Hauke Brunkhorst
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| DOI | http://doi.org/10.1177/0964663914544206 |
| Subject Matter | Articles |
Article
Hauke Brunkhorst:
Reflections on the Idea
of Normative Progress
Robert Fine
University of Warwick, UK
Abstract
The call to recognize the significance of normative progress through evolutionary
mechanisms of adaptation and revolutionary moments of irruption is a key aspect of
Hauke Brunkhorst’s oeuvre. His thesis is that the reinstatement of solidarity in modern
times has ‘dialectically’ superseded the original limitations of this term by ‘cancelling’ its
restrictive aspects and preserving its emancipatory aspects. Brunkhorst uses the term
Aufhebung to conceptualize how moments of freedom within classical civic associations
are preserved whilst their unequal distribution is cancelled, and how moments of
equality in Christian brotherhood are preserved whilst their other-worldliness is can-
celled. Brunkhorst is not faulted for demonstrating the concentration of normative
learning processes in the constitutional revolutions of the modern age, but the question
remains whether slippage occurs from the indispensable idea of normative evolution to
an evolutionism in which the progress of law is presupposed.
Keywords
Hauke Brunkhorst, Arendt, dialectics, Aufhebung, legal history, constitutional revolution
Introduction
The call to recognize the significance and efficacy of normative progress, whether
through evolutionary mechanisms of adaptation or revolutionary moments of irruption,
is a key aspect of Brunkhorst’s oeuvre.
1
It is expressed in the title of his earlier mono-
graph, Solidarity: From Civic Friendship to a Global Legal Community (2005; originally
Corresponding author:
Robert Fine, University of Warwick, Gibbet Hill Road, Coventry CV47AL, UK.
Email: robert.fine@warwick.ac.uk
Social & Legal Studies
2014, Vol. 23(4) 547–563
ªThe Author(s) 2014
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663914544206
sls.sagepub.com
in German 2002), and moreemphatically in that of his (at the time of writing) unpublished
monograph, Critical Theory of Legal Revolutions: Evolutionary Perspectives (2014).
Brunkhorst’s call to recognize normative progress in law is the subject of this article.
In Solidarity, Brunkhorst argues that the modern concept of solidarity has both legal
and religious roots in European history: legally in Roman law (obligatio in solidum),
where the term was used to refer to joint liability a number of people may enter into for
the debt of one individual within the community; religiously in the Judeo-Christian tra-
dition, where it tied in with belief in brotherhood and equality before the eyes of God.
Brunkhorst acknowledges that aristocratic exclusivity restricted civic freedom to the few
in Roman law and that its other-worldliness made equality in the Christian tradition all
too compatible with earthly inequalities. Notwithstanding the creditor–debt origins of
solidarity in Roman law and the patriarchal origins of fraternity in the Christian tradition,
his thesis is that the political and sometimes revolutionary reinstatement of solidarity in
modern times has ‘dialectically’ superseded these original limitations by ‘cancelling’
their restrictive aspects and preserving their universal, emancipatory aspects. Brunkhorst
uses the Hegelian term Aufhebung, usually translated as ‘sublation’ to signify simulta-
neous processes of transcendence and preservation; that is, to conceptualize how the
moment of freedom within classical civic associations is preserved whilst their unequal
distribution is cancelled, and how the moment of equality in Christian brotherhood is
preservedwhilst its other-worldliness is cancelled.The following passagemakes this clear.
One can informally understand this type of radical reinterpretation of political concepts as a
dialectical superseding (Aufhebung) in the famous threefold Hegelian sense. One part of the
old meaning is canceled out, another part is preserved, but raised to a new level – for Hegel
it was always a higher level – and thus it is newly interpreted in a changed context. What
was renewed in the revolutions that erupted in 1776 in North America and in 1789 in Paris
was the political and public law idea of republican civic friendship, of concordia,ofthe
association of citizens (Rousseau, Kant), of citoyennete
´, citizenship and civil society. What
fell by the wayside was the aristocratic virtuoso-ethos of city life, and it was replaced by the
wholly secularized legacy of Christian brotherliness, which, for its part, became detached
from religious contexts. The moment of freedom within the old civil association was pre-
served, its unequal distribution was canceled, and from Christian brotherliness, equality
remained, while its otherworldly focus disappeared ... The dialectical superseding of the
pagan civil bond and Christian brotherhood became manifest in the symbols, images,
metaphors ... of the Revolution. (Brunkhorst, 2005: 60–61)
My response to this thesis is that Brunkhorst is not to be faulted for his twofold aim –
to cultivate a sense of normative progress and to demonstrate how normative learning
processes are concentrated in the constitutional revolutions of the modern age. Indeed,
I find this project inspiring in the face of contemporary anti-normative impulses to
reduce social and legal relations to power, interest and identity. The question I want
to pose, however, concerns slippage from the indispensable idea of normative progress
that is contained in an evolutionary theory of law to a theory of evolutionism in which the
progress of law is presupposed. The slippage about which I am concerned is from a sense
of the historicity of law to the historicism Walter Benjamin characterized in terms of the
548 Social & Legal Studies 23(4)
To continue reading
Request your trial