Fanfictioning Critical Theory

The Law and Political Economy (LPE) approach claims to offer an ‘emancipatory critique’ of the law. While it appears to align with critical theory, its underlying epistemic framework remains underdeveloped, if present at all.

In times of interrelated crises, the Law can be an important tool to identify sources of social conflict and provide solutions. The Law and Political Economy (LPE) Movement takes up this cause. Doing so inevitably unveils the shortcomings of contemporary legal methodology. LPE considers the dominant way of ‘Doing Law’ insufficient to grapple with the gist of contemporary social problems. This is so because, in the view of LPE’s manifestos, “neoliberal premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era.”

This initial finding harks back to a movement that gained momentum around 100 years ago: Critical theory, later known as the Frankfurt School. As will be shown, references to what is now known as the critical tradition are numerous in the LPE literature. Also, the movement is expressive of its “fidelity to the project once known as ‘emancipatory critique’”.

To redeem this commitment, LPE would do good by supporting itself with a theory of science, or at least an epistemic program. While the critical tradition has raised powerful normative desires, it first and foremost stands for an alternative model of scientific reasoning. LPE, as will be shown, updates much of critical theory’s historical normative claims. Yet, at least from my readings, it appears to be missing out on a theory of science.

Critical Reasoning: The Horkheimerian Version

LPE’s reference to ‘emancipatory critique’ leads back to 1937, when the German social philosopher Max Horkheimer sketched what were to become the pillar principles of critical theory. ‘Traditionelle und kritische Theorie‘ now reads as a founding manifesto for a powerful school of social philosophy. It was not when it was first published. Back then, Horkheimer’s home institution, the Frankfurt-based Institute for Social Research, was exiled in Geneva, having fled the Nazi Regime in 1933. Even after Horkheimer and the institute had remigrated to Germany, the essay remained out of print. Its rediscovery and veneration coincided with the student revolts of the 1960s. The essay became the cornerstone of a political movement. Its core demand was to restructure the academic system, telling the existing one off as a remote and ideology-infected ivory tower under the dominion of backwards-looking elites.

Horkheimer’s piece identifies three shortcomings in what he calls ‘traditional theory’. These deficits mirror the institutional deficits addressed by the student revolts. Yet, the author is much less concerned with politics than with sketching the pillars of a new theory of science. ‘Traditional theory’, in his language, roughly translates as principle-based, post-enlightenment liberal thought. Reasoning takes no account of its social environment, nor does it consider its effect on the outside world, and vice versa. Horkheimer considers this a striking deficit. Due to its abstractness, traditional theory adopts an ideological vision of the real world. ‘Ideology’ broadly translates as a hegemonic model of reality, justifying social heteronomy as given and giving in to the transcendent power of social hierarchies. According to Horkheimer, this is not only epistemically wrong; it also misses its shot at changing the world for the better. In his eyes, any theorymaking is social, or even political, practice. Conversely, theory makers are social, or even political, agents, entrusted with emancipating the individual. After all, in sum, social science of any sort is about materializing freedom.

How is this task best achieved? Critical theory counts on both self-reflection and self-ascertainment. To Horkheimer, any description of social reality is contingent on time and space; it is also actor-specific. Academic reasoning must therefore deconstruct social practice as a fluent, performative, and by no means moral or transcendent phenomenon. This can be achieved through empirical evidence or by critical reasoning, which, in the language of the Frankfurt School, will run by the title ‘Dialectics’. Dialectical reasoning is central to critical reasoning, while at the same time working at its detriment. In short, dialectical reasoning helps deconstruct, but not reconstruct, social reality. Horkheimer identifies this problem. As a remedy, he introduces a strong, if not utopian, vision of society, where liberal ideals will have materialized with help of emancipated individuals. Academia’s job is to lead the way towards utopia.

If considered a political agent with a transformative social mission, academia must adapt its way of reasoning. It must step away from self-referential modelling and turn to calculated social impact.

LPE as a Re-Edition of Critical Theory?

The LPE Movement and Horkheimer’s critical theory manifesto share one obvious commonality: They expose unquestioned normative commands, hence ideology, in leading scholarship. In consequence, both movements identify academic practice as a political undertaking. Prominent proponents of LPE state that “Law and Economics resists history, sociology, and the humanities, and reduces law to a tool with which to maximize wealth, typically for the few (in practice if not in theory)”. This recalls Horkheimer’s initial finding: Adhering to liberal ideas without questioning their practical impact legitimizes power concentration and striking social inequality.

Same for the statement that „Economic liberalism invented its own moral economy”, defined as “a normative apparatus that justifies specific economic arrangements because they produce morally superior outcomes.“ Said ‘moral economy’ confuses realities and ideologies, just as traditional theory supposes liberal ideals as a given. Finally, LPE calls for supplanting “analytical “moves” that preserve the illusion of antipolitical markets.” This recalls the basic assumption in critical theory that any social practice is political –including market activity. So just as critical theory LPE attacks the ivory tower of academia and calls for a socially sensitive theorizing. This bears institutional and infrastructural demands. Here, again, LPE and critical theory appear to walk in step. Much of LPE is, finally, about a utopian world vision, as in, „what kind of economic order might be necessary to make democracy real and vindicate constitutional principles such as equality“. Making democracy ‘real’ and ‘emancipating the individual’ might go hand in hand.

This is by no means an exhaustive analysis. Yet, it suggests that LPE scholarship considers itself and is to be read as a timely version of critical theory. By distancing itself from Law and Econ’s ‘moral economy’, LPE grants itself the aura of a Horkheimerian ‘anti-ideology’. Just as critical theory, LPE draws from the constructive force of utopian visions. LPE’s material ‘democracy’, with a little fantasy, does not stray far from critical ‘emancipation’. Finally, both movements combine academic and social movements. They both strive to enable academia to make the good happen instead of theorizing on an idealized model of the world.

LPE’s Theory of Science: There is none – There should be one!

Despite all this, one central aspect of critical thought appears to be missing in the LPE movement’s founding pieces. To deliver an ‘emancipatory critique’, the LPE movement must rest on a ‘critical’ theory of legal science instead of a ‘traditional’ one. The following remarks are drawn from my readings of the cited manifestos and other pieces that make LPE’s key claims. These documents draw no epistemic program. Rather, they do not commit to the theory of science at all. Admittedly, providing a theory of the science of Law is not an easy task. Searches for an epistemic core of legal science have tended to produce ambiguity instead of clear-cut results (for further insights cf. Peters/Schrott, Eine Theorie von der Wissenschaft des Rechts, 2023).

So can LPE keep on ‘doing Law’ theory-free? I doubt it for three reasons. First, LPE wishes to fight its battle outside of academia. It explicitly commits to transdisciplinary research. Second, any critical theorizing starts with self-ascertainment. This, again, calls for epistemology. Third, LPE Manifestos’ critique of leading methodology fails to acknowledge that the concurring school, Law and Economics, bears such self-reflection mechanisms.

My first concern addresses LPE’s adherence to abstract principles, most importantly, democracy. The manifestos place democracy at the core of LPE’s academic program. They are concerned with moving this and other core principles from the periphery to the center of the legal discourse – yet little is said about its practical implementation. At this point, LPE merely attempts to shift the paradigms of the legal discourse.

This is at odds with the critical tradition: The epistemic core in critical reasoning replaces abstract hypotheses with concrete examples. By focusing on the academic discourse alone, the LPE movement does ‘traditional theory’ in the Horkheimerian sense – not critical theory.

Let us stay with the quest for democracy to illustrate the second concern, that is, a lack of mechanisms for self-ascertaining. As we all know, democracy has many faces within, and beyond, the political sphere. At least from my reading, the LPE manifestos do not settle for a specific model of democracy. They also remain unclear on why one model might be chosen over another. There are good reasons to interpret LPE’s commitment to ‘democracy’ as a general call for the common good in leadership decisions. Yet, democracy can just as well stand behind an opposing view. The shareholder value approach prominently brought about by the Chicago School rests on the assumption that swearing in corporate leaders on shareholder interest guarantees full control of the corporate demos. Against the recent shareholder welfare approach, supposing a dichotomy between both goals seems outdated. Yet, the latter approach comes from within the field of Law and Economics and shares its basic assumptions.

The third concern regards LPE’s competitiveness with concurring movements. This is mostly related to the Law and Economics movement. Despite all justified criticism, one must admit that Law and Economics bears a robust epistemology. It provides tools that allow the evaluate the design of legal provisions. This, epistemically speaking, already forms a ‘critique’ of positive law. LPE lacks such a reasoning mechanism at this point. Moreover, its criticism in the leading movement could be turned against itself. How, and by what legitimacy, does the movement consider itself ‘unideological’ if it does not rest on a critical epistemology?

Conclusion

LPE’s criticism of leading methodology appears too fundamental to build the traditional legal science’s shaky epistemic foundation. To provide a robust alternative to leading scholarship, it should work on a critical epistemology of the Law. This is necessary for two reasons: First, to transform its vision into legal practice, and second, to not step into the trap of confusing visions and realities. This latter demand gains relevance as other movements, most importantly Law and Economics have done their homework.

It is about time to draft a robust dialectic epistemology of Law. Critical legal science will happily accept any support on this task.