Post-Modernism and the Law

Robert Post

  • Languages of Law: From Logics of Memory to Nomadic Masks by Peter Goodrich
    Weidenfeld, 353 pp, £30.00, August 1990, ISBN 0 297 82024 9
  • Post-Modern Law: Enlightenment, Revolution and the Death of Man edited by Anthony Carty
    Edinburgh, 166 pp, £25.00, August 1990, ISBN 0 7486 0156 2

In America, at least, legal realism stripped the law of its pretensions to transcendental purity in the early years of the 20th century. Our legal project consequently turned toward the creation of a merely human law, one that could serve as an instrument for the achievement of social purposes. To the surprise of many, however, our law has nevertheless managed to retain an authority quite astonishing in its robust power to silence competing perspectives and to impose a legitimacy seemingly grounded on nothing more than its own brute assertion. The effort to explain this striking authority has led to the proliferation within American legal academies of important and influential movements like critical legal studies and critical legal sociology.

These movements scrutinise what may be called the cultural self-constitution of law. They attempt to trace exactly how the law goes about establishing its own splendid eminence. In so doing, they adopt an external perspective on the law, keenly aware of the outward mechanics of its operation, but seemingly indifferent to the internal regulation of its direction.

It is this focus which informs Peter Goodrich’s Languages of Law. The book appears to be a collection of disparate essays, oddly connected and repetitive, but which nevertheless circle back obsessively to the question of how the law sustains its own authority. Goodrich continually queries the mechanisms that underwrite ‘the awesome power of law, the sovereignty of an order that comes from elsewhere ... from an authority that requires no justification beyond the manner of its own statement, its annunciation, its power to presence an absent spirit, that of the common law’.

In this enterprise Goodrich spans vast measures of historical time. Much of the work is original and informative, although some of the history is shaky. For example, Goodrich attempts to connect Thomas More’s defence of ecclesiastical interpretative prerogative to Edward Coke’s similar claims for legal expertise, without apparently being aware that More’s own concept of law was essentially transparent. In contrast to matters divine, More desired that secular law be written so as to ‘be read or understood by every one of the subjects’. It is difficult to conceive a sharper contrast to Coke.

The heart of Goodrich’s enterprise, however, is not historical but analytic. He wants to use the method of semiotics to scrutinise the operation of the law, because ‘it is through symbols, through forms of appearance and representation of law in the public sphere, that the public generally recognises law as the speech and action of either a legitimate or simply a de facto sovereign social power.’ Goodrich variously describes the subject of his inquiry as English law (the ‘specific legal system ... of dear, vile England’), the ‘common law tradition’, or contemporary Occidental law generally.

Semiotics leads Goodrich to a fiercely negative indictment. Again and again he concludes that legal authority is empty and undeserved, that it merely ‘establishes a regime of similarity, of repetitions, of the permitted forms a figuration of an absent God, and so also of a law in abeyance’. In the end, the law becomes for Goodrich a monument that ‘memorialises ... precisely death, the absence of the living, the relics or remains, the debris of all that has disappeared’.

It is rather easy to see, however, that this bleak conclusion is built into the very premises of Goodrich’s method. He begins with the semiotic assumption that the law ‘as a structure of material life, as an institution’, is ‘nothing other than its image, no more and no less than a sign; it is the spectacle of the scaffold, the aura of judgment, the sense of the normal.’ But this assumption already contains within it Goodrich’s ultimate position that law is empty and dead. Goodrich makes no particular effort to justify his initial premise, and it is noteworthy that it rather sharply contradicts the law’s own understanding of its mission, which concerns the achievement of human purposes.

Goodrich’s refusal seriously to entertain any such internal perspective leads him to mishandle badly the legal material. So, for example, he contends that the ‘law ... has abolished interpretation’. Yet, as the work of Ronald Dworkin (who is not even mentioned) convincingly demonstrates, the internal processes of the law are understood by its participants to be, and can in fact usefully be characterised as, quintessentially interpretative. For Goodrich the law is ‘monocentric’ and speaks with a ‘univocal mouth’. Yet this account ignores important legal institution like jury nullification and judicial dissent.

Goodrich’s central point, often repeated, is that the law forms a system of signs that is closed and self-referential, so that, ‘as a language, law does not refer to any anterior realm of legal things; it refers simply to the system of legal notation, to other signs of law, to other legal texts.’ This ‘internality of legal history’ is said to preclude ‘any very direct access to knowledge’ and necessarily to ‘efface’ nonlegal and ‘vernacular’ perspectives. Although there is a sense in which Goodrich’s point is undeniably true, because the law’s appropriation of other discourses will always in the end be controlled by criteria that are specifically legal, Goodrich is determined to establish something much stronger: that the arrangement of legal signs somehow necessarily precludes the law from having access to non-legal perspectives.

This contention is plainly false. The institution of the jury is specifically designed to introduce lay judgments into controlled areas of the legal system. Many legal rules, like those invoking the ‘reasonable person’, are specifically written to incorporate community values. The whole process of legal interpretation makes sense only when conducted within the milieux of those values. That is why Cardozo (whom Goodrich also ignores) long ago observed that ‘the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience.’ The connections between law and our general cultural environment are in fact so manifold and important that the best contemporary work on the sociology of law has come to view legal discourse as dialectically connected to other forms of social knowledge.

This sociology, however, takes seriously the internal perspective of the law, and I suspect that Goodrich adopts his extreme position precisely because he cannot bring himself to credit that perspective. What gives edge to his vision is the refusal to contemplate what a living and desirable law might be like. The most for which we can hope, he tells us, is to come to see ‘the forms of dying’, to ‘interpret the law so as to laugh at it, so as to seduce, to play by invocation of other words and more rigorous and living languages’. In his last chapter, a fascinating discussion of the art of David Walliker, he makes it plain that meaningful law is impossible because under contemporary conditions of ‘ultra-modernity’ the authority required by such a law cannot exist. Instead we have only ‘the social forms of human absence’ arranged within relationships of ‘pure reflection, pure sign, zero sum, simulacrum’.

The denial of the possibility of legitimate social authority allies Goodrich (as it does also the American critical legal studies movement, which Goodrich also barely acknowledges) with Post-Modernism. The denial is responsible for the attempt of the Post-Modern sensibility to deconstruct ‘hierarchical’ arrangements and concomitantly to embrace ‘disorderly’ assemblages. This is apparent in such diverse phenomena as the dismantling of the authoritative canon in English literature and the evacuation of ethnographic authority in anthropology.

It is one thing, however, to deny the possibility of authoritative order to academic modes of cultural comprehension for which there are alternative models of aesthetic understanding, and quite another to deny that possibility to the law, whose very project is the creation of legitimate and authoritative forms of social order. The attempt to do so leads directly to two questions: does Post-Modernism imply the negation of law? And, if so, what sort of society is possible without law? Because Goodrich so strongly implies an affirmative answer to the first question, he owes us an exploration of the second. It is a responsibility, however, he seems loath to discharge. And no wonder. The internal contradictions involved in applying the Post-Modern enterprise to law are so palpable that Goodrich seems to draw back in spite of himself. His overt – and strident – message is the announced death of law, but the undercurrent of his text is something quite different.

This can most easily be seen in his extended discussion of Masterson v. Holden, a case involving two gay men arrested in 1986 for kissing and other ‘overt homosexual conduct’ at a bus stop in Oxford Street at 1.55 a.m. Two heterosexual couples who were passing by were offended, although the gay couple was ‘wholly unaware of’ the presence of ‘other persons in the vicinity’. The two gay men were convicted of the offence of ‘using insulting behaviour whereby a breach of the peace may have been occasioned’. The men appealed on the ground that ‘insulting behaviour must be directed at another person or persons,’ so that their ignorance of the presence of other persons meant that their behavior could not be characterised as ‘insulting’. The Court per Lord Justice Glidewell rejected the defendants’ argument, holding that their conduct could easily be comprehended by ‘the ordinary sense’ of the word ‘insulting’, because ‘the display of such objectionable conduct in a public street may well be regarded by another person, particularly a young woman, as conduct which insults her by suggesting that she is somebody who would find such conduct in public acceptable herself.’

Goodrich quite rightly goes after Glidewell’s opinion hammer and tongs. But what is most interesting about his discussion is its pervasive equivocation about whether the opinion is necessarily wrong because of the intrinsic properties of the law and of ‘the legal gaze’, or merely wrong, in the sense that a more sensitive attention to the precepts of ‘reason and good conscience’ would have dictated a different result.

Goodrich’s semiotic method allies him with the first position. But the moral outrage that informs his discussion plainly flows from the second, which it would seem strange, implausible and self-defeating to deny. The second position, however, invites us to consider how the law can get things right, how it can be, as Goodrich offhandedly remarks in his Preface, ‘re-inhabited’. It is, in short, a position which entails an internal view of the law, and is thus deeply inconsistent both with the externality of Goodrich’s semiotics and with the thoroughgoing pessimism of his Post-Modernism. Not surprisingly, the position is left entirely undeveloped in Languages of Law, whose rhetoric as a consequence often appears unintentionally parodic.

The tension that divides and disables Goodrich’s work is also evident in Anthony Carty’s introduction to his Post-Modern Law, an uneven collection of essays by six English legal academics. Carty sees the problem. He acknowledges at the outset that ‘it remains unclear what understanding of law the French Post-Modernists might be expected to afford.’ Unfortunately his essay does not enlighten us. ‘Post-Modernism marks the re-introduction of ontology into law, not as a solution to the question of the foundation of law, but as a firm assertion that the law has no foundation.’ We are treated to insistent metaphors of ‘indeterminacy’, to resonant slogans like the ‘undeniable negative’, the ‘overarching coercive order’, ‘the disappearance of the Rights of Man with Man’s own disappearance’, and the closure of ‘the Enlightenment episode’. These images are blank and unyielding; and in the end, despite all the jargon and portentous gestures, we simply do not know whether Post-Modernism implies the death of law, and, if it does, what a social order sans law ought to be like.

Two particularly fine contributions to the Carty volume, by Peter Fitzpatrick and Anne Barron, deserve special attention. Both are heavily indebted to the work of Michel Foucault, who himself had a complex relationship to Post-Modernism. Foucault’s major preoccupation was the manner in which power constitutes the subject, and he was deeply ambiguous as to whether that constitution implied the negation of the subject, or merely formed the necessary precondition for the recognisable existence of the subject. The first position is consistent with the Post-Modernist animus espoused by Carty and Goodrich, the latter inconsistent with it. Both Fitzpatrick and Barron spin off the latter position.

Each documents the extent to which the disciplinary creation of the self has historically served as a prerequisite for the emergence of the juridically free subject of Enlightenment democracy. Fitzpatrick attends to this question in the context of colonial law, and powerfully illustrates the logic by which that law could deny the equality of colonised persons because they had not yet been formed by that ‘scientific administration which produces the normal self-responsible (liberal) individual, responsive to the dictates of disciplinary power’. Although Fitzpatrick does not mention it, his position is amply supported by American constitutional doctrine, which after the Spanish-American war refused to extend constitutional rights to colonial peoples because their traditions and culture had left them ‘unprepared’ for autonomous citizenship. The formative necessity of discipline is thus presupposed in the very appeal to the autonomous rights-holder.

Barron discusses the same theme in the context of the modern administrative state. Drawing on the excellent work of François Ewald, she shows how the interventionist state regulates in ways that are simply incompatible with liberal notions of the free and self-determining subject. Yet that very subject continues, in some not merely fictional way, to underwrite the legitimacy of the state. Barron’s perspective is admirable in its supple ability to comprehend the contradictory motions of a complex social dialectic; and it offers rich insights into the contemporary study of law. It suggests, strangely enough, that a vice of the brand of Post-Modernism espoused by Carty and Goodrich is its shrill rationalism, its insistence on flattening all tension to an even consistency. In its understandable but ultimately melodramatic outrage at confident liberal assertions of legitimate social authority and the autonomous self, Post-Modernism chooses the unimpeachable consistency of denying both. It thus mirrors the Enlightenment dragon it seeks to slay. And its melodrama, however stirring within the context of cultural politics, can lead only to disaster in the real-life practices of the law.