'False Contingency' by Susan Marks in (2009) 62(1) Current Legal Problems 1–21 comments
... To be clear at the outset, I believe it is quite right to hammer the point that history is a social product, not given but made. For if it has been made, then it can be remade differently. This is surely a cardinal principle of all progressive thought, and the work of drawing out its multifarious implications is as urgent as it is endless. The worry I want to explore here, however, is that we may be undertaking this work in a way which causes us to neglect the equally important progressive point that possibilities are framed by circumstances. While current arrangements can indeed be changed, change unfolds within a context that includes systematic constraints and pressures. In general terms, what I wish to re-evoke is the idea that things can be, and quite frequently are, contingent without being random, accidental, or arbitrary. From another angle, there is a kind of necessity which must be reckoned into, rather than always contrasted with, our sense of what it is to be an artefact of history. I will use the term ‘false contingency’ to denote the failure to take that idea adequately into account. In the discussion that follows I will explain more precisely how I intend this phrase, and will try to illustrate something of its significance and ramifications. Along the way I will also offer some speculative comments on why false contingency may need, as I suggest, re-evoking — why this second half of the critical equation seems to have got forgotten or put aside. But first, I need to begin with the backstory.
False Necessity
The inspiration for my term ‘false contingency’ comes from the established concept of false necessity. As is, I think, well known, this is the subject of an eponymous book by Roberto Unger, first published in 1987. Part of his multi-volume study entitled ‘Politics: A Work in Constructive Social Theory’, False Necessity is in every sense of the word a colossal work, and its analysis is at times rather recondite. When it comes to the exposition of this central concept, however, Unger expresses himself with great clarity and concision. ‘The illusions of false necessity arise’, he writes, ‘because we surrender to the social world, and then begin to mistake present society for possible humanity, giving in to the ideas and attitudes that make the established order seem natural, necessary, or authoritative.’ Yet ‘what seems to be given and presupposed is merely what we have temporarily refrained from challenging and remaking’. Far from representing a natural order of things, social reality is best understood as characterized by ‘permanent incompleteness, perennial conflict and inescapable choice’. Unger explains that, as an analytical concept, false necessity helps to bring into focus the ‘fatalistic myths’ which mask the historicity of existing arrangements and prevent us from grasping their contingency, provisionality and hence, most importantly, their mutability. He invites his readers to join him in a ‘campaign against false necessity’,8 dedicated to subverting these resignation-inducing myths one by one.
The basic idea of false necessity, then, is that things do not have to be as they are. Actuality is not destiny, and we need to search out and expose the various forms of thought which obscure that fact and lend an aura of solidity and self-evidence to what must instead be revealed as precarious and contingent. Although Unger develops his arguments in his own very distinctive way, he does not, of course, claim this as an original insight; his project is to recover it, and imbue it with new emphasis and new meaning. Certainly the basic idea here long predates the name Unger gives to it. A defining theme of social theory in a ‘critical’ mode, it has a history in many different disciplines and today carries the banner of many different traditions and concepts, or indeed none. To take the case of writing about international law, the phrase ‘false necessity’ has to my knowledge rarely, if ever, been used, but the claim it is meant to express serves as the premise or explicit argument of much contemporary scholarship. Thus, scholars highlight the contested character of what appears as beyond dispute—the humanitarianism of humanitarian intervention, for example, and indeed its categorization as intervention. Or they point up the political stakes behind technical-legal description—what happens when having foreign students in your class becomes trade in services, for instance, or when soya bean seeds become intellectual property. Or yet, to mention just one other familiar move, they show how analyses—in areas such as development policy— can work as ‘progress narratives’ that encourage us to assume that all is for the best in this best of all possible worlds. The idioms, projects and fields of study vary widely, but the ambition of challenging what Unger terms false necessity is very widely shared.
Standing behind the concept of false necessity is obviously an idea of necessity and its postulated alternative, contingency. In philosophy, and especially the philosophy of history, debates about necessity and contingency have mostly revolved around determinism, accident and the ‘role of the individual in history’. It will be instructive for my later argument if we review something of these issues. As a starting point for doing so, we can take Isaiah Berlin’s influential essay entitled ‘Historical Inevitability’. Writing in 1953, Berlin criticizes what he sees as the renewed currency of determinism in approaches to historical enquiry. By determinism he means, as he somewhat archly puts it, the effort ‘to bring us to our senses by showing where the true, the impersonal and unalterable machinery of life and thought is to be found’. That is to say, it refers to the notion that history obeys laws, that these laws set us on an irresistible course with inevitable outcomes, and that events are accordingly to be attributed to impersonal forces beyond the control of individual human beings. Berlin observes that this kind of approach is both inaccurate and dangerous. It is inaccurate because there are no such laws: individual will and action, not to mention accident, are in fact, and have always been, at the heart of historical processes. And it is dangerous because, where individual agency is denied, so too is the basis for personal responsibility. In his words:
. . .if the history of the world is due to the operation of identifiable forces other than, or little affected by, free human wills and free choices, then the proper explanation of what happens must be given in terms of the evolution of such forces. . . [W]hat can a single individual . . . be expected to do?
Berlin is worried about the weakening of our capacity to evaluate conduct, and ascribe praise or blame where it is due. Is he right to worry about this? A notable riposte to Berlin was delivered by EH Carr in his book What is History? first published in 1961. It is always easier, Carr remarks, to blame catastrophes on individual wickedness and credit achievements to individual genius than to study historical processes at the level of deeper causes and wider contexts. He agrees with Berlin that ‘the facts of history are indeed facts about individuals’, but counters that these facts are not generally about ‘actions of individuals performed in isolation’, and nor are they only about conscious motives and willed outcomes. For Carr, any adequate theory of history has to take into account that people’s actions often have results they do not intend or even desire. This is not to maintain that they are the unconscious tools of some all-powerful force, but it is to note that social circumstances matter in historical explanation. In this regard, Carr contends that determinism is a ‘red herring’. Clearly, we can no longer imagine that history obeys laws. But historians can, and most do, imagine that causation can be investigated, and for Carr, determinism refers simply to the belief underpinning this that everything that happens has a cause and could not have happened differently without some difference in that antecedent cause. Or rather, most things that happen have multiple causes, so that the key issue is to establish the relative significance of various determining factors. If the most significant factors generally have more to do with institutions and policies than with the actions and wishes of particular individuals, then Carr insists that this is not to negate the reality or relevance of the latter. As he recalls, one who studies the causes of crime does not by that fact alone deny the moral responsibility of individual offenders.
