Lecture note Postmodern Legal
Theory
PLT is a general theory
to challenge the liberal orthodoxies that society has a natural structure and
that history is simply a process of evolution towards ‘that truth’. Even if it
is one part of the critical movement, indeed it is more disturbing vision of
law and society in the 1990s.The postmodernism shares 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.
Though it has no bounds, for there are none, only 'flux, dispersal, plurality
and localism'.
The main tenet of the
postmodernists rejection of the faith in rationalism, and a recognition that
any argument, no matter how perfectly logical, is only as good as its
presuppositions. They questioned; what makes the presupposition as good as to
be a standard for an argument?
But along with their
rejection of rationality comes the rejection of the possibility of truth. Of
course it is a recipe for relativism when in fact it is a positive method of
forcing individuals to confront and change the rigid contexts and structures
(including laws) within which they have arbitrarily confined themselves.
Let’s take an instance
and it will be clear. In the art of painters and writers, those who refuse to
reexamine the rules of art pursue successful careers in mass conformism by
communicating, by means of the 'correct rules', the endemic desire for reality
with objects and situations capable of gratifying it.Whereas those painters and
writers who do not conform to the accepted rules struggle to get their works
seen or read, for they are not accepted as 'real' artists. However, a realization
that those rules will have originated in a context breaking piece of art or
literature shows the falsity of the belief in the truth as represented by those
rules. Rules in fact just represent one view or approach. A postmodernist
painter or writer is in the position of a philosopher, not, in principle,
governed by pre-established rules (which are merely representation of one
view), and he cannot be judged according to a determining judgment, by applying
familiar categories to the text or to the work. Rather he paints or writes without
rules in order to formulate the rules of what will have been done. The so
called existing rules have no superior or prior claim than any other view or
approach. A context breaking writer may start a literary school which becomes
so established that it eventually becomes the orthodoxy. The mistake is then
made to elevate the orthodoxy to the level of a received truth.
Postmodernists claimed
as they do not really have a positive agenda, having no purpose except to
undermine; undermining fruits and components of modernism. Postmodernist’s
rejection of the modernists springs from Enlightenment. The 15th and
16th Enlightenment sought to free humanity from the chains of
unthinking tradition and religious bigotry, to enable human being to master the
world through science and remake the world according to the dictates of reason.
Two centuries later, humanity is imprisoned by new chains that the
Enlightenment forged for us.
These are the chains
created by science, technology, and rationality, which in the course of
liberating us subjected us to new forms of control, bureaucracy, mediaization,
suburbanization, and surveillance. We still need liberation, we still need
emancipation; Emancipation through a rejection of the terms by which we freed
ourselves from pre-Enlightenment thinking. 'Meta-narratives' like Liberalism and
capitalism are not the end of the road but are simply the major components of
what the postmodernists call 'modernity'. Thus modernity according to
postmodern thought is a state of restrictions and a believe on one way of
thinking and rejection of subjectivity. Modernity for Modernists is 'progressive'
versions of history under the label of 'Enlightenment'. 'Enlightenment brings
"light", and Modernity's task is to finish the task that the
Enlightenment began. However for Postmodernists, Modernity is 'an iron cage of
bureaucratization, centralization and infinite manipulation of the psyche by
the "culture industry" and the disciplinary regimes of power and
knowledge', it is new way of mind imprisonment as that of pre Enlightenment.
Generally
Postmodernism, in relation to law, is a theory which reject believe on a unified
whole, and positing the rule of law as the method of 'neutral, non-subjectivist
resolution of value disagreement and social conflict'. Rigid homogeneity is recognized
by postmodernism as being imposed arbitrarily. 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'.
ü It
is a total rejection of the structured, logical and internally consistent
picture of society and law.
ü Rather
it is celebration of flux, dispersal, plurality and localism.
ü It defies the system, suspects all totalizing
thought and homogeneity and opens space for the marginal, the different and the
‘other’.
ü 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.
