The Notion of an Ideal Audience in Legal Argument (Law and Philosophy Library)

The Notion of an Ideal Audience in Legal Argument ARGUMENT, Kluwer Academic Publishers, May and Law and Philosophy, Vol.
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For more recent exchange rates, please use the Universal Currency Converter. This page was last updated: Number of bids and bid amounts may be slightly out of date. In both the broad and the narrow senses, however, a critical theory provides the descriptive and normative bases for social inquiry aimed at decreasing domination and increasing freedom in all their forms. Critical Theory in the narrow sense has had many different aspects and quite distinct historical phases that cross several generations, from the effective start of the Institute for Social Research in the years —, which saw the arrival of the Frankfurt School philosophers and an inaugural lecture by Horkheimer, to the present.

Its distinctiveness as a philosophical approach that extends to ethics, political philosophy, and the philosophy of history is most apparent when considered in light of the history of the philosophy of the social sciences. Critical Theorists have long sought to distinguish their aims, methods, theories, and forms of explanation from standard understandings in both the natural and the social sciences.

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Instead, they have claimed that social inquiry ought to combine rather than separate the poles of philosophy and the social sciences: Such an approach, Critical Theorists argue, permits their enterprise to be practical in a distinctively moral rather than instrumental sense.

This normative task cannot be accomplished apart from the interplay between philosophy and social science through interdisciplinary empirical social research Horkheimer In the following, Critical Theory when capitalized refers only to the Frankfurt School. All other uses of the term are meant in the broader sense and thus not capitalized. It follows from Horkheimer's definition that a critical theory is adequate only if it meets three criteria: That is, it must explain what is wrong with current social reality, identify the actors to change it, and provide both clear norms for criticism and achievable practical goals for social transformation.

In light of the practical goal of identifying and overcoming all the circumstances that limit human freedom, the explanatory goal could be furthered only through interdisciplinary research that includes psychological, cultural, and social dimensions, as well as institutional forms of domination. Given the emphasis among the first generation of Critical Theory on human beings as the self-creating producers of their own history, a unique practical aim of social inquiry suggests itself: In such formulations, there are striking similarities between Critical Theory and American pragmatism.

As might be expected from such an ambitious philosophical project and form of inquiry, Critical Theory is rife with tensions. In what follows I will develop the arguments within Critical Theory that surround its overall philosophical project. First, I explore its basic philosophical orientation or metaphilosophy.

In its efforts to combine empirical social inquiry and normative philosophical argumentation, Critical Theory presents a viable alternative for social and political philosophy today. Second, I will consider its core normative theory—its relation to its transformation of a Kantian ethics of autonomy into a conception of freedom and justice in which democracy and democratic ideals play a central role Horkheimer , 22; Horkheimer , As a member of the second generation of Critical Theory, Habermas in particular has developed this dimension of normative political theory into a competitor to Rawlsian constructivism, which attempts to bring our pretheoretical intuitions into reflective equilibrium.

In the third section, I will consider its empirical orientation in practical social theory and practical social inquiry that aims at promoting democratic norms. A fundamental tension emerges between a comprehensive social theory that provides a theoretical basis for social criticism and a more pluralist and practical orientation that does not see any particular theory or methodology as distinctive of Critical Theory as such.

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In this way, the unresolved tension between the empirical and normative aspects of the project of a critical theory oriented to the realization of human freedom is manifest in each of its main contributions to philosophy informed by social science. Finally, I examine the contribution of Critical Theory to debates about globalization, in which the potential transformation of both democratic ideals and institutions is at stake.

The best way to show how Critical Theory offers a distinctive philosophical approach is to locate it historically in German Idealism and its aftermath. For Marx and his generation, Hegel was the last in the grand tradition of philosophical thought able to give us secure knowledge of humanity and history on its own. Once reason was thoroughly socialized and made historical, historicist skepticism emerged at the same time, attempting to relativize philosophical claims about norms and reason to historically and culturally variable forms of life.

Critical Theory developed a nonskeptical version of this conception, linking philosophy closely to the human and social sciences. In so doing, it can link empirical and interpretive social science to normative claims of truth, morality and justice, traditionally the purview of philosophy.

While it defends the emphasis on normativity and universalist ambitions found in the philosophical tradition, it does so within the context of particular sorts of empirical social research, with which it has to cooperate if it is to understand such normative claims within the current historical context. After presenting the two main versions of this conception of philosophy, I turn to an illuminating example of how this cooperative relation between philosophy and the social sciences works from the point of view of the main figures in Critical Theory who sought to develop it: Even if Critical Theorists are united in a common philosophical project, this example shows the large differences between the first and second generation concerning the normative justification of social criticism.


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In the modern era, philosophy defines its distinctive role in relation to the sciences. As Rorty and others have put it, transcendental philosophy has two distinct roles: In light of this ability to judge the results of the sciences, philosophy can also organize knowledge, assigning to each of them their proper sphere and scope.

The Kantian solution denies the need for direct cooperation with the sciences on issues related to normativity, since these were determined independently through transcendental analysis of the universal and necessary conditions for reason in its theoretical and practical employment. Echoes of the subsequent post-Hegelian criticisms of Kantian transcendental philosophy are found in the early work of Horkheimer and Marcuse. As Horkheimer understood the task of Critical Theory, philosophical problems are preserved by taking a role in defining problems for research, and philosophical reflection retains a privileged role in organizing the results of empirical research into a unified whole.

This understanding of the relation of philosophy and the sciences remains broadly Kantian. Even while rejecting the role of philosophy as transcendental judge, he still endorses its normative role, to the extent that it still has the capacity to organize the claims of empirical forms of knowledge and to assign each a role in the normative enterprise of reflection on historically and socially contextualized reason. This unstable mixture of naturalism with a normative philosophical orientation informed much of the critical social science of the Frankfurt School in the s.

According to this conception of materialism, Critical Theory could operate with a theoretical division of labor in which philosophy's normative stance could criticize the embodiments of reason and morality according to their internal criteria. However, Horkheimer and Marcuse saw the skeptical and relativist stance of the emerging sociology of knowledge, particularly that of Karl Mannheim, as precisely opposed to that of Critical Theory. Horkheimer formulates this skeptical fallacy that informed much of the sociologically informed relativism of his time in this way: It is not clear why the conditioned character of thought should affect the truth of a judgment—why shouldn't insight be just as conditioned as error?

The core claim here is that fallibilism is different from relativism, suggesting that it is possible to distinguish between truth and the context of justification of claims to truth. Faced with a sociological naturalism that relativized claims to truth and justice are necessary for social criticism, the challenge could be answered by detranscendentalizing truth without losing its normativity Horkheimer , 6; McCarthy, in McCarthy and Hoy , Once the skeptic has to take up the practical stance, alternatives to such paper doubt become inevitable.

Indeed, the critic must identify just whose practical stance best reveals these possibilities as agents for social transformation of current circumstances. As I point out in the next section, the Frankfurt School most often applied ideology critique to liberal individualism, pointing out its contextual limitations that lead to reductionist and pernicious interpretations of democratic ideals.

First, philosophy is given the task of organizing social research and providing its practical aims even in the absence of the justification of its superior capacities. A more modest and thoroughly empirical approach would be more appropriate and defensible. Second, the source of this confidence seems to be practical, that critics must immanently discover those transformative agents whose struggles take up these normative contents of philosophy and attempt to realize them.

But once this practical possibility no longer seems feasible, then this approach would either be purely philosophical or it would turn against the potentialities of the present. Indeed, during the rise of fascism in the Second World War and the commodified culture afterwards, the Frankfurt School became skeptical of the possibility of agency, as the subjective conditions for social transformation were on their view undermined. It is clear that in Dialectic of Enlightenment Horkheimer and Adorno abandoned this interdisciplinary materialist approach with its emphasis on cooperation with the social sciences , xi.

Since Adorno and Horkheimer planned to offer a positive way out of the dialectic of Enlightenment at the time they wrote these words, this reversal is by no means inevitable. For the positive task of avoiding the reversal of Enlightenment, reconstructing the rational content of modernity is not enough, since the issue is not to affirm its universalism, but its self-critical and emancipatory capacity. If the issue is the self-correcting capacity of the Enlightenment, two questions emerge: Where do we locate the exercise of this capacity? Against this skeptical predicament of the first generation of Critical Theory, it could be said without exaggeration that Habermas's basic philosophical endeavor from Knowledge and Human Interests to The Theory of Communicative Action has been to develop a more modest, fallibilist, empirical account of the philosophical claim to universality and rationality.

This more modest approach rids Critical Theory of its vestiges of transcendental philosophy, pushing it in a naturalistic direction. Such naturalism identifies more specific forms of social scientific knowledge that help in developing an analysis of the general conditions of rationality manifested in various human capacities and powers. Unlike Kant's transcendental analysis of the conditions of rationality, such sciences yield knowledge that is not necessary but hypothetical, not a priori but empirical, not certain but fallible.

They are nevertheless directed to universal structures and conditions and raise universal, but defeasible claims to an account of practical reason. In this way, Habermas undermines both of the traditional Kantian roles for philosophy and brings them into a fully cooperative relation to the social sciences. This can be seen in the clear differences between his account of the critique of ideology, which is at once contextualist and antirelativist but also underwrites its own normativity in ways that Horkheimer and Marcuse's more nearly transcendental account could not, given the inevitable tension between philosophical ideals and the historical conditions of current societies and their practices.

Like many other such theories, the theory of communicative action offers its own distinctive definition of rationality. In good pragmatist fashion, Habermas's definition is epistemic, practical, and intersubjective. In this way, their concern with normativity and with the abilities needed for rationality in Habermas's practical and social sense permits them to acquire a critical role. Certainly, the goal of the reconstructive sciences is theoretical knowledge: But insofar as they are capable of explicating the conditions for valid or correct utterances, they also explain why some utterances are invalid, some speech acts unsuccessful, and some argumentation inadequate.

This authority then permits the theory of rationality to underwrite critical claims about social and political practices, to show how their functioning violates not only the espoused rules but also the conditions of rationality. Such an approach can be applied to normative features of democratic practices. Rather than only providing a set of explicit principles of justification and institutional decision rules, democracy is also a particular structure of free and open communication. Ideology restricts or limits such processes of communication and undermines the conditions of success within them.

Ideology as distorted communication affects both the social conditions in which democratic discussion takes place and the processes of communication that go on within them. The theory of ideology, therefore, analyzes the ways in which linguistic-symbolic meanings are used to encode, produce, and reproduce relations of power and domination, even within institutional spheres of communication and interaction governed by norms that make democratic ideals explicit in normative procedures and constraints. As a reconstruction of the potentially correct insights behind Marx's exaggerated rejection of liberalism, the theory of distorted communication is therefore especially suited to the ways in which meanings are used to reproduce power even under explicit rules of equality and freedom.

This is not to say that explicit rules are unimportant: Democratic norms of freedom can be made explicit in various rights, including civil rights of participation and free expression. Such norms are often violated explicitly in exercises of power for various ends, such as wealth, security, or cultural survival.

Threats of declining investments block redistributive schemes, so that credible threats circumvent the need to convince others of the reasons for such policies or to put some issue under democratic control. Similarly, biases in agenda setting within organizations and institutions limit scope of deliberation and restrict political communication by defining those topics that can be successfully become the subject of public agreement Bohman In this way, it is easy to see how such a reconstructive approach connects directly to social scientific analyses of the consistency of democratic norms with actual political behavior.

This theory of ideology as distorted communication opens up the possibility of a different relation of theoretical and practical knowledge than Habermas has suggested so far. His approach uses formal pragmatics philosophically to reflect upon norms and practices that are already explicit in justifications in various sorts of argumentation or second-order communication. Such reflection has genuine practical significance in yielding explicit rules governing discursive communication such as rules of argumentation , which in turn can be used for the purpose of designing and reforming deliberative and discursive institutions Habermas , It is easily overlooked that such rules are only part of the story; they make explicit and institutionalize norms that are already operative in correct language use.

Such implicit norms of well-formed and communicatively successful utterances are not identical with the explicit rules of argumentation. These claims about norms raise two difficulties. First, there is a potential regress of rules, that is, that explicit rules requires further rules to apply them, and so on. Second, this approach cannot capture how norms are often only implicit in practices rather than explicitly expressed Brandom , 18— Here Habermas sides with Pettit in seeing the central function of explicit norms as creating a commons that can serve as the basis for institutionalizing norms, a space in which the content of norms and concepts can be put up for rational reflection and revision Pettit , Habermas Making such implicit norms explicit is thus also the main task of the interpretive social scientist and is a potential source of social criticism; it is then the task of the participant-critic in the democratic public sphere to change them.

There is one more possible role for the philosophically informed social critic. In this section, I have discussed claims that are distinctive of the metaphilosophy of Critical Theorists of both generations of the Frankfurt School and illustrated the ways in which critical normativity can be exercised in their differing models of the critique of ideology. Critical Theorists attempt to fulfill potentially two desiderata at the same time: I argued that the first generation theorists avoided the relativism of sociologies of knowledge such as Mannheim's only to fall into a practical skepticism about the feasibility of agents acting upon such norms in current contexts.

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This project shifts the goal of critical social inquiry from human emancipation as such, to the primary concern with democratic institutions as the location for the realization of ideals of freedom and equality. The limits on any such realization may prove to be not merely ideological: Critical Theory is also interested in those social facts and circumstances that constrain the realization of the ideal democracy and force us to reconsider its normative content.

While such an account of the relation between facts and norms answers the sociological skepticism of Weber and others about the future of democracy, it may be based on an overly limited account of social facts. Such a positive, expressivist ideal of a social whole is not, however, antiliberal, since it shares with liberalism the commitment to rationalism and universalism.

The next phase in the development of Critical Theory took up the question of antidemocratic trends. This development of the Frankfurt School interpretation of the limits on democracy as an ideal of human freedom was greatly influenced by the emergence of fascism in the s, one of the primary objects of their social research. Much of this research was concerned with antidemocratic trends, including increasingly tighter connections between states and the market in advanced capitalist societies, the emergence of the fascist state and the authoritarian personality.

As first generation Critical Theorists saw it in the s, this process of reification occurs at two different levels. First, it concerned a sophisticated analysis of the contrary psychological conditions underlying democracy and authoritarianism; second, this analysis was linked to a social theory that produced an account of objective, large-scale, and long-term historical processes of reification. However, this concept is ill suited for democratic theory due to a lack of clarity with regard to the underlying positive political ideal of Critical Theory.

As his later and more fully developed normative theory of democracy based on macrosociological social facts about modern societies shows, Habermas offers a modest and liberal democratic ideal based on the public use of reason within the empirical constraints of modern complexity and differentiation. This social theory may make it difficult for him to maintain some aspects of radical democracy as an expressive and rational ideal that first generation critical theorists saw as a genuine alternative to liberalism.

While the emergence of fascism is possible evidence for this fact, it is also an obvious instance in which reliance on the internal criticism of liberalism is no longer adequate. The shift in the Frankfurt School to such external forms of criticism from onwards is not confined to the fascist state. With the development of capitalism in its monopoly form, the liberal heritage loses its rational potential as the political sphere increasingly functionalized to the market and its reified social relationships. In this way the critique of liberalism shifts away from the normative underpinnings of current democratic practices to the ways in which the objective conditions of reification undermine the psychological and cultural presuppositions of democratic change and opposition.

Rather than being liberating and progressive, reason has become dominating and controlling with the spread of instrumental reason. Shorn of its objective content, democracy is reduced to mere majority rule and public opinion to some measurable quantity. The argument here is primarily genealogical thus based on a story of historical origin and development and not grounded in social science; it is a reconstruction of the history of Western reason or of liberalism in which calculative, instrumental reason drives out the utopian content of universal solidarity. Some nondominating, alternative conception is exhibited in Horkheimer's religiously influenced ideal of identification with all suffering creatures or Adorno's idea of mimetic reconciliation with the other found primarily in art Horkheimer ; Adorno These analyses were also complemented by an analysis of the emergence of state capitalism and of the culture industry that replaces the need for consent and even the pseudo-consent of ideology.

Some of the more interesting social scientific analyses of fascism that the Frankfurt School produced in this period were relatively independent of such a genealogy of reason. The first is the analysis of political economy of advanced, administered capitalist societies, with Franz Neumann providing a dissenting view that no state can completely control social and economic processes in the ways that might be more consistent with Horkheimer and Adorno's critique of instrumental reason.

Perhaps one of more striking results of this study is that the core of the democratic personality is a particular emotional or affective organization: Thus, long-term historical cultural development and macro- and micro-sociological trends work against the democratic ideal. What was needed was an alternative conception of rationality that is not exhausted by the decline of objective reason into subjective self-interest. These shifts permit a more positive reassessment of the liberal tradition and its existing political institutions and open up the possibility of a critical sociology of the legitimation problems of the modern state.

On the whole, Habermas marked the return to normative theory united with a broader use of empirical, reconstructive and interpretive social science. Above all, this version of Critical Theory required fully developing the alternative to instrumental reason, only sketched by Adorno or Horkheimer in religious and aesthetic form; for Habermas criticism is instead grounded in everyday communicative action. Indeed, he cam to argue that the social theory of the first generation, with its commitments to holism, could no long be reconciled with the historical story at the core of Critical Theory: Habermas's rejection of the explanatory holism of the first generation of the Frankfurt School has both explanatory and normative implications.

First, he brings categories of meaning and agency back into critical social theory, both of which were absent in the macro-sociological and depth psychological approaches that were favored in the post war period. This brings democratic potentials back into view, since democracy makes sense only within specific forms of interaction and association, from the public forum to various political institutions.

Second, Habermas also developed an alternative sociology of modernity, in which social differentiation and pluralization are not pathological but positive features of modern societies Habermas , Indeed, the positive conception of complexity permits an analysis of the ways in which modern societies and their functional differentiation opens up democratic forms of self-organization independently of some possible expressively integrated totality. Such an ideal of an expressive totality and conscious self control over the production of the conditions of social life is replaced with publicity and mutual recognition within feasible discursive institutions.

This emphasis on the normative potential of modernity does not mean that modern political forms such as the state are not to be criticized. These crisis tendencies open up a space for contestation and deliberation by citizens and their involvement in new social movements. This criticism of the contemporary state is put in the context of a larger account of the relation between democracy and rationality.

The relevant notion of rationality that can be applied to such a process is procedural and discursive; it is developed in terms of the procedural properties of communication necessary to make public will formation rational and thus for it to issue in a genuine rather than merely de facto consensus.

Democratic institutions have the proper reflexive structure and are thus discursive in this sense. Its purpose in social theory is to provide the basis for an account of cultural rationalization and learning in modernity. In normative theory proper, Habermas has from the start been suspicious of attempts to apply this fundamentally epistemological criterion of rationality directly to the structure of political institutions.

As early as Theory and Practice , Habermas distanced himself from Rousseau's claim that the general will can only be achieved in a direct, republican form of democracy. Indeed democratic principles need not be applied everywhere in the same way Habermas , 32— Instead, the realization of such norms has to take into account various social facts, including facts of pluralism and complexity Habermas , For Habermas, no normative conception of democracy or law could be developed independently of a descriptively adequate model of contemporary society, lest it become a mere ought.

Without this empirical and descriptive component, democratic norms become merely empty ideals and not the reconstruction of the rationality inherent in actual practices. I shall return to the problematic relation of social facts to democratic ideals in the next section in discussing Habermas's account of the philosophy of critical social science.


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Another way in which this point about democratic legitimacy can be made is to distinguish the various uses to which practical reason may be put in various forms of discourse. Contrary to the account of legitimacy offered in Legitimation Crisis , Habermas later explicitly abandons the analogy between the justification of moral norms and democratic decision-making.

Moral discourses are clearly restricted to questions of justice that can be settled impartially through a procedure of universalization Habermas , 43ff. The moral point of view abstracts from the particular identities of persons, including their political identities, and encompasses an ideally universal audience of all humanity. Although politics and law include moral concerns within their scope, such as issues of basic human rights, the scope of justification in such practices can be restricted to the specific community of associated citizens and thus may appeal to culturally specific values shared by the participants.

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There are at least three aspects of practical reason relevant to democratic deliberation: Because of this variety, democratic discourses are often mixed and complex, often including various asymmetries of knowledge and information. Democratic deliberation is thus not a special case of moral judgment with all of its idealizing assumptions, but a complex discursive network with various sorts of argumentation, bargaining, and compromise Habermas , What regulates their use is a principle at a different level: He argues that such a principle is at a different level than the moral principle, to the extent that its aim is primarily to establish a discursive procedure of legitimate law making and is a much weaker standard of agreement.

Nonetheless, even this democratic principle may still be too demanding, to the extent that it requires the agreement of all citizens counterfactually as a criterion of legitimacy. Habermas admits that in the case of cultural values we need not expect such agreement, and he even introduces compromise as a possible discursive outcome of democratic procedures. One way to genuinely weaken the principle would be to substitute cooperation for consensus and the outcome of the procedure: In this way, what is crucial is not the agreement as such, but how citizens reason together within a common public sphere.

The democratic principle in this form expresses an ideal of citizenship rather than a standard of liberal legitimacy. The internal complexity of democratic discourse does not overcome the problem of the application of the democratic principle to contemporary social circumstances. Such complexity restricts the application of fully democratic justification for a number of reasons: This objection to radical democracy is thus directed to those theories that do not figure out how such principles can be institutionally mediated given current social facts.

This approach to law has important consequences for a critical theory, since it changes how we appeal to democratic norms in criticizing current institutions: That is, members of the public do not control social processes; qua members of a public, they may exercise influence through particular institutionalized mechanisms and channels of communication. Even given the limits of social complexity, there is still room for judgments of greater or lesser democracy, particularly with regard to the democratic value of freedom from domination.

For example, a critical theory of globalization could show that the democratic potential of modern societies is being undermined by neoliberal globalization and denationalization of economic policy. Such a theory sees the solution here to be the achievement of more democracy at the international level.

It is also possible that the critical use of democratic concepts may require reconceptualizing the democratic theory that has informed much of Enlightenment criticism in European societies. Here critical theorists are then simply one sort of participant in the ongoing internal work of redefining the democratic ideal, not simply in showing the lack of its full realization.

Either way, radical democracy may no longer be the only means to social transformation, and indeed we may, with Marcuse, think that preserving the truths of the past, such as democratic constitutional achievements, to be as important as imagining a new future. Given the new situation, Critical Theory could now return to empirical social inquiry to discover new potentials for improving democracy, especially in understanding how it may increase the scope and effectiveness of public deliberation.

In these various roles, critical theorists are participants in the democratic public sphere. To do so would entail a different, perhaps more reflexive notion of critical social inquiry, in which democracy is not only the object of study but is itself understood as a form of social inquiry. Critical Theory would then have to change its conception of what makes it practical and democratic. In the next two sections, I will discuss two aspects of this transformed conception of Critical Theory.

First, I turn to the role of social theory in this more pragmatic account of critical social inquiry. Contrary to its origins in Marxian theoretical realism, I argue for methodological and theoretical pluralism as the best form of practical social science aimed at human emancipation. Second, I illustrate this conception in developing the outlines of a critical theory of globalization, in which greater democracy and nondomination are its goals. This theory also has a normative side, which is inquiry into democracy itself outside of its familiar social container of the nation state.

In this sense, it attempts not just to show constraints but also open possibilities. Critical Theorists have failed not only to take up the challenge of such new social circumstances but also thereby to reformulate democratic ideals in novel ways. I shift first to the understanding of the philosophy of social science that would help in this rearticulation of Critical Theory as critical social inquiry as a practical and normative enterprise. Such a practical account of social inquiry has much in common with pragmatism, old and new Bohman a, b. As with pragmatism, Critical Theory came gradually to reject the demand for a scientific or objective basis of criticism grounded in a grand theory.

This demand proved hard to square with the demands of social criticism directed to particular audiences at particular times with their own distinct demands and needs for liberation or emancipation. The first step was to move the critical social scientist away from seeking a single unifying theory to employing many theories in diverse historical situations. Rather, it is better to start with agents' own pretheoretical knowledge and self-understandings. The issue for critical social inquiry is not only how to relate pretheoretical and theoretical knowledge of the social world, but also how to move among different irreducible perspectives.

The second step is to show that such a practical alternative not only provides the basis for robust social criticism, but also that it better accounts for and makes use of the pluralism inherent in various methods and theories of social inquiry. While it is far from clear that all critical theorists understand themselves in this way, most agree that only a practical form of critical inquiry can meet the epistemic and normative challenges of social criticism and thus provide an adequate philosophical basis fulfilling the goals of a critical theory.

The philosophical problem that emerges in critical social inquiry is to identify precisely those features of its theories, methods, and norms that are sufficient to underwrite social criticism. A closer examination of paradigmatic works across the whole tradition from Marx's Capital to the Frankfurt School's Studies in Authority and the Family and Habermas's Theory of Communicative Action reveals neither some distinctive form of explanation nor a special methodology that provides the necessary and sufficient conditions for such inquiry.

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