Postmodern Legal Theory

• Postmodern Legal Theory

• Postmodern legal theory is the latest radical theory to challenge the
liberal orthodoxies that society has a natural structure and that history is
simply a process of evolution towards that truth.
• Liberalism and capitalism are not the end of the road but are simply the
major components of what the postmodernists call 'modernity'.
• Modernity's structures, its laws, its literature, its architecture, its art, in
fact any of its products, are all subject to 'deconstruction', a process
which reveals numerous alternatives.
• An inherent aspect of this process is a recognition that society is simply
made up of a complex network of subjectivities and contains no
objective truths or natural laws upon which it can be grounded.
• Developing the radical critique promulgated by the Critical Legal Studies
movement in the 1980s, postmodern legal theory offers a profound and
disturbing vision of law and society in the 1990s.
• Post-modernism challenges the liberal orthodoxy that society has a
natural structure, and history is a process of evolution towards that
truth.
• Liberalism and capitalism are seen as major components of modernity.
• Post-modernists characterise modernity as ‘an iron cage of
bureaucratisation, centralisation and the infinite manipulation of psyche
by the culture industry and the disciplinary machines of power and
knowledge'.
• They believe that modernity's structures, its laws, its literature, its
architecture, its arts or any of its products are subject to deconstruction,
a process which reveals a number of alternatives.
• They do not believe that society contains any objective truth or natural
laws upon which it can be grounded.
• The main thrust of post-modern legal theory; is its rejection of the
structured, logical and internally consistent picture of society, and law which
we find in Hart's theory of law as a union of primary and secondary rules, and
in Kelsen's pyramid of norms.
• The writings of Michael Foucault and Jacques Derrida deserve our attention,
although they are not academic lawyers, because of their tremendous impact
on legal theory.
• Foucault's neo-Marxism shares with post-modernism an emphasis on the
'shifting relationships between self and other'. The 'other' appears to be the
individual who is outside the system, who is disadvantaged by it. The 'others'
cannot assert that the law is on their side within the current situations since
the system alienates them.
• Post-modernism recognises that they have an equal claim to consideration
since their assertions are no less valid than those who are advantaged by
the system or no less valid than even the views of lawyers, judges, or
politicians.
• The post-modernist concern with the 'other' has definitely helped to give
an impetus to the claims of disadvantaged groups like women, blacks,
and tribals within law.
• However, to what extent and in what manner the law should seek to
accommodate their claims is not clearly brought out in post-modernist
writings.
• In the 1980s, the Postmodernism era, deconstruction was being put to use
in a range of theoretical enterprises in the humanities and social sciences,
including law, anthropology,
historiography, linguistics, sociolinguistics, psychoanalysis, feminism, and
LGBT studies.
• Derrida's deconstruction, though originally applied to language, had a
profound influence on legal theory. Language is a complex web of signs
and Derrida said, is metaphorical.
• Modernism sees the function of language as mainly representational—it
depicts the way things are. In other words, language discloses the
relationship between the words and the world.
• In language, some statements are statements of truth or statements of
fact (e.g., this is a chair) and some statements are statements of opinion
(e.g., this chair is beautiful).
• The post-modernists do not accept the division of language into fact and
opinion, but hold that all statements are opinions. This is because
language is inherently indeterminate. Even a statement like 'this is a chair',
which is apparently a statement of fact, the post-modernists would argue,
is a statement of opinion, because there is no true meaning to the concept
of chair.
• Post-modernists see all statements in law as assertions. In choosing
between competing assertions, an individual will favour those which clash
least with everything else that he takes to be true.
• Individuals agree with the right legal propositions because they fit into
the legal system which is presumed to be right. The whole system is
based on dominant assertions which must ultimately be built on pure
ideology or power. The law and the legal system thus become self-
perpetuating hierarchies.
• A major criticism against post-modernism in general and deconstruction
in particular is that it focuses on the negative, 'the uncertainties and
ambiguities of existence'.
• Thus, deconstruction, in a strict Derridian sense, seems to be engaging in
an endless round of word play, the purpose of which is to reveal various
alternative meanings and 'truths', leaving it up to the interpreter to
choose on the basis of that individual's own moral convictions.
• JM Balkin, who belongs to this stream, states that deconstruction of legal
concepts is not radical. He continues:
• Deconstruction is not a denial of the legitimacy of rules and principles; it is an
affirmation of human possibilities that have been overlooked or forgotten in
the privileging of particular legal ideas ... By recalling the elements of human
life relegated to a margin in a given social theory, deconstructive readings
challenge us to remake the dominant conceptions of our society.
• Balkin also poses the question as to why do we want to deconstruct law or
legal doctrine?
• He answers that this has mainly to do with the pursuit of justice. We might
want to demonstrate that the law or some part of it is unjust. The failure of law
to adequately deal with some aspect of social life may lead to injustice.
• A critical use of deconstruction involves pointing out that something is
wrong, and arguing that it could and should be made better.
• Balkin asserts that law is always to some extent and to some, degree unjust.
The only way of articulating a person's conception of justice is through
imperfect laws. Such laws lead to deconstruction and a modified law. This is a
continuous process.
 A CRITIQUE OF THE ENLIGHTENMENT
• Postmodernism groups 'progressive' versions of history under the label
'Enlightenment'.
• Followers of these versions believe that the 'Enlightenment brings "light",
and modernity's task is to finish the task that the Enlightenment began.
• The progressives, the Lockeans, Benthamites, Millians, Social-Darwinists and
most Marxists see the Enlightenment as the unleashing of a great potential
for good'.
• 'The shackles' of superstition 'that held back political organisation, thought,
individual liberty, and production were overthrown' by the Enlightenment.
• Followers of modernity mock the postmodern as 'chaotic, catastrophic,
nihilistic' and 'the end of good order'.
• Postmodernists, on the other hand, characterise modernity as 'an iron cage
of bureaucratization, centralisation and infinite manipulation of the psyche
by the "culture industry" and the disciplinary regimes of power and
knowledge', while portraying postmodernism as 'an exhilarating moment of
rapture'.
• It defies the system, suspects all totalising thought and homogeneity and
opens space for the marginal, the different and the 'other'.
• Postmodernism is here presented as the celebration of flux, dispersal, plurality
and localism.
• The post-Enlightenment concept of progress, of constant modernisation, with
its overriding sense of movement towards the truth or 'meta-narratives' is
rejected.
• In law, modernist theories such as those presented by Hart, Kelsen, Dworkin
and Finnis try to portray law as a unified whole, and posit the rule of law as
the method of 'neutral, non-subjectivist resolution of value disagreement
and social conflict'.
• However, in the reality of the postmodern world where such rigid
homogeneity is recognised as being imposed arbitrarily, 'the panglossia of
statutes, delegated legislation, administrative legislation and adjudication,
judicial and quasi-judicial decision-making; the multiform institutions and
personnel; and the plural non-formal methods of dispute avoidance and
resolution cannot be seen any longer as a coherent, closed ensemble of
rules or values' Despite this, modernist theories still attempt to legitimate
the idea of a closed, logical legal order.
• The lineage of postmodernism in law can be traced back to Legal Realism's
Fundamental tenet that law is an instrument of policy, which was amplified
by the Critical Legal Studies movement's statement that all law is politics.
However, the postmodernist disenchantment with the rationalist desire to
make sense of the world is much more wide ranging than either of its
predecessors. Its targets are everything from art to science and beyond.
Indeed, its skepticism is so profound that it inherently knows no bounds, for
here are none, only 'flux, dispersal, plurality and localism'
DERRIDA AND DECONSTRUCTION
• Derrida's deconstruction, in particular, has been tremendously influential,
since law is like literature:
• Language is a complex web of signs and, for Derrida, is metaphorical.
Metaphor is a figure of speech in which a word or a phrase is applied to an
object or action that it does not literally denote in order to imply a
resemblance, as in he is a lion in battle. Language can never mean literally
what it says - language is made up of metaphors and symbolisms. (Hilaire
Barnett, Introduction to Feminist Jurisprudence, p. 185.)
• In the use of language, modernism suggests the belief that language
discloses the relationship between the word and the world - the principal
function of language is representational - it depicts the way things are.
• The proposition depicts reality. 'This is a chair' is a statement of truth.
However, even modernists admit that some statements are simply
statements of opinion - this chair is beautiful'.
• The postmodern approach is that there is no division of language into fact
and opinion, all statements are opinions.
• The postmodernist would argue that there is no true meaning to the concept
of chair - even what appear to be factual statements are open to debate and
deconstruction.
• The postmodern approach is that there is no division of language into fact
and opinion, all statements are opinions.
• The postmodernist would argue that there is no true meaning to the concept
of chair - even what appear to be factual statements are open to debate and
deconstruction.
• How can this be? How can a challenge be made to the basic proposition that
'this is a chair'? The answer is because language is naturally indeterminate.
• 'There is nothing outside the text' - that is the postmodernist message -
language has to be examined to see what it reveals about the person using it
or the class of persons using it.
• Deconstruction, in a strict Derridian sense, seems to be engaging in an
endless round of word play, the purpose of which is to reveal various
alternative meanings and 'truths', leaving it up to the interpreter to choose
on the basis of that individual's own moral convictions.
• Balkin on Deconstruction makes the following statement:
• The deconstruction of legal concepts, or of the social vision that informs
them, is not nihilistic.
• Deconstruction is not a call for us to forget moral certainty, but to remember
aspects of human life that were pushed into the background by the
necessities of the dominant legal conception we call into question.
• Deconstruction is not a denial of the legitimacy of rules and principles; it is
an affirmation of human possibilities that have been overlooked or forgotten
in the privileging of particular legal ideas . . . By recalling the elements of
human life relegated to the margin in a given social theory, deconstructive
readings challenge us to remake the dominant conceptions of our society.
• Deconstruction reveals the law's inadequacies. Often legal language is
clearly indeterminate.
• Deconstruction helps individuals towards liberation upon realisation that
the system or society they are part of has no superior claim than a system
or society they might prefer.
• Deconstruction may appear anarchical but it does reveal the arbitrary and
contingent nature of the legal system, and the broader societal structures.
• Balkin recognises the problem 'that deconstructive techniques do not seem
to support any particular vision of justice; indeed they appear to preclude
the possibility of any stable conception of the just or the good that could
provide the basis for political belief or the authority for political action‘.
• However, Balkin clearly believes that deconstruction, if it is to have any
purpose or value, must be capable of being used to reveal injustice.
• Jacques Derrida (1930–2004)
• Re-examined the fundamentals of writing and its consequences on philosophy in
general; sought to undermine the language of 'presence' or metaphysics in an
analytical technique which, beginning as a point of departure from Heidegger's notion
of Destruktion, came to be known as Deconstruction. Derrida utilized, like Heidegger,
references to Greek philosophical notions associated with the Skeptics and
the Presocratics, such as Epoché and Aporia to articulate his notion of implicit
circularity between premises and conclusions, origins and manifestations, but — in a
manner analogous in certain respects to Gilles Deleuze — presented a radical re-
reading of canonical philosophical figures such as Plato, Aristotle and Descartes as
themselves being informed by such "destabilizing" notions.
• Michel Foucault (1926–1984)
• Introduced concepts such as 'discursive regime', or re-invoked those of older
philosophers like 'episteme' and 'genealogy' in order to explain the relationship among
meaning, power, and social behavior within social orders (see The Order of Things, The
Archaeology of Knowledge, Discipline and Punish and The History of Sexuality). In direct
contradiction to what have been typified as Modernist perspectives on epistemology,
Foucault asserted that rational judgment, social practice and what he called
'biopower' are not only inseparable but co-determinant. While Foucault himself was
deeply involved in a number of progressive political causes and maintained close
personal ties with members of the far-Left, he was also controversial with Leftist
thinkers of his day, including those associated with various strains of Marxism,
proponents of Left libertarianism (e.g. Noam Chomsky) and Humanism (e.g. Jürgen
Habermas), for his rejection of what he deemed to be Enlightenment concepts of
freedom, liberation, self-determination and human nature.
• Instead, Foucault focused on the ways in which such constructs can
foster cultural hegemony, violence and exclusion. In line with his rejection
of such 'positive' tenets of Enlightenment-era Humanism, he was active,
with Gilles Deleuze and Félix Guattari, in the Anti-Psychiatry Movement,
considering much of institutionalized psychiatry and, in particular, Freud's
concept of repression central to Psychoanalysis (which was still very
influential in France during the 1960s and 70s), to be both harmful and
misplaced.
• Foucault was known for his controversial aphorisms, such as "language is
oppression", meaning that language functions in such a way as to render
nonsensical, false or silent tendencies that might otherwise threaten or
undermine the distributions of power backing a society's conventions —
even when such distributions purport to celebrate liberation and
expression or value minority groups and perspectives. His writings have
had a major influence on the larger body of Postmodern academic
literature.
FURTHER READING
Balkin, J. M., 'Understanding Legal Understanding: The Legal Subject and Problem of Legal
Coherence' (1993) 103 Yale Law Journal 105.
Boyle, J., 'Is Subjectivity Possible?: The Postmodern Subject in Legal Theory' (1991) 62
University of Colorado Law Review 489.
Carty, A. (ed.), Post-Modern Law (Edinburgh: Edinburgh University Press, 1994).
Davies, M., Delimiting the Law: 'Postmodernism' and the Politics of Law (London: Pluto Press,
1996).
Doherty T., (ed.), Postn,odernism: A Reader (London: Harvester Wheatsheai', 1993).
Douzinas, C., Goodrich P. and Hachamovitch, Y., Politics, Postmodernitv and Critical Legal
Studies (London: Routledge, 1994).
Frug, M. j., 'A Postmodern Feminist Manifesto (An Unfinished Draft)' (1992) 105 Harvard Law
Review 1045.
McGowan, J., Postmodernism and its Critics (London: Cornell University Press, 1991).
Mootz, F J., 'Is the Rule of Law Possible in a Postmodern World?' (1993) 68 Washington Law
Review 249.
Patterson, D., 'Postmodernism/Feminism/Law' (1992) 77 Cornell Lott, Review 254.
Patterson, D., Postmodernism and Law (Aldershot: Dartmouth, 1994). Schlag, P., 'Normativity
and the Politics of Form' (1991) 139 University o/ Pennsylvania Law Review 801.
Silverman, H. J., Derrida and Deconstruction (London: Routledge, 1989). Weed, E., 'Reading at
the Limit' (1994) 15 Cardozo Law Review 1671.