Krisis
Journal for contemporary philosophy
THOMAS NYS
WHICH JUSTICE , WHOSE PATHOLOGY ?
Krisis, 2013, Issue 1
www.krisis.eu
‘Everything is what it is: liberty is liberty, not equality or fairness or justice or culture, or human happiness or a quiet conscience.’
– Isaiah Berlin (2002a: 172)
Axel Honneth’s Das Recht der Freitheit is an important book. It has tremendous depth and richness and therefore allows the reader to think
about freedom and justice in a nuanced and stratified way. Although impossible to summarize in a nutshell, it explains that these notions are, as I
would call it, ‘seriously social’. The realization of freedom or justice is
based upon, and therefore requires, genuine intersubjective recognition,
status-ascription, and a shared value orientation.
In this regard, Honneth offers an innovating critique of negative or ‘legal’
freedom and, for the purpose of this brief comment, I took it upon myself
to provide some critical remarks concerning this part. This proved to be
quite difficult because, for a long time, this seemed to me to be one of the
10
most convincing claims of the book. In Honneth’s analysis, it is clear that
negative freedom is ‘not enough’, that it is insufficient, that it is only
about possible freedom and should therefore be compensated or even
overcome by social freedom. Now, although there is very much in these
claims that I find convincing, I want to tease out some potential worries
by pitting them against a classical proponent of negative freedom. Isaiah
Berlin, as is well-known, was not a big fan of Hegel and therefore seems to
be the ideal candidate with which to confront a contemporary revival of
the Hegelian approach.
Throughout his famous essay Berlin makes a variety of interrelated
claims, some of which directly challenge the account given by Honneth.
First, freedom, although extremely important, is not the supreme value.
Secondly, as such, it can conflict with all kinds of other values, and should
sometimes be sacrificed for the sake of these values. Thirdly, to deny this
potential conflict is dangerous because it turns freedom into an exercise
concept: to be free is then equated with some definitive conception of the
good life. Fourthly, and more specifically, freedom – although it bears
certain resemblances to these concepts – should not be equated with ‘recognition’, with a ‘sense of belonging’, or the obtaining of a certain identity.1
The first claim challenges Honneth’s outlook which conceives of freedom
as the supreme modern value, the second questions Honneth’s rather
strong equivocation of freedom and justice. This raises very general worries: does an analysis of freedom really get to the bottom of issues about
justice? Aren’t we talking about two, no doubt interrelated, but different
concepts? Of course, the Hegelian assumption about the manifestation of
freedom in ethical life makes it the ‘be all and end all’ of practical philosophy, but when re-reading Berlin one begins to wonder who has the burden of proof here.
This general worry also takes a more concrete form when we turn to the
chapters about legal freedom for, again, the term ‘legal freedom’ seems to
cover up a diversity of values. Shouldn’t we make a distinction between
rights (and duties, of course) that have to do with freedom, and those that
are about economic equality, or cultural recognition? Why insist that
Krisis
Journal for contemporary philosophy
these matters are all about freedom? Now this may very well be a verbal
quibble, but Berlin also suspects a certain danger.
This brings us to the third and fourth challenge. Most importantly, Berlin
agrees with Honneth that negative freedom (or its positive alternative, for
that matter) is indeed ‘not enough’, that is, not enough for any good or
decent society. And he also agrees that the need for recognition is quintessential. What he rejects, however, is the idea of a monist package deal in
which all that is good is subsumed under the banner of freedom (or justice). The danger is the following: ‘What is true of the confusion of the
two freedoms, or of identifying freedom with its conditions, holds in even
greater measure of the stretching of the word “freedom” to include an
amalgam of other desirable things – equality, justice, happiness, love, creation and other ends that men seek for their own sakes. The confusion is
not merely theoretical error. Those who are obsessed by the truth that
negative freedom is worth little without sufficient conditions for its active
exercise, or without the satisfaction of other human aspirations, are liable
to minimise its importance, to deny it the very title of freedom, to transfer
it to something that they regard as more precious, and finally to forget
that without it human life, both social and individual, withers away.’ (Berlin 2002a: 50).
This is a serious accusation and it is of course absurd to claim that Honneth would support the Totalitarian Menace that Berlin was so worried
about. Nevertheless, the danger that is indicated here resonates with a
problem that Honneth himself is keen to avoid. That problem is the following: if there is a struggle for (or a dialectic of) recognition, and if recognition is a prerequisite (or even a constituent) for freedom, then it
seems that history consolidates only the freedom of the victors (Berlin
2002b: 90). Hegel, as such, becomes the apologist, or so it seems, of the status quo; of the idea that what is should be, i.e., the manifestation or expression of human freedom. A similar hiccup might be suspected on the
part of Honneth’s theory: if freedom is only truly realized or incarnated in
institutions, then this would lift the existing institutions beyond the pale
of criticism and leave us the job of merely tracing or observing the transition or ‘becoming’ of freedom through historical struggles.2
11
Thomas Nys – Which Justice, Whose Pathology?
But this is not Honneth’s tack. More precisely, in order to retain a critical
potential (and revive Critical Theory’s objective), Honneth refers to the
notion of a ‘social pathology’. He defines this phenomenon as follows: ‘We
can speak of a “social pathology” in the context of social theory whenever
we are dealing with societal developments that lead to a significant impairment of the rational capacities of the members of that society that enable them to participate in essential forms of social cooperation. Whenever, due to societal causes, some or all members of society are no longer
in a position to properly understand the meaning of these practices and
norms, we can speak of a “social pathology”.’ (Honneth 2011: 157). In the
realm of legal freedom, for example, the pathology consists in this kind
freedom becoming the sole reference point, thereby usurping or penetrating the other spheres of justice/freedom. Honneth refers to this phenomenon as a process of ‘juridification’ (Verrechtlichung; Honneth 2011: 162).
Now, although I understand this critique, I have a distinct and eerie feeling that a certain Berlinian danger lurks beneath the surface. Because
whose pathology are we talking about? Is it the individual that suffers the
disease? Or is the pathology diagnosed by a more competent physician
who somehow infers the illness from certain ‘symptoms’, maybe even
without the ‘sick’ individual being aware that something is amiss? Is it indeed society that suffers, on behalf and in lieu of its members that claim to
be doing okay? Take, for instance, Honneth’s example of Kramer vs.
Kramer that serves to illustrate a particular pathology. In his discussion,
Honneth observes how a right to divorce has led to the phenomenon of
‘juridification’, a situation in which members of society (i.e., the Kramers)
come to see themselves solely as rights-bearers, i.e., as opponents making
juridical claims against each other.
Although I understand that such situations are regrettable, and although
I acknowledge the phenomenon of juridification, I fail to see how this
could be criticized from the perspective of liberty. For one thing, the ‘penetration’ of the legal sphere into family life is not necessarily to be deplored from Honneth’s own perspective on freedom. In Kampf um Anerkennung, he mentions the dynamics of expansion, inclusion and
universalization within the legal sphere and interprets it as moral progress, as an increase of freedom and a way to emancipation (Honneth
Krisis
Journal for contemporary philosophy
1996: 118). Likewise, the right to divorce could easily be interpreted as the
upshot of a struggle for emancipation, and as a way to address issues of
‘justice within the family’ (see also Honneth 2004: 362). But now, with the
notion of ‘social pathology’ at hand, it becomes clear that there might also
be a negative side to this development. And again, I agree. It is a pity that
people cannot settle their marital disputes by engaging in communicative
action, and that they no longer ‘talk’ but rather ‘sue’. But how does this
pertain to the freedom of the people involved? How do the Kramers suffer
from a social pathology and not just from a broken marriage? This seems
to presuppose a form of false consciousness: that they are so much in the
grip of legal discourse that they fail to understand the ‘proper’ meaning of
these practices and institutions, even to the extent that their ‘rational capacities’ are called into doubt, so much so that this process of juridification leads to a distorted self-understanding. Such language tends to trigger my Berlinian alarm bells, for it was of course Berlin who warned
forcefully against theories of freedom that claimed to know our True Self,
and the way to its liberation…
In fact, this harks back to an issue in Kampf um Anerkennung. Here, freedom was to be understood in terms of a healthy relationship-to-self,
which required appropriate recognition for that self (or its status) in different spheres. Now there is a psychological and a socio-ontological interpretation of what exactly such a relationship consists in. On the first interpretation, the litmus-test is whether the individual indeed has – in a
psychological, empirical sense – sufficient self-trust, self-esteem, and selfrespect. It is obvious that, on this reading, people may indeed suffer from
disrespect. On the socio-ontological reading, however, freedom is constituted, not in terms of a psychological effect, but by the appropriate institutions enabling this relationship-to-self. Therefore, one’s freedom consists, for example, in being acknowledged, by law, to be a rights-bearer,
even if one is unaware of this fact, or does not ‘feel’ the psychological impact thereof. Neither of these two interpretations is particularly appealing.
Either we end up psychologising freedom (see Fraser’s remarks in Fraser/Honneth 2003: 201-211), or else we are in danger of fetishizing it (or at
least mistake necessary conditions for sufficient ones).3
The notion of ‘social pathology’ seems to give a further critical hook to
12
Thomas Nys – Which Justice, Whose Pathology?
Honneth’s theory. I wonder how both these accounts, the one from
Kampf um Anerkennung and the other from Das Recht der Freiheit, are
related, but more importantly, I wonder how the latter account would
answer a fundamental question which I’d like to raise in closing. That
fundamental question is: who is the judge of one’s (lack of) freedom?
Where do we look to answer this question? This is a question, of course,
that is central to Critical Theory in the left-Hegelian tradition: it is the
question of ‘transcendence in immanence’, the ‘normative surplus’, the
identification of the ‘pre-political source of social conflict’, and so on. It is
a difficult, yet central, question that relates directly to the methodology of
the book (see Celikates 2012). My concern here, however, is focused on
the ‘pathology’ in terms of legal freedom. I sometimes have the impression that, whereas in Kampf um Anerkennung there is still a link to individual ‘suffering’, the felt experience of unfreedom and injustice, in the
new book this link – with the later Hegel as a source of inspiration – is
either severed or severely loosened and the question of freedom/justice is
being lifted to the super-individual sphere where the level of oxygen is so
low that it becomes difficult for ‘real’ people to discern either freedom or
justice.
Thomas Nys is assistant professor of ethics in the Department of Philosophy at the University of Amsterdam. His publications include ‘Virtual
Ethics’, in Ethical Perspectives (2010) and ‘Autonomy Under Threat: A
Revised Frankfurtian Account’, in Philosophical Explorations (2009).
References
Berlin, I. (2002a) ‘Two Concepts of Liberty’, Liberty. Oxford: Oxford UP:
166-217.
Berlin, I. (2002b) Freedom and Its Betrayal. Princeton: Princeton UP.
Celikates,
R.
(2012):
‘Review
of
Das
Recht
der
Freiheit’.
Krisis
Journal for contemporary philosophy
Thomas Nys – Which Justice, Whose Pathology?
https://www.nexus-instituut.nl/leestafel/135-das-recht-der-freiheit.
Fraser, N./Honneth, A. (2003) Redistribution or Recognition? A PoliticalPhilosophical Exchange. London: Verso.
Honneth, A. (1996) The Struggle for Recognition: The Moral Grammar of
Social Conflicts. Cambridge: Polity.
Honneth, A. (2004) ‘Recognition and Justice: Outline of a Plural Theory of
Recognition’, Acta Sociologica 47 (4): 351-364.
Honneth, A. (2011) Das Recht der Freiheit. Grundriß einer demokratischen Sittlichkeit. Berlin: Suhrkamp.
Pilapil, R. (2011) ‘Psychologization of Injustice? On Axel Honneth’s
Theory of Recognitive Justice’, Ethical Perspectives 18 (1): 79-106.
This work is licensed under the Creative Commons License (AttributionNoncommercial 3.0). See http://creativecommons.org/licenses/by-nc/3.0/nl/deed.en for
more information.
1
See Berlin 2002: 204: ‘[I]t is not with individual liberty, in either the “negative” or the
“positive” sense of the word, that this desire for status and recognition can easily be identified. It is something no less profoundly needed and passionately fought for by human
beings – it is something akin to, but not itself, freedom; although it entails negative freedom for the entire group, it is more closely related to solidarity, fraternity, mutual
understanding, need for association on equal terms, all of which are sometimes – but
misleadingly – called social freedom.’
2
Think also of Nancy Fraser’s criticism that there is no way to distinguish between ‘justified’ and ‘unjustified’ struggles for recognition (Fraser in Fraser/Honneth 2003: 227). Or is
it just up to history to decide?
13
3
For an interesting view that, instead of avoiding this dilemma, Honneth should indeed
‘psychologize’ his account, or perhaps just stick with it, see Pilapil 2011.