DAVID AMES CURTIS: TRANSLATOR'S FOREWORD FOR JEAN-MARC COICAUD'S LEGTIMACY AND POLITICS
DAVID AMES CURTIS
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TRANSLATOR'S FOREWORDS
Jean-Marc
Coicaud, Legitimacy and Politics: A Contribution to the Study of Political
Right and Political Responsibility. Trans. David Ames Curtis. Cambridge University Press, 2002.
Translator's Foreword
It is one of the startling surprises in a translator's life to discover that
the labour of translation-his creative transformation of a work, so that it
may be read and received in another language-does not necessarily become easier
as his experience increases and his so-called expertise grows. On the contrary,
words and phrases may become more of a problem for him, more difficult to render
satisfactorily, as he learns more about the intricacies and nuances of a foreign
tongue and encounters more vividly and viscerally the complexities involved
in 'interpreting' these expressions for a new audience in the transnational
republic of letters. Experience and reflection are certainly not the natural
enemies of accuracy and clarity, but they create a new level of exigency that
is unsettling, even as they offer new opportunities for extension, elaboration,
and refinement that are welcomed as an invitation and a challenge.
The title of Jean-Marc Coicaud's book, Légitimité et politique.
Contribution à l'étude du droit et de la responsabilité
politiques, is rather straightforward in French; I have translated it as
Legitimacy and Politics: A Contribution to the Study of Political Right
and Political Responsibility. And its basic themes and insights, if they
may be summarized quickly and in unsystematic fashion-namely, that legitimacy
must be related to politics, that legitimacy is not mere conformity to law,
and that all these terms (legitimacy, politics, law) as well as the notions
they imply and implement (consent, norms, the identity of a society, etc.) are
not wholly separable from their historical instantiations-are presented by the
author with considerable rigour and precision. Yet as a translator, questions
were raised in my mind as soon as I was confronted with the task of translating
this title and of coming to terms with its key words and concepts. An account
of these questions and my responses to them may be of value to the reader as
she embarks upon, or seeks to reflect back upon, the present translated work.
A brief incident from my own life may serve here as an introduction. A little
more than two decades ago at Harvard University, the same institution Coicaud
attended while writing his book, I took a course in political philosophy from
Professor John Rawls, author of the celebrated volume A Theory of Justice.
To my disappointment 'political philosophy' turned out to mean not much more
than 'moral theory', so that any political manifestations and issues could be
viewed only upon a very distant, almost invisible or unrelated horizon. Curiously,
Marxism was discussed and dismissed in one lecture, Rawls treating it as minor
variation in the way one writes utility functions. Neither it, nor the constant
challenge anarchism poses to the predominant tendency of 'political philosophy'
to seek theoretical justifications for present or alternative political arrangements,
were given serious consideration. Nor were the similarities between Marxism
and anarchism, on the one hand, and liberalism, on the other, ever highlighted
or investigated, even though it was beginning to dawn on me that the former
two doctrines evince as much of a reticence to deal forthrightly with political
questions and power considerations as the latter one does.
As was already my habit by then, I engaged in a self-invented 'education through
opposition': after having discerned the biases and preferences of the instructor,
I proceeded to write a paper (in this case, one later reworked for publication)
(1) that sought systematically and savagely to contest his views.
(2) Specifically, here I attempted 'a class and state analysis' of
the utilitarianism of Rawls's favourite moral theorist, Henry Sidgwick, author
of The Methods of Ethics; and I endeavoured to show that utilitarianism
must be understood in historical perspective, starting from the interpretation
thereof offered in The German Ideology. Instead of viewing the growing
formalisation present in this late nineteenth-century Englishman's writings
as a triumph of theoretical distillation and purification-the view of Rawls,
who regarded the reduction of moral precepts to a discreet and decreasing number
of axiom-like propositions to be a mark of progress (and not, for instance,
a process of desiccation or degeneration leading to ultimate historical irrelevancy
and demise)-or as merely a reflection of changing class interests-a mechanical
extrapolation of Marx and Engels's not wholly unenlightening historical overview
of the utilitarianism of the elder Mill, Jeremy Bentham, and their predecessors
in English political economy (3)-I argued that
such formalisation must be analysed, in a non-reductionistic way; it
would be seen, rather, as a creative, independent articulation of the growing
rationalisation and impersonalisation characteristic of the bureaucratic mind-set
in capitalist society during a period in which, after the political triumph
of the bourgeoisie (1832 Reform Bill) and in the context of working-class demands
for an extension of the suffrage in England as well as for other rights that
create a strain upon hierarchical governance, an impersonal state apparatus
comes into existence, silently seizes power, and undertakes to impose social
harmony and tranquillity from the outside upon all classes and segments of the
population-enfranchised, unenfranchised, or about to be enfranchised-by employing
the difficult-to-contest language of an 'impersonal decider'. Needless to say,
such an interpretation challenged both liberal and Marxist modes of explanation
and interpretation as well as their efforts at justification or counterjustification.
Now, liberal thought prides itself, certainly, upon its willingness to entertain
a plurality of viewpoints. In the response of Rawls, perhaps the pre-eminent
liberal theorist at the time, I discovered with a certain perverse inward satisfaction
the limits to such professions of openness and pluralism. He refused to grade
the paper and instead scrawled a page of comments . . . to explain why he would
not comment upon it. Initially mystified and yet also intrigued, I requested
a meeting at his office. We spoke, cordially, for about a half an hour, at the
end of which time he asked me, point-blank, 'What are you: a sociologist,
a historian, or what?', each term, perfectly articulated, falling from his lips
with a distinct expression of disdain-as if the very idea of introducing social
considerations or just historical context into philosophical thinking about
the political world had only now occurred to him for the first time and was
immediately experienced with utter revulsion. My explanation that I was a student
in his very own philosophy department and not some alien discipline's import
only increased our mutual sense of bafflement, and the interview quickly ended.
When I pointed out to his teaching assistant a few days later, with mock innocence
and shock, that I had still not received a grade for the paper, she told me
that it was 'too different' (so much for liberal tolerance . . .) and that she
and Rawls had decided that it 'would not receive any grade at all: A, B, C,
D, or F', adding that I would receive a B of some sort for the course, as if
that were what should be of paramount concern and might somehow placate me.
She quickly fled, running off to watch a Red Sox-Yankees game-a response that
greatly upset me at the time, but which I, now older, less serious about myself,
and more serious about baseball, can fully appreciate in retrospect.
What a difference a few decades can make! Thanking Rawls in his Acknowledgements
but also, in the body of his book, engaging in criticism of Rawls's views, Coicaud
asserts in the very title of his work that legitimacy must be understood in
its political context. Moreover, in developing his key assertion that legitimacy
is a matter of political judgement of a practical truth that must be understood
in its historical rootedness, Coicaud points out that
"Rawls has been led, in his later writings, to attune his rhetoric to
what constitutes, in A Theory of Justice, his practice, but without
him then wanting to admit it. His revisions are not lacking in breadth. He gives
up on the universal import of his categories of analysis. He recognises that
the ends of political philosophy depend upon the society to which this philosophy
addresses itself. And he comes to affirm that his objective is to construct
a theory of justice that is the most reasonable for us. Fittingly, he acknowledges
that his understanding of justice corresponds to the conception of the individual
belonging to liberal-democratic culture, and that it concerns that culture alone.
Rawls almost goes so far as to set the United States and its basic values as
the limit for his reflections."
It is more than doubtful that my minor, intemperate undergraduate challenge
to Rawls's abstract moral liberalism might have had any effect upon his subsequent
decision to adjust his language in a more historically informed political direction,
and I certainly would not want to claim any credit for the resulting changes
in his point of view. Still, it is refreshing to see now in Coicaud's work an
explicit will to relate questions of justice to political and historical considerations
that are deemed inseparable from those questions while also refusing to accept
liberal precepts unquestioningly in their actual historical incarnations (as
Rawls, Coicaud reports, now seems to be doing).
And yet, questions arise as soon as we consider the translation of the term
politique. First, we note its pronounced importance: the word appears
as a noun in the title and is repeated, as a plural adjective, in the subtitle.
This double assertion is perhaps inelegant but certainly is to be welcomed for
its forcefulness. As a substantive noun associated, via a conjunction, with
'legitimacy', but lacking a definite or indefinite article, the appearance of
politique in the title can, however, be rendered in several distinct
ways. (4) In French, the well-known feminine
noun la politique, derived from the Greek via the Latin, translates
as 'politics' (or 'policy'). Le politique, as a masculine noun of relatively
recent origin (the older meaning, 'statesman', also appears in Coicaud's writing),
is usually rendered in English by the less familiar phrase 'the political',
which derives from the conservative Nazi-era jurist Carl Schmitt's usage (coinage?)
of das politische in German. This unusual noun, the political,
has been employed and reflected upon in various ways by a number of German-born
twentieth-century authors, including Schmitt's former student Leo Strauss, and
it has been associated with Martin Heidegger's anti-totalitarian student Hannah
Arendt. Some antitotalitarian French-language political thinkers, Cornelius
Castoriadis and Claude Lefort, (5) explicitly
distinguish politics from the political, treating the former
as historical in character and the latter as a basic attribute of any society-though
the two do not agree upon the precise definitions to give the two terms-while
a classical historian, the distinguished former French Resistance figure Jean-Pierre
Vernant, (6) views even the political
as historically datable and localisable, it having its origin, like politics,
in ancient Greece-the birthplace, of course, of the polis.
(7)
In consultation with Coicaud, I have not eliminated this polysemy but resolved
it in a provisional way by generally favouring politics. Despite the
fact that he discusses Schmitt's The Concept of the Political, Coicaud
himself does not make any hard-and-fast distinctions between le politique
and la politique, nor does he offer a definition of either term or
even take a position on the historicality or the essential (that is, here, non-historical)
character of the one or the other in relation to society and its institution.
Coicaud freely acknowledged to me that he has not yet reflected upon these terms
sufficiently to take a stand of his own. An honest admission-and a prudent stand,
as well, considering the distinguished writers who still disagree among themselves
on this topic. Given that these two similar nouns (the term 'homonym' is not
quite applicable here, since it is their respective genders that create the
difference) are not employed in any systematic or technical way, I have upon
occasion, with the author's approval, even changed (what would be) 'the political'
to 'politics', as it renders the result more familiar to an English-speaking
audience without in any way violating the author's deep-seated intentions.
The definitional deficit of this decisive but polysemous term politique
rebounds, however, upon his primary expository term, legitimacy, as
regards its historical status. Coicaud wishes to place the study of legitimacy
in a historical (but not historicist) perspective, so as to salvage it as a
key element of social and political analysis and to defend it from attacks on
several fronts. The historical element comes into play when he argues
that legitimacy must always be studied on the basis of concrete historical situations;
when he questions orientations that challenge the relevancy or applicability
of legitimacy, for he places these orientations (positivism, Marxism, Weberian
social theory) themselves in revealing historical perspective; and when he tellingly
exposes their inability to come to terms with the historicity of Modern Times
without indulging in a 'nostalgia' for premodernity. (8)
Yet, it is in quite general terms that Coicaud defines the elements
that go to make up legitimacy. Legitimacy, he asserts, assumes an 'unequal distribution
of power', an 'asymmetric relationship constituted by the command relations
between the governors and the governed', as well as 'political differentiation',
for a 'division that separates those individuals who command from those who
obey is that upon which the logic of legitimacy rests'. Moreover, 'in order
to understand how a theory of legitimacy is based upon the separation of the
governors and the governed, one must', he states, 'first distinguish it from
those political concepts that find it impossible to justify the power of the
State'-which seems to imply that legitimacy, by way of contrast, necessarily
involves a justification of the State's power (this creates an additional
potential for anachronism, even though he emphasises that the State is not to
be taken as equivalent to the 'bourgeois State'). The general theory of legitimacy
also introduces the notions of consent and laws, as well as that of the norms-or
'values', to employ the neo-Kantian axiological and post-Nietzschean language
Coicaud usually prefers-by which the identity of a given society serves to posit
and then to judge the effectiveness and appropriateness of its actual laws.
Thus, as stated previously, legitimacy is not understood by him as mere conformity
to the existing law. Nor is Coicaud adopting a conservative or reactionary authoritarian
viewpoint regarding either political arrangements or their legitimation via
discourse. Here, Coicaud quotes Michael Walzer, who states that, 'in the context
of consent theory, we do not say that the government is just, therefore the
citizens are obligated, but rather that citizens have committed themselves,
therefore the government is just'-a crucial point, but one which would pack
a bunch of historical elements into a general theory of legitimacy. For, Coicaud
decidedly wants to apply legitimacy theory's study of consent not only to regimes
that include 'citizens' but to all societies whose governments do not
rely solely upon force (and no governmental apparatus can perpetually rely solely
upon force). He goes so far in one place as to derive 'the question of justice
in human life' from a sweeping analysis of the demands and dynamic development
of the newborn child.
There is still considerable force as well as some substantial benefit to Coicaud's
approach, even though the general and historical expositions of legitimacy sometimes
seem at odds or enjoy an uneasy coexistence. Viewed in relation to politics/the
political, the 'problematic of legitimacy' (to use his terminology) prevents
him from turning his historically informed approach into a hermeneutic-i. e.,
merely interpretational-undertaking: a political judgement of legitimacy is
such that it cannot simply retrace what the laws have decreed in order to come
up with an answer to the question of where justice lies. Moreover, his insistence
upon always examining a potential for legitimate command-obedience relationships
in their historical context strongly militates against the tendency to 'adopt
an anachronistic point of view, wishing to evaluate the past on the basis of
criteria for judgement borrowed entirely from the present'-the sort of confused
retrospective moralism characteristic, for example, of much 'left-wing' political
correctness in academia today, which is a flip side of the tendency of traditionalists
to judge the present solely on the basis of what they (presently) consider to
be values consecrated by the past.
Nonetheless, the question of historical connection between legitimacy and politics
is still posed: if legitimacy is related to politics, does the historical character
of the former have anything to do with the birth of the polis in the
ancient world? Coicaud broaches the subject of legitimacy theory by citing Jose
Guilherme Merquior's historical reconstitution of the term legitimacy,
noting that Merquior cites Cicero's 'use [of] the expressions legitimum
imperium and potestas legitima when he refers to legally established
power and magistrates or when he distinguishes the legitimate enemy (legitimus
hostis) from the thief or pirate because of the treaties signed with the
former and because such treaties were valid as legal documents'. He also relies
upon Merquior when he establishes that 'the signification of the word legitimacy,
whose employment is observed for the first time in medieval texts, preserves
the idea of conformity to the law. The political character of legitimacy is
accentuated by a reflection upon the justification of the delegation of power'.
While Merquior is not a major authority for Coicaud, it is worth noting that
the former had introduced his remarks on legitimacy, however, by stating that
'the cradle of legitimacy theory'-i.e. its historical birthplace, or at least
the site in which it was first nurtured-'was legal philosophy'. That assertion
might bring us back to the Greeks, since philosophical reflection upon the law
certainly predates Roman and medieval times, and it makes us wonder about the
applicability of the study of legitimacy to pre-Hellenic societies (a Coicaud
thesis, we noted), since one places oneself upon dangerous, perhaps anachronistic
ground when one claims that the existence of philosophy, legal or otherwise,
might somehow predate these same Greeks. Interestingly, the relevancy of the
Greeks to legitimacy theory is questioned by Merquior himself in another passage
on the same page-one that Coicaud, however, does not cite: 'Apparently, ancient
Greek did not possess a special word for legitimate (as distinct from lawful).'
Indeed, as Merquior goes on to say,
"the rise of the concept of legitimacy as a political problem [and it
is as a 'political problem' that we are discussing it here-D. A. C.] was prompted
by the collapse of direct rule in the ancient world [my emphasis-D.
A. C.]. It owes much to the substitution of imperial authority for the direct
democracy of the agora [a particularly nonsensical, counterhistorical
expression-D. A. C.] or the personal rule of local tyrants. Thus the medieval
application of 'legitimate' to persons in office reflects the long acquaintance
with the power of deputies of the emperors or popes."
The author whom Coicaud cites, and to whom he refers us in order to consider
'the history of the term legitimacy', seems to be telling us that it
is the death of the polis as a self-governing, collectively
autonomous political entity that serves as the historical context for the rise
of political legitimacy theory, articulated as the possibility of a critical
evaluation of separate authority that also involves or implies a (grudging or
enthusiastic) acceptance thereof. This would tend to confirm Coicaud's general
definition of legitimacy in terms of political differentiation, an unequal and
asymmetrical distribution of power, as well as consent, by the governed, of
the actions of a separate state apparatus run by governors-notions contested
in the Greek political imaginary-just as it would be consonant with the historical
struggle of early Renaissance cities to carve out a realm of political rule
for themselves at the expense of, but also in the context of nearly inevitable
compromises with, aristocratic, monarchical, imperial, and papal authorities.
Yet this set of political-linguistic circumstances might now serve to circumscribe
legitimacy historically, excising therefrom the very period in which the polis,
and thus politics and perhaps also 'the political', came into existence as distinct
social-historical forms.
While we may find merit in Merquior's historical vantage point on the origins
of legitimacy theory in the demise of direct democracy and in the rise of the
sort of unbalanced and detached forms of command-obedience power relationships
characteristic of the post-polis politics of imperial, feudal, and
early modern times (and, let us add, in the emergence of a conditional resistance
thereto), we might also be tempted to challenge his linguistic assertion regarding
the lack of any distinction in ancient Greek between mere lawfulness and something
that goes beyond simple unlawfulness (i.e., beyond plain non-observance of the
existing law)-a lack that was also characteristic, he had asserted, of ancient
Rome's single-edged usage of legitimus. In Democracy Ancient and
Modern, (9) the blacklisted American classicist
M. I. Finley highlighted what Castoriadis was later to describe as the 'apparently
strange but fascinating procedure called graphe paranomon (accusation
of unlawfulness)'. (10) Graphe paranomon-you
have written (proposed and won acceptance for) a 'para'-law, a faulty or abnormal
law-had introduced the possibility of a subsequent review and, eventually, an
abrogation of a specific law into the procedures by which laws were, after deliberative
consideration by the council (boule), democratically adopted by the
assembly (the ekkelsia-and not the 'agora', whose political
functions were more diffuse). This legal procedure, explains Castoriadis, involved
an 'accusation by a citizen against another citizen that the latter had induced
the Assembly to adopt an "illegitimate law"', and it led to an adjudication
by a jury of the assembly's peers, selected by lot from the entire citizenry
(or at least among those who had registered for this remunerated civic responsibility).
'We need to reflect on the abysses opened by this phrase', illegitimate
law, Castoriadis says after having placed it in quotation marks-indicating
thereby that, with regard to the question of justice, ancient Greek democracy
and politics create a decisive break in relation to traditional and religious
(heteronomous) ways of relating to and evaluating a society's own norms and
laws, and perhaps also expressing concern whether 'legitimacy' and 'illegitimacy',
as usually understood, can be applied meaningfully and accurately (i.e. not
anachronistically) to Greek political arrangements, which did indeed allow existing
laws to be put into question. (11)
Furthermore, when Merquior turns to medieval and early modern times, he adds
that
"the first definition of governmental legitimacy as derived from consent
grounded on natural law is due to William of Occam (first half of fourteenth
century), the thinker whose nominalism so revolutionized medieval philosophy.
The basis of Occam's reasoning was the older medieval argument quod omnes
tanget-what touches all must be approved by all."
An apparently similar, but in fact more far-reaching political view had already
been staged, however, during the first third of the fifth century BCE. at democratic
Athens in Aeschylus's The Suppliant Maidens (with the political anachronism
characteristic of tragedy). (12) King Pelasgus
of Argos tells the daughters of Danaus, who are seeking asylum after having
fled the prospect of forced marriage with their Egyptian cousins:
You are not suppliants at my own hearth.
If the city stains the commonweal,
In common let the people work a cure. (365-67)
To this assertion, that what touches all must be not only approved by all but
also resolved in a participatory way by all, is added an all-inclusive idea
of sharing:
But I would make no promises until
I share with all the citizens. (368-69)
Moreover, when these ideas are reiterated, they are articulated in terms of
an explicit rejection, by he who is in a position of command, of any separation
from the people:
I said before that never would I act
Alone, apart from the people, though I am ruler; (398-99)
Indeed, the fact that the decision is tougher and more complex than usual militates
in favour of more participation and sharing, not less, for
the king had just said:
The choice is not easy: choose me not as judge. (387)
It is thus doubtful, at least according to some observers and for varied reasons,
whether legitimacy as an analytical concept can apply to the political imaginary
of ancient Greece-but also doubtful, in light of the foregoing, whether one
can think legitimacy theory historically without reference to the contributions
made by the ancient Greek poleis, without reference to the poleis's
demise as well, and, finally, without reference to the rise of early modern
cities within a nearly overwhelming set of hostile circumstances.
The historical relationship between legitimacy and politics, then, is evidently
highly complex, one continually fraught with the dangers of anachronism. Thanks
to the reading of an author Coicaud himself cites, further historical reflection
reveals that Coicaud's general theory of legitimacy could conflict at times
with legitimacy theory's own historical development. It has even been asked
whether the very term legitimacy is Eurocentric-and Sinocentric, too
(the 'Mandate of Heaven')-instead of being an overall term of political analysis
that is then potentially applicable to the study of every particular political
situation within history where governance does not rely solely upon force.
(13) Coicaud believes that legitimacy and the consent it presupposes
may be at work in primitive societies, since he asserts, on the authority of
the Structuralist anthropologist Claude Lévi-Strauss, that such societies
include 'deliberative procedures'. But another French author whose name is to
be found among Coicaud's footnotes-the political anthropologist Pierre Clastres,
who challenged anthropological tenets of Structuralism and Marxism, just as
Coicaud wishes to do-wrote of a 'society against the State' in primitive Amerindian
cultures. (14) That phrase ill accords with
a theory of legitimacy involving possible justification of a State, let alone
with what Coicaud believes is entailed by the existence of legitimacy: 'the
right to govern'. In those cultures, Clastres argues, the chief is instituted
and installed not as a governor with separate powers but as a 'servant' lacking
them, hemmed in as he is on all sides precisely because, according to the political
norms of Amerindian tribes, any permanent division in governance that would
lead to the creation of a separate state apparatus must be conjured away at
all costs-including the 'torture', applicable to all on an equal basis,
involved in rituals of initiation as well as incessant tribal wars, which ensure
that population will not increase too rapidly and resources will remain at near-subsistence
levels. (15)
Certain salutary effects still flow from Coicaud's determination to relate
legitimacy theory to a historically informed politics (and not just to de
facto law, on the one side, and an ahistorical morality, on the other).
In particular, his exposition of legitimacy theory in his book, written near
the dawn of the twenty-first century, challenges a number of nineteenth-century
political theories (liberalism, Marxism, and anarchism) that, prolonged into
the twentieth-century, still encounter considerable difficulties when it comes
to thinking about legitimacy. They encounter such difficulties precisely because
these theories display ambiguous, if not downright hostile, attitudes towards
politics. This is obvious for the laissez-faire tendencies of classical
liberalism that have been developed into that 'solemn complement of justification'
(what Marx also called ideology) by such exponents of a looney 'libertarian'
liberalism as Friedrich August von Hayek and Milton Friedman, as well as for
contemporary liberals who tend to view politics itself as a potential danger
to 'the individual', to 'pluralism', and to 'tolerance'. It is perhaps less
apparent, for some, in the cases of Marxism and anarchism, because of their
overt political engagements. Yet one need only reflect upon Marx's critique
of 'political' rights as merely 'formal' (instead of historically partial,
in both senses of the term) or classical anarchism's nearly self-definitional
rejection of all power relationships. Coicaud is constantly endeavouring to
show, through his demonstrations of liberalism's, Marxism's, and anarchism's
inability to come to terms with the concept of legitimacy, how each of those
doctrines rejects politics in one way or another. An added benefit: even though,
generally speaking, Coicaud opts for a variation (16)
on a Weberian 'norm-legitimacy' theory over the 'power-legitimacy' theory of
a Rousseau (the terminology here is Merquior's), (17)
he emphasises over and over again that all attempts to consider and to comprehend
a society without explicitly including therein its power relationships are as
incoherent as they are vain. This is a decided advantage over these various
nineteenth-century doctrines (not that political power considerations, of course,
have been entirely absent therefrom on the practical and even theoretical levels).
Nor is power viewed by Coicaud as inherently evil or corrupting, as an acosmic
moral theorist might do. 'The mechanism of political legitimacy', Coicaud explains,
'aims at establishing recognition for the right to govern. It is therefore not
a matter of doing away with the existence of power.'
It is unfortunate, in this respect, that Coicaud does not take into account
political and associational practices that date at least from the 1871 Paris
Commune and have their roots further back in a variety of modern efforts at
individual and collective autonomy-e.g., the English, American, and French Revolutions,
as well as the workers' movement (and, more recently, the student, women's,
and ecology movements)-and that have been extended on the practical plane as
well as theorised throughout the twentieth century (Council Communists, Spanish
anarchists and POUM-ists, Hungarian workers' council revolutionaries, or the
students of the May 1968 movement in Coicaud's native France, to take a few
striking examples). Along with his assessments of what I consider the dogmatic
buffooneries of authors like Louis Althusser and Pierre Bourdieu-who, in a highly
conservative move, attempt to salvage classical Marxism by adding thereto
a few 'scientific' updates-as well as of the invariably immobile views of doctrinaire
anarchists, it would have been interesting for Coicaud to have examined thinkers
and movements that, over the course of the century just ending, have challenged
anti-political tendencies and biases in classical liberalism, Marxism, and anarchism.
How would a former Marxist committed to a direct economic and political democracy
and inspired by classical Greece, like Castoriadis (whom Coicaud cites in his
bibliography but not in his text or in his notes), or an ecologist quite critical
of many strains of anarchism and favourable to a municipal libertarianism also
inspired by ancient Greek democratic practices, like Murray Bookchin, fare when
the question of legitimacy is raised? How might an engagement with their thought
have led to a more complex and nuanced appreciation of legitimacy in its historical
context, a finer understanding of the origin, applicability, advantages, and
perhaps also limits of legitimacy theory? We can nevertheless benefit from Coicaud's
reflections-which are intended as a defence and advancement of the concept of
legitimacy-as a basis for our pursuing such questions further, a process the
author would certainly not consider unwelcome, and which he would be sure to
explore with the same penetrating incisiveness that, in his book, he has shown
himself capable of illustrating and exemplifying.
Let us now return to the title-or, more precisely, the subtitle-of Legitimacy
and Politics in order to allow a reflection upon the translation process
to shed further light upon this book. The volume is intended as 'a contribution
to the study of political right and political responsibility'. Like Rawls's
A Theory of Justice, with its indefinite article most prominent in
its title, this subtitled 'contribution' is modest and intentionally undogmatic
in its ambitions. Indeed, Coicaud champions the values of tolerance and pluralism,
as do Rawls as well as Weber, though he believes that one can no longer do so
in the same ways as they have done, given their inadequate conceptions of legitimacy
and the contradictions into which their respective brands of tolerance and pluralism
have led them. The word that captures the translator's attention, however, the
one that proved to be the most difficult term in the entire translation, is
the word droit, which means 'right' but also 'law'.
We can begin to get an idea of the difficulties this word poses when we focus
on its usage in the subtitle. What is droit politique-which, when framed
in terms of legitimacy, Coicaud calls the right to govern? The translation
'political law' would sound strange to many an English speaker and might conjure
up, for some, disturbing images of a politicised law wherein it is men and not
laws that govern. 'Political right' is not a phrase with which English speakers
are very familiar, either. But, as Coicaud himself pointed out to me, droit
politique is found in the subtitle of Jean-Jacques Rousseau's famous treatise,
the standard translation of which is On the Social Contract, or Principles
of Political Right. 'Political right' for Coicaud would involve not just
the specific laws enacted to regulate the political process, nor simply the
extant political rights recognised in a community, but would concern, too, the
norms that stand behind and govern (in the broad sense of define, guide, and
control) the concrete rules a society adopts in order to conceive, implement,
oversee, monitor, and guarantee the political life of a community.
The Marxist response to political right-and to the laws and rights that embody
it-is, of course, thoroughly negative. Coicaud quotes Marx and Engels that,
'as far as law is concerned, we with many others have stressed the opposition
of communism to law, both political and private, as also in its most general
form as the rights of man'. Herein we see the translation overlap of these two
English terms-which in German, as in French, are both expressed by a single
word: Recht. (Hegel's treatise on legal philosophy, for example, is
sometimes translated as The Philosophy of Right and sometimes as The
Philosophy of Law.) Choice thus becomes necessary, and it is not always
easy. I have had to decide between 'right' and 'law' on nearly every page of
Coicaud's book, a situation sometimes further complicated by the presence of
a second French word meaning 'law': loi, which has both general and
specific connotations, just as droit does. Short of indicating the
French original each and every time within brackets or of employing some other
such artificial and encumbering device that would again detract from the flow
of the printed translation, (18) I have, after
careful consideration and, I hope, judiciously, opted for one or the other,
often doing so in consultation with the author-who, fully appreciative of the
difficulties the translation of droit poses in English, patiently communicated
to me his hesitations, his decisions, and sometimes his reconsiderations.
The rendering into English of another phrase involving right/law, l'État
de droit, is also worth mentioning, for it too involves this vexing interface
of the French, German, and English legal and linguistic traditions. Challenges
of this sort make of translation an imperfect, and often maddening, but always
passionately interesting transnational art-an encounter, indeed, with social
imaginary significations that go well beyond the horizon of any individual author's
(or translator's) intention or understanding-instead of a ready-made and easily
applicable science, ripe for computerisation. In English, one tends to speak
of 'the rule of law'. This has become a particularly empty and useless phrase,
as its usage ad nauseam by all sides has driven home to me once again
as I write these very lines (the Elian Gonzalez custody case in America). Taken
by itself, the 'rule of law' decidedly does not fit the 'problematic
of legitimacy' laid out by Coicaud, for it is hardly distinguishable from the
'conformity to the law' rhetoric that, in his correct view, falls short of the
standard for legitimacy.
One can avoid this now nearly barren expression by using l'État
de droit's somewhat more familiar German equivalent: Rechtstaat.
This solution sidesteps the issue, however, by simply displacing the problem
into a third language. Yet it also has one minor advantage: it is better as
a translation than 'rule of law', for it is consonant with Coicaud's association
of legitimacy with the establishment of recognition for the justification of
a State. But an ambiguity also intervenes between the French and German.
At times, Coicaud himself takes a break from state justification to speak of
positive contributions to 'the life of the city'-cité, in French.
Unlike État, Staat is used-in the phrase autonomer
Stadtstaat-to talk about the polis. And yet, just like the English-language
expression city-state, its German counterpart autonomer Stadtstaat
actually is nothing more than an abusive mistranslation of polis, for
it is of doubtful value to consider the latter to be a state formation, a separate
governmental apparatus. These English and German phrases are particularly egregious
anachronisms, their usages as erroneous as they are widespread.
I have therefore settled upon 'rights-based State' as the most appropriate
translation for Coicaud's understanding of l'État de droit ('constitutional
State', the standard translation of Rechtstaat, packs too much historical
specificity to be appropriate here). But at times I have called upon 'the rule
of law' and Rechtstaat to supplement (double or triple) this term or
to indicate specific technical or historical features of its meaning. The reader
is thus forewarned by this specific discussion of droit-as she will
also be alerted by Coicaud's general theme of legitimacy as being something
more than and different from mere conformity to the law-that it must always
be kept in mind that my imperfect but forced choices of either right
or law may very well result in ambiguities and misperceptions at any
particular location in the text. It will be in reading through and
beyond these difficulties in translation that the reader will perhaps
gain a greater understanding of the political and philosophical stakes involved
and thus be able to reflect further upon this transnational linguistic conundrum
for herself.
One last feature of my labour as a translator should be highlighted in order
for the reader to comprehend this volume in the most well informed manner possible.
In contrast to most of the texts I have worked on during my fifteen years as
a professional translator, I did not myself propose this one to a publisher.
Instead, Cambridge University Press offered me a translator's contract after
my name was recommended to Coicaud by the French Publishers' Agency in New York.
Both my editor at the Press, John Haslam, and the Agency are to be thanked for
their interest and support.
It has been my general policy, in writing translator's forewords, not to take
advantage of my position as the first reader of the work in translation, prejudicing
subsequent readers' experiences by telling them in advance what to think about
what they are about to read. I have sought, rather, to offer background information
they might not otherwise have had available about the author and his work, now
rendered into English. If I have dwelt here at length, and not for the first
time, upon difficulties in my translation efforts, it is to offer the reader
a glimpse of the struggle the translator undergoes each time he undertakes the
strange and daunting task of writing in another person's voice-that of a foreigner,
to myself and to other readers of the translated text-endeavouring thereby to
make him speak in a language that is not his native tongue. As with all the
other authors I have translated, my goal has been to render that foreign voice
familiar enough to be read by an English-speaking public while preserving a
sufficient degree of its foreignness to allow for a new and distinct contribution
to the transnational republic of letters. In this effort, I have been assisted
by the unparalleled openness and accessibility of Jean-Marc, who, entering into
the spirit of the struggle himself, patiently answered my many translation questions
and generously assisted me in the preparation of the notes and bibliographical
apparatus for the English-language edition. The privilege of becoming acquainted
with him aided me considerably in the imaginary creation of a native English-speaking
Coicaud, a persona I gladly adopted as my own for several months, and has transformed
him from foreigner into friend. Any defects or deficiencies in the establishment
of that character are nevertheless mine. (19)
-David Ames Curtis <CURTIS@MSH-PARIS.FR>
Winchester, Massachusetts, April 2000 - Peloponnesus, Greece,
October 2000
Notes
1. David Ames Curtis, 'A Class and State Analysis of Henry
Sidgwick's Utilitarianism', Philosophy and Social Criticism 11:3 (Summer
1986), 259-96. Errata in 12:4, 387-88.
2. That same school year I wrote a paper for Robert Nozick's
course on 'metaphilosophy', challenging its major premises, too. To my great
disappointment, Nozick rushed up to me after I had completed my year-end blue-book
exam to tell me that he had given me an 'A' of some sort on my paper-something,
he pointedly told me, that he rarely grants. Not glimpsing in him the slightest
sense that he was being challenged and ridiculed by my essay, I was overcome
with a sense of failure.
3. I had already, in the Sidgwick paper, added a corollary
to Marx/Engel's interpretation of utilitarianism by contrasting the radical
egalitarian implications of Bentham's hedonistic calculus, articulated at the
time of a rising bourgeoisie, with the 'poetry versus pushpin' moral hierarchy
of pleasures espoused by J. S. Mill in the aftermath of the bourgeoisie's successful
passage of the 1832 Reform Bill (elimination of 'rotten boroughs' held by the
aristocracy and large land-owning gentry, partial extension of the suffrage
to middle-class citizens, prospect of a wider suffrage and of broader political
changes starting to threaten in the rising workers' movement). See John Stuart
Mill, 'Bentham', in Utilitarianism, On Liberty, Essay on Bentham, Together
with selected writings of Jeremy Bentham and John Austin (London: Collier,
1979), p. 125, and 'Utilitarianism', p. 259.
4. I had previously discussed these terms in my Translator's
Foreword to Claude Lefort's Writing: The Political Test (Durham, N.C.:
Duke University Press, 2000), p. xii, referring more expansively there to: 'the
curious masculine noun of recent vintage, le politique-"the political"
or "the political sphere", as is sometimes said now in English-which contrasts
in French with the more straightforward, concrete, and familiar feminine noun
la politique-"politics" or "policy", depending upon the context-and
which derives from das politische, a neuter German word popularized
by the Nazi-era German constitutional scholar and political thinker Carl Schmitt
and then by his American emigrant former student Leo Strauss. . . . "The political"
has been associated, too, with the writings of Hannah Arendt (wrongly, according
to one young political scientist, who claims that "this term, developed by the
right-wing jurist Carl Schmitt, has been ascribed to her by Marxist thinkers
more influenced by Schmitt than she is") . . . and le politique is
employed today by a wide variety of other French-speaking writers besides Lefort,
including the late emigrant Greek political and social thinker Cornelius Castoriadis,
whose usage of the le/la politique distinction differs markedly from
his, and leading French classicist Jean-Pierre Vernant, who, in insisting that
"the political", like "politics", has a datable birth and origin in the poleis
of Ancient Greece, differs from both Castoriadis and Lefort on this score.
Yet, "the political", as substantive noun, still reads rather inelegantly on
the cover of an English-language book-even if we note the existence of Reinterpreting
the Political, a recently published American anthology of "Continental"
political theory that borrows its title directly from a passage in Lefort's
influential 1985 essay, "The Question of Democracy"'.
5. Ibid., p. xxxiv, note 7: "Lefort calls "the political"
the "form" of a society. In "Power, Politics, Autonomy" (1988), Castoriadis
defines "the political" as "a dimension of the institution of society pertaining
to explicit power, that is, to the existence of instances capable
of formulating explicitly sanctionable injunctions" (Philosophy, Politics,
Autonomy, ed. David Ames Curtis [New York: Oxford University Press, 1991],
p. 156). As such, it does and must pertain to any society. By way of
contrast, "Greek politics, and politics properly conceived, can be defined as
the explicit collective activity which aims at being lucid (reflective and deliberate)
and whose object is the institution of society as such" (ibid., p. 160). "Politics"
thus appertains, for Castoriadis, only to those societies in which the "project
of autonomy" has already emerged and become operative.'
6. Ibid., p. xxxiv-xxxv, note 8: "See my . . . Jean-Pierre
Vernant translation, "The Birth of the Political", in the Australia-based social
theory journal Thesis Eleven [60 (February 2000), 87-91]. Like Lefort,
and despite their differing definitions of le and la politique
(see preceding note), Castoriadis too considers "the political" to be an essential
and inescapable element of any human society. Vernant's argument could be summarized
by saying that it makes no sense to speak of either "the political" or "politics"
before the advent of the polis as an effective social-historical institution.
That raises the question whether both of these terms might be datable (and thereby
historical in character), instead of one or another or both being a
"form" or "dimension" of all societies. But what would one then call
this element, in pre-polis times, whereby a society gives itself its
"form" through social division (Lefort) or organizes its "explicit power" (Castoriadis)?'
7. One could also phrase the question in terms of whether
the polis and politics/the political are translatable into
prior languages, societies, and cultures-or whether, instead, such a translation
effort is futile because anachronistic, it being an unjustified reverse extrapolation
of a social-historical form that had not yet been created as a distinctive realm.
8. On 'the nostalgia for the origin', see my Fabio Ciaramelli
translation 'The Self-Presupposition of the Origin', Thesis Eleven
49 (May 1997), 45-67.
9. M. I. Finley, Democracy Ancient and Modern (New
Brunswick, N.J.: Rutgers University Press, 1973), pp. 26-27, 118. Finley's translation
of graphe paranomon is: 'illegal proposal'. Clearly, a translation
problem of colossal proportions arises here, and whatever solution one offers
will depend upon one's view of the relevancy and applicability of legitimacy
theory to the ancient poleis. In 'Max Weber and the Greek City-State'
(in Ancient History: Evidence and Models [New York: Viking, 1986],
pp. 88-103; see p. 99), Finley explains that 'Greek law has been notoriously
a stepchild in modern study. Weber was no exception to the universal neglect
of the subject'.
10. Cornelius Castoriadis, 'The Greek Polis and
the Creation of Democracy', Philosophy, Politics, Autonomy, p. 116,
n. 25, where Castoriadis also mentions Victor Ehrenberg's discussion of two
similar provisions: 'apate tou demou' (deceit of the demos)
and the exception ton nomon me peideion einai (inappropriateness of
a law). Castoriadis describes graphe paranomon in depth in the following
terms: 'You have made a proposal to the ecclesia, and this proposal
has been voted for. Then another citizen can bring you before a court, accusing
you of inducing the people to vote for an unlawful law. You can be acquitted
or convicted-and in the latter case, the law is annulled. Thus, you have the
right to propose anything you please, but you have to think carefully before
proposing something on the basis of a momentary fit of popular mood and having
it approved by a bare majority. For the action would be judged by a popular
court of considerable dimensions (501, sometimes 1,001 or even 1,501 citizens
sitting as judges), drawn by lot. Thus the demos was appealing against
itself in front of itself: the appeal was from the whole body of citizens (or
whichever part of it was present when the proposal in question was adopted)
to a huge random sample of the same body sitting after passions had calmed,
listening again to contradictory arguments, and assessing the matter from a
relative distance. Since the source of the law is the people, 'control of constitutionality'
could not be entrusted to 'professionals'-in any case, the idea would have sounded
ridiculous to a Greek-but only to the people themselves acting in a different
guise. The people say what the law is; the people can err; the people can correct
themselves. This is a magnificent example of an effective institution of self-limitation
(p. 117).'
11. Cornelius Castoriadis, 'The Greek and the Modern Political
Imaginary', in World in Fragments, trans. and ed. David Ames Curtis
(Stanford: Stanford University Press, 1997), p. 93.
12. Aeschylus, The Suppliant Women, in The
Complete Greek Tragedies, ed. David Greene and Richmond Lattimore, 2nd
edn (University of Chicago Press, 1991), Aeschylus, vol. 2, p. 19.
It is in this play (lines 603-604) that for the first time a juxtaposition of
the two words that go to make up democracy-demos (people)
and kratos (power)-can be documented (see Pierre Vidal-Naquet, 'The
Tradition of Greek Democracy', Thesis Eleven 60 [February 2000], 78,
and Pierre Lévêque and Pierre Vidal-Naquet, Cleisthenes, the
Athenian: An Essay on the Representation of Space and of Time in Greek Political
Thought from the End of the Sixth Century to the Death of Plato, with a
new discussion On the Invention of Democracy by Pierre Lévêque,
Pierre Vidal-Naquet, and Cornelius Castoriadis [Atlantic Highlands, N.J.: Humanities
Press, 1996], p. 19; on p. 150, n. 11, Lévêque and Vidal-Naquet
cite Ehrenberg as the source for this observation). In light of Coicaud's concern
with the theme of 'exclusion', it is worthwhile mentioning, as well, that this
play concerns the acceptance and integration of aliens (the daughters of Danaus)
who have only the slenderest of claims to a common heritage with the city of
Argos and the Argive king.
13. Cornelius Castoriadis, 'The Greek and the Modern Political
Imaginary, World in Fragments, p. 86.
14. Pierre Clastres, Society Against the State: The
Leader as Servant and the Humane Uses of Power Among the Indians of the Americas,
trans. Robert Hurley (New York: Urizen Books, 1977).
15. See my recent translation of Claude Lefort's 'Dialogue
with Pierre Clastres', in Writing: The Political Test, pp. 207-35.
Those who saw Richard Harris in A Man Called Horse have a vivid picture
of what 'the "torture" . . . involved in rituals of initiation' may entail in
Indian societies. Clastres treats such 'torture' as an integral and necessary
part of what he considers their anti-statist social institution.
16. Coicaud's distinctive response, in relation to a Weberian
'norm-legitimacy', is to refuse to reduce legitimacy to a belief in
legitimacy; he does so by challenging the so-called separation of facts and
values championed by Max Weber.
17. Rousseau, Merquior noted, is the archetypical exponent
of 'power-legitimacy'. Coicaud's integration of power considerations into his
'norm-legitimacy' approach, which takes values seriously and does not reduce
legitimacy to mere belief, moves him from Weberian 'norm-legitimacy' to a position
that does not wholly repudiate the outlook of 'power-legitimacy', so long as
'values' are recognised and given their due. For Coicaud, Weberian 'norm-legitimacy'
does not really secure legitimacy at all, given Weber's inadequate notion of
objectivity, his neutralist stance on neutrality, his consequent debilitating
refusal to take a stand in relation to values, and his faulty view of the benefits
and scope of legal positivism.
Coicaud avails himself of a keen observation from Raymond Aron to illustrate
a further indication of Weber's inability to come to terms with legitimacy as
a political judgement, based upon values, that is not reducible to de facto
belief. There is a discrepancy between the four Weberian types of action (goal-related
rational action, value-rational action, affective behaviour, and traditional
action) and the three Weberian types of political legitimacy (rational, traditional,
and charismatic). 'It is easy to notice', Coicaud comments, 'that the failure
of these two typologies to coincide with each other is due to the absence of
a power relationship that would be the equivalent of value-rational action.'
A practical consequence of this discordance may be seen on the level of civilisational
analysis, and it relates directly to the question of the status of the polis
in relation to the study of legitimacy. In 'Max Weber and the Greek City-State'
(Ancient History: Evidence and Models, pp. 93-9, 103), M. I. Finley
criticises Weber's contortions and the lengths Weber had to go in order to force
the Athenian democratic polis into the 'charismatic' model. In these
matters, historical falsification is not the province of Marxism alone; it extends
to Weber's neo-Kantianism, where the 'separation of facts from values' prolongs
into social theory the incoherent instituted split between Kantian pandeterminism
(in the first Critique, Kant states that 'everything which exists is
completely determined') and Kantian moral theory (its unattainable polar star).
As we noted above, Coicaud also points out the connection between Weber's
inadequate notion of objectivity and his neutralist view of neutrality, on the
one hand, and his debilitating refusal to take a stand in relation to values,
on the other. Building upon this insight, we might go further and, challenging
Weber's neo-Kantianism, say that there is a revealing homology between his notion
of ideal types, which he treats as a 'utopia', both useful and unrealizable,
and his assertion, in a 1908 letter to Robert Michels that 'any thought . .
. of removing the rule of men over men through even the most sophisticated forms
of "democracy", is "utopian"'. Coicaud quotes, but does not challenge, this
last statement-which is, indeed, consonant with his own view that legitimacy
entails an 'asymmetry' in the 'political differentiation' of governors and governed,
instead of a possible reversibility of the roles of governor and governed
(Aristotle's definition of a citizen as someone capable, by turns, of ruling
and being ruled).
18. One can imagine a not-too-distant future where, with
the advent of the 'e-book' or another such electronic device that presents text
and other information in a hyperlinked format, it will be possible to place
the original language for key words and phrases 'underneath' the translated
text and thereby enable the reader to call up the original at will for examination,
consideration, and reflection. Of course, such an artifice, while perhaps highly
informative to the reader, by itself does nothing to resolve any concrete problems
of translation.
19. In addition to reviewing the translation, Coicaud has
also made a number of alterations in the text, nuancing some points, suppressing
others outright, and clarifying eventual ambiguities. The present text therefore
is, in this respect, more than and different from a faithful translation.