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

Let me summarise Rose’s main objections to post-structuralist theory. Post-structuralism takes it as a well-established fact that thought is always and everywhere governed by the systems of linguistic representation that make up a given discourse of knowledge. This position is arrived at by a joint application of Saussure’s insistence on the ‘arbitrary’ nature of the sign and a Nietzschian critique of philosophic truth-claims as mere by-products of the will-to-power vested in figural language. The result is a thoroughgoing relativist stance that acknowledges no basis for the claims of truth or reason aside from their role in some particular cultural ‘discourse’. Rose sets out to challenge this consensus in the name of an alternative (post-Kantian) tradition that resists the drift toward an all-embracing scepticism. Even in appropriating Nietzsche, she argues, the present-day theorists have had to disregard his residual ‘conscience of method’ – or critical thrust – in order to reduce his arguments to the play of ungrounded figural representation. This they have achieved only by ignoring the extent to which Nietzsche’s ultimate scepticism came of his engagement with those same central problems that characterised Kantian thought. In retrospect, it may seem that reason was ‘crippled’ by Nietzsche’s willingness to press these problems to the point where philosophy relinquished all claim to discriminate truth and error. But the modern recasting of Nietzschian rhetoric embraces his nihilist conclusions while failing to grasp the structured genealogy of concepts that lay behind it. ‘Concentrating on Nietzschian perspectivism, on truth as rhetorical value, Foucault would blind us to the truth both of Nietzsche’s and of his own rhetoric.’ Post-structuralism is deluded if it thinks to arrive at this position ‘beyond’ metaphysics – or beyond the regime of truth and error – without working through the prehistory that led up to Nietzsche’s symptomatic crisis of reason.

It is on these grounds that Rose takes issue with the nihilistic strain in current critical theory. Such thinking adopts the ‘linguistic turn’ – or the privilege accorded to rhetoric over reason – as a pretext for ignoring crucial problems in the way of enlightened social critique. Post-structuralism never questions the idea that our concepts and categories are entirely determined by the various signifying codes and systems that make up a given ‘discourse’. Yet, as Rose points out, ‘the claim that representation is a matter of linguistic convention, not a synthesis of concept and intuition, presupposes both the concept of language and the concept of convention.’ That is to say, it substitutes a suasive rhetoric, a language devoid of philosophic rigour, for the Kantian tradition of hard-pressed argument on and around the categories of knowledge. Hence the main object of Rose’s book: to recount the various stages of a long debate in which reason has constantly defended its role as arbiter of truth and justice. Hence also her two-pronged line of attack: dealing with post-Kantian philosophers from Hegel to Heidegger and Derrida, while raising issues in the sphere of juridical precept and practice.

In particular, she fastens on the differences of view between theorists of the Marburg and Heidelberg schools who produced some sharply conflicting versions of Kantian legal philosophy. Here again, their debate takes the customary form of a civil courtroom proceeding, with the plaintiffs called upon to justify their case and the reader standing in (for theoretical reason) as judge of their competing claims. Under five main headings – ‘the concept of law, the method of law, the categories of law, the persons of law, and natural law’ – reason sets out to adjudicate the rival arguments and thereby confirm its own status of impartial authority. But the upshot is always to question that authority, in so far as it rests on a division of roles (within law and reason alike) where categorical judgments are indefinitely open to appeal. Any verdict handed down by juridical fiat can always be challenged by disputing the grounds of its rational or legislative power.

Thus the law, like philosophy, constantly runs up against the problem of establishing its own claims-to-truth on the ground of impartial reason. Decisions of the court are repeatedly quashed and the case reopened for further cross-examination. But these attacks on the system from beyond its immediate jurisdiction always fail in their attempt to shift the debate onto a radically different terrain. ‘New claimants to the heritage keep appearing, brandishing their own special right, and intent on compounding the matter – on settling out of court. Yet each attempt to fight consciousness and its possessions on non-litigious terrain does not dissolve but reinforces the antinomy of law, the battle over jurisdiction, and ends up back in court.’ In the same way, a thinker like Foucault claims to have broken with the age-old hegemony of philosophic reason, only to leave his texts in thrall to a cruder, undifferentiated notion of ubiquitous power/knowledge. With Derrida also – as Rose reads him – the extension of ‘writing’ to cover every instance of socio-cultural inscription results in a failure to grasp the dialectic of law and juridical reason. ‘Derrida would have us perish without knowing why, for he leaves the law as unknowable as it was before he raised the question of the graphein.’ And this gives rise to a discourse whose ‘radical’ credentials are underwritten only by a Nietzschian rhetoric of out-and-out epistemological scepticism.

The Kantian antinomies of pure and practical reason – played out between the parties in successive juridical scenes – may admit of no final arbitrating judgment. But they do at least keep open the critical court of appeal, in so far as they allow reason to grasp the constitutive process that has engendered the individual subject and his or her standing before the law. Post-structuralism mystifies this process by dissolving the antinomies and recognising only a contest of wills between rival claimants to power. ‘Critique has turned into discourse as the court of theoretical reason has turned into the court of practical reason.’ Such is the consequence of Foucault’s equating all forms of knowledge with the exercise of a power whose effects may be located in discourse but whose authority is subject to no kind of rational account. The original ‘court of knowledge’ whose procedures are established in Kant’s Critique of Pure Reason has by now become a ‘post-critical tribunal’, concerned only to expound and classify the various arbitrary dictates of power. Thus in Foucault, according to Rose, ‘the internal construction of knowledge changes to conform to the successive epochs of law which it serves.’ Any attempt to think through the antinomies of law and, with them, the conflicts of critical reason is henceforth abandoned in the name of a scarcely yet conceivable break with all past and present forms of knowledge.

This apocalyptic strain finds an image in the figure of Nietzsche’s Zarathustra, proclaiming his new dispensation from the mountain-top but lacking the disciples to convey or interpret his message. ‘Behold, here is a new law table; but where are my brethren who will carry it with me into the valley and into the hearts of flesh?’ For Rose, the radical injunction contained in this Nietzschian ‘transvaluation of values’ has lost all its force through being assimilated to a rhetoric that is merely indifferent as regards the truth-claims of law and reason alike. Foucault’s genealogy of the will-to-power reverts to a stage of civil society anterior to everything established in the court of juridical reason. This regression is signalled by its falling back upon a language of military tactics and strategies, a discourse sustained by feudal metaphors of warfare and direct coercion. The result is to sever all connection between law and reason as joint representatives of bourgeois society in search of an ultimate legitimating ground. Thus thought is deprived of any purchase on the forms of administrative reason and justice, whose evolving relationship Foucault does little to explain.

Rose can also demonstrate convincingly that post-structuralism ignores the legal and historical implications of its own favoured metaphors and tropes. What is truth? asks Nietzsche, and responds with a series of illustrative figures often cited by his present-day disciples. Truth is ‘a mobile, marching army of metaphors, metonyms and anthropomorphisms ... which after long use seem firm, canonical and obligatory to a people ... coins which have lost their insignia and now matter only as metals, no longer as coins’. The passage is commonly taken as a pure deconstructive allegory of reading, a reminder that ‘truths’ are merely another, more persuasive variety of error, and that reason always comes down in the end to a species of rhetorical imposition. But this is to ignore what Rose very acutely remarks: that Nietzsche’s language involves a number of specifically civil and economic metaphors, images whose force goes largely unnoticed on the standard post-structuralist reading. The figure of ‘truth’ as a currency or coinage should remind us, not only that rhetoric pervades the discourse of reason, but also that reason is inescapably bound up with those relations of exchange and control that constitute a given social order.

Deconstructionists regularly interpret this passage as an allegory enforcing the undecidability of ‘literal’ versus ‘figurative’ meaning, and hence – by a barely legitimate extension – of ‘truth’ versus ‘error’. To Rose this account seems the merest of sophistical evasions. What the metaphor should tell us is ‘something about the power and weakness of rhetoric and illusion themselves’. The effacement of identifying marks on a coin may be taken more pointedly as signalling the way in which regulative concepts maintain their power despite our forgetting whence they derive. What we should therefore be alert to in Nietzsche’s metaphor is ‘something we may have forgotten, even though all our exchanges and contracts (“human relations”) depend on memory: that the standard or law we implicitly rely on may have lost its authority but nevertheless continues to mediate our innumerable, immediate exchanges.’ Thus Rose turns back the deconstructionist reading at precisely the point where it thinks to capitalise on Nietzsche’s suggestive metaphor.

The image of truth as a ‘mobile, marching army’ of rhetorical figures can likewise be read in a diagnostic light very different from the usual post-structuralist gloss. To interpret it wholly in linguistic terms is to imagine – as Rose suggests – an army ‘settled in to permanent occupation’, since reason would then be powerless to transform the conditions of its own subject status. What is required is the effort to demystify this powerful irrationalist strain in modern thinking in order to demonstrate the motives at work in the turn toward language (or rhetoric) as an ultimate ground of explanation. Post-structuralism fails to meet this requirement, since it always discovers the same baffling end-point to rational thought: the idea that knowledge is everywhere subject to rhetorical forces beyond its power to grasp or effectively criticise. And this last-ditch scepticism goes along with a regressive tendency to bypass the antinomies of critical reason as they bear upon the discourses of law and politics. Hence, as Rose argues, the incapacity of post-structuralist reason to think its way beyond the terminology and concepts of a ‘feudal’, pre-critical order. The literalisation of Nietzsche’s metaphor can therefore be seen as a reflex symptom of the drive to incapacitate critical reflection by reducing all knowledge to an epiphenomenon of power.

Rose’s arguments will have to be reckoned with by anyone concerned to gauge the political implications of post-structuralist theory. One reason for Foucault’s widespread following at present is the perceived failure of Althusserian Marxism to make good its claims for a ‘scientific’ discourse of ideological critique. As these claims began to look increasingly dubious – not least under the pressure of deconstructive reading – so theorists turned to another, less vulnerable source of ideas, one that preserved its radical credentials while yielding no hostages to ‘science’. What Foucault seemed to promise was a means of demystifying the relationship between power and knowledge without thereby setting up his own discourse as an ultimate (or ‘metalinguistic’) source of authority and truth. But this move has turned out to have disturbing consequences. With Foucault as with Nietzsche, the adoption of a stance supposedly beyond truth and error has lent itself to a great variety of uses, all of them in some sense ‘radical’ but otherwise spanning the political range from New Right reaction to ultra-left activist rhetoric. And this ambivalence can be seen as the result of abandoning that tradition of enlightened critique which has characterised not only Marxist thinking but every attempt to separate truth from ideological illusion. Without at least an operative grasp of what it means to uphold this distinction, thinking is thrown back onto a relativist position where – quite simply – truth is up for grabs in the medley of competing discourses.

Post-structuralism needs to address these issues more seriously if its political claims are to carry much weight. One possible line of enquiry – as I have argued elsewhere – would bring it into contact with modern analytical philosophy: in particular, those developments in truth – conditional semantics that point a way beyond relativist notions of meaning and reference. Another is precisely the path marked out by Gillian Rose in her patient dialectical reconstruction of philosophy in the court of critical reason. This approach has the further significant effect of exposing post-structuralism to the kind of immanent critique practised by Adorno, Habermas and other proponents of Frankfurt-style Critical Theory. It thus provides a point of dialectical leverage for uncovering deep-laid assumptions and problems invisible from within the post-structuralist perspective. In part, this amounts to a critique of that perspective from the standpoint of a rival sociology of knowledge derived from the German tradition. But there is also the argument – taken up from Rose’s earlier book, Hegel Contra Sociology – that critical reason cannot be reduced to a mere reflex of its own social interest and conditioning. ‘It may be,’ she writes here, ‘that we have become so accustomed to thinking that law blinds us to the social that we overlook how socio-logic blinds us to law.’

So reason has to steer a critical path between these opposing temptations. On the one hand, it needs to resist the allure of a scepticism rooted in the fetishised notion of a language that everywhere exceeds and disables the power of reason itself. On the other, it must hold out against any reductive sociology of knowledge that would seek to ‘explain’ such movements of thought entirely in terms of their socio-historical provenance. In short, there is no substitute for the kind of properly dialectical critique that thinks its way through the determinate stages of a certain intellectual history, without thereby abandoning reflection to the ‘socio-logic’ of relativist fashion. And this means returning to the ‘unanswered question’ of Kantian philosophy, the quaestio quid juris that still – according to Rose – conditions our most basic yet problematic categories: ‘metaphysics and science; theory and practice; freedom and necessity; history and form’. There is no thinking ‘beyond’ these categories while ignoring the structures of legislative reason inscribed within them. Such projects may announce themselves as an end to metaphysics or a break with the old, repressive regime of univocal truth and authority. What in fact they reveal, as Rose would argue, is ‘in each case a speculative jurisprudence: a story of the identity and non-identity of law and metaphysics retold by the rhetor in the mask of the histor’.

Rose’s case against Foucault has an argumentative force and precision which fully bear out its dialectical claims. I am less convinced by what she has to say about Derrida, partly because she tends to pass over those texts and those aspects of his writing which do precisely engage with the antinomies of civil and legislative reason. This connection is made quite specifically in a number of recent essays where Derrida deconstructs (for want of a better, less prejudicial term) the historical relation between forms of knowledge and structures of ‘juridico-discursive’ power. Elsewhere he addresses the Kantian categories in just such a way as to bring out their bearing on the civil institutions of law and an emergent bourgeois public sphere. To some extent, no doubt, these texts reflect a growing unease on Derrida’s part concerning the charges of political quietism levelled against deconstruction. But his writing has always been politically engaged in the sense of revealing those mythologies and systems of premature totalisation which reduce all history to so many episodes in the course of some grand teleological Idea.

Predictably, it is Derrida’s reading of Hegel that provokes Gillian Rose’s most hostile commentary. ‘History for Derrida becomes the repetitive story of a “closed field of metaphysics” which he himself has closed, and within which his “indefinite exchange of Rousseauist and Hegelian positions ... obeys the laws inscribed within all the concepts that he has just recalled”.’ It takes a careful scrutiny (attending to the quotation-marks) to notice that Rose is here citing Derrida back against himself in order to suggest that he, and not Hegel, is guilty of such mystifying tactics. But a simple tu quoque, however neatly turned, is not sufficient to discountenance the extreme critical rigour that Derrida brings to his reading of Hegel. Since Rose lines up very much on the side of Hegelian dialectic, she fails to take the force of Derrida’s argument, preferring to treat it as just another species of ‘textualist’ mystification. But this is to ignore both the textual specificity and the critical thrust of Derrida’s reading: namely, that the marked political ambivalence of Hegel’s discourse comes of its residual Idealist attachment to a myth of universal history.

Deconstruction is not just one more variety of a generalised ‘post-structuralist’ discourse. What is lacking in Rose’s otherwise cogent critique is any sense of the distinction between Foucault’s thoroughly relativist equation of power and knowledge and Derrida’s more rigorous thinking-through of its problematic textual consequences. What is more, this rigour is by no means confined to epistemological subtleties, but extends into regions of political and (in Rose’s own terms) of legal-administrative reason. Derrida’s recent texts provide some striking examples of how this project may be carried through in the form of a deconstructive close-reading of philosophic arguments. But there are others – notably Paul de Man – whose writings can likewise be enlisted on behalf of a rigorous socio-political critique. De Man’s chapters on Rousseau (in Allegories of Reading) are centrally concerned with issues in the province of law and civil constitution. His essay on The Social Contract is perhaps the most scrupulous reading to date of how politics enters the discourse of reason through effects of a legislative rhetoric none the less powerful for its lack of any ultimate epistemological authority. But the upshot of de Man’s reading is that no genuine understanding is possible unless one presses the textual critique to a point where theory begins to grasp the antinomies of law and reason.

At the limit he finds that Rousseau’s statements in the Contract are caught up in the strictly ‘undecidable’ play of its own textual constitution. Thus: ‘the tension between figural and grammatical language is duplicated in the differentiation between the State as a defined entity (Etat) and the State as a principle of action (Souverain) or, in linguistic terms, between the constative and the performative aspect of language.’ On a cursory reading it might seem that de Man is embracing a typecast ‘Nietzschian’ scepticism which would treat all issues of politics and knowledge as products of an arbitrary will-to-power within language. But this reading – like similar accounts of Derrida’s work – must needs pass over the radical implications of thinking through the antinomies of law inscribed in the founding texts of Western tradition. Gillian Rose tends to ignore this aspect of the deconstructive enterprise in her will to prove that it finally rejoins the ‘dialectic of nihilism’ whose history runs – in symptomatic stages – from Nietzsche to Foucault. I would argue, on the contrary, that deconstruction is more properly aligned with that other tradition of enlightened critique where Rose locates the main sources of resistance to the latterday powers of unreason.

But this is not to quarrel with her broader diagnosis of the post-structuralist condition. Here she has argued a powerful case for doubting the self-styled ‘radical’ effects of a discourse that seemingly renounces all claim to adjudicate in matters of reason and truth. Her book should stimulate widespread discussion among critics, philosophers, and theorists of a post-structuralist persuasion.

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