REVIEWS
| Date | 01 March 1991 |
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb02657.x |
| Published date | 01 March 1991 |
REVIEWS
J~~qries
Inviohle
arirl
Adrk
Berten,
Dire
la
norme; droit, politique
et
dnonciation,
Brussels:
E.
Story-Scientia,
1990,
x
+
249
pp,
1350
BLF.
Most readcrs (not to mcntion writers) of those texts which make up the repertoire
of the standard domestic jurisprudcncc course would be robustly dismissive of the
suggestion that their reading list should be expanded or, better still, altered, to include
studies
in
the more rccondite aspects of so-called ‘Continental’ philosophy. Partly,
this is attributable to what might be ternied ‘national character,’ but
it
also
springs,
for those who
think
about such things, from a perception, or at least an assumption,
that the business of jurisprudence can be quite adequately grounded
in
the resources
of Anglo-American philosophy.
According
to
the authors of
Dire
la
Norme,
this sort of assumption is no longer
tenable. Cast
in
parochial terms, the message is that,
if
we see the work of Ronald
Dworkin as reprcsenting the dominant trend
in
Anglo-American jurisprudence, then
it
is apparent that the Anglo-American approach joins
up,
albeit tangentially, with
thc conccrns of contemporary European philosophy. Consequently, the questions
which arise
in
that context
also
arise
in
our context, and
in
engaging with ‘their’
problem we engage constructivcly
with
our own. The broader argument is that
if
we are to be thorough
in
our consideration of the question of a proper or productive
grounding for reflection on the question of norms, we should not only embrace these
apparently divergent strands of philosophy but also,
in
some sensc, supersede them.
The starting point of
Dire
la
Norm
is the (not altogether novel) proposition that
the pro.ject of modernity is
in
crisis. This crisis is identifiable by the dilemmas which
ennicsh current attempts to reflect upon the status of political and juridical judgment.
Taking the political dimension of the crisis, the claim is that the idca of the welfare
state has become problematic, not simply because of the practical economic diffi-
culties which grip the modern state, but
also,
and more significantly, because of
the theoretical tension betwccn the themes of liberty and equality and, furthermore,
because of the intrusion of the problem of bureaucratic rationality into any attempt
to
think
about the ‘application’ of criteria
of
justice. Similarly, moving
to
the other
dirncnsion of the crisis, therc arc fundamental contradictions
in
the theoretical
cxplanation and justification of the role of the judge
in
Western legal systems. Briefly,
there is such
a
tension because the judicial function can no longer adcquately
bc
represented
in
thc term of legalistic positivism, or the idea that judging simply
involves the mechanical nianipulation of syllogisms. The
‘crise
du
juge’
arises
because this ideal model is plainly at odds
with
the perception that judging involves
H
moral, evaluativc dimension, and hence an active role for the judge.
Howcver, these tensions are mercly indicators of undercurrents which
run
much
deeper than these surface disturbances. Identifying and suppressing this more
profound tension necessarily involves a consideration of the philosophical foundations
of modernity. For Lcnoblc and Berten, the most significant quality of this foundational
structure is that
it
is
deeply, but not irredeemably, fissured.
‘I’hc philosophical discourse of modernity is charactcrisetl as antinoniial. Pulling
in
one
dircction there
is
the niomcnt
of
‘deconstruction’ which is representcd by
the philosophies
of
Hcidegger and Wittgenstein
and
their interpreters. The common
denominator of these philosophies is their attcmpt to ‘deconstruct’ the discourse
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