(A) Just Rhetoric?
| Date | 01 September 1992 |
| Author | J.M. Balkin |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb02849.x |
| Published date | 01 September 1992 |
(A)
Just
Rhetoric?
J.M.
Balkin*
[Vol.
55
Costus
Douzinas
and
Ronnie Wurrington with
Shaun
McVeigh,
Postmodern
Jurisprudence: The
Law
of
Text in the Texts
of
Law,
London and New York:
Routledge,
1991,
xiii
+
303
pp hb
E40.00.
The collected essays
in
Postmodern Jurisprudence
seek to apply postmodernist
theories, and
in
particular deconstruction, to jurisprudence. The book’s organising
theme is an attack on what the authors describe as law’s ‘logonomocentrism,’ a
pun on the deconstructive term ‘logocentrism.
’
‘Logocentrism’ refers to the charac-
teristic manoeuvre of philosophical projects that attempt to explain the world, justice
or
ethical norms
in
terms of ‘concepts claimed to exist in themselves, complete,
self-referring and proper’ (p
10).
These explanatory concepts are presented in
opposition to others which, by comparison, are seen as inferior, deviate, peripheral,
indirect, distorting
or
inessential. Thus distinction, the creation of an interior and
exterior,
or
a centre and a periphery, is the characteristic logocentric device.
Logocentric projects fail, deconstruction argues, because the concepts used for
theoretical explanation always turn out to bear a curious relationship of mutual
dependence as well as differentiation from the marginalised, deviate or excluded
concepts.
The authors’ ‘logonomocentrism’ applies this analysis to law. The legal equivalent
of logocentrism is ‘the presentation of law as a unified and coherent body’ of thought
grounded
in
reason (p
27).
However, ‘an entity, work
or
field can claim unity only
if
it
can be clearly delineated from the outside’ and ‘[plower is legitimate [only]
if
it
follows the law,
nomos
and,
if
nomos
follows
logos,
reason’ (pp
26-27).
Hence,
logonomocentrism is the attempt to view law as a coherent, self-sufficient, unified,
ordered body of principles, subject to and justified by reason. The book’s major
argument is that this picture of law is misleading. It attacks the organic unity of
law, law’s self-sufficiency and independence from other disciplines, and law’s
grounding
in
reason.
It
claims that law ‘cannot be seen any longer as a coherent,
closed ensemble of rules
or
values’ (p
27).
The authors argue that the law nevertheless attempts to create the illusion of rational
order, self-sufficiency and coherence.
It
does
so
by the use of rhetorical and figural
language that legal actors and legal theorists refuse to recognise as rhetorical and
figural, because this would undermine law’s claim to be grounded in reason. Law
tries to ‘keep out of its empire those other discourses that
it
has pronounced alien
to its scientific
or
normative closure’ (p
xi).
Law thus spurns mere rhetoric; yet
the authors claim that when jurisprudential arguments are studied carefully, they
are revealed to depend heavily on rhetorical and figural language.
The final chapter of the book, which is nothing short of a
tour de force,
is as
much a symbol of the book’s positions as an articulation of them. The authors mingle
literary, legal and philosophical themes through an elaborate commentary on
Melville’s
Billy
Budd.
The commentary is offered in the form of a fictitious law
review article whose authors are accused of plagiarism by a former student. This
premise allows the authors of
Postmodern Jurisprudence
to juxtapose the ‘article’
with a pastiche of interviews, letters and other documents concerning copyright law,
*Charles
Tilford McCorniick Professor
of
Law,
University
of
Texas
at
Austin.
746
To continue reading
Request your trial