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’.

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