Patrick Wheatley^*

‘Any society is more than the sheer negativity to be indicted by the aesthetic law of form; even in its most objectionable shape, society is still capable of producing and reproducing human life.’
Adorno, Aesthetic Theory

*

The intention of this article is to reopen discussion on what this author considers to be an inherent problem with Max Weber’s legal-rational form of legitimacy. Weber’s position was that authority in modern, rationalised societies become legitimated upon the rationality of their laws. The product of this development is rule by virtue of "legality", by virtue of the belief in the validity of legal statutes and practical "competence" based on rational rules.¹ If, therefore, the perceived rationality of the law is offered as the basis for its legitimacy, such legitimacy is here argued to become instrumental in serving legality, because if rationally created and systematically ordered rules officially define the scope of power, and guarantee its legitimacy, then, provided state action conforms to official legal requirements, it follows that a policy can be adapted to reflect any values without disturbing the basis of its legitimacy.²

This article takes a philosophical approach to this problem through a reading of Theodor Adorno’s negative dialectic. In response to the violent events of the twentieth century, in Negative Dialectics (1966), Adorno developed the traditional Hegelian dialectic, questioning the notion of synthesis that made the latter ‘positive’.³ Where Hegel had argued that the positive content of dialectics made ‘it a development and [an] immanent progression’,⁴ Adorno challenged this idealism. He took issue with the view that there existed an underlying rationality to society beneath which antagonisms were teleologically resolved on course to universal freedom. Adorno’s dialectic is “negative”, because it questions resolution. Therefore, if existence cannot be reduced to a synthesised, linear process, but exists as a “constellational” dialectic of unresolved antagonisms that evade such structure, the practical implication of this is that society cannot be likened to Hegel’s mediated unity, but must be seen as a disunity, where relations are characterised by mediation, not fusion or separation. The root of this article is therefore to suggest that problems arise by attempts to imitate traditional dialectics and coerce mediations into syntheses. This position is introduced in the article through Adorno’s critique of instrumental reason. Instrumental reason is here defined as the compulsion in thought to favour what are considered objective and “rational truths”, which Adorno believed eliminated subjective qualities and thereby coerce the subject-object mediation. Reason therefore becomes an ‘instrument’ of objective dominance, rather than an end in itself.

The article’s premise is that there exists a fruitful dialogue between Adorno’s critique of instrumental reason and a contemporary understanding of legal legitimacy. It argues that if non-instrumental reason can be understood to be the moment of ‘reconciliation’, where neither subject nor object gain primacy, but express interdependence through mediation, then this indicates a possible direction towards non-instrumental legitimacy. What this author understands as non-instrumental legitimacy is therefore a “mediated” legitimacy. It is an understanding of law that is self-reflexive upon its interaction with society, by mediating the formal, rational tendency of law with greater proximity to the individual movements of society and serves as a non-coercive mediator of society’s diffuse parts. The implication to which this article draws attention is that under these conditions, systems of legal-rationality must be opposed as legitimating, but not legitimate.⁵

A solution to a mediated legitimacy however, is not offered here; rather, through highlighting the nature of mediation in human knowledge, the article points towards the “necessity” of understanding legal legitimacy as existing also in mediation. What is actually presented is an implied critique of instrumental legitimacy, with the specific intention to create an interdisciplinary dialogue with practitioners and sociologists of law, through which to establish a more developed critique that might construct a potential legislative direction to be undertaken to produce a more substantial form of legal legitimacy. It is this sense that this author understands the article as a project “towards” non-instrumental legitimacy.

This move towards non-instrumental legitimacy is presented in three steps. Firstly, the article considers Adorno’s analysis of the problem of instrumental reason in the structure of subjective experience. This section is composed primarily around Negative Dialectics, and intends to present negative dialectics as a project of critical theory towards non-instrumental reason. The second part of the article attempts to construct from Adorno’s oeuvre, the idea of this mediated reconciliation of epistemology, termed mediated non-identity, which tries to keep instrumental reason at bay. This section presents mediated non-identity as reconciliation through critique and argues that this is best shown through the mimetic capacity of works of art. It reaches the conclusion that, if Adorno presented reconciliation as aesthetic form, then it expresses the possibility of non-instrumental reason - and by extension, non-instrumental legitimacy - existing as a structure of self-reflexive critique that imitates the character of such form.

This article’s intention is to show, therefore, that Adorno’s project towards non-instrumental reason offers the possibility of articulating a non-instrumental legitimacy. This claim constitutes the basis of this article’s third section. If mediation is presupposed, law should not, and cannot be understood in terms of Weber’s legal-rational legitimacy, for his approach maintains a system of law far too removed from the mediated nature of society. If however, society is considered to exist under constellational dialectics, then positive law, built upon legal norms, must begin to adapt to the dynamics of this paradigm and strive for legitimacy not legitimation. When this subjective aspect of law is lost amongst the objectivity of legal-rationality, this article suggests, legitimacy becomes instrumental; this is what must be kept at bay.

The problem of teleology

Whilst negative dialectics aim to dispel the notion of synthesis within traditional dialectics, it is more accurate to consider Adorno’s position as a development, rather than a rejection of the Hegelian dialectic. For although Adorno presents what he terms as ‘positive dialectics’⁶ as a misconceived moment of identity, he maintained that what constitutes society is the dialectical character of irresolute antagonism between the subjective-private and the objective-public. The key to negative dialectics is the understanding that contradiction is established by any attempt to resolve and bring identity between these antagonisms, as this would require synthesis; contradiction is the illusion of this synthesis. This first section of the article considers the implication of Adorno’s negative dialectic and the problem of instrumental reason, within the structure of subjective experience.

Adorno questioned the idealism behind traditional dialectics partly in response to the events of the twentieth century - primarily, the Holocaust. He considered it sanctimonious to suggest, after Auschwitz, that there is a plan for a better world that manifests itself in and unites history.⁷ That these events informed the direction of Adorno’s dialectics is clear from his view that ‘harmony presents something as actually reconciled which is not’.⁸ When individuals experience “harmony” they are actually presented with an illusion that veils the inherent friction which has been coerced into ‘reconciliation’. Adorno presented synthesis as unattainable, and actually constituted by dissonance and violence, rather than by harmony, since one aspect within mediation attempts to dominate and force resolution with its other. The products of “synthesis” are therefore considered ideological and are to be critically assessed, because in terms of a process in which events can be seen to ‘run off course’ and reveal an irrationality,⁹ attempts to rationalise these prove contradictory.

The implication of Adorno’s challenge to synthesis is to problematise an underlying rationality to the historical process and to society more generally. Structures such as teleology imply traditional dialectics through their attempt to impose a linear rationality upon what Adorno perceived as an irrational process. Hegel’s dialectic as historical progress, in which tensions are resolved in positive terms, en route towards mediated unity, was therefore dismissed by Adorno as an outdated notion of coercive reconciliation. He believed this coercion was institutionalised in society rather than attaining a higher, metaphysical synthesis. The task Adorno therefore set for dialectics was to recognise that if ‘antagonisms unresolved in reality are immune to imaginary resolution’,¹⁰ and that any attempt to reconcile these contradictions within a singular totality or dialectic is untenable and ‘positive’, then society should be understood to exist not ‘“with” contradictions or “despite” its contradictions but “by virtue of” its contradictions’.¹¹ The connection this paper draws between this and instrumental legitimacy is that when an institution of law, through the rationality of its legislation, attempts to harmonise society, the coercion within the dialectic necessary for such action manifests itself in a moment of violence, by virtue of the domination undergone within the mediation and the contradiction produced. The inferences to be taken from this are put aside until part three of this article.

If Adorno presented a single dialectic as being incapable of resolution, then the position that a social totality can be understood as meaningful and rational, he believed equally untenable, because the irrationality of society’s individual components were not reconciled when viewed collectively.¹² The implication of this upon the historical process, conceived in terms of a single dialectic between subject (humanity) and object (nature), is that it must give way to a dispersed complex multitude of unresolved dialectics. Adorno envisaged this as the irresolution of a single dialectic ‘replicated on a large scale by a constellation’,¹³ which renders the unresolved passage of negative dialectics as a discontinuous cluster of contradictions: a constellation of dialectics. Adorno’s use of the term “constellations” was inherited by Georg Simmel,¹⁴ via Walter Benjamin.¹⁵ Simmel used the term as an aesthetic means to express a totality of dispersed parts without imposing another structure. Thus the proposal of constellational dialectics reinforces the idea that the antagonisms Adorno believed underline existence are not isolated, but exist interdependently without a rational structure. The temporality of constellations enforces the rejection of fixed totalities and is perhaps best expressed through the truth content Adorno attributed to a work of art.

As will be expanded upon in part two, for Adorno, critical works of art embodied a single moment of mediated non-identity within a single antagonism in society. Adorno believed that what was once true in a work of art afterwards became false in the course of historical time.¹⁶ This relates to the movement of constellations, as if the socio-historical conditions that works of art critique have themselves passed; it renders the opposition posed by such works, and the truth they present, as being out of sync with subsequent conditions. Over time such works therefore lose their relevance. Under such temporality, as Adorno wrote in Negative Dialectics, ‘when a category changes... a change occurs in the constellation of all categories, and thus again in each one’.¹⁷ The present article suggests that the fixity of truth is brought into question within this temporal framework. Repressed beneath the appearance of resolution, the steady accumulation of the ongoing fluctuations that characterise constellational dialectics therefore points to an ongoing state of mediation in which antagonisms are unresolved.¹⁸ This general outline of negative dialectics’ impact on society should serve to highlight that a similar dynamic exists within the structure of subjective experience. Therefore, if there exists an inability to synthesise in the context of knowledge, it suggests that instrumental reason can at best, be kept at bay. The project of negative dialectics within epistemology aims to keep the compulsion to identify (synthesise) in thought at bay, ultimately by means of some form of non-instrumental reason. In the context where the basis of identification equates the negation of negation with positivity, it is clear that negative dialectics sets out to be a ‘dialectics not of identity but of non-identity’.¹⁹ This illustrates how the key enterprise for dialectics is to engage in critical reflection so as to pursue the inadequacy of thought; in terms of epistemology, negative dialectics must be applied so as to ‘break the spell of identification’.²⁰ The means by which this can be achieved are elaborated later in section two through the idea of non-instrumental reason. It is sufficient at this stage to quote Adorno’s belief: ‘the determinate flaw in every concept makes it necessary to cite others’,²¹ which presents negative dialectics as an ongoing project of critical theory that does not point towards a total conclusion. In virtue of the temporal, constellational structures Adorno believed underpin society therefore, negative dialectics point to reconciliation through ongoing critique.

I

The problem of epistemology

The epistemic problem negative dialectics critique, is presented by Adorno through the dialectic of subject and object. Subject and object were conceived by Adorno as interdependent and would be ‘nonsensical’ without the other.²² The relevance of their mediation to epistemology is introduced by Adorno in Negative Dialectics,, when he suggested that in any mediation, ‘there is no transmitted thing without indirectness’,²³ to which he added in the essay, Subject and Object (1967), that ‘what is known through consciousness must be something’.²⁴ Therefore, Adorno concluded that ‘there would be no mediation without ‘something’,²⁵ and in the process he illustrated that what constitutes knowledge is likely to reflect the unreconciled state of dialectics.

What mediates between subject and object is Adorno’s notion of the concept. A concept is a category of reflection that is similar to the ‘gap between words and the things they conjure’, which renders words unable to fully identify with what they represent.²⁶ This gap, or indirectness between the concept and its object, Adorno termed their “non-identity”. The problem Adorno addressed is that while negative dialectics question synthesis in knowledge, concepts compulsively try to identify with their object non-identity when transmitting the object to a subject, and attempts to convey a total image. But in veiling the reality of its distance, concepts produce an illusion that forms a contradiction in the mind.

This appearance of identity is, Adorno believed, inherent in thought itself and cannot be transcended. Concepts therefore produce a contradiction of identity, which led Adorno to suggest that because concepts are characteristic of indirectness,²⁷ ‘identity and contradiction of thought are welded together’.²⁸ The inadequacy with which this renders thought, and undermines the legitimacy of knowledge, is apparent, and yet for Adorno, the distance produced by a concept is not a major issue in itself, as it lies in the definition of mediation to be neither fused nor separate. Rather, a problem arises when this distance is coerced into the contradiction of identity under which the concept ‘binds subjectivity and thought into the objectivity that stands opposed to it’.²⁹ Even granted that ‘everything that contradicts itself is to be excluded from logic’,³⁰ if, as this author believes, distance does not equate with contradiction, then Adorno did not abandon the possibility of “knowledge” altogether, but simply stressed the need for critical reflection to reduce concepts’ drive for identity. When knowledge is not critical, it amounts to identical thinking; non-identical thinking as mediated non-identity as reflexive critique strives to keep this at bay by acknowledging this attempt at synthesis. This is crucial to understanding the path towards non-instrumental reason and will be developed in part two.

This tendency of concepts to identify, and the repercussions this has upon subjective experience as instrumental reason, is more clearly expressed when concepts are broken down into universal and particular concepts. If it is recognised that the object is expressed under the universal concept and the subject under the particular, then the step towards instrumental reason is clearly established by the universal’s attempt to overrule the dialectical relationship which exists between the particular and itself. The coercive nature that characterises identity is therefore experienced in a concept’s form by the universal’s domination over the particular. As Adorno wrote, when concepts try to construct identity, ‘the universal compresses the particular until it splinters, like a torture instrument’.³¹ The violence of the universal is here conceived as the dynamic that forms the basis of instrumental reason, and thus explains negative dialectic’s attempt to form non-instrumental reason.

Adorno’s work with Max Horkheimer, in the Dialectic of Enlightenment (1947),³² pointed to the problem of instrumental reason emerging from identity thinking where ‘power confronts the individual as the universal, as the reason which informs reality’.³³ If the ‘reason’ that underlines the universal is predicated upon synthesis, and the pursuit of such reason is grounded in the belief that it will ‘liberat[e] human beings from fear and install themselves as masters’,³⁴ these conditions highlight how the dominance of the universal concept manifests itself as instrumental reason. Adorno reminded us of this when he observed that ‘identity exists no more than do freedom, individuality, and whatever Hegel identifies with the universal. The totality of the universal expresses its own failure’.³⁵ By keeping the universal at bay, negative dialectics try to maintain the concept as a balanced mediator, and in the process, point towards non-instrumental reason.

Negative dialectics and instrumental reason

The damage instrumental reason inflicts upon subjective experience through the universal concept’s coerced reconciliation is best introduced through Dialectic of Enlightenment. Adorno and Horkheimer here put forward the view that the Enlightenment was driven by the notion of the primacy of human rationality associated with the pursuit of ‘scientific objectivism’; they argued that the concept’s compulsion to favour the objective, encouraged universal aspects of mediation to eliminate subjective qualities and to transform them into measurable definitions’.³⁶ In the process, the spontaneous, qualitative aspects within the structure of subjective experience are kept at bay in instrumental reason. Under these conditions, reason serves the goal of ‘the triumph of objectivity’,³⁷ and by virtue of being conceived as a means, such rationality becomes instrumental. Instrumental reason therefore veils mediation as identity, from which Adorno later concluded paradoxically in Negative Dialectics, that ‘thoughtless rationality is blinded to the point of madness by the sight of whatsoever will elude its rule. For the present, reason is pathetic; nothing but to cure ourselves of it would be rational’.³⁸ To anticipate the link drawn in this article between instrumental reason and instrumental legitimacy, experience of knowledge under the former is characterised by the domination of the universal concept over the particular. Adorno maintained that rather than raising humans to more perfect levels of knowledge and freedom, the identity thinking of instrumental reason, through the domination of the universal concept, tends to suppress the particular, individual aspects of humanity.³⁹ This suggests that individuals are not fully ‘individual’, as they are alienated from their particular-subjective elements. If, as Adorno suggested, this reason is institutionalised in bureaucratic hierarchies within modern societies, then such coercion goes on to suppress individuals in society and prevent the possibility of truly spontaneous and harmonious interactions.

Instrumental reason as the misconceived telos that liberates is therefore a ‘deception of the masses’.⁴⁰ Adorno and Horkheimer attributed this regression of the masses to the dominance of the universal concept that produced an ‘inability to hear with their own ears what has not already been heard’.⁴¹ Instrumental reason must therefore be kept at bay, Adorno himself argued, because in forgetting the primacy of mediation, under which subject-object ‘can be known only as it entwines irreconcilably with its other’,⁴² reason as identity leads to the domination of the object through the subjugation of the particular to the universal. This ‘separation is no sooner established directly, without mediation, than it becomes ideology’.⁴³ In this sense, individuals perceive the universal to be a spontaneous particular of their own making, which therefore alienates their subjective qualities from the structure of experience. The domination that Adorno and Horkheimer believed instrumental mediations establish, subsequently deceive the masses as their perception of individuality is an illusion. Non-instrumental reason aims at reclaiming the human element of mediations.

The disbalance of subject-object in instrumental reason through the universal is more fully understood in the context of the universal concept of profit motive within capitalist society. Adorno referred to the influential role of the market economy on subjective experience throughout his work. As he described in Aesthetic Theory (1970), he thought the concentration and centralisation of economic power had repercussions for the most recondite intellectual processes, affecting them in ways that are often impossible to recognise.⁴⁴ Restating the Marxist position, Adorno thought that what bound the world of commodities together was the transfer of the use-value of consumption goods to their exchange-value,⁴⁵ due to the creation of surplus that was foregrounded by the shift from barter to exchange. The consequence for “intellectual processes”, is, as Adorno described in Negative Dialectics, ‘the universal domination of mankind by the exchange-value... which degrades subjectivity itself to a mere defect’.⁴⁶ The implication of exchange-value as a universal concept is that the ‘rationality’ it generates begins to constitute people through its domination, and what they are for themselves, in terms expressed by the qualitative nature of particular concepts, becomes secondary.⁴⁷ A society based on exchange-value, in virtue of the emphasis placed upon the universal concept of the profit motive, encourages the profit motive to manifest itself as a form of instrumental reason. The extent of this problem was clearly articulated in Adorno’s fear that, ‘this profit motive which divides society, and potentially tears it apart, is also the factor by means of which society reproduces its own existence’.⁴⁸ In this context, rather than striving for mediation, the universal concept of the profit motive applies coercion through its dominance and thus, as Adorno described, promotes ‘the capitalist system’s increasingly integrative trend, the fact that its elements entwine into a more and more total context of functions’,⁴⁹ which ultimately reduces non-identical individuals to being identical.

The illusion is that a social system built on profit motive serves the end of “equality” through the individualism and exchange of equivalence it advocates. The power of negative dialectics, as a critique of instrumental reason, is illustrated in this context by Adorno’s argument that ‘once critical theory has shown it up for what it is [a social system built on profit motive is revealed as] an exchange of things [that] are equal and yet unequal – for critique of the inequality within equality aims at equality too. For all our scepticism of the rancour involved in the bourgeois egalitarian ideal that tolerates no qualitative difference’.⁵⁰ Adorno believed this would allow a social system built on a profit motive that perpetuates itself: besides the unconscious domination that the universal concept performs, exchange-value, he suggested, established a more conscious instrumental drive since, to be successful is equated with achieving profit. A speculative point might be made that social change for Adorno is contingent on a form of non-instrumental reason that challenges the autonomy of universals in subjective experience. In terms of market capitalism therefore, an example would be the development of a society in which the perception of success was not synonymous with salary size. This can be inferred from Adorno’s comment in Aesthetic Theory, that if ‘the emancipation of society from the predominance of material, economic conditions aims at creating a true subject’,⁵¹ because, as he commented elsewhere, ‘a violent overthrow of existing society by the proletariat has come to seem touchingly innocent’,⁵² then envisaging the means for such a transformation exist within an individual critique of their own subjective experience.

The parallel developed below to the concept of law is illustrated by Adorno’s comment that, ‘the straighter a society’s course for the totality is reproduced in the spell-bound subjects, the deeper its tendency to dissociation’,⁵³ an insight which emphasises the role of instrumental reason as having relevance beyond epistemology. It is therefore argued in part three, that instrumental reason is equally distorting to the concept of law, and that if law is a crucial means by which this reason is institutionalised in bureaucratic hierarchies, negative dialectics as a critique of instrumental reason, informs us of the possibility of keeping it at bay, through a mediated reconciliation. It is to the latter that the article now turns.

II

Negative dialectics has been presented as a project of critical theory directed at dispelling the illusion of identity within thought. That Adorno presented identity thinking as the product of a lack of self-reflection,⁵⁴ confirms that his project of non-instrumental reason must be predicated upon some form of self-reflexive critique that addresses this problem within the structure of subjective experience. He described that this ‘must be a thinking against itself’.⁵⁵ Furthermore, the profit motive inherent in the capitalist society that Adorno suggested, encourages the domination of universal concepts in mediations, implies that any remedy cannot be restricted to epistemology, but must have “social” repercussions.⁵⁶ The temporality produced by constellational dialectics, which suggests that instrumental reason can at best be kept at bay, illustrates how Adorno’s project of critique works to maintain the universal-particular dialectic as a mediated reconciliation, by acknowledging its non-identity.

This is illustrated by how the illusion posited by instrumental reason is seen to take hold when individuals fail to critically reflect upon universal concepts: as Adorno claimed in Aesthetic Theory, ‘to grasp truth content is to be engaged in criticism’. Under the temporal confines of constellations, the character of critique, as Adorno stated, is ‘that it will not come to rest in itself as if it were total’.⁵⁷ Therefore, because negative dialectics do not purport to offer a rival universal concept, they simply work to “uncover” the illusion of such thought. This article argues that as instrumental reason cannot be transcended, Adorno’s solution is characterised as reconciliation through on-going critique.

Adorno’s philosophy therefore forces us to abandon the traditional idea of reconciliation. The positive dialectic acts mathematically, imposing structure by synthesising its content into an illusion of harmony. As has been shown above, with regard to instrumental reason, this inflicts harm.⁵⁸ Instead, Adorno proposed a “mediated” reconciliation, which is here termed mediated non-identity. This will later be seen in the final part of this section to equate to his idea of aesthetic form, which this author considers to be the direction towards non-instrumental reason. This section of the article, in constructing mediated non-identity, therefore turns firstly to the offer of a definition of mimesis, so as to illustrate the element of critique, before going on to discuss reconciliation. The focus at this stage is to suggest that since Adorno offered reconciliation to instrumental reason through mediated non-identity, his emphasis on “form” foregrounds the discussion of the direction from which to construct non-instrumental legitimacy.

Mimesis

Mimesis can be introduced as a utopian image of unfulfilled promise of identity between object and concept, capable of presenting a fragment of this reconciliation, though not its actuality. In this sense mimesis is partially illusory as it presents the possibility of reconciled subjectivity in abstraction, through its absence. As an idea of promise, mimesis is best introduced through its use by Walter Benjamin. In his essay On the Mimetic Faculty (1933), Benjamin described construing mimesis as being ‘to read what was never written’,⁵⁹ and in the process presented mimesis, not as a ‘thing’ but as something closer to a moment of promise that is the product of a synthesis without contradiction. Inherent to this is the notion of “sublation” as used by Hegel, which means to simultaneously administer “preservation” and “negation”.⁶⁰ To recall from part one of this article, Adorno’s description of concepts replicates the gap that a word represents: within this analogy sublation is the point at which the mimesis harnesses a universal concept and pulls it through a particular concept. In sublation concepts therefore become assimilated, in contrast to the domination undergone in instrumental reason. This point of forced identity releases the mimetic image of potential reconciliation, that can be inferred from Benjamin’s linguistic discussion of mimesis, when he wrote:

Benjamin here presented the mimetic identity between the universal and particular during which a word simultaneously transmits the universal essence of meaning through the particular appearance of a native tongue, by means of sublation. The promise of utopia within this dynamic is developed by Benjamin in an earlier essay, The Task of the Translator (1923). He here highlighted the mimetic creation of utopia during sublation, how ‘if there is such a thing as a language of truth [it would be] tensionless and even a silent depository of the ultimate secrets for which all thought strikes’, to which the point of translation, inferred from the earlier quotation, gestures momentarily to this utopia during sublation.⁶²

However where Benjamin posited this mimetic capacity in language, Adorno developed its use towards aesthetics. Therefore, in our understanding of mediated non-identity as non-instrumental reason, this section directs attention to the dynamic that Adorno gave to art. It is therefore to Adorno’s Aesthetic Theory that one should turn for a deeper understanding of the mediated reconciliation attributed to works of art. Indeed, if critical art performs mediated non-identity by engaging directly with a mediation, and sublating itself to the illusion, without becoming dominated, then this article as a whole demonstrates the need for individuals to imitate this process as self-reflexive thinking.

To reiterate this: if the mimetic moment does not imitate a “thing” - in Adorno’s case, non-identical reality - but ‘assimilates itself to that something’ (my emphasis),⁶³ then critique, representing a mediation through identification of the disruption within its balance, is achieved by what Adorno termed the ‘redemption of illusion’. This moment of redemption serves as an ‘epiphany of the hidden essence of reality’, that tries to salvage the “non-identical”.⁶⁴ Redemption of illusion refers to the mimetic moment in critique, when identity is shown to be non-identical. In this sense ‘redemption aims at bringing out the “truth content” of false consciousness’, through mediated non-identity.⁶⁵ The mimetic redeems the illusory and presents the attempt at identity as being non-identical. For Adorno, mimetic identity therefore ‘re-enacts reality’s spell, [and] sublimates it[self] into an image while at the same time freeing itself from it’.⁶⁶ Mimesis therefore tries to address the structural problems within subjective experience.

If, as this section suggests, Adorno presented mimetic critique through works of art, then in the process of assimilation to illusion, such art is expected to appear dissonant. This is explained by the contrast between committed and authentic art. Committed art, Adorno believed, imitates crudely the antagonisms of social reality, but authentic art “becomes” part of the antagonism during mimetic assimilation. When we experience such art works, Adorno believed, we recognise social reality without a coerced ideology. It is for this reason, he argued, authentic art has to be dissonant and reject harmony if it is to convey the possibility of truth, for in the moment of redemption, art does not expose the traditional notion of harmony, but actually presents its contradiction.⁶⁷ It is due to their non-identical essence that authentic works of art as social critique, uncover as social critique that which requires their appearance to ‘inspire shudder in the face of the falsity of that essence’.⁶⁸

The dynamic of mediated non-identity expressed in the redemption of illusion points to that moment at which critique grasps the true essence of reality’s non-identity and forces ‘it to reveal itself in appearance and at the same time puts itself into opposition to [that] appearance’.⁶⁹ In this momentary glimpse of mimesis, art brings forward the knowledge of a society’s true essence. Although its illusory character is absent, its absence does not yet equate to non-existence. It is this paradoxical nature of mimesis, that points to a possibility that can only be achieved in abstraction, which best conveys the self-reflexive nature of mediated non-identity. In terms of non-instrumental reason therefore, if individuals were to critique concepts in a similar way, the non-identity of universal primacy would be exposed, and, Adorno believed, would foreground reconciliation. Such reconciliation is wrought through critique and, as has been indicated above, although critique does not envisage eschatology, it does confirm the momentary illusion of synthesis.

What is crucial about mimesis is that its illusion exists within constellational dialectics. Therefore the truth content that a work of art produces, is itself fragmentary. As Adorno stated, art works are most critical when first produced and thereafter become neutralised because the social conditions have changed.⁷⁰ This temporality suggests authentic art cannot concretise identity and points to the fact that the promise of utopia within the mimesis is itself illusory. As such, unity is feigned, for it cannot be achieved under the current antagonistic society. This makes mimesis illusional because such unity covers up social antagonisms, including mediated non-identity’s own opposition to society.⁷¹ To anticipate what is developed later in this section, the role of reconciliation within mediated non-identity, is to mediate this mimetic identity and the non-identical essence exposed to produce an image of reconciliation. For Adorno, this disclosed the “possibility” of a reconciled society emancipated from imposed identity.⁷² That this temporary balance, itself containing the irrepressible ‘vestiges of despair and antagonism that exist within dialectics’,⁷³ restates Adorno’s position that the critical project of negative dialectics is perpetual and one which imminently reflects upon itself, that is it is reconciled “through” critique. Therefore, in terms of a pathway towards non-instrumental reason, the critical project of mediated non-identity offers insight as to how, like authentic art, thought must confront the non-identical and in mediation between this and mimesis, recognise the direction to take. This article argues that the reconciliation that mediated non-identity points towards was presented by Adorno through aesthetic form. This is addressed in the final part of this section.

*

Mediated non-identity is a dialectic between the mimetic and non-identical through which reconciliation is reached through critique. Adorno explained that ‘dialectics means to break the compulsion to achieve identity, and to break it by means of the energy stored up in that compulsion and congealed in its objectifications’.⁷⁴ If then critique’s task is to judge the subjective and objective shares, within their dynamics, mediated non-identity must be recognised as measuring the balance of dominations so as to break the spell of identification. In order to establish a reconciled mediation, critique is therefore directed against the false objectivity of concept fetishism, whose domination reduces the social subject and so weighs directly upon the problem within the structure of thought. This role of critique within mediated non-identity therefore uncovers the false subjectivity that arises from a universal concept being perceived as particular. In terms of instrumental reason, as was suggested by mimesis, a mediated reconciliation of epistemology would recognise the identifying tendency between object-concept and expose it as non-identical. Such reconciliation, due to constellations, would not however produce a homeostatized mediation, but serve only to keep concept domination at bay. As such, non-instrumental reason should be inferred as mediated non-identity and emphasise how reconciliation, due to temporality, is achieved through perpetual critique.

As mimesis illustrates, the aim of critique in mediated non-identity is to salvage the fragments of truth within a fraudulent identity and, in the process, become ‘the means employed in negative dialectics for the penetration of its hardened objects’.⁷⁵ To unveil the non-identical, critique ‘grasp[s] the universal within the particular, the universal being the hidden principle of coherence of empirical life’.⁷⁶ It is through sublation, which Adorno presented in works of art, that his aesthetic theory is central to understanding mediated reconciliation. What is significant about mediated non-identity is that, in taking hold of the universal, it does not replace the dominant universal concept of bureaucratic society with a false emphasis on particularity. As mediated non-identity reconciles through critique, it ensures it is reflexive upon its own conclusions.

Mediated non-identity: reconciliation through critique

As has been touched upon, Adorno reconfigured the idea of reconciliation as different to an imposed synthesis by establishing mediation. If reconciliation equates to Adorno’s aesthetic form, then, like his conception of reconciliation, it is not imposed on its content, but rather “emerges from” it.⁷⁷ Adorno presented aesthetic form as the mediated reconciliation that ‘is the non-repressive synthesis of diffuse particulars...preserv[ing] them in their diffuse, divergent and contradictory condition’.⁷⁸ If mediated non-identity as aesthetic form reconciles its content without masking the tension of that mediation, it therefore allows qualitatively different impulses to exist simultaneously as an organic mediation characterised by a ‘state of distinctness without domination’.⁷⁹ Adorno believed that the sublation of the universal concept in mimesis enables art works to ‘become conscious of the non-identity in [their] midst’.⁸⁰ As in the music of Arnold Schoenberg, Adorno believed that when mimesis enables appearance to genuinely reflect its content’s essence, then its aesthetic form reconciles this content in mediation. In advancing the reconciling role of mediated non-identity, therefore, as a move towards a conception of non-instrumental reason, this author suggests that there exists within this dynamic of aesthetic form a way of conceiving non-instrumental reason. As shown in the final section of this article, this claim is intended to demonstrate that, if an understanding of non-instrumental reason rests upon a reconsideration of its form, this applies also to non-instrumental legitimacy: to grasp non-instrumental legitimacy therefore requires interrogating its form.

Mediated non-identity as aesthetic form is proposed on the basis that if the former is held to present the unattainable promise of truth through mimesis and allows the appearance of content to be a transparent representation of its essence, then aesthetic form cannot be reconciliation in the traditional sense without being coercive. If, as Adorno contended, aesthetic form, ‘represents freedom whereas empirical life represents repression’,⁸¹ then what is highlighted is that if instrumental reason is the product of coerced, traditional reconciliation, it is the dynamic of its own form that must be addressed. Form is therefore presented as the “unfolding of truth” and understood by this author to represent mediated non-identity.

The argument is, therefore, that mediated non-identity as reconciliation through critique, is most clearly expressed by Adorno through authentic works of art. An art work strives to reach mimetic identity with itself, from which emerges the redemption of illusion, and under aesthetic form exists alongside its non-identical content. Reconciliation is contingent on Adorno’s notion of aesthetic form, through which mediation between mimetic illusion and the non-identity of reality can be gauged. In so doing, it maintains balance through a reflexive critique that keeps the veiling of its tensions at bay. This mediated non-identity is therefore pivotal to non-instrumental reason. Mediated non-identity through aesthetic critique can be developed by examining the idea of non-critical art. Adorno advanced the problem of non-critical art in music as the presence of harmony, which led him to suggest that ‘the more reified the music, the more romantic it sounds to our alienated ears’,⁸² and, therefore, the more it has succumbed to the principle of domination within modern society. This domination is manifested in its ‘pleasant’ appearance, that strives for traditional form.

This capacity of art “in its form” to embody the problems of identity-thinking parallels how instrumental reason contributes to the liquidation of the individual. If this, as Adorno concluded, ‘is the real signature of the new musical situation’,⁸³ under which all ‘light’ and ‘pleasant’ art is to be considered mendacious, then in terms of art works, what is traditionally considered aesthetically pleasurable can no longer be upheld.⁸⁴ The link between Adorno’s discussion of aesthetic reconciliation and the critique of instrumental reason can be drawn from Adorno’s suggestion that the promise of happiness, which was once the definition of art, can no longer be found ‘except where the mask has been torn from the countenance of false happiness’.⁸⁵ This false happiness is held to be the illusion of harmony in its form. Therefore, when art is authentic and serves as critique, it necessarily appears dissonant, for in becoming mediated non-identity such art expresses itself by becoming assimilated to the non-identity of society.

Adorno therefore presented authentic art as mediated non-identity that assists the non-identical in its struggle against the repressive identification compulsion that rules the outside world - and therefore equates it to critique.⁸⁶ The dynamics within critique, as mediated non-identity, and the potential it holds, was presented by Adorno through the capacity of authentic art ‘to utter the unutterable, which is utopia, through the medium of the absolute negativity of the world’.⁸⁷ Through critique within mediated non-identity, human knowledge might therefore adapt to the fragmentary constellation it embodies, and in recognising illusion, the appearance of its content would no longer be coerced to veil its essence. Rather, it would give liberty to its content to express its mediations transparently, and therefore oppose the discursive order of society.⁸⁸ This is only possible, Adorno believed, because aesthetic form reconciles this non-identical essence within an art work’s content without coercion. It is for this reason that, under present social conditions, the appearance of this content is dissonant. Perhaps if the structure of subjective experience imitated aesthetic form in reflecting upon the dynamics of mediation and unveiling moments of identity as fraudulent, and reconciled these “without” coercion, an epistemological mediation that represents aesthetic form might be attained. This would be a non-instrumental reason.

Any understanding of non-instrumental reason should, therefore, be informed by Adorno’s conception of aesthetic form. This is made clear by his assertion that aesthetic form promotes, ‘in its proper place, even epistemologically, the relationship of subject and object world [which] lie[s] in the realisation of peace among men as well as between men and their Other’.⁸⁹ The outline here given of Adorno’s mediated non-identity is intended to direct attention towards non-instrumental reason being contingent upon immanent critique that reconciles its non-identical parts. Furthermore, the possibility of non-instrumental reason is seen to rest on a project of critical theory unveiling those moments of identity thought, which exist under instrumental reason, and thereby achieving a mediated reconciliation. This foregrounds the relevance of non-instrumental reason and mimesis to the study of instrumental legitimacy.

The final part of this article argues that when legitimacy is based upon legal-rationality, the formal structure it takes on, by removing the subjective elements of legitimacy and prioritising objective legality, imitates the universal concept’s domination of the particular, under instrumental reason. Therefore, if legitimacy is properly understood to be non-coercive, mediating its diffuse parts without domination, when law is reduced to a Weberian legal-rational legitimacy, in allowing the subject to be dominated by “objective”, universal concepts of reason, it cannot be said to have substantive legitimacy. This is the important connection to which this author draws attention between mediated non-identity as aesthetic form and non-instrumental legitimacy.

III

A critique of instrumental legitimacy: towards non-instrumental legitimacy

In arguing that Adorno’s studies towards non-instrumental reason rest upon a mediated non-identity that reflects aesthetic form, this article’s central claim is that, in ways which have not been developed in the critical literature, Adorno’s arguments can make an important contribution to the project of non-instrumental legitimacy. Non-instrumental reason was shown by Adorno to be possible under conditions which capture the dynamics of aesthetic form; likewise, it is suggested that legal legitimacy, through the reformulation of “its” form, also offers the possibility of mediated reconciliation. Adorno’s brief reflections upon instrumental legitimacy in Negative Dialectics here serve as the theoretical basis on which to foreground this study and to advance the view that if law is to function as a social mediator, it must be legitimated by something more than the instrumental rationality that characterises the form of legal-rational legitimacy. As was stated at this article’s outset, the critique of instrumental legitimacy necessitates a non-instrumental legitimacy that produces a mediated reconciliation between law and individuals. The setting forth of the “appearance” of mediated legitimacy goes beyond the confines of this article. Rather, in critiquing instrumental legitimacy, it is hoped to capture the essence of non-instrumental legitimacy that might then inform the practice of law by encouraging others to adopt a similar understanding to legal research.

The problem of law is stressed because instrumental legitimacy replicates the dominance of the universal concept within instrumental reason. Therefore, the coercion inherent within the latter, when existent under systems of law, is directly applied upon society. This domination manifests itself as rational violence that excludes the particular, and yet is maintained under the dominant universal concept as legitimate action. With this in mind, the received view of legal legitimacy, to restate Weber, is that in modern, rationalised societies there exists rule by virtue of "legality", by virtue of the belief in the validity of legal statutes based on rational rules.⁹⁰ The perceived rationality of the law, much like the rationality of universal concepts in instrumental reason, is offered as the basis for its legitimacy.

Legitimacy becomes instrumental in serving legality, but under these conditions it lacks true legitimacy because such ‘rationality’ is actually undermined by its contingency upon the universal concept of domination. If, therefore, legal rationality incorporates the universal concept of reason’s attempt at domination in instrumental reason, then the evaluation of a law’s “content” becomes irrelevant to its legitimacy, because, likewise, a legal rule is not contingent on law’s reflection of particular, subjective values. Therefore, if rationally created rules officially define the scope of power, thus guaranteeing its legitimacy, then, provided state action conforms to official legal requirements, it follows that a policy can be adapted to reflect any value without disturbing the basis of its legitimacy.⁹¹ Weber expressed this primacy of the universal, rational concept when he wrote: ‘what is decisive for us is only that, in principle, behind every act of purely bureaucratic administration there stands a system of rationally discussable “grounds”, i.e., either subsumption under norms or calculation of means and ends’.⁹² This approach led Adorno to describe ‘the total legal regime [as] one of definitions’, a position that illustrates the link, which Adorno did not develop, of the universal concept within instrumental rationality and legal legitimacy. This connection is clearly implied in Adorno’s negative assessment of legal systems as instrumental, whose ‘systematic [character] forbids the admission of anything that eludes their closed circle’.⁹³

This article, therefore, argues that the problem of instrumental legitimacy is the rationalisation of the concept of law. By formalising the concept of legitimacy, it can grant legitimacy to any act of legality that can cite a rational, legal norm to cover its administrative practices as legitimate.⁹⁴ In systems of instrumental legitimacy, this is possible only by the domination of the subjective dynamics of law which leave it to function in terms of rationality; this structure cannot be seen to accurately reflect society and thus is unable to legitimately mediate between individuals in society. If we accept, therefore, that, wherever there is evident social complexity, one observes mediation rather than unmediated unity or hermetic separation,⁹⁵ then our attention should be drawn to the fact that if social constellations are seen to be coerced, under the same conditions as instrumental reason, society takes on the illusory form of reconciliation. The product of this reconciliation, Adorno argued, ‘for the sake of an unbroken systematic, the legal norms... raise the instrumental rationality to the rank of a second reality’.⁹⁶ To clarify: instrumental legitimacy, by the primacy given to the universal concept of reason under legal-rational legitimacy, imitates traditional forms of reconciliation over society and is therefore characterised by a veiled coercion.

Adorno’s concern over the violence that stems from legal-rational legitimacy’s domination by the universal concept points to an underdeveloped call for non-instrumental legitimacy in his work. Adorno revealed the similarity of instrumental legitimacy’s character to that of instrumental reason’s: it is clear ‘from the outset, by subsumption of everything individual under the category, the system of self-made concepts that serve a mature jurisprudence to cover up the living process of society is opting in favour of the order initiated by the system of classification’.⁹⁷ Law therefore produces under these conditions an illegitimate form of instrumental mediation in which a universal concept dominates a particular. If law is intended to serve as a third instance to the mediation of societies and individuals within them, therefore, the neglect of particulars to universals illustrates how inadequate legal-rationality is as a basis for legitimacy. The construction of society upon this traditional form of reconciliation - contingent upon identity - anticipates the product of violence. Adorno wrote, ‘what tolerates nothing particular is thus revealing itself as particularly dominant, and therefore the general reason that comes to prevail is already a restricted reason’.⁹⁸ This points to the most pertinent problem of instrumental legitimacy which is that not only does its form replicate the dynamics of instrumental reason but its subsequent legal-rational basis directly legislates instrumental reason onto society. The coercive tension that constitutes this illusion of synthesis imposed by instrumental legitimacy upon society issues in illegitimate force as a result of the universal concepts’ domination, which Adorno suggested,

This brief comment from Adorno illustrates how, under instrumental legitimacy, the violence inherent in instrumental mediations more generally, through the social power granted upon legal systems, is administered in its attempts to maintain a rational basis. In the process this illustrates the attempt of appearance to veil its content’s essence as occurs under instrumental reason. The relevance of the analysis of Adorno’s critique of instrumental reason undertaken in the previous sections of this article should, therefore, be made apparent by this and, by extension, show the necessity of establishing non-instrumental reason.

To cite Otto Kirchheimer within this context, the interchange between instrumental reason and instrumental legitimacy must be mediated as ‘an ideology may be misleading because it interprets democratic reality in light of a preconceived utopia that is incorrectly seen as being already realised in existing democracy’.¹⁰⁰ The rationality that is seen to underpin democracy as a tool to liberty, in light of a critique of instrumental reason and instrumental legitimacy, actually emerges as illusionary and instrumental. Thus there is a need to reconfigure the form of legal legitimacy. It can be discerned from the little Adorno did write on law that notions of underlying unity, when understood socially, while their appearance is conceived as open and democratic, have an essence characterised by structures of non-negotiability. Under these circumstances, instrumental legitimacy’s relation to individuals in society, replicates instrumental reason, as its administration of society attempts to rationalise this complex structure into one that equates to a universal concept. In so doing it neglects the dynamic of particularity and administers violence when the individual (particular) opposes the universal.¹⁰¹ At its most basic level, instrumental legitimacy is the institutionalisation of instrumental reason.

Conclusions

This article points towards the unexplored link in Adorno’s work between instrumental reason and instrumental legitimacy. Revealing this important connection foregrounds the necessity of moving beyond the understanding of law as legitimated by existing legal-rational. The view has been put forward that legal legitimacy should be founded on less objective grounds and therefore, by reconciling the formal, rational tendency of law with the subjective-individual aspects, a system of law is needed that creates greater proximity to the individual movements of complex society. The limits of this article preclude an account of what would comprise non-instrumental legitimacy. The purpose of this article therefore, has been to argue that the problem of coerced mediation which is endemic to instrumental reason, exists also for instrumental legitimacy and, through this critique, indicates the direction of non-instrumental legitimacy. Thus, this article is hopefully the start of a much larger collaborative and interdisciplinary project.

Law should strive to mediate people and society without damaging individual human natures through instrumental coercion.¹⁰² This author believes that the potential of such reconciliation exists in the application of Adorno’s aesthetic form, as mediated non-identity to the study of legal legitimacy. If the institution of law is understood in more sociological terms than Adorno himself pursued, the constellations that he cited as the product of unresolved antagonisms suggest that society, under these conditions, cannot attain true reconciliation. As the attempt to impose traditional reconciliation has been shown to create instrumental legitimacy, the goal that this article believes systems of law must set themselves, is to perform the task of aesthetic form: to synthesise the diffuse elements of society whilst recognising their mutual mediation and interdependence.

Perhaps the most crucial link between Adorno’s study of instrumental reason and instrumental legitimacy, is the direct interaction of instrumental reason and instrumental legitimacy through the legislation issued under systems of legal-rational legitimacy. To reiterate and build upon the conclusion of the discussion of teleology in part one: if teleology is questioned, then so too any idea of natural law must be queried. If non-instrumental mediations, as understood by Adorno, are an imitation of aesthetic form, they cannot therefore be without “any” structure, but require one that is non-coercive and negotiable. A system of law informed by this must, therefore, be seen to function on the basis of some sort of positive law and predicated upon norms. This article has presented how constellations give temporality to truth values, an issue that any form of legal norm under non-instrumental legitimacy, would be subject to. If not met with critique, the legitimacy of legal norms would be cast into doubt as a result. Mediated legitimacy, through critical theory, like knowledge, would have to reflect upon norms, or else descend into instrumental legitimacy. Here the relevance of mediated non-identity to non-instrumental legitimacy is made clear. When legal norms become out of sync with constellations, as Kirchhemier indicated elsewhere and this author cites below, the subsequent legislation issued becomes instrumental, as it no longer serves only to mediate, but exists as a defence mechanism to law itself. The direction that the study of instrumental legitimacy and reason must take, so as to maintain a mediated reconciliation that does not produce domination, lies in the application of critical reflection upon itself. As Kirchheimer observed, false-consciousness can be generated by “superstructures” that lag behind the transformations of the social structure. While the contents of a particular form of consciousness may once have been “right” in that it corresponded to a particular set of real conditions, it becomes “false” once substantial changes in those conditions have taken place.¹⁰³ A form of non-instrumental reason, understood in terms of the mediated reconciliation that this article has tried to draw from Adorno, would address this problem. The resonance of Adorno to this project is expressed by his comments on the problem of instrumental legitimacy, that, ‘if the legal order were not objectively alien and extraneous to the subject, the antagonism that is inescapable for Hegel might be placated by better insight’.¹⁰⁴ What is highlighted, therefore, is that the mediation undertaken by law must go beyond the legal-rational legitimacy that replicates traditional reconciliation. Rather the mediation needs to imitate aesthetic form so that the possibility of more human than instrumental interactions might be achieved. As non-instrumental reason has been shown to address the structural problems within subjective experience, so non-instrumental legitimacy would hope to better serve as a mediating structure between individuals and their experience of society.