SOCIAL THEORY OF LAW

WEEK NINE

What is Postmodernism?

Term coined by J-F Lyotard (1979) in a report on 'the state of knowledge'

The modern/postmodern dichotomy can be understood as either an historical or philosophical distinction

Historically, postmodernism is marked by the dissolution of the nation-state and other normative social entities (including the law), the decline in belief in progress, and the blurring of traditional social roles and identities; decline in faith in formal political processes
Philosophically, postmodernism is marked by scepticism about indubitable foundations for knowledge, a view of language as constructing (not mirroring) reality, the blurring of the fact/value, fact/fiction, natural/artificial, normal/deviant distinctions.

Postmodernism’s Implications for the Law

According to postmodernists, the law has been traditionally seen as a perfect representation of a society’s normative order.

Sometimes this has even involved attributing omniscience to the original law-makers (e.g. the US founding fathers are often described this way).
On this view, there is a right and wrong way to apply the law.

Postmodernists reject this ‘traditional’ view, arguing that legislators are just as biased and fallible as everyone else, which makes it impossible to speak of just one ‘right’ way of applying the law.

Rather, the judicial decisions are ‘justified’ by appealing to a set of principles (including precedent, fairness, etc.) that typically cut against each other.
What ultimately makes a decision ‘correct’ is simply that it conforms to the ‘grammar’ of legal discourse, though in practice postmodernists tend to be sensitive to subtle historical shifts in the law’s uses, which are often masked by a common legal language.

On matters of legal policy, postmodernists may appear libertarian – i.e. the law that governs best, governs least

They would point to the tendency for incidents of certain activities to rise, once they are criminalized – suggesting that the law may bring the crime into existence
Consequently, the removal of laws would reduce the level of crime: But would this follow?
Postmodernists would argue that the presence or absence of laws may have little effect on the number of incidents: i.e. people would murder each other at the same rate with or without harsh penalties, in which society would be less mystified with fewer laws and all the costs that implementing the law entail.
In fact, there is relatively little research one way or another on this point because most lawyers and legal researchers doubt that postmodern scepticism about the efficacy of the law is warranted.

Deconstruction:

The most distinctive method of postmodernism is ‘deconstruction’ (note that the word is semantically between 'destruction' and 'construction').

The word was coined by Heidegger to mean something close to ‘reverse engineering’ an intellectual tradition – that is, to see how the tradition was constructed over time, especially by seeing how certain aspects of the tradition were suppressed in order to make it look seamless and rational.
Deconstruction is meant to reverse our usual understanding of history, whereby what happens now is progress or somehow inevitable. Instead, deconstruction is meant to highlight the contingent and unstable character of history.
It is thus related to what Nietzsche called ‘genealogy’ and Foucault called ‘archaeology’. Jacques Derrida and Paul de Man popularised deconstruction in US literary criticism in the 1970s

The principal technique of deconstruction is to destabilize binary oppositions by showing that the dominant term presupposes or depends on its opposite, which is supposedly peripheral, inferior or derivative

Precedent: Hegel’s master-slave dialectic.
E.g., Derrida destabilized the speech/writing; De Man destabilized blindness/insight, figural/literal
The idea of a 'legal fiction' (e.g. the corporation as a legally recognized 'person') may illustrate the law's self-deconstruction, as the idea draws attention to its own artificial nature.

The result of deconstruction is to show not that texts are meaningless but that they are open to many conflicting meanings

The presumption is that whatever closure is reached in legal interpretation, it is due to something outside the text
Feminists and critical legal studies scholars have thus used deconstruction to uncover social conflicts that are hidden by legal discourse
While this enables deconstruction to open up the range of legal interpretations, it may empower much more than simply socially disadvantaged groups

This point became clear when two of the leaders of deconstruction, Heidegger and De Man, were discovered to have been Nazi collaborators.
Since then, Derrida and the feminist legal theorist Drucilla Cornell have argued that deconstruction aims at justice by giving voice to otherwise suppressed points of view
However, Pierre Schlag has argued that Derrida and Cornell miss the point of deconstruction, which is that it cannot be used to promote specific political goals: language naturally self-deconstructs, and hence can always be used for multiple purposes, including Nazi ones. This is an unavoidable consequence.
In that sense, deconstruction may be inherently amoral.

Legal Pragmatism

Pragmatists justify norms, including the law, ‘non-foundationally’, which means that they do not look for something prior to the law to justify it (e.g. human nature, as natural law sometimes does, or rules of logic, as formalists sometimes do).

Among the non-foundational bases of legal justification include:

The actual facts of the case under decision, which then sets constraints on the relevant legal precedents (inductive criterion)
The practice of judges who have dealt with areas similar to the case (sociological criterion)
The track record of the consequences of the judicial rulings in areas similar to the case (legal realist criterion)

The main foundationalist objection to legal pragmatism is that it has no way of upholding moral and political principles, except as adjuncts to specific cases.

In effect, legal pragmatism makes a mockery out of ‘equal treatment under the law’ and other norms relating to consistency and fairness.
This problem is typically discussed in the context of a ‘social consensus’ that supposedly legitimates all judicial decisions. For a pragmatist, this consensus is not the result of some rational deliberation but of practical power relations (an editorial ‘we’); e.g. we oppose sexual harassment not because it’s wrong or everyone in fact agrees it’s wrong but because those with power hold it to be wrong.
Pragmatists respond that this is not such a bad view, since it points the way for judges and legislators to examine power relations, making the implied conflicts explicit in their rulings, and perhaps thereby altering the balance of power

In the end, however, the main problem with legal pragmatism is that it divorces the law from any independent authority, which means that it is prone to move as the majority does; yet, most major social change has arguably comes from the law being ahead of or resisting majority opinion.

Like Critical Legal Studies, legal pragmatism represents a retreat from the ambitious proactive jurisprudence of legal realism. Both CLS and pragmatism acknowledge that the consequences of legislation and adjudication are always harder to trace than legal realists imagined, thereby making any genuinely scientific ‘social experiments’ in the law impossible.
However, whereas CLS stress the open-endedness of this conclusion (i.e. much can be done to influence legal outcomes in trials), legal pragmatists stress the need to fall back on tradition – what has tended to work in the past (i.e. the so-called ‘test of time’) – and a general presumption that society normally works well and so law is needed only in the extreme cases.
Thus, legal pragmatists tend to be rather conservative in their attitude toward the law. A good example is Richard Posner, who also spearheaded the law and economics movement, but largely to show that our commonsense prudential judgements about legality are based on sound economic principles.