize, circumvent or even violate legal grounds without having to expose the grounds to public criticism in legally regulated proceedings.
The doctoral project (not yet completed) of project member Johann Szews entitled: “Zahlungsmoral. Investigations into the connection between moral and economic indebtedness” is dedicated to a current aspect of the relationship between law and power: the debt relationship. The doctoral project poses fundamental socio-philosophical and normative questions about the current social order of indebtedness: What forms of subjectivity does debt imply? To what extent can we speak of a “social pathology” of debt? The investigation focuses on a core problem: How can the connection between moral and economic debt be conceived? This research question is motivated by the intuition that neither functionalist, economic-theoretical problem diagnoses, which emphasize the increasing economic instability caused by high levels of debt, nor justice-theoretical critical approaches, which focus on distributional issues, are sufficient to adequately understand the form of indebted life. The thesis of the doctoral project is that only the conceptual framework of an ethical critique of capitalism makes it possible to work out its intrinsic criticality beyond economic dysfunctionality and unjust distribution. The aim of the considerations is to show that the form of indebted life not only produces unjust effects (e.g. poverty), but in itself produces world and self-relations worthy of ethical criticism. Building on an examination of Friedrich Nietzsche and Max Weber, it is argued that forms of indebtedness are characterized by a specific temporality. The central thesis is that the future freedom promised by society through voluntary self-indebtedness by taking out loans turns into a continuous subjective sense of guilt under conditions of over-indebtedness and the dependencies associated with indebtedness. The relationship between freedom and dependency in subjectivizing debt relationships is analysed from a power-theoretical perspective (going beyond Nietzsche and Weber) based on Michel Foucault’s relational concept of power. From the perspective of an ethical critique of capitalism, the form of indebted life is criticized and alternative forms of subjectivation are explored.
The theses of this sub-project were discussed in a series of events, including regularly in the “Legal Theory Working Group” of the Cluster, in which professors, postdocs and doctoral students participate and in which external guests are occasionally invited (e.g. Fred Schauer, Robert Alexy, Richard W. Wright, Larissa Katz, Matthias Mahlmann). An important source of inspiration for Günther’s essay on “Parapractical Justification Narratives” was the workshop “Justification Narratives – Terror and Violence in Cinema” (March 2014) organized by PI Martin Seel. In cooperation with the “Research Center for Criminal Law Theory and Criminal Law Ethics” (Prof. Andreas von Hirsch), two international conferences were held on “Retribution and Censure” (December 2014) and on “Philosophical Foundations of Interantional Criminal Law” (April 2017). Günther’s theses were also presented and discussed at an international conference on “Transitional Justice” (August 2016) in Bogotá (Colombia), which was organized in cooperation with the Faculty of Law at Rosario University.
The most important publications in this project:
Forst, Rainer: Normativity and power. On the analysis of social orders of justification, 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.): Narratives and counter-narratives. Terror and war in 21st century cinema, 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.): The meaning province of criminality. On the dynamics of a social field, Wiesbaden: Springer VS, 2014, pp. 121-136.
people in this project:
Project management / contact person
Forst, Rainer, Prof. Dr.
Günther, Klaus, Prof. Dr.
Project staff
Ibsen, Malte, M.Phil. in Politics: Political Theory (Oxon)
Szews, Johann