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Reconsidering the theoretical preconditions of modern democratic statehood

On mediated unity and overarching legal-political form

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Darrow Schecter

Mediated unity is introduced as one of the key premises underlying almost all conceptions of modern statehood. The term mediated unity expresses the idea that if there was no way to bridge the metaphorical distance between citizens and the state, representation would be impossible. Within this framework mediation and the possibility of rational representation are intrinsically linked with the presupposition of an underlying unity. The premise is consolidated by the corollary premise that if there was identity or fusion between citizens and the state, representation would be superfluous. Identity between citizens and political authority would make representative institutions redundant. It is shown that although the premise of mediated unity is closely associated with thinkers with an explicitly dialectical position in matters of epistemology and politics, virtually all arguments in support of democratic legitimacy rely on either a strong or weak dialectical argument. Chapter 1 explains what is at stake in the deconstruction of the key concept of mediated unity.

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Darrow Schecter

Literal readings of terms such as centralisation and de-centralisation can lead to misinterpretations of the issues involved when assessing the fibre and composition of legitimacy and statehood. When applied to modern states, for example, centralisation and the division of powers are mutually reinforcing rather than contradictory or antithetical. Similarly, social systems are dispersed and nonetheless in steady communication with one another through a wide range of mediations. One of the crucial points for this chapter and for the book as a whole is that social systems are not joined according to a model of mediated unity. Their relations can be compared instead to a constellation of constituent elements that transmit and receive coded communication. At this historical juncture it can be said that inter-systemic social communication proceeds according to the dialectics of mediated non-identity. The dialectics of mediated non-identity imply a qualitatively different model of statehood than the dialectics of mediated unity. However inchoately, it is a model of social statehood in tune with the potentially constitutional dimensions of social systems.

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Mediated unity in question

On the relation between law, politics, and other social systems in modern societies

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Darrow Schecter

Chapter 2 examines the theoretical, practical, and historical incongruities between presupposed mediated unity, on the one hand, and the sociological reality of functional differentiation, on the other. It is explained that there is a widespread inclination amongst expert theorists and the lay public alike to imagine political authority as having a pyramidal structure culminating in the state. The factual differentiation of social-systemic operations stands in stark contrast with prevailing normative conceptions of constituent power based on the mediated unity of citizens and the state. When the sociological fact of functional differentiation does happen to be recognised by scholars, they frequently accept the currently existing hegemonic model of functional differentiation as somehow natural or inevitable. This tendency manifests itself when supposed experts casually assume that privatisation and outsourcing are efficient responses to the need to respect the differentiation of economic, political, and legal social systems. The dynamics of politicisation and democratisation need to be reconsidered without relying on casual assumptions about mediated unity, ethnic unity, national unity, constituent power, or popular sovereignty.

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Darrow Schecter

Functional differentiation is introduced as a defining characteristic of modern society and one that is rarely discussed by critical theorists. The result is that there are glaring sociological and explanatory deficits in that literature. Systems theory is very useful for understanding sociological realities such as functional differentiation. However, systems-theoretical orthodoxy often assumes that social systems have to be coded in reductively binary terms such as legal/illegal. Orthodox approaches often suggest that social-systemic coding happens in a-historical and automatic ways. This book therefore adopts a significantly modified version of systems theory. The book also draws on other sources, such as Gramsci and constitutional theory. The version of critical theory that emerges on this basis is clearly distinct from first- and second-generation Frankfurt School critical theory. It is also markedly distinct from a number of other theoretical currents that see themselves as offering critical theories of society following in the steps of the Frankfurt School.

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Functional differentiation and mediated unity in question

Looming constitutional conflicts between the de-centralist logic of functional diff erentiation and the bio-political steering of austerity and global governance

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Darrow Schecter

The election outcomes of a given national political system are frequently rendered inconsequential through the strategic interventions of the Troika and other agencies of transnational governance. Populist responses to austerity and related measures can be understood as ultimately futile attempts to compensate for the erosion of effective mediation between citizens and the state. More specifically, social democratic parties and trade unions can no longer mediate in the ways they could do so in the recent past. The implication is that going forward, new representative institutions will be needed to play the crucial role of complementing the formal mechanisms of democratic statehood. Like most other forms of state, liberal democracy attempts to politically constitute society. But liberal democracy does this as the closest known equivalent to what would be a functionally differentiated state without need of a governing functional differentiation party. Far from being the culminating point in a movement towards ‘the end of history’, the liberal democratic state of law was and remains a transitional state with vast potential to evolve in new directions.

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Dilemmas of contemporary statehood

On the sociological paradoxes of weak dialectical formalism and embedded neoliberalism

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Darrow Schecter

Law, money, educational training, knowledge, politics, and power play some role in the workings of each social system. Yet it would be wrong to suppose that social systems are states in miniature. It would also be wrong to suppose that social systems function like regional states within an overarching nation state. Modern societies are constituted in ways that enable a specific social system, designated as the political system, to emerge and assume responsibility for the impersonal sharing and transfer of power. Attempts to strategically de-differentiate systems for the purposes of taking control and steering them have lead in some instances to the re-personalisation of the exercise of power, corruption, and other kinds of democratic deficits. It is no longer feasible to imagine political authority as having a pyramidal structure that absorbs democratic inputs in a vertically structured process culminating in the state. Similarly, it is no longer possible to see the fundamentally important constitutional dimension of statehood as being limited to the official separation of legislative, executive, and judicial powers. Statehood today has to be reappraised in light of the potentially constitutional dimensions of social systems and the possibilities for inter-systemic communication.

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Critical theory and sociological theory

On late modernity and social statehood

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Darrow Schecter

Populism, neoliberalism, and globalisation are just three of the many terms used to analyse the challenges facing democracies around the world. Critical Theory and Sociological Theory examines those challenges by investigating how the conditions of democratic statehood have been altered at several key historical intervals since 1945. The author explains why the formal mechanisms of democratic statehood, such as elections, have always been complemented by civic, cultural, educational, socio-economic, and, perhaps most importantly, constitutional institutions mediating between citizens and state authority. Critical theory is rearticulated with a contemporary focus in order to show how the mediations between citizens and statehood are once again rapidly changing. The book looks at the ways in which modern societies have developed mixed constitutions in several senses that go beyond the official separation of legislative, executive, and judicial powers. In addition to that separation, one also witnesses a complex set of conflicts, agreements, and precarious compromises that are not adequately defined by the existing conceptual vocabulary on the subject. Darrow Schecter shows why a sociological approach to critical theory is urgently needed to address prevailing conceptual deficits and to explain how the formal mechanisms of democratic statehood need to be complemented and updated in new ways today.

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Conclusion

Democratic state, capitalist society, or dysfunctional differentiation?

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Darrow Schecter

Contemporary societies around the globe are characterised by the difficulties and discoveries inherent in trying to co-ordinate the functions of discrete social systems, each of which is steered by a unique code. Social systems have been in existence as long as there have been human societies. They have been managed, to greater and lesser extents, by a wide variety of power structures operative within diverse forms of statehood. Politically constituted modern states had to perform and continue to perform this immense task of co-ordinating social systems. Governments and state ministries have tended to try to do so without paying sufficient attention to the details of systemic coding or historical patterns of inter-systemic communication, thereby mismanaging the processes involved in many cases. States are still desperately trying to channel systems on the basis of strategic decisions stemming from informal assemblies of ministerial elites, consultancy firms, lobbies, and what in effect amount to different kinds of private clients. These are usually vantage points with little theoretical or social proximity to the specific systems in question, thus reinforcing the patterns of governance that misdirect systems whilst simultaneously coercively integrating citizens. Individual systems cannot significantly enhance their respective capacities for self-steering without knowledge about the functioning of neighbouring systems. Critical Theory and Sociological Theory investigates the extent to which this particular knowledge process is changing, and if systems increasingly require the input of citizens capable of thinking and acting more flexibly than binary codes permit. Therein lies the epistemological and political significance of the distinction between mediated unity and mediated non-identity. Adorno’s dictum that ‘the critique of knowledge is social critique and vice versa’ can be fruitfully elaborated today with this in mind.

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Self-subversive justice

Contingency or transcendence formula of law?

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Gunther Teubner

Dominated by social and legal philosophers, the present debate on justice oscillates between the poles of universality (Rawls, Habermas) and alterity (Levinas, Derrida). This chapter contrasts them with a third position, a sociological theory in which justice appears as the ‘contingency formula’ of law (Luhmann). Here, the question of justice is no longer primarily a problem for philosophy but for concrete social practices in the changing self-descriptions of law. This opens perspectives for historical analyses to investigate affinities of varieties of justice with changing social structures.

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Regime-collisions

The vain search for legal unity in the fragmentation of global law

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Andreas Fischer-Lescano and Gunther Teubner

Global legal pluralism is not simply a result of political pluralism, but is instead the expression of deep contradictions between colliding sectors of a global society. It has its origins in contradictions between society-wide institutionalised rationalities, which law cannot solve, but which demand a new legal approach to colliding norms. This chapter develops the thesis with three arguments. (1) The fragmentation of global law is more radical than any single reductionist perspective can comprehend. (2) Any aspirations to a normative unity of global law are thus doomed from the outset. A meta-level at which conflicts might be solved is wholly elusive both in global law and in global society. (3) Legal fragmentation cannot itself be combated. At best, a weak normative compatibility of the fragments might be achieved. However, this is dependent upon the ability of conflict law to establish a specific network logic, which can effect a loose coupling of colliding units.