Textual theory at the bar of reason

Christopher Norris

  • Dialectic of Nihilism: Post-Structuralism and Law by Gillian Rose
    Blackwell, 232 pp, £22.50, August 1984, ISBN 0 631 13191 4

This book is by far the most sustained and intelligent critique of post-structuralist theory yet published in Britain or America. It is argued from an adversary stance, but with a vigour and passion all too rare among opponents of ‘theory’ in whatever threatening shape or guise. According to Rose, it is the fault of post-structuralism, not that it has become too much embroiled in theoretical issues, but that it has failed to think through the problems bequeathed by philosophers in the critical tradition descending from Kant. That tradition she sees as having set the main terms for a debate whose categories are centrally those of jurisprudence, or the individual subject and his or her standing before the law. Post-Kantian philosophy is heir to certain problems in the nature of its own grounding concepts which cannot be simply pushed aside in the name of some radical break with ‘Western metaphysics’. Such gestures are a species of intellectual nihilism, a refusal to engage with hegemonic structures of reason, legality and ethical discourse alike. Taking issue with Foucault and Derrida especially, Rose argues that post-structuralism has not come out – as its proponents would claim – on the far side of those problems and antinomies that dominate classical reason. Rather, it has attempted to exclude them de jure from its own more ‘radical’ or liberated discourse, only to reveal how far it is in thrall to those same (unrecognised) critical motifs. In short, these thinkers have opted for a rhetoric of militant unreason, thereby depriving thought of any power to criticise its own concepts and categories.

The starting-point of Rose’s argument is a series of highly persuasive analogies between the Kantian tribunal of philosophic reason and the process of law as administered in court. In each case a subject (‘natural consciousness’) is placed in the position of an unreliable witness whose claims are to be duly cross-questioned and judged by some higher, self-validating discourse of truth. But reflection on the status of the courtroom officials suggests that this authority of law (or reason) may be exposed to further complications. To inquire where the ultimate verdict derives from – the quaestio quid juris of legal philosophy – is also to ask what grounds exist for the Kantian distinction between ‘natural’ and ‘critical’ consciousness. ‘For cross-examination reveals the purportedly impersonal authority of reason to be an ensemble of the three fictitious persons of the law: the judge, the witness and the clerk of the court.’ Reason is forced back onto a series of antinomies where these roles are seen as perpetually shifting in relation to some ultimate verdict of truth.

Hence Rose’s claim that philosophy in the critical (post-Kantian) tradition has developed in close and productive exchange with the discourse of jurisprudence. Philosophy makes trial of ‘natural’ (pre-reflective) consciousness from the standpoint of a higher, more rational or self-legitimating discourse of knowledge. Legal justice likewise rests its claims upon a careful separation of the courtroom roles of witness, clerk and judge. But in each case there remains the problem of preserving this authority of law or reason in face of the conflicting testimonies on offer and the practical business of courtroom administration. The statutes of the civil subject ‘before the law’ can thus be compared to the role of natural consciousness when required by Kant to give rational account of its own un-self-critical assumptions. The quaestio quid juris has the same effect in each case: to reveal further antinomies of reason and judgment which admit no final, authoritative verdict.

Rose sees no escape from these antinomies, at least so long as theory acknowledges the fact of its involvement with forms of civil and juridical reason, and hence with institutions of power. Her objection to post-structuralism is that it thinks to place itself beyond them, either by declaring (with Foucault) that power and knowledge are so closely intertwined as henceforth to elude all the claims of rational critique, or by heralding (like Derrida) a new dispensation where ‘writing’ comprehends – and renders undecidable – every last vestige of law and reason. The result in each instance is to yield up the powers of dialectical reason to a spurious radicalism devoid of any genuinely critical content or grasp. In Derrida, she writes, ‘this licence is employed to undermine, not metaphysics, but political and social theory.’ In Foucault, a monolithic concept of ‘power’, identified at root with the system of monarchical government, gives rise to a straightforward conflation of power and knowledge that in turn underwrites the Nietzschian drive toward a nihilist abandonment of reason itself. ‘Once power is made prior to justification, whether legal or philosophical and scientific, the history of law and the history of knowledge are treated as a single process of “epistemologico-juridical” formation.’ By this means Foucault collapses a number of crucial distinctions, as between the state and civil society, monarchical government and law, the interests of power and those of enlightened critique. In calling for a generalised ‘political economy of the will to knowledge’, he reduces the terms of any such analysis to ‘the circulation of pre-political resources, a natural law of power’. Thus Foucault effectively elides the stages of progressive self-understanding inscribed in the tradition of critical thought from Kant, through Hegel to the Frankfurt School. The ‘dialectic of nihilism’ stigmatised in Rose’s title is therefore very much a modern French phenomenon, for all that it finds an elective pre-history in Nietzsche’s swerve from the rigours of Kantian critique.

What we are offered in place of this dead-end modernity is a scrupulous thinking-back through the problems thrown up by critical reason in its ‘litigious’ or legal-interrogative aspect. Here as in earlier books on Hegel and Adorno, Rose takes the path of an immanent critique in which the strategies of argument themselves reproduce the antinomies and blind-spots encountered in the texts she reads. That such obstacles cannot be avoided – unless by falling back on a spurious, self-deceiving rhetoric – is the burden of her case against those who would reject this labour of negative dialectics. The only way forward is to rethink tradition in the light of those set-piece juridical ‘scenes’ where reason brings experience to the bar of critical reflection. This accounts both for the unremitting argumentative drive and – inseparable from that – for the extreme stylistic density of Rose’s writing. She has evidently taken Adorno’s lesson to heart: that the rigours of immanent critique go along with a sternly self-denying ordinance in point of stylistic appeal.

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