Post Modern Legal Theiroty
Post Modern Legal Theiroty
Post Modern Legal Theiroty
1. https://en.wikipedia.org/wiki/Postmodern_law
2. Deflam, Mathieu (2008) Sociology of Law: Visions of a Scholarly Tradition - Chapter 10, Cambridge
University Press
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POST MODERNIST THEORY OF LAW
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infinite manipulation of psyche by the culture industry and the
disciplinary machines of power and knowledge’. They believe
that modernity’s structures, its laws, its literature, its
architecture, its arts, or any of its products are subject to
deconstruction, a process which reveals a number of
alternatives. They do not believe that society contains any
objective truth or natural laws upon which it can be
grounded.4
This allows that reality may exist, but that definite knowledge
of it is untenable. The language is capable of objective
description. Some post-modernist assert that we live in a
“prison house of language’’. The postmodernism in their
historical, cultural, artistic, and philosophical discourses,
propagate that every statement necessarily be tentative,
fragmentary, time-bound and inherently ‘open’ to
contestation.5
4 . Ibid
5. Ibid
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the postmodern architecture movement. Later the term was
applied to several movements, including in art, music and
literature that reacted against modern movements and are
typically marked by revival of traditional elements and
techniques. 6
6 . Ibid
7 . Ibid
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original intention and because a reader’s understanding of the text
is culturally conditioned that is influenced by the culture in which
the reader lives. Thus texts have many possible legitimate
interpretations brought about by the play of language. His method
of deconstruction when applied to text of law and jurisprudence
brought into picture many conflicting forces within the text and
that highlight the devices the text use to claim legitimacy and the
truth for itself, many of which may lie beyond the intension of its
author. These ideas about language resemble with views held by
the analytic philosophers Wittgenstein and Quine. 8
8 . Ibid
9 . Ibid
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critical legal studies viewed that all law is politics. The main plank
of post – modern legal theory is its rejection of the structured,
logical and internally consistent picture of society, and the law
which we find in hart’s theory of law as a union of primary and
secondary rules, and in Kelsen’s pyramid of norms. Post-modernist
writing are trying to offer an alternative to the rigid, arbitrary,
normative structure of the liberal legal system. Under the influence
of the writings of Michael Foucault and Jacques Derrida post-
modernist scholars engaged with the study which emphasizes on
the ‘shifting relationships between self and other’. The ‘other’
appears to be the individual who is outside the system who is
disadvantaged by it. The ‘other’ cannot assert that the law is on
their side within the current situations since the system alienates
them. Post modernism recognises that they have an equal claim to
consideration since their assertions are no less valid than those
who are advantaged by the system or no less valid than even the
views of lawyers, judges, or politicians. Post-modernist concern
with the ‘other’ has definitely helped to give an impetus to the
claims of disadvantaged groups like women, blacks, and tribal
within law. However, to what extent and in what manner the law
should seek to accommodate their claims is not clearly bought out
in post-modernist writings.10
10 . Ibid
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Derrida’s deconstruction, through basically applied to
language, had a profound influence on legal theory. Modernist
used to claim that the function of language as mainly
representational it depicts the way things are. In other words,
language discloses the relationship between the words and the
world. In language, some statements are statements of truth or
statements of fact (e.g., this is a chair) and some statements are
statements of opinion for example chair is beautiful. Derrida
says language is a complex web of signs and metaphorical.
Therefore they do not accept the division of language into fact
and opinion but hold that all statements are opinions. This is
because language is inherently indeterminate. Even a statement
of fact, the postmodernists would argue, is a statement of
opinion, because there is no true meaning to the concept of
chair. Even what appears to be a factual statement is, thus, open
to debate and deconstruction.11
11 . Ibid
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by post modernist scholars including J M Balkin, who states that
deconstruction of legal concepts is not nihilistic. 12
12 . Ibid
13 .Deconstruction Practice and Legal theory (1987) 96 Yale Law Journal 743, p 763
14 . Ibid
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It is interesting to examine how post-modernists view the
deconstructive technique to de-justify or de-legitimate the
liberal constitution. Modernist legal theories are built on the
idea of constitutionalism, the idea of a society governed by the
rule of law with the supremacy of law or the constitution at the
top of the pyramid of laws. The recognition of law as the key to
the exercise of power facilities the legitimation of the exercise
of such political power. P Schlag who calls the practice of
liberal justification, a popular constitutional mythology,
explains it thus:15
The popular narrative recounts the story of a sovereign people who in a
foundational moment established their own state by setting forth in a
written constitution the powers and limitations of their government.
The very identity, content and character of this government is
established by the constitution itself. In turn, the authority of this
Constitution stems from the consent of the governed-their
acquiescence in a limited surrender of their sovereign power in return
for the benefits of a limited, representative government.
15 . The Empty circles of liberal Justification (1997) 96(1) Michigan Law Review 1, p3
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constitution was adopted) the authority to delimit freedom for
all subsequent generations. Everyone tends to forget that in
reality people had not been consulted despite the mythology of
consent. Another weakness of the consent theory is that the
individual has to either choose the whole system or nothing.
Once consent to the paramount norm is established, this
necessarily entails consent to a whole series of institutions and
practices that are authorised by the paramount norm. Schlag
concludes that liberalism is not a rational choice, but only an
emotional choice and therefore, does not have any superior
claim to acceptance by deconstructing the language of liberal
constitutionalism. Schlag reveals it as a legitimating of a
political choice that has been made certain individual’s
centuries ago.16
There is also new trend among post-modernists from mere
deconstruction to reconstruction which is visible in the writings
of Santos. He realizes that merely ‘to criticize the dominant
paradigm- an important and difficult task. Santos recognises that
‘modern men and women are configuration or networks of
different subjectivities. He depicts six prevalent structural
subjectivities arising out of six dominant structural places found
in contemporary capitalist society. They are the household place,
workplace, citizen place, world place, market place and
16 . Ibid
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community place. These structural places are the loci of major
power forms circulating in our society. In the household place,
the contradiction or competition is between the dominant
paradigm of patriarchal family and the emergent paradigm of
the co-operative domestic community.In the workplace the
competition is between the dominant paradigm of capitalist
expansionism and the emergent paradigm of eco-socialist
sustainability which involves free associations of producers
geared towards the democratic production of use values
without degrading nature. In the citizen place, competition is
between authoritarian and radical democracy. In radical
democracy, the democratic process is furthered by the
transformation of the relations of power into relations of
shared authority, despotic law into democratic law and
regulatory Commission into emancipator common sense. The
contradiction in the market place is between the paradigm of
individualistic consumerism and the paradigm of human needs.
In the community place, the competition is between fortress
communities and amoeba community. In the world place, the
competition is between the paradigm of unequal development
and exclusive sovereignty and the paradigm of democratically
sustainable development and reciprocally permeable
sovereignty. Santos is optimistic that the emergent paradigm
will result in the emergence of a new system of international
and transnational relations guided by the principles of
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cosmopolitanism and common heritage of mankind. Santos has
used opposing paradigms of the structures of modernity which
certainly provides an insight into a better alternative.17
17 . Ibid
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POSTMODERN STATE AND LAW 18
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The result of postmodernist jurisprudence is to shift the focus
of jurisprudence from a study of the legal system and its
properties (order, coherence, determinacy etc.) to the ‘nature of
the legal subject’ who apprehends the legal system and judges
it to have these properties. Thus, ‘the nature of legal
understanding’ becomes central to ‘jurisprudential enquiry’.
Since the legal subject is socially constructed, the ways this social
construction has led the legal subject to understand the legal
system also becomes crucial. And equally, jurisprudence makes
‘the subjects’ contribution to the legal system invisible.
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we work in offices and factories, we buy goods as consumers in
the market, and we may accept religious affiliations.
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opening a gap in social imagination. Social change will follow
as ‘autonomous subjectivities, free themselves from the
prejudices of legal fetishism’.
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ELEMENTS OF POST MODERNITY 19
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increasingly confused as they attempt to ascertain the truth of
their social context and the essence of the institutions. In this
uncertain world, neither the law nor their cultural heritage
offer certainty. The following temptations arise to face such
postmodernism.
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most minimalist in its claims concerning human nature. The
discourse of the law and economics movement speaks a
postmodern language. Scientific knowledge is not however
self-sustainable. It exists in competition and conflict with other
forms of knowledge which Lyotard labels as narrative and
which dominated in traditional societies. While modernity
waged war on narratives, narrative survived bestowing
legitimacy upon the social institutions and providing positive
and negative forms of integration into established institution.
Thus we witness the growing law and humanities movements
and the narrative style of feminism – but their power base is
ambiguous.
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‘restitution law’ – out of the battles of legal language games.
The games of life, the games of law respond to the need for
recognition. Jurisprudence as the search for the truth of law is
the desire for wisdom. That humanities follow desire, rather
than instinct, is the source both of our power and our
existential problems. Through speech, desires one articulates
the ideas of dignity and the sacred, the language games of
contemporary jurisprudence speak to the multi-facused nature
and sources of these desires.
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LEADING FIGURES20
20 . Method of philosophical and literary analysis, derived mainly from the work of Jacques Derrida, that
questions the fundamental conceptual distinctions, or “oppositions,” in Western philosophy through a
close examination of the language and logic of philosophical and literary texts.
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however, Baudrillard felt that Marxist tenets did not effectively
evaluate commodities, so he turned to postmodernism. Rosenau
labels Baudrillard as a skeptical postmodernist because of
statements like, “everything has already happened....nothing
new can occur, “ or “there is no real world”. Baudrillard
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breaks down modernity and postmodernity in an effort to
explain the world as a set of models. He identifies early
modernity as the period between the Renaissance and the
Industrial Revolution, modernity as the period at the start of the
Industrial Revolution, and postmodernity as the period of mass
media (cinema and photography). Baudrillard states that we
live in a world of images but images that are only simulations.
Baudrillard implies that many people fail to understand this
concept that, “we have now moved into an epoch...where truth
is entirely a product of consensus values, and where ‘science’
itself is just the name we attach to certain modes of
explanation,”.
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force of dislocation that spreads itself through an entire
system.” Derrida directly attacks Western philosophy's
understanding of reason.He sees reason as dominated by “a
metaphysics of presence.” Derrida agrees with structuralism's
insight, that meaning is not inherent in signs, but he proposes
that it incorrect to infer that anything reasoned can be used as
a stable and timeless model. “He tries to problematize the
grounds of reason
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preceded by ethics, therefore ethics cannot be culturally bound
as argued by anthropologists in the past. These philosophies are
evident in her other works such as, "Death Without Weeping."
The crux of her postmodern perspective is that,
"Anthropologists, no less than any other professionals, should
be held accountable for how we have used and how we have
failed to use anthropology as a critical tool at crucial historical
moments. It is the act of "witnessing" that lends our word its
moral, at times almost theological, character."
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CRITICISM 21
21 . Criticism_of_postmodernism.htm.pdf
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term "postmodernism" is a mere buzzword that means nothing.
For example, Dick Hebdige, in "Hiding in the Light," writes:
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When it becomes possible for a people to describe as
‘postmodern’ the décor of a room, the design of a building, the
diegesis of a film, the construction of a record, a television
commercial, or an arts documentary, or the ‘intertextual’
relations between them, the layout of a page in a fashion
magazine or critical journal, an anti-teleological tendency
within epistemology, the attack on the ‘metaphysics of
presence’, a general attenuation of feeling, the collective
chagrin and morbid projections of a post-War generation of
baby boomers confronting disillusioned middle-age,
the‘predicament’ of reflexivity, a group of rhetorical tropes, a
proliferation of surfaces, a new phase in , a fascination for
images, codes and styles, a process of cultural, political or
existential fragmentation and/or crisis, the ‘de-centring’ of the
subject, an ‘incredulity towards metanarratives’, the
replacement of unitary power axes by a plurality of
power/discourse formations, the ‘implosion of meaning’, the
collapse of cultural hierarchies, the dread engendered by the
threat of nuclear self-destruction, the decline of the university,
the functioning and effects of the new miniaturised
technologies, broad societal and economic shifts into a ‘media’,
‘consumer’ or ‘multinational’ phase, a sense (depending on
who you read) of ‘placelessness’ or the abandonment of
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placelessness (‘critical regionalism’) or (even) a generalised
substitution of spatial for temporal coordinates - when it
becomes possible to describe all these things as ‘Postmodern’
(or more simply using a current abbreviation as ‘post’ or ‘very
post’) then it’s clear we are in the presence of buzzword.
Others, such as the British historian Perry Anderson, have
argued that the various meanings assigned to the term
"postmodernism" only contradict one another on the surface
and that a postmodernist analysis can offer insight into
contemporary culture. Kaya Yilmaz defends the lack of clarity
and consistency in the term's definition. Yilmaz points out that
because the theory itself is“anti-essentialist and anti-
foundationalist” it is fitting that the term cannot have
anyessential or fundamental meaning.
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CONCLUSION
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existence of any ultimate principles, and it lacks the optimism
of there being a scientific, philosophical, or religious truth
which will explain everything for everybody - a characteristic
of the so-called "modern" mind. The problem with
Postmodernism is that it leaves us without absolute foundations
for determining absolute truths about how we should think
and live wisely on
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earth. We can imagine pretty much anything as being true
(human imagination is endless) which is how our world is (and
has been for thousands of years). This freedom to imagine
anything as 'relative truth' is another significant reason why
postmodernism has been universally embraced. Every culture,
religion and diverse group on the planet can claim that their
truths are just as valid as anyone else's This has led to the
concept of 'tolerance'. In conclusion postmodernism and
modernism are somewhat intertwined and it’s in reality very
hard to draw distinct line between the two theories except for
the fact that the later evolved from the former.
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BIBLIOGRAPHY
BOOKS
nd
1. Dr. S.R.Myneni, Jurisprudence (Legal theory) 2 Edition, Asia law
house,Hyderabad.
WEBSITES
1. Criticism_of_postmodernism.htm.pdf
2. http://www.spaceandmotion.com/Philosophy
3.www.wikipedia.org
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