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Some Challenges to Law Through Post-modern Thought

André-Jean ARNAUD
Directeur de Recherche au C.N.R.S., Paris



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As to the general theme of this Congress, "Challenges to Law at the End of the 20th Century", let me remind you of the answer given by this architect who was asked to imagine a building for the future: "How can I possibly imagine a futuristic building with materials I can't even imagine might exist at the time ?" How to imagine Law for the next Century whilst we have no data about what the social needs and demands will be nor what will be required from Law by society ? However, through some challenges we are faced with, we can draw some guidelines to help us in knowing how to land on the next Century. Yet, as far as we make claims for global references, we have to turn to philosophy.

Indeed, I will argue in this talk that :

  1. any pursuit of a post-modern understanding of Law necessarily crosses the road of epistemology and borrows from constructivist epistemology;
  2. the post-modern approach asserts a paradigmatic value;
  3. any attempt to implement post-modern concepts in Law leads to some major paradoxes.

1 - To think Law in a post-modern way implies that we challenge the epistemological starting point of our Laws.

Instead of asserting that knowledge is knowledge of an object and of its objectivity, we could assume that intelligence is organising the world at the same time that it organises itself. Besides, the principle according to which our experiences can be represented, replaces that of the actuality of reality. Knowledge appears as the set of "suitable" experiences, behaviour and thinking. Science no longer gives a representation of what is; it is reality itself which becomes a representation. Then, knowledge becomes an up-dating of opportunities or a building-up of opportunities. The problem is now defined in the following terms : how is knowledge able to create by itself conditions and tools for knowledge  ?

Moreover, the notion of aim reappears. Indeed, reasoning turns to find a "suitable" solution according to the principle of "the most satisficing". This neologism was introduced by Herbert A. Simon; the word being hammered out on the base of an old Scottish term "to satisfice" to avoid a possible misunderstanding with "satisfactory" which would refer either to efficiency of a legal norm, rule, decision, or to formal semantics. A solution can be qualified as "satisficing" when it leads to an issue suitable with respect to the teleological perspective constitutive of a constructivist approach. In other words – if you allow me to pirate an expression worshipped by the right wing in the States – we could say that "satisficing" means "teleologically correct".

Furthermore, the principle of intelligent action challenges the principle of the least action and leads to find or create action or strategies for action based upon the "suitability" of a punctual decision to a global plan. To proceed according to this principle becomes a mean to find strategies for action corresponding to the general social design.

Strategy is hazardous and uncertain. It represents a way of being able to determine things. Strategy, understood in this way goes against programmes which are sequences of predetermined events which occur in an implacable and necessary way. Whereas a programme proves useful when environmental conditions are known and stable and for the routine and repetitive operations of life, strategy would take over at the moment in which a programme could produce ambiguous or prejudiced results. In this sense, strategy is a part of the routine process in the framework of a constructivist epistemology.

There exists a sort of "strategic game", which precedes the "strategic doctrine" in its strictest sense, and which casts itself forward to praxeology. As a consequence, strategy is not only concerned with thought, theory and speculation, it is also directed towards action. With the reappearance of social actors and new social categories in this production of norms, it becomes necessary to make free use - though not imprudent - of the concept of strategy. Therefore, knowledge is no longer knowledge of an object and of its objectivity; it is knowledge of a project conceived in the perspective of an interaction between object and subject. Projectivity reappears here, this time through strategy.

These premises lead to the recognition of pluralism and complexity as major concepts to explore post-modern paths for Law. Indeed, pluralism allows the researcher to take into account the epistemological demands for finalisation and strategies, plans for action and projectivity. In this sense, pluralism means "to participate". One great interest of such a type of epistemological approach consists in the fact that legal pluralism can be taken into account by legal scholars when it is considered as pluralism of legal rationalities. However, to adopt the principle of pluralism is not enough to provoke and implement such a participation and to proceed in the framework of a constructivist epistemology. For this purpose, the conjunction of pluralism and complexity is necessary. Complexity is the only way to represent systematically a phenomenon perceived as complex, i.e. irreducible to a model able to foresee its behaviour which a certain degree of certitude. Therefore, to proceed in legal studies through pluralism and complexity could allow the emergence of new trends from studies tied to constructivist approaches, mainly the kind of approach grounded on a systemic epistemology of complexity.

From epistemological propositions such as above presented, we cannot assert that a constructivist posture necessarily leads towards a post-modern approach to Law; but we can presume that a post-modern approach to Law can issue only from a constructivist epistemological posture. At the moment, there are at least three main avenues explored by legal scholars regarding this topic.

[a] One is purely philosophical : some colleagues gave elements for a post-modern understanding of law by following paths designed mainly by French post-Foucault philosophers such as Lyotard, Baudrillard and Derrida. Such a post-modern trend is grounded on the ideas of "the death of man", "the end of the great narrative", "fragmentation", "desperate vacuum" and so forth.

[b] Another post-modernist stream has sociological grounds. Sousa Santos is the main representant on this tendency. A post-modern understanding of law such as conceived by this school is based upon the concepts of "interlegality", "transgressive methodology", "new legal common sense", "regulatory conversion", "fragmentary identity", "translocal condition". Emphasis is put on the necessity to think law beyond all the traditional dichotomies and mainly the dichotomy State/Civil society. It is based upon the dialectics between thought and practice, upon the rejection of traditional disciplinary categories.

[c] A third way of dealing with postmodernism in Law borrows from both approaches. Indeed the starting point is located in our philosophical common background and based upon the most recent studies made by legal sociologists and anthropologists. The philosophical bases are that of the philosophy of Law and State established during the European "modern" age - 16. to 18. century. Our laws are grounded upon outdated postulates which are no longer able to give issue to a law suitable for contemporary societies. Our laws are based f.i. upon "purely abstract concepts" considered as "universal" and contributing to "the unity of legal reason". Among these contested concepts are those of "subjectivity", "social contract" and "consensus", "simplicity of natural reason", "security" ensured by "legal regulation" under "State" control.

According to this third trend, a post-modern approach to legal relations will face ideas of "alternative", "informal", "conterhegemonic powers", "participation of Civil Society", "local (vs. "global"), "complexity". These concepts constitute criteria which we can qualify as "post" modern as far as they are contrapuntal to "modern" criteria for legal regulation provided they are considered in the framework of a constructivist epistemology breaking with the old positivist epistemology. Thus, post-modernism is not this kind of philosophy the criteria of which are precisely a lack of criteria.

On these grounds, a global legal science can be conceived on the basis of an interdisciplinary research. Indeed, such a global legal science can be mapped as a project. This design includes legal dogmatics and philosophy of law as well as sociology of law whatever name we given it : legal sociology, Law and society studies or socio-legal studies. This is feasible because this kind of interdisciplinarity works beyond any specific "object". Indeed, if the operator looks at Law as an "object", Law cannot be the same from one discipline to another because the boundaries differ depending on whether lawyers, philosophers or social scientists describe them. The idea of "project" is at odds with the idea of "object". The project involves everybody concerned with the social relations which are relevant to legal relations that is to say which cannot be solved by other specific approaches such as political sciences, ethics, economy, religion and so forth. This includes all the topics traditionally considered as pertaining to law through State law. This includes moreover all the topics pertaining to juridical relations in a broad sense, relations which imply community intervention even outside State legal intervention. A constructivist approach to law allows law and other human and social sciences to find a common field for research, based upon a common epistemological standpoint.

2 - The paradigmatic value of Postmodernism in Law

Post-modern approach to Law is above all constituted of a general perspective on knowledge about the world, an insight, a vision, a Weltanschauung. Postmodernism gets its paradigmatic value from the following statement :

  1. "Postmodernism" replaces a paradigm, that of "Modernism". Like modernism, postmodernism comes forward as a systematic rational paradigm. It challenges a global vision of social order, of "legality" such as featured and outlined by legal positivism, of the mechanist determinism which lies under the modern legal ordering.
  2. Postmodernism is grounded on a network of concepts the product of which constitutes its paradigmatic conjunction. These concepts are pragmatism, relativism, de-centering of the subject, pluralism of rationalities, polycentricity, exploded logics, complexity and re-discovering of time in its threefold past-present-future dimension.
  3. Postmodernism challenges the gap between thought and action; it proposes a permanent dialectics between them. As to legal regulation, this means a negotiated legal order instead of the enforced legal order.
  4. Postmodernism challenges traditional categories of knowledge. It works transgressively through transdisciplinary fields.
  5. Postmodernism assumes that the "subject" is involved in the knowledge of the "object". Subject and object are unavoidably transforming each other through the dynamics of the process of knowledge. Hence, a teleological perspective is attached to this process of transformation.

Hence, postmodernism sets itself up as a paradigm functioning upon its own concepts and models. This paradigm is the reference of a global system of thinking grounded on the notions of "plural", "negotiated", "complex". As every paradigm, Postmodernism creates its own paradoxes.

3 - Some Paradoxes of a Post-modern Law

It is difficult to leave behind modernity in favour of postmodernity without any damage or contradiction. Among paradoxes issuing from a post-modern approach to Law, we can mention some major ones which proceed from the contrapuntal birth of the paradigm.

First : the paradox of the universal and the specific. The more universal the legal principles are, the more particular and divergent their contents are. Our Laws were developed to a great extent upon universalist, individualist and subjectivist grounds which – for instance – created the concept of human rights. This concept of human rights is of great concern to everybody; to such an extent that it is commonly used as a fundamental reference in all our democracies. For example, it is now established as a legal standard in International and European Courts. This has brought the struggles against ethnocentrism, sexism and colonisation because of the principle of cultural specificity, very much to the fore. What is considered as a "human" right likely to protect people in a legal culture can be regarded in another culture as jeopardizing other fundamental principles – drawn f.i. from religion.

Even in our Western vision of Law, there is much immoderation in over-developing human rights. We commonly deal with liberty, equality, work, health and peace just as though these concepts have the same nature. Work is not – philosophically speaking – a subjective right, a right inherent to the subject. In the same way, a subject is not born with a right never to be ill. In fact, liberty, work, health do not belong to the same "class" of rights. But the distinction between several "classes", one of which would pertain to "subjective rights" (f.i. liberty, equality...) while another would preferably pertain to "social rights" or "collective rights" (f.i. the right to be insured to get earnings; or the right to get Medicare when being ill, the right to be involved in solidarity links when necessary...) and another "class" would pertain to fair relationship between things – what is the meaning of "right" in pre-modern legal philosophy (f.i. right to fair process; right to achieve one's ownership...). Should this distinction be actualised, maybe the most part of legal cultures could receive all around the world a des-ideologised – or multiple-ideologised – concept of human rights – which remains at the moment the best way to democracy. We have not arrived at this point. Is it possible ? Anyway, we have yet to manage with this paradox of the universal and the specific.

A second paradox is the paradox of legalisation and delegalization. Nowadays, lawyers and politicians frequently challenge the idea that every regulation must be a legal regulation through State. In the meanwhile, there is more and more intense claims for re-legalisation. Did you hear about the "contaminated blood" case in France – and in a roundabout way in other European countries  ? People ask : "Why was blood marketing not legally ruled, regulated, controlled, decreed when so many risks were at stake  ? We can meet similar claims in many other matters such as bioethics – our societies are not able to rule themselves through ethics and search for legal regulation. There is a kind of vulgar juridism – a systematic demand for legal regulation. This is a typical issue of an historical routine to expect State protection in every circumstance. However, people both deny too mighty State control and request more State commitment !

Third paradox : social regulation of legal relations is at the same time helpful and risky. Recent socio-legal studies show f.i. that alternative conflict resolution very often replaces State judicial intervention. This is generally presented as a great benefit for people. Indeed, this way of solving conflicts often leads to substitute the litigation logic of right/wrong by a negotiated logic of the most adequate plan for action for each party. But such alternative conflict resolution can turn out to perverse effects. Instead of soften and ease and relax relations in the framework of Civil society, they often provoke more State control. Sometimes rank and file pay under duress their attendance to an alternative process which is in fact taken in charge by racketeers (f.i. three yakuzas – Japanese gangs – were prohibited in 1992 for having organised a racket through alternative conflict resolution).

Forth paradox : the more equal a society is and the more the people claim for differentiation; the more differentiated a society is and the more equality is menaced. In other words, how to insure equality in the framework of a differentiated society  ? The improvement of democracy led to a general desire to contest the hegemony of State Law. But less State commitment in social life introduces less guarantee, less security, less equality. The way is open to a differentiated society embodying social sub-systems having their own regulation. There, State regulation is not available or not proficient. At the time, the best protection against differences and discrimination remains nation State and international control. But it is true that too much unification destroys community identity.

Fifth paradox : While judges are disregarded, often heeded with disrespect, more and more power is given to judges to insure social regulation through judicial intervention. – While people go to alternative ways to solve their legal problems – for many reasons among which litigation process is slow, expensive and unsure – judges receive powers to go beyond files and adjudication, to arbitrate, to mediate, to negotiate, to move forward and insure protection and education not only of offenders and criminals, but also individual requiring civil shield or safeguard. There are manifold examples in continental law, penal law, bankruptcy law, family law, commercial law... Moreover, judges are involved more and more in judicial decision enforcement, in application of various measures of conservation, of protection, in fulfilment of obligations... In short, judges are more and more involved in carrying out their own decisions. I suppose that similar experiences of development of judge function could be stated in Common Law too.

Such an outgrowth of judges' tasks increases the paradox insofar as any extension of judge work would suppose to extend human resources and budget or/and thoroughly reconsider judge's role. Since these conditions are not completed, it is more and more question of a permanent structural crisis of Justice; judges are disregarded, often heeded with disrespect... back to the beginning of the present paradox.

Sixth paradox : while community springs as an alternative to State hegemony, globalization is a menace to community projects. The emergence of the "local" can be regarded as a solution to the dichotomy State/Civil Society introduced by the "modern" philosophy of Law and State. Such a dichotomy emerged as a protection of individual. Now, discovering the "local" allows cultural identity to affirm oneself. This occurs at a moment when the State is weakened by the over-development of globalized legal relations. Two dangers become visible. First, the "local" is not powerful or strong enough to withstand the pressures coming from a "global" level. Second, identity could lead back in the future by challenging for instance many outstanding outlets issuing from national State intervention – identity statement frequently proceeds through repelling the "Alien"...

Hence, the "local" grew itself against the menace of the "national". Now, the "local" threatens the "national" while the "global" endangers together the "local" and the "national". Transnational companies use local resources over national authorities. There is no police able to control conventions made through Internet. How to manage so many conflicting interests located at these various levels ? Here is a true challenge.

At last, paradox of paradoxes : how could we live with these paradoxes without falling in the trap of throwing out the "modern" with its inadequacy but also its benefits or refusing the venture of a "post-modern" legal order despite its fascinating interest and convenience. Here we would have to call forth complexity and the possibility to manage paradoxes away from a logic of the excluded middle. Where is the key which will allow us to deal with postmodernity without preaching the death of man and the desperate vacuum, but resolutely aiming to take into account local identity, polycentricity, cultural pluralism and so forth  ?..

I am conscious that I have been sketchy ! I began with architect, and I close with the locksmith. The metaphor of the building is not so crazy. We meet here to think of the challenges to law at the end of our century; we try to outline the future; we imagine constructions; but we have not the key to go into the building... maybe to go out of the building. Let us cast a glance outside the walls of our Universities and let us be humble. We are talking philosophy whilst humanity is sword and fire. There again, similar paradoxes emerge. On the one hand, legal intervention based upon international law give way to crusade for humanitarian help; on the other hand, the original clashes are natural issues of the search for cultural identity. The core reason for this kind of intervention is that the international legal order does not accept State fragmentation, above all when such a fragmentation constitutes a come back to a status anterior to prominent conquests of Western modern philosophy of Law and State – when they have local and ethnic grounds. But people think above all to claim for cultural identity.

Do you not think that these circumstances look like one more occurrence of the endless history of struggles for the pre-eminence of one civilisation ? Where is justice ? Where is the law ? Where are the conquests of modernity ? What end the long walk unto a post-modern understanding of law will draw us to ? Maybe there the real reason of the permanent crisis of law and justice lies. Here is the true challenge. It is a political challenge. But there the great advantage for us lies too, insofar as philosophers of law will have yet many opportunities to debate on this topic. Unemployment does not menace our corporation !

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