Modernist and Postmodernist Perspectives On Public Law in British Critical Legal Studies
| Published date | 01 December 1993 |
| Date | 01 December 1993 |
| Author | Joseph McCahery |
| DOI | 10.1177/096466399300200403 |
| Subject Matter | Articles |
397
MODERNIST
AND
POSTMODERNIST
PERSPECTIVES
ON
PUBLIC
LAW
IN
BRITISH
CRITICAL
LEGAL
STUDIES
JOSEPH
McCAHERY
University
of Warwick,
UK
1.
HAT
DOES
it
mean
to
be
’critical’
today?
Inevitably
the
question
of
perspective
confronts
every
post-Enlightenment
legal
theorist
at-
tempting
to
offer
a
critical
vision
of
the
legal
system
and
its
operations.
The
discord
and
conflict
over
understanding
and
representing
the
law
is
the
result
of
real
intellectual
disagreement
as
well
as
a
cognitive
misunderstanding
(Schlag,
1989:1208).’
Theorists
working
within
the
critical
legal
studies
(CLS)
tradition
in
Britain
have
looked
to
either
a
modernist
or
a
postmodernist
vision
in
order
to
develop
a
critical
account
of
the
juridical
subject,
the
regulatory
state,
rights
and
democracy.
The
hallmark
of
a
’critical’
perspective
involves
a
challenge
to
the
philosophical
tradition
of
the
Enlightenment,
and
the
liberal
legal
order
which
is
supported
and
sustained
by
Enlightenment
convictions,
particularly
its
view
of
rationality
and
human
nature.
Critically-minded
theorists
are
troubled
by
the
optimistic
vision
of
the
Enlightenment.
They
show
that
its
progressive
tendencies
have been
undercut
by
its
underside
which
has
left
liberal
society
without
philosophical
and
cultural
reserves
and
a
culture
characterized
by
self-destructiveness.
Unwilling
to
reconstruct
the
optimistic
vision
of
Enlighten-
ment
reason,
modernists
and
postmodernists
alike
have
substituted
the
language
of
Enlightenment
concepts
with
a
new
set
of
references
and
assumptions
SOCIAL
&
LEGAL
STUDIES
(SAGE,
London,
Newbury
Park
and
New
Delhi),
Vol.
2
(1993),
397-421
398
regarding
rationality
and
the
social
system.
The
importance
of
this
shift
cannot
be
underestimated
since
it
is
common
to
the
aspirations
of
the
legal
theorists
working
on
both
the
modernist
and
postmodernist
sides
of
the
street.
The
reaction
to
liberal
society
and
legal
rationality
has
been
the
formative
influence
in
the
production
of
legal
theory
in
the
1980s
in
Britain.
Critical
theories
can
be
grouped
as
primarily
modernist
or
postmodernist.
Modernist
theories,
while
acknowledging
the
limits
of
instrumental
rationality,
seek
to
establish
legal
and
political
forms
of
a
democratic
participatory
character
to
establish
legitimacy.
Postmodernist
discourses,
on
the
other
hand,
aim
to
frac-
ture
ego-centred
reason
and
demonstrate
that
modern
institutions
are
the
prod-
ucts
of
power.
A
principal
modernist
response
to
liberalism
and
the
Enlightenment
tradition
takes
the
Frankfurt
School
and
Habermas
as
its
starting
point.
These
scholars
employ
the
concept
of
immanent
critique
and
attempt
to
offer
an
internal
criticism
of
law
and
of
the
reified
features
of
modern
society.
Immanent
cri-
tique
has
ties
to
Hegelian
idealism
(Habermas,
1984:366).
The
theory
of
so-
ciety
which
employs
immanent
critique
looks
to
the
normative
conceptions
of
legitimation,
law,
publicity
and
rights
as
the
resources
for
a
critique
of
domi-
nation.
In
theory,
immanent
critique
operates
to
penetrate
the
appearances
of
a
reified
social
reality
so
as
to
reveal,
within
the
existing
forms,
an
emergent
set
of
alternative
possibilities
which
are
qualitatively
superior
to
the
existing
arrange-
ments.
On
this
view,
immanent
critique
is
the
foundation
for
a
view
of
law
defined
as
a
self-justifying
autonomous
region
of
the
social
which
influences
the
social,
cultural
and
political
externalities
but
is
uninfluenced
by
them
in
the
end
(Hunt,
1987:12).
The
second
response
takes
Nietzsche,
Foucault
and
Derrida
as
its
sources
of
inspiration
(Goodrich,
1985;
Murphy,
1987).
These
scholars
reject
immanent
critique
and
other
universalistic
concepts
of
law
and
jurisprudence
as
dogmatic
and
premised
on
an
externalization
of
theory
(Goodrich,
1990:1-2).
The
post-
modernist
response
announces
that
’the
Hegelian
party
is
over’
(Murphy,
1989:135)
and
argues
that
a
democratic
vision
of
society,
based
on
the
rational
properties
of
the
self
and
rational
deliberation,
is
not
possible.
These
scholars
deny
the
importance
of
public
freedom
insofar
as
it
is
manifested
within
the
democratic
legitimacy
of
the
state.
By
attempting
to
supplement
law
with
discourses
that
have
been
kept
outside
the
law,
postmodernists
are
endeavoring
to
break
apart
the
closed
and
formal
system
of
law
and
challenge
the
legal
theory
and
practices
which
sustain
it.
Theorists
favouring
postmodernism
embrace
difference,
displacement
and
the
disruption
of
discourse.
Central
to
the
post-
modern
project
is
the
attempt
to
deconstruct
the
democratic
tradition
of
the
Enlightenment,
and
its
legal
forms,
and
to
show
how
these
institutions
conceal
domination
while
appearing
to
offer
a
discursive
framework
for
collective
regu-
, lation
of
society.
On
this
view,
legal
and
political
institutions
are
bureaucratic
structures
in
which
agents
have
very
little
control
of
the
pattern,
distribution
and
operation
of
the
institutions.
Indeed,
it
is
argued
that
normative
legal
discourse
itself
’is
coextensive
with
bureaucratic
practice
and
institutional
inertia’
(Schlag,
1990:186).
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