‘Positively Postmodern Stanley’ and Other Law Stories
| Published date | 01 March 1993 |
| Date | 01 March 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb00963.x |
| Author | Andrew Goldsmith |
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Modern Law Review
[Vol.
56
REVIEW
ARTICLE
‘Positively Postmodern Stanley’ and Other Law Stories
Andrew Goldsmith
*
Austin Sara?
and
Thomas
R.
Kearns (eds),
The Fate
of
Law, AM Arbor: University
of Michigan Press,
1991,
304
pp, hb
$34.50.
The legal academy stands on the brink of yet another wave of self-evaluation. While
the proliferation of interdisciplinary perspectives on law in the past three decades
has resulted in much soul-searching within legal scholarship and legal education,
it is arguable that the discipline’s quest for self-understanding and change is about
to reach new heights (or depths) in the light of some theoretical challenges stemming
from recent Continental social and political philosophy.
The Fate
ofhw’
provides
an engaging contribution to this process.
The book consists of five substantial essays which examine, the covernote informs
us, the ‘problems and prospects of law in the late twentieth century.’ The editors
of the collection state in the Introduction that their aim in soliciting contributions
to the book was to ‘invite contemplation about how, if at
all,
law and legal scholarship
have responded, or should respond, to feminist and poststructuralist challenges to
claims about law’s neutrality, objectivity, and capacity to limit and channel the
exercise of power in American life’ (p
2).
In reply, the contributors, along with
the editors jointly, have provided essays dealing in quite distinctive ways with a
broad range of issues and movements within contemporary American legal thought.
Each essay’s treatment of these issues reflects
in
some way the influence of feminist
and
post-modernist/structuralist
thinking upon the legal academy in recent times.
To try and identify a common theme for the collection with greater particularity
inevitably invites consideration of the significance and appropriateness of the title,
in particular the use of the wordfate. Indeed, this issue seems to give rise to sustained
self-consciousness by the two editors towards the end of their Introduction. As one
might expect in what undoubtedly is a
Jin-de-sickle
exercise, the editors and
contributors confront the issue not just of what has law been like and what position
has it brought us to, but also what does it portend. The book thus represents a
profound exercise in legal reflexivity, an extended self-conscious intellectual stock-
taking by legal theorists. It is not revealing too much to state that each contributor
reaches a point of accommodation with the idea
of
the continued relevance of law.
Albeit different narratives are told, no essay suggests a demise for law’s story. In
view of the title, nevertheless, the question may be asked whether the contributors
view law’s future from a point of detached, almost tragic hopefulness, or whether
greater possibilities exist and something more is required of us both as legal scholars
and as subjects of late twentieth-century law.
The sense the collection leaves one with, having read each contribution carefully,
is the latter rather than the former. Just how far each essay takes this line is question-
*Faculty of Law, Monash University, Melbourne, Australia.
I
would like to thank Gordon Clark for reading and commenting
on
an earlier version of this article.
1
All page references in the text are to this
book.
248
0
The
Modern
Law
Review
Limited
1993
March
19931
‘Positively Postmodern Stanley
’
and Other
Law
Stories
able and will be discussed further below. With the notable exception of Stanley
Fish, each contributor writes from a position of extreme dissatisfaction with the
present state of law. Each in some way is resolved to identifying the contingencies
of law and human existence which establish the conditions for hope and change.
While not overtly redemptive in most instances, the essays as a whole seem to set
for themselves the task of showing the possibilities within law and the obligations
upon us as scholars and citizens to seek individual and social emancipation. This
is why the title is arguably rather odd, suggestive as it
is
that law itself is doomed
to destruction or is profoundly preordained, making practical and theoretical human
activity pointless. This is not how the editors at least would see matters, although
contingency of expression colours their statements on this point. Thus, ‘perhaps
law’s fate is neither so well settled nor
so
precarious as we might imagine.’ We
may yet ‘witness the rescue of the modem condition from itself (p
12).
As a
conscious inquiry into the state of law in modernity, a more appropriate title might
have been The
Destiny
of
Law
or
The
Contingency
of
Law,
to reflect the modern
sense of identity as one of seemingly endless possibilities and the correlative require-
ment of responsibility that is implied by radical contingency. As Agnes Heller and
Ferenc Feher have observed, ‘[dlestiny, not fate, now defines the individual’s relation
to the world. Where fate determines possibilities, destiny lingers among possibilities,
it has to be
caught.’*
This comment on the significance of the title is not simply
semantic
pedantry,
for the substance of the collection is an exploration of these themes
of possibility and responsibility within law. It is these questions, rather than others
premised on a bleaker view of the world, that make the book such an important
contribution to legal thought and to our understanding of our legal predicament.
Although there is some variability, the essays are generally speaking well-written
and clearly expressed. Not the least significance of this observation
is
that the
collection stands as a reasonably accessible guide to many of the ‘-isms’ that pervade
current theoretically inclined legal scholarship.
In
some shape or form, the collection
discusses most of the schools of legal criticism inspired by Continental philosophy,
including hermeneutics and literary theory, critical theory and critical legal studies,
feminist theory and, as already noted, poststructuralism and postmodernism.
Predictably, there are also accounts of law and economics, law and humanities,
legal positivism and legal formalism to complete the jurisprudential journey. While
hesitating to recommend any single work that would stand as a comprehensive guide
of sorts to the current diversity within modem legal theory, the neophyte of this
field would do well to consult these essays. Another feature which recommends
the book is that each essay, to a greater rather than lesser degree, takes the form
of a theoretical inquiry, resorting critically to the resources offered by different
theoretical perspectives for the purposes of the particular inquiry. In this way it
avoids heavy-handed exegesis of individual theories, emphasising instead primary
characteristics and points of similarity and departure between different perspectives.
Each essay has its own thesis or argument,
so
it would be quite wrong to
see
the
collection’s appeal as lying simply in its value as some sort of theoretical primer.
Significantly, a number of the essays share a feature quite refreshing in the setting
of almost all critical accounts of law. This is an overt theoretical as well as practical
interest in the contextual, concrete significance of law, as against the less localised
preoccupations of legal consciousness and legal ideology. Rather than engaging in
the now familiar agonistic exercises of critical legal scholars over the interpretive
Agnes Heller
and
Ferenc Feher,
The
Postmodern
Political Condition
(Cambridge: Polity Press,
1988)
p
17.
249
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The
Modern
Law Review Limited
1993
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