Finding Footing In a Postmodern Conception of Law (original) (raw)
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?A well-founded fear of justice?: Law and ethics in postmodernity
Law and Critique, 1991
COSTAS DOUZINAS and RONNIE WARRINGTON* "Does he know his sentence?" "No" said the officer. "He doesn't know his own sentence? .... No" the officer said again; he was still for a moment as if expecting the traveller to volunteer some reason for his question, then he said, "There would be no sense in telling him. He experiences it on his own body". Karl<a, In the Penal Colony
Andreas Philippopoulos-Mihalopoulos, 'Postmodern Theory of Law', in M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy, 2017
Postmodern theory of law is an umbrella term. It comprises various theoretical and more empirical schools of thought that are defined by 1. an attempt to see the law in its social context, namely not merely as positivist norms that come through the usual annals of legal decision-making (whether national, regional, international, supranational etc.) but also as norms and behaviors that are produced in social interaction; 2. a tendency seriously to engage with interdisciplinarity, and work with the theoretical heritage of continental philosophy, such as postmarxism, deconstruction, phenomenology, psychoanalysis, literary theory, theories of embodiment and spatiality, art theory and aesthetics, as well as more explicitly political legal strands, such as feminist legal theory, ecology and law, law and economics, postcolonialism, law and race, third world approaches to international law (TWAIL), queer legal theory, law and popular culture, and so on.; and, 3. a strong critique against current neoliberal political and legal regimes, and also strands of legal theory that are either supportive or silently complicit with the above regimes. This is a short Encyclopaedia entry, describing the main points of a Postmodern Theory of Law.
Postmodernism is a term born of disputes or polemics between the 'moderns' and the 'postmoderns'. These disputes passed through the humanities and public discourse between the nineteen sixties and the late nineteen nineties. At its peak the dispute emerged as a distinct 'culture war'. For some postmodernism offered a way of revitalising and moving beyond the modern; for critics, it has been little more than a late flourish of romanticism and irrationalism. Like an earlier series of disputes waged in France and England between the 'ancients' and 'moderns' at the end of the seventeenth and beginning of the eighteenth century, the debates between the moderns and postmoderns concerned the character of our civilization and the conduct of our civility compared with those our past and of our neighbours. The range of the debates between the 'ancients' and 'moderns' is, somewhat surprisingly, comparable to those of our near present. On one reading battle lines were drawn between classical scholarship and modern science, between a past dominated by abstract contemplation and scholastic argument, and a
Post-Postmodernism: Engaging the New Spirit of the Age with Clarity, Conviction, and Compassion
Just as postmodernism was both a coming to fruition of modern thought, as well as a discernible break from it, so there are both continuities and breaks between postmodernism and what we now find sweeping through American law and culture. This paper focuses on two particular breaks. First, the manner in which “legislating morality” has moved from being strictly verboten in the postmodern mileau (at least in principle) to becoming the “new normal.” A second break is from the trend in postmodern jurisprudence of "trashing" metanarratives to the triumph of metanarrative under post-posmodernism. Post-postmoderns, by contrast, are perfectly happy to compose morally-charged metanarratives and use them in precisely the power-seeking ways that the postmodern found so disingenuous and oppressive. How might we respond to these profound cultural and jurisprudential shifts?
A Postmodern Defence of Universal Liberal Legal Norms
The Canadian Journal of Law and Jurisprudence, 2010
The idea of universal liberal legal norms has long been under attack from a variety of sources. One of the most sustained and sophisticated philosophical versions of such an attack is found in the work of Martin Heidegger. His argument from the social embeddedness of the self to the ultimate contingency and groundlessness of any claims of normativity has been highly influential across a number of fields. This paper argues that legal theorists who wish to contest such a view should look to the work of philosopher Emmanuel Levinas. In his critique of Heidegger, Levinas affirms the significance of the human beyond the particular context in which we find ourselves embedded. Levinas wrote very little about law; his main focus was on ethical responsibility and the claim that an “other” makes on me. I argue that legal responsibility is fundamentally different, concerned instead with the claims that a self can make on others. Drawing upon Levinas’ understanding of the self as constituted th...
Towards a Metatheoretical Postmodern Approach to Legal Reasoning
This paper focuses on legal reasoning, arguing that although methodological theories are important, they are not enough to explain how to reason in law. In fact, because the different philosophical perspectives vary so significantly in their ability to resolve legal conflicts, when a less "adapted" perspective decides a legal question, the results can be disastrous. Thus, this paper inaugurates a new attitude, stating that a general philosophical perspective is the only way out. Relying on a metatheoretical postmodern approach, it argues that logic, analysis, argumentation and hermeneutics are complementary theories that offer a unique perception of law. It concludes that the approach proposed makes possible not only a comprehensive view of the way legal reasoning behaves, but more than this, a proportionate flexibility to both civil and common law systems.
LLM THESIS: Justice and the Body: A Phenomenological Approach to Legal Subjectivity
2014
In the late nineteenth century, future United States Supreme Court justice Oliver Wendell Holmes wrote, ‘the life of the law has not been logic; it has been experience’. This oft-repeated maxim has nonetheless remained exterior to legal reasoning since the inauguration of the modern legal subject as mediated through the respective thought of Rene Descartes and Immanuel Kant. This conception of law, which will be referred to as ‘modernist law’ throughout this essay, maintains that the experiences and narratives that constitute the everyday lives and self-conceptions of subjects have no place within legal decision-making. This law holds itself out as a closed system, a ‘seamless web’ in which its own rationality grounds and structures itself. Its subject is primarily understood as res cogitans (mental substance), abstracted from the concrete features that constitute a subject’s (social) identity. Despite binding itself to a hermetically sealed discourse, modernist law nonetheless attempts to adjudicate within social arenas that are fundamentally dependent upon both narrative and experience in constructing and contextualizing conflicts. In attempting to resolve these issues, modernist law simultaneously oversteps its self-imposed bounds and fails to realize that it reaches beyond the limits of its own horizons. However, taking the law as a phenomenological enterprise, constituted around the phenomenal experience of (legal) subjects, renders it amenable to addressing and meeting human needs by providing a ‘corporeal justice’. This essay will argue for (re)considering the res extensa (physical substance) of subjectivity by providing the grounds for thinking about legal issues beyond the modernist constraints. This embodied legal subject is, at its core, a phenomenological subject, in that the analysis of the subject’s lived experiences determines how the law ought to respond to injustice. Through this understanding of the legal subject, I argue that legal decision-making will no longer be based upon pure principle or opinions far removed from the concrete situation at hand. Rather, the socially embedded and embodied aspects of the subject will be taken as the primary grounding for the legal decision.
Rethinking Legal Ideals after Deconstruction
In this essay I seek to challenge a reading of "deconstruction," and postmodernism more generally, that has been proposed by its friends and its foes in legal circles. Deconstruction and postmodern genealo- gies inspired by Nietzsche are often read to expose the nakedness of power struggles and indeed of violence masquerading as the rule of law. With this exposure, the jurisprudential intervention of these philo- sophical positions supposedly comes to an end.1 The enemies of decon- struction challenge this exposure as itself an act of ethical irresponsibil- ity that leaves in its stead only the "right" of force, which, as a result, levels the moral differences between legal systems and blurs the all- too-real distinctions between different kinds of violent acts within legal systems. But I will also argue that even friends of deconstruction or postmodernism reach mistaken conclusions about what kinds of pro- grams of legal, political, and ethical reform can still ...
The shaky high moral ground of postmodernist ethics
Social Work/Maatskaplike Werk, 2006
The paper takes as its starting point the paradoxical question of whether postmodernism can have a moral, ethical and values base. It explores the murky waters of postmodern relativism, which works against professions such as social work taking a strong ethical stance against injustice. It explores some philosophical arguments supporting the search for moral universals, no matter how minimal they might be, and advocates the enduring utility of ethical codes, despite their limitations. By its very nature ethics has a transcendent quality and Habermas's groundbreaking ethical schema is described for its enduring fit with the Western philosophical tradition and its compatibility with social work thinking on ethics.
This paper is an attempt to outline characteristic features and claims of modernist and postmodernist trends in the contemporary philosophy of law and to show the importance of their present-day debate in the Globalization Era. The theories presenting a postmodernist view of law have developed a huge number of different, even contradictory, decisions. They can be divided into dialogical and critical theories. The first ones consider law as a self-developing system, and they put an emphasis on its internal communicative aspects. The critical theories are oriented to a rethinking of the most important modernist values. KEYWORDS: philosophy of law, postmodernsim, technological and dialogical theories of law This paper is an attempt to outline characteristic features and claims of modernist and postmodernist trends in the contemporary philosophy of law and to show the importance of their present-day debate. Postmodernism can be considered as a new philosophical project with radical critical spearheadedness and as a new stage in the development of industrial societies in the Globalization Era. The "modernist project" is a product and ideology of the intellectual revolution in Europe in the 17th century. It has its roots in a concept of universal values and in the unified rational order of nature, society and the human race. Science and technologies are perceived of by it as tools of rationalization, of social relationships. Postmodernist criticism orientates the contemporary philosophy, and culture as a whole, to a rejection of the absolute commitment to great rational ideas and principles inherited from the Enlighten. It stands for and advocates a return to local, qualitative differences and conformity with the fragmentation of subject and society-to replace the pursuit of global human control of nature and