Law and Modernity
| Published date | 01 September 1986 |
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01703.x |
| Author | P. Goodrich |
| Date | 01 September 1986 |
THE
MODERN LAW REVIEW
~ ~~ ~ ~
Volume
49
September
1986
~~
No.
5
LAW AND MODERNITY
“Error (belief in the ideal) is not blindness; error is cowardice
.
. .
I do not refute ideals; all
I
do is draw on my gloves in
their presence.”’
THE
discipline
of
law constitutes one of the most prodigious and
formidably utopian of human social endeavours. It aims to
rationalise sociality, that is to say that it claims to confine social
interaction within the boundaries of reason or, in one relatively
mild doctrinal formulation, law is “the enterprise of subjecting
human conduct to the governance of rules.”’ In this traditional
representation the discipline
of
law is always, in the last instance,
an enterprise in strict reason or logic and human social behaviour
is correspondingly, in its most basic principles at least, to be
viewed legally as the consequence of reasoned intentions and
explicitly formulated goals. In short, lawyers have always been
indecently zealous to reduce behaviour to rules and, in constructing
the abstract world of the doctrine and science of law, have tended
to be forgetful both of the irrationality and chance embedded in
social life as well
as
of the instability and change intrinsic to human
purpose and human personality. In
so
far as present debates in
legal studies, in their broader implications, have challenged the
doctrinal conception of legal regulation as a rigidly scientific and
peculiarly rational enterprise in the exegesis of legal texts, it would
seem fitting
to
discuss, by way
of
introducing the question of the
influence of modernity upon the legal institution, the status of a
(critical) legal studies centred upon the hermeneutic and rhetorical
features of legal power. We will do
so
first, by briefly examining
the character and role of legal rules, and secondly, by redefining
the concept of the legal text in the light of theories of reading the
law. The first issue relates most broadly to the problems
of
the
source
of
law and the definition of the legal text, the second issue
relates more closely to the question of the characteristic manner of
interpreting legal texts, an issue which is in large measure
predetermined by the doctrinal resolution to the first problem, that
’
F.
Nietzsche,
Ecce
Homo
(1911) p.13.
Lon
Fuller,
The
Morality
of
Law
(1975) p.96.
545
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