Managerialism is an “in” topic recently in privacy scholarship (Cohen, 2019; Waldman, 2019). In Waldman’s (2019) formulation, the managerialism problem is, roughly: privacy regulations are written with a certain substantive intent, but the for-profit firms that are the object of these regulations interpret them either as a bothersome constraint on otherwise profitable activity, or else as means to the ends of profitability, efficiency, and so on themselves. In other words, the substance of the regulations are subjugated to the substance of the goals of corporate management. Managerialism.
This is exactly what anybody who has worked in a corporate tech environment would expect. The scholarly accomplishment of presenting these bare facts to a legal academic audience is significant because employees of these corporations are most often locked up by strict NDAs. So while the point is obvious, I mean that in the positive sense that it should be taken as an unquestioned background assumption from now on, not that it shouldn’t have been “discovered” by this field in a different way.
As a “critical” observation, it stands. It raises a few questions:
- Is this a problem?
- If so, for whom?
- If so, what can be done about it?
Here the “critical” method reaches, perhaps, its limits. Notoriously, critical scholarship plays on its own ambiguity, dancing between the positions of “criticism”, or finding of actionable fault, and “critique”, a merely descriptive account that is at most suggestive of action. This ambiguity preserves the standing of the critical scholar. They need never be wrong.
Responding to the situation revealed by this criticism requires a differently oriented kind of work.
Habermas and human interests
A striking about the world of policy and legal scholarship in the United States is that nobody is incentivized to teach or read anything written by past generations, however much it synthesized centuries of knowledge, and so nothing ever changes. For example, arguably, Habermas’s Knowledge and Human Interests (KHI), originally published 1972, arguably lays out the epistemological framework we would want to understand the managerialism issue raised by recent scholars. We should expect Habermas to anticipate the problems raised by capitalism in the 21st century because his points are based on a meticulously constructed, historically informed, universalist, transcendental form of analysis. This sort of analysis is not popular in the U.S.; I have my theories about why. But I digress.
A key point from Habermas (who is summing up and reiterating a lot of other work originating, if it’s possible to say any such thing meaningfully, in Max Weber) is that it’s helpful to differentiate between different kinds of knowledge based on the “human interests” that motivate them. In one formulation (the one in KHI), there are three categories:
- The technical interest (from techne) in controlling nature, which leads to the “empirical-analytic”, or positivist, sciences. These correspond to fields like engineering and the positivist social sciences.
- The pragmatic interest (from praxis), in mutual understanding which would guide collective action and the formation of norms, leads to the “hermeneutic” sciences. These correspond to fields like history and anthropology and other homes of “interpretivist” methods.
- The emancipatory interest, in exposing what has been falsely reified as objective fact as socially contingent. This leads to the critical sciences, which I suppose corresponds to what is today media studies.
This is a helpful breakdown, though I should say it’s not Habermas’s “mature” position, which is quite a bit more complicated. However, it is useful for the purposes of this post because it tracks the managerialist situation raised by Waldman so nicely.
I’ll need to elaborate on one more thing before applying this to the managerialist framing, which is to skip past several volumes of Habermas’s ouvre and get to Theory of Communicative Action, volume II, where he gets to the punchline. By now he’s developed the socially pragmatic interest to be the basis for “communicative rationality”, a discursive discipline in which individual interests are excluded and instead a diversely perspectival but nevertheless measured conversation about the way the social world should normatively be ordered. But where is this field in actuality? Money and power, the “steering media”, are always mussing up this conversation in the “public sphere”. So “public discourse” becomes a very poor proxy for communicative action. Rather–and this is the punchline–the actually existing field of communicative rationality, which is establishing substantive norms while nevertheless being “disinterested” with respect to the individual participants, is the law. That’s what the legal scholarship is for.
Applying the Habermasian frame to managerialism
I suppose this is bothersome from the legal perspective because it’s a bummer when something one feels is an important accomplishment of one’s field is misused by another. But I find the professional politics here, as everywhere, a bit dull and petty.
Crucially, the managerialism problem is not dumb and petty–I wouldn’t be writing all this if I thought so. However, the frustrating aspect of this discourse is that because of the absence of philosophical grounding in this debate, it misses what’s at stake. This is unfortunately characteristic of much American legal analysis. It’s missing because when American scholars address this problem, they do so primarily in the descriptive critical mode, one that is empirical and in a sense positivist, but without the interest in control. This critical mode leads to cynicism. It rarely leads to collective action. Something is missing.
A missing piece of the puzzle, one which cannot ever be accomplished through empirical descriptive work, is the establishment of the moral consequence of managerialism which is that human beings are being treated as means and not ends, in contradiction with the Kantian categorical imperative, or something like that. Indeed, it is this flavor of moral maxim that threads its way up through Marx into the Frankfurt School literature with all of its well-trod condemnation of instrumental reason and the socially destructive overreach of private capital. This is, of course, what Habermas was going on about in the first place: the steering media, the technical interest, positivist science, etc. as the enemy of politically legitimate praxis based on the substantive recognition of the needs and rights of all by all.
It would be nice, one taking this hard line would say, if all laws were designed with this kind of morality in mind, and if everybody who followed them did so out of a rationally accepted understanding of their import. That would be a society that respected human dignity.
We don’t have that. Instead, we have managerialism. But we’ve known this for some time. All these critiques are effectively mid 20th century.
So now what?
If the “problem” of managerialism is that when regulations reach the firms that they are meant to regulate their meaning changes into an instrumentalist distortion of the original, one might be tempted to try to combat this tendency with an even more forceful use of hermeneutic discourse or an intense training in the social pragmatic stance such that employees of these companies put up some kind of resistance to the instrumental, managerial mindset. That strategy neglects the very real possibility that those employees that do not embrace the managerial mindset will be fired. Only in the most rarified contexts does discourse propel itself with its one force. We must presume that in the corporate context the dominance of managerialist discourse is in part due to a structural selection effect. Good managers lead the company, are promoted, and so on.
So the angle on this can’t be a discursive battle with the employees of regulated firms. Rather, it has to be about corporate governance. This is incidentally absolutely what bourgeois liberal law ought to be doing, in the sense that it’s law as it applies to capital owners. I wonder how long it will be before privacy scholars begin attending to this topic.
Benthall, S. (2015). Designing networked publics for communicative action. Interface, 1(1), 3.
Bohman, J., & Rehg, W. (2007). Jürgen habermas.
Cohen, J. E. (2019). Between Truth and Power: The Legal Constructions of Informational Capitalism. Oxford University Press, USA.
Habermas, J. (2015). Knowledge and human interests. John Wiley & Sons.
Waldman, A. E. (2019). Privacy Law’s False Promise. Washington University Law Review, 97(3).