Modernism and Post-Modernism

Modernism refers to the intellectual outlook that emerged from the Enlightenment (seventeenth and eighteenth centuries). Its main assumptions:

• Reason and rationality as the route to truth and progress.

• Objective, universal knowledge; the existence of facts independent of observers.

• Grand narratives (metanarratives) of progress, emancipation and totalising explanation (liberalism, Marxism, science).

• The autonomous, rational subject (the Cartesian and Kantian individual).

• Law as a rational, neutral, coherent and autonomous system that can be systematised, codified and applied objectively (Bentham's codification, Austin's science, Kelsen's pure theory, Hart's concept of law; legal formalism and liberal legalism).

• Max Weber described modernity as the rationalisation and 'disenchantment' of the world; modern law is formally rational.

Modern jurisprudential schools (natural law, positivism, historical, sociological, realist, Marxist) share the assumption that there is a coherent theory of law capable of explaining or justifying law. Even the realists and Marxists criticised law in the name of a better reason or science.

Postmodernism is not a school with a single doctrine but a cluster of critical attitudes towards modernity. Main features:

• Incredulity towards metanarratives (Lyotard): suspicion of any single theory (including of justice, progress or reason) claiming universal truth.

• Knowledge is constructed through language, discourse and power, not discovered neutrally. Truth is local, contingent and plural.

• Decentring of the subject: the 'individual' is shaped by discourse and social forces (the 'death of the author' in Barthes).

• Rejection of foundations: no ultimate foundation for knowledge or morality.

• Deconstruction of binary oppositions (reason/emotion, public/private, male/female, law/politics, rule/exception).

• Indeterminacy of meaning: texts, including law, have no single fixed meaning.

• Pluralism and difference: emphasis on marginal voices, local knowledge and small narratives (petits recits).

• Law as power, discourse and text, not a neutral instrument of reason.

Jean-Francois Lyotard (1924 to 1998): The Postmodern Condition: A Report on Knowledge (1979): defines the postmodern as 'incredulity towards metanarratives'; language games (borrowed from Wittgenstein); knowledge legitimated through performativity. The Differend (1983): a differend is a conflict between two parties that cannot be resolved because no rule of judgment is applicable to both; the wrong suffered by the one who has no language to express it (this has been applied in law to the position of victims, minorities and indigenous peoples).

Michel Foucault (1926 to 1984):

• Works: Madness and Civilization (1961), The Birth of the Clinic (1963), The Order of Things (1966), The Archaeology of Knowledge (1969), Discipline and Punish (1975), The History of Sexuality, Vol. I (1976), Society Must Be Defended (lectures 1975 to 1976), and lectures on governmentality.

• Power/knowledge: power and knowledge are inseparable; knowledge produces power and vice versa; power is productive, not merely repressive; and it is dispersed through society (capillary power), not located only in the state or sovereign.

• Sovereign (juridical) power versus disciplinary power: pre-modern power was exercised as sovereign command and spectacle (public execution, as in the opening of Discipline and Punish), while modern power works through discipline, surveillance, examination and normalisation (prisons, schools, hospitals, barracks). Law has increasingly become one of many mechanisms of normalisation, and the legal 'subject' is produced by these practices.

• The Panopticon: Bentham's design for a prison, with a central tower from which inmates may be observed without knowing whether they are being watched; Foucault uses it as the metaphor of modern disciplinary society (self-regulation through the possibility of being watched).

• Biopower and biopolitics: the management of populations (births, health, sexuality) by the state.

• Genealogy: the historical analysis of how present practices and 'truths' emerged from contingent power struggles.

• Foucault urged political theory to 'cut off the king's head', that is, to look at the micro-physics of power rather than only at sovereign commands.

Jacques Derrida (1930 to 2004):

• Deconstruction: the reading of texts to reveal the hidden hierarchies, contradictions and instabilities in their binary oppositions; differance (difference and deferral of meaning); logocentrism (the privilege given to speech and presence); aporia (an impasse); undecidability.

• Works: Of Grammatology (1967), Writing and Difference (1967), Dissemination, 'Force of Law: The Mystical Foundation of Authority' (1990).

• In Force of Law he argues that law is deconstructible (because it is a historical, constructed and changeable system), but justice is not deconstructible (it is an infinite, unconditional demand that law can never fully satisfy). The 'mystical foundation of authority': the founding act of law is itself neither legal nor illegal, a performative act of violence without prior legal justification. Justice is always 'to come' (a venir); a decision is just only when it passes through the ordeal of the undecidable.

Others:

• Jean Baudrillard: Simulacra and Simulation (1981): hyperreality, where signs and simulations replace reality.

• Richard Rorty: Philosophy and the Mirror of Nature (1979), Contingency, Irony and Solidarity (1989): pragmatic anti-foundationalism; liberal ironism.

• Stanley Fish: Is There a Text in This Class? (1980): meaning is produced by interpretive communities; applied to legal interpretation (Doing What Comes Naturally).

• Fredric Jameson: Postmodernism, or the Cultural Logic of Late Capitalism (1991); David Harvey: The Condition of Postmodernity (1989).

• Zygmunt Bauman: Legislators and Interpreters (1987) and Liquid Modernity (2000); Anthony Giddens: The Consequences of Modernity (1990) (late or reflexive modernity); Ulrich Beck: Risk Society (1986).

• Jurgen Habermas: a defender of modernity: 'Modernity: An Unfinished Project' (1980); The Philosophical Discourse of Modernity (1985); Between Facts and Norms (1992): discourse theory of law and democracy, in which law's legitimacy rests on communicative rationality and the idea that norms are valid only if all those affected could agree in rational discourse. He criticised Foucault and Derrida for abandoning reason.

Postmodern legal theorists: Costas Douzinas and Ronnie Warrington (Postmodern Jurisprudence, 1991; Douzinas, The End of Human Rights, 2000); Peter Fitzpatrick (The Mythology of Modern Law, 1992); Drucilla Cornell (The Philosophy of the Limit, 1992); Jack Balkin (deconstruction and law); Boaventura de Sousa Santos (Toward a New Legal Common Sense; the idea of interlegality and the cartographic view of law); Dragan Milovanovic.

Origins: CLS emerged in the United States in the late 1970s (a conference at the University of Wisconsin in 1977 is regarded as its founding event) among left-leaning law teachers influenced by legal realism, Marxism, the Frankfurt School, structuralism and later post-structuralism.

Core tenets:

• Law is politics: legal doctrine is not neutral and reflects power relations, especially those of class, race and gender.

• Indeterminacy thesis: legal rules and precedents do not compel a single result; judges can reach opposite conclusions from the same material, and the apparent determinacy is produced by ideology.

• Contradiction: liberal legal thought contains deep contradictions between individualism and altruism (Kennedy's 'fundamental contradiction'), rules versus standards, and so on.

• Legitimation: law reproduces social hierarchy by making it appear natural and necessary (reification); Gramsci's hegemony is used.

• Critique of rights: rights are indeterminate, reinforce individual isolation and are used by the powerful (Mark Tushnet, Peter Gabel).

• Trashing: the critical exposure of the contradictions of legal doctrine (Mark Kelman).

Key figures and works:

• Roberto Mangabeira Unger: Knowledge and Politics (1975), The Critical Legal Studies Movement (1983), False Necessity (1987); he rejects 'false necessity' and proposes 'empowered democracy' and 'deviationist doctrine'.

• Duncan Kennedy: 'Form and Substance in Private Law Adjudication' (1976), The Rise and Fall of Classical Legal Thought, Legal Education and the Reproduction of Hierarchy (1983), A Critique of Adjudication (1997).

• Morton Horwitz: The Transformation of American Law, 1780 to 1860 (1977).

• Mark Tushnet, Karl Klare, Peter Gabel, Mark Kelman, Alan Hunt, Joseph Singer, Gerald Frug.

• Criticism: CLS offers a critique but no constructive programme; Owen Fiss ('The Death of Law?', 1986) and Paul Carrington ('Of Law and the River', 1984, who suggested that CLS scholars should resign); the indeterminacy thesis is exaggerated; and rights discourse has also served the oppressed (the response of critical race scholars).

• Liberal feminism: equal rights, equal opportunities, formal equality (Mary Wollstonecraft: A Vindication of the Rights of Woman, 1792; John Stuart Mill: The Subjection of Women, 1869; Betty Friedan; Ruth Bader Ginsburg's litigation).

• Cultural (difference) feminism: women have a distinct moral voice. Carol Gilligan, In a Different Voice (1982): the ethic of care versus the male-associated ethic of justice; Robin West, 'Jurisprudence and Gender' (1988): the connection thesis (women are materially connected to others through pregnancy and nursing) versus the 'separation thesis' that underlies liberal legalism and male jurisprudence.

• Radical (dominance) feminism: Catharine MacKinnon, Sexual Harassment of Working Women (1979), Feminism Unmodified (1987), Toward a Feminist Theory of the State (1989): gender is a hierarchy of power and dominance, not merely difference; law is male because it is objective in the way that male power is objective; sexual harassment as sex discrimination; the campaign (with Andrea Dworkin) for civil rights anti-pornography ordinances.

• Post-modern feminism: Judith Butler, Gender Trouble (1990): gender is performative (constituted by repeated acts), not a natural fact; Carol Smart, Feminism and the Power of Law (1989): law is a gendering strategy, and feminists should be careful about turning to law as the answer; Drucilla Cornell.

• Intersectionality: Kimberle Crenshaw, 'Demarginalizing the Intersection of Race and Sex' (1989): discrimination based on overlapping identities (race, sex, class) cannot be understood by looking at each category separately.

• Simone de Beauvoir, The Second Sex (1949): 'One is not born, but rather becomes, a woman.'

• Indian feminist legal landmarks: Mary Roy v State of Kerala (1986) (equal inheritance rights of Syrian Christian women under the Indian Succession Act); Mohd. Ahmed Khan v Shah Bano Begum (1985) (maintenance for a divorced Muslim woman under Section 125 CrPC), followed by the Muslim Women (Protection of Rights on Divorce) Act, 1986, and Danial Latifi v Union of India (2001); Vishaka v State of Rajasthan (1997) and the POSH Act, 2013; Anuj Garg v Hotel Association of India (2008) (protective discrimination based on stereotypes is invalid); Shayara Bano (2017); Joseph Shine (2018); Independent Thought v Union of India (2017) (sexual intercourse with a wife under 18 is rape); Vineeta Sharma v Rakesh Sharma (2020) (daughters are coparceners by birth under the amended Hindu Succession Act, 2005); Sabarimala (2018). The Nari Shakti Vandan Adhiniyam, 2023 (the 106th Constitutional Amendment) provides one-third reservation for women in the Lok Sabha and State Legislative Assemblies, to take effect after the next census and delimitation.

• Critical race theory (CRT): Derrick Bell (Faces at the Bottom of the Well, 1992; the interest-convergence thesis: progress for black Americans occurs only when it converges with white interests, as in Brown v Board of Education, 1954), Kimberle Crenshaw, Richard Delgado, Mari Matsuda, Patricia Williams (The Alchemy of Race and Rights, 1991), Cheryl Harris ('Whiteness as Property', 1993). Methods: storytelling and counter-storytelling; race as a social construct; critique of colour-blindness.

• Queer theory: Judith Butler, Michel Foucault, Eve Sedgwick (Epistemology of the Closet, 1990): identity categories are social constructs; heteronormativity.

• Post-colonial theory: Edward Said, Orientalism (1978); Gayatri Spivak, 'Can the Subaltern Speak?' (1988); Homi Bhabha; the Subaltern Studies collective (Ranajit Guha). In law: Upendra Baxi, Ratna Kapur, and TWAIL scholars (B.S. Chimni, Antony Anghie) who show how international law carries colonial structures.

• Legal pluralism: the coexistence of more than one legal order in the same social field. Eugen Ehrlich (living law); John Griffiths, 'What is Legal Pluralism?' (1986) distinguishes strong (genuine, social) from weak (state-recognised) pluralism; Boaventura de Sousa Santos and Sally Engle Merry (global and local law); Gunther Teubner ('Global Bukowina', 1997). Niklas Luhmann and Teubner developed autopoiesis (law as a self-referential social system) as a late-modern account of law.

• Relativism and nihilism: it offers no basis to say that any legal arrangement is better than another.

• Performative contradiction (self-refutation): the claim that there are no universal truths seems itself a universal claim (Habermas).

• Political paralysis: rejection of metanarratives undermines the grounds for emancipatory politics, human rights and the rule of law.

• Obscurity of language and lack of empirical testing.

• Defenders reply that postmodernism does not abandon justice (Derrida), but demands more responsibility and attention to those whom 'universal' systems exclude (Lyotard's differend).