19 Post Modernism and Law

Chitralekha is a novel written by Sri Bhagvati Charan Verma which has become a classic of Hindi literature. It starts with a question asked by a ‘shishya’ (pupil, student) to his ‘Guru’ (teacher). He asks ‘what is Paap (vice)?’ unable to answer the question, the teacher sends his two students to different places to find out from their experience what is Punya (virtue) and what is Paap (vice). He sends one to a famous yogi and saint Kumargiri and the other to a rich person of the world Beejgupt. At the end of the novel after one year the two students go back to their teacher ready with their answers. The first student who stayed with Kumargiri the yogi says that Kumargiri was a virtuous person and Beejgupt was vicious because Beejgupt was a slave to his desires and Kumargiri had won over his desires. The second student who stayed with Beejgupt states that Beejgupt was a virtuous person capable of making sacrifices and had a generous heart. Kumargiri was vicious because he lived for himself and was selfish. The Guru concludes that they have different notions about vice because they lived in different surroundings. There is nothing like ‘vice’ in the world. It is just a matter of difference in perspective. Every person is born with a particular nature and is influenced by his surroundings. Every person wants pleasure in life. Different people according to their nature and impact of their surroundings find pleasure in different things. Some find it in wealth, some in drinking, some in debauchery and some on the other hand find it in learning and asceticism. No person of their own free will would do anything which brings them pain and therefore perspective of every person as to what is good and what is bad, what is virtue and what is vice differs. We do what we are compelled by circumstances to do. The Guru concludes his teaching by saying that this was his last lesson. His analysis was his perspective, the students were free to agree or disagree.1

The novel though not written as a post-modern literature, encapsulates the crux of post-modernism. As Nietzsche had said there is no right or wrong answer to an issue; right or wrong order of things (legal, political, social or economic) is just a matter of perspective. One perspective is as right and valid as another perspective. Before going to post modern jurisprudence, let us understand postmodernism as a concept, its history and some of its arguments. To understand postmodernism one has to first understand enlightenment and modernism.

Enlightenment and Modernism: Kant describes enlightenment in following words:

Enlightenment is man’s emergence from his self-incurred immaturity. Immaturity is the inability to use one’s own understanding without the guidance of another. This immaturity is self-incurred if its cause is not lack of understanding, but lack of resolution and courage to use it without the guidance of another. The motto of enlightenment is therefore: Sapere aude! Have courage to use your own understanding!2

He further states,

For enlightenment of this kind, all that is needed is freedom. And the freedom in question is the most innocuous form of all–freedom to make public use of one’s reason in all matters.3

Enlightenment was a 17th century movement in Europe which challenged the medieval emphasis on reliance upon faith and belief. Enlightenment is celebration of man’s ability to reason and to think and act rationally which leads to objective conclusions independent of personal bias and irrational elements like

1 Bhagvaticharan Verma, Chitralekha (Rajkamal Paperbacks, 2006)

2 See <http://www.columbia.edu/acis/ets/CCREAD/etscc/kant.html>

3 Id.

emotions, traditions, social sensitivity etc. Stressing upon scientific temper, the movement viewed each person as an autonomous individual to be made free from various meaningless social and religious baggage and made to think and act independently.

Enlightenment broke away from pre-modernism brought about modernism in philosophy, politics, literature and learning. Pre-modernism had stressed upon metaphysical unity of physical existence and principles governing the physical existence. Individuals and society were part of nature and divinity therefore truth and eternal values or universal principles could always be discerned by the persons within themselves as they were participants in the divine order of nature. In the medieval era these universal principles were supposed to be ordained by God. Man’s reason was now limited and incapable of knowing the true nature of universe and universal principles. Faith was now the best recourse for the man to be at peace with the universal.

Modernism emphasized on difference between sacred and secular and inculcated scientific temper. ‘To question, to doubt, to challenge and to confront traditions became imaginable and even normal.’4 Societal authorities and arrangements were now not accepted just because they were traditionally accepted.

4 Stephan M. Feldman, American Legal Thought from Premodernsim to Postmodernism (New York: Oxford University press, 2000) p. 16

Modernism celebrated individual autonomy and independence and considered knowledge objectively discernible according to some by exercise of human rationality, according to some by empiricism and according to some by transcendentalism. Man was capable of this objective knowledge and man-made institutions capable of not only in acting in autonomous and objective manner but also ‘facilitated human control of the secular worlds and thus engendered endless progress.’5

Post-Modernism: Post-modernism challenges the basic notions of enlightenment. It began as a movement in architecture in 1950s and 1960s by challenging the modernist’s notions of architecture. Modernism in art and architecture was a search for new possibilities, uniqueness and individuality. Post modernism on the other hand combined the modern utility with architectural classical designs of the past. This led to collage approach to architecture which combined many traditional styles into one structure. The movement spread to other art forms whereby concept of creation as an expression of lone and autonomous artist was abandoned for creation through combination of various art forms that had existed

5 Id at 23.

in the past. Data became more necessary than quiet reflection and unique inspiration. Universal standards gave place to multidimensionality, complexity and dissolution of distinctions.6

Post modernism spread into other branches of knowledge like philosophy, literature and law. Events like holocaust in Germany7, excesses done in USSR and other communist countries for suppression of bourgeoisie, Vietnam war, civil rights movement in USA challenged the humanist idea of enlightenment that a person was capable of thinking and acting like an autonomous and rational being. Post modernism challenged the basic principle of modernism that there is possibility of gaining objective knowledge by application of scientific approach and temper which can be incorporated as universal principles in human institutions making them work in neutral and independent manner.

Commenting on Kant’s write up on enlightenment, Foucault states that enlightenment has worked as a blackmail-either you are for enlightenment and remain within its tradition of rationalism or else you criticize enlightenment and then try to escape from its principles of rationality. For Foucault

6 Id.

7  ‘It was the rational world of modern civilization that made the Holocaust thinkable.’ Zygmunt Bauman. ‘The

Holocaust revealed most starkly that the modernist conception of rationality, embodied in the bureaucratic organization, could somehow eclipse morality to produce genocide.’ Feldman. enlightenment is ‘not faithfulness to doctrinal elements, but rather the permanent reactivation of an attitude –that is, of a philosophical ethos that could be described as a permanent critique of our historical era.’8 ‘This entails an obvious consequence: that criticism is no longer going to be practiced in the search for formal structures with universal value, but rather as a historical investigation into the events that have led us to constitute ourselves and to recognize ourselves as subjects of what we are doing, thinking and saying. In that sense, this criticism is not transcendental, and its goal is not that of making a metaphysics possible: it is genealogical in its design and archaeological in its method.’9

As we see difference in the perspectives of Kant and Foucault on the meaning of enlightenment:

Following are some of the contributions of post modern writers to philosophical thinking and enquiry which distinguishes it from modernism:

1.  Anti-foundationalist and Anti-Essentialist: Post modernism contravenes the modernist ideas of knowledge. It is anti-foundationalist and anti-essentialist as it does not believe that texts have one static

8 Michel Foucault, ‘What is Enlightenment’ in the Foucault Reader edited by Paul Rabinow, pp. 32-50 (New York:

Pantheon Books, 1984) available at <http://foucault.info//documents/whatisenlightenment/foucault.whatisenlightenment.en.html>

9 Id.

meaning. For post modernists’ meaning of a text is always shifting. Any text or event has many potential meanings and many possible truths that can emerge in different contexts. To explain this Derrida develops the word ‘differance’ with an ‘a’ which combines two words ‘differ’ and ‘defer’.10 According to Derrida meaning of a text or concept depends on two factors

(a)by distinguishing or effacing the meaning of other words and concepts, (this is to differ). For example the word ‘walk’ can be understood only when we differentiate it from ‘sit’ or ‘stand’

(b) By combining it with other words, that is, by placing that word or concept in a particular context. Thus meaning of a word, text or concept is ‘deferred’ until it is combined with other words or other parts of the text. Since contexts in which word, text or concepts can be used would be different therefore same word, text or concept can yield different meaning when used in different concepts. In our example meaning of the word ‘walk’ would be depend on the word that is used with it and that can be ‘walk home’ or ‘walk fast’ or ‘morning walk’.

Walk home means going to a destination, walk fast would emphasize on the need to hurry, morning walk connotes physical exercise.

In this way Derrida shows us that there is no fixed or one true meaning of any text. Meaning depends on the context in which it is used and since context keeps changing therefore meaning of any text or concept is always in flux. According to Gadammer, in every interpretation of a text there is complex interaction between interpreter, text and tradition. Interpretation has two sides: on the one side, vision of the interpreter is limited by tradition, on the other side tradition would not exist unless it is continuously created and recreated through the interpretative process. Gadamer calls this as the hermeneutic circle.11 Thus while our reading and interpretation of a text is influenced by our tradition and history, we recreate the traditions through the process of interpretation.

2. Deference to the ‘Other’: Derrida’s concept of ‘other’ challenges any fixity and rigidity in a text. According to this concept, however, fixed we might think meaning of a text is, there is always a

10 Stephan M. Feldman, American Legal Thought from Premodernsim to Postmodernism (New York: Oxford University press, 2000) p. 34

11 See Stephan M. Feldman, American Legal Thought from Premodernsim to Postmodernism (New York: Oxford University press, 2000)

possibility of alternative meaning or truth which might be lurking on the margins. This gave birth to “different voice” scholarship (feminist and critical race theorist) which challenged the mainstream modernist scholars who tried to ground knowledge on some essential truth. The concept of other gave strength to alternative hitherto suppressed voices. We discover that there are multiple truths which have been hitherto ignored or suppressed in order to highlight one perspective as immutable truth. In place of meta narratives or meta theories like that of Hegel or Marx, post modernists often attempt to tell multiple “little” narratives that do not claim a universal or all encompassing sway.12 Emphasizing on social pluralism, post modernists criticize the attempt of modernism to reduce the social, political and legal discourse into one storyline, thereby obscuring and suppressing the dissenting and oppressed voices.

3. Death of subject: ‘Death of subject’ coined by Foucault is an important theme for post-modern discussion. Post-modernism refuses to put persons in fixed categories and recognizes multiple identities and subjectivities. Each ‘individual is comprised of multiple subjectivities’13 and ‘multiple identities as he or she moves in and out of differing milieux.’14 A woman’s identity is not only limited to her being a female, she is also national of a country, member of a particular caste group, may be employee of a particular organization or an owner of a business empire. In fact our identity depends on the ‘other’-that is against whom a person is perceived. When confronted with a citizen of US of Japan, an Indian woman would be perceived not as a ‘woman’ but as an Indian national, when confronted with a oppressed caste group, a higher caste woman would be perceived as member of a caste group rather than as woman, when confronted with a ‘man’ a higher caste Indian woman would be perceived as a ‘woman’. Therefore according to post-modernist it is an error to perceive individuals in fixed ‘subject categories’ in any discourse. Our role as oppressor and oppressed keeps changing with our identities. A woman belonging to higher caste is oppressed when viewed from the perspective of gender but may be an oppressor when viewed from the perspective of caste.

4. Centrality of Concept of Power: Concept of power and domination is central to the post-modern theory. Neitzsche and Foucault have dealt expensively with the subject. For Foucault power is not fixed but circulates – something which functions in the form of a chain. ‘It is never localized here or there,

12Wayne Morrison, Jurisprudence: from the Greeks to post-modernism (Lawman India Pvt. Ltd., 1997)p. 520

13Hilaire Barnett, Introduction to Feminist jurisprudence (Routledge-Cavendish, 1998)p. 179

14Id. p. 180

never in anybody’s hands, never appropriated as a commodity or piece of wealth. Power is employed and exercised through a net like organization. And not only individuals circulate between its threads; they are always in the position of simultaneously undergoing and exercising this power. They are not only its inert or consenting target; they are also the elements of its articulation. In other words, individuals are the vehicles of power and not the points of application.’15 This can be best understood with reference to example given above. An upper caste Indian woman is both an oppressor and oppressed at the same time in different roles. The power is located neither in man nor in a person or particular caste group, it is located in the social organizational net which is founded on oppression of particular categories to make existing social organization possible.

Foucault further states that knowledge is the vehicle in modern society through which systematic hegemony is maintained. Values of the existing order are imparted as absolute truth and as only alternative to chaos and injustice. Terms like ‘rationality’ ‘reasonableness’ ‘objectivity’ ‘freedom’ obscure the foundational violence and domination on which the existing order is based and individual accepts the existing order as his rational choice.

Post Modernism in Jurisprudence: Above mentioned methods and perceptions of post modern writers have been applied in the sphere of law by jurists as well as others. This becomes inevitable in any system of thinking which challenges existing dominant discourse because law becomes an important tool in the maintenance and legitimization of that dominance. We can discuss post modern jurisprudential thinking under the following heads

1.  Deconstruction of Meta-Narratives: Post-modern writers question the portrayal of harmonization, cohesion and reason in social and legal order by legal and political liberalism. Leading writers of legal and political liberalism like H.L.A. Hart, Ronald Dworkin, Rawls, Lon L. Fuller make us believe that there is some type of understanding in society on certain principles on which the legal system is based. H.L.A Hart bases his legal system on general social acceptance which provides legitimacy to authorities making and implementing laws. Social acceptance is based on critical reflective approach of society towards social norms which he calls as internal aspect of law. Therefore law is not just application of brute force by the State. Fuller and Dworkin tell us that every legal system is modeled on society’s sense of morality and general principles of political and legal order. According to Rawls justice can be

15M. Foucault ‘Two Lectures’ in C. Gordon (ed.) Power/Knowledge (New York: Harvester, 1980), p. 96.

ensured if the political system incorporates his two principles of justice as fairness. Post modern writers debunk these meta-narratives of legal liberalism and expose existing laws and legal system as a ‘choice’ of the dominant forces which does not have better claim to rationality and legitimacy than other alternative or opposing voices. According to Schlag legal liberalism forces an individual to make a choice in favour of the existing order (liberalism) by portraying it as ‘something good, appealing, admirable, necessary, sensible, reasonable’.16 Everything outside this order is ‘bad, unappealing, contemptible, unavoidable, senseless, and unreasonable’.17 Non-adherence to liberal legal order brings about chaos, anarchy, tyranny and totalitarianism. The myth of consent on which legal liberalism legitimizes its existence forces the individual to accept the system as a whole and to ‘live within a political world already mapped out in liberal categories.’18 According to Schalg Hart’s concept of secondary rules or Rawls’ concept of original position is nothing more than an abstraction of the American Constitution in order to represent liberalism as timeless and rational.

16Pierre Schlag, “The Empty Circles of Liberal Justification” Michigan Law Review Vol 96:1, 1997. pp. 24-25

17Id.

18Id.

2. Centrality of the Concept of Power: Post modern jurisprudence understands law as little more than application of ‘force’ by the state. Derrida differs from Hart’s concept of legal system whereby Hart tried to downplay the role of violence and force as given by Austin by stating that law is not a gunman situation writ large. Hart distinguishes between power and authority and bases the authority of the legal system and its institutions on social acceptance. Derrida is closer to Austin. According to Derrida the whole concept of enforcement of law and enforceability ‘reminds us that there is no such thing as law (droit) that does not imply in itself, a priori, in the analytical structure of its concept, the possibility of being “enforced,” applied by force. There are, to be sure, laws that are not enforced, but there is no law without enforceability, and no applicability or enforceability of the law without force, whether this force be direct or indirect, physical or symbolic, exterior or interior, brutal or subtly discursive and hermeneutic, coercive or regulative, and so forth.’19 Derrida deconstructs the distinction between ‘force of law’ which is a form of violence but considered as legitimate use of power, authority and public force on the one hand and unjust use of violence on the other. He points out that a political and legal system is the result of ‘originary’20 violence that must have established the authority of the legal system and that violence could not itself have been authorized by any anterior legitimacy-‘so that in the initial moment, it is neither legal nor illegal-or, others would quickly say neither just or unjust?’21 Commenting on Critique of Violence by Benjamin22, Derrida points out the distinction between two types of violence: (i) Law making violence or founding violence and (ii) law preserving violence, violence that conserves maintains confirms and ensures permanence and enforceability of law. According to Benjamin there is violence in every act of law making because when a law is declared alternative and dissenting voices are suppressed. Those who were in favour of particular law had no more legitimacy and authority than those that were opposed. However, the dominant group or voice prevails. According to Benjamin the violence which is used to preserve or enforce a law is no different from the original violence. Law has monopolised the use of violence and prohibits and condemns individual violence not because a threat to this or that law but because it threatens the juridical order itself. ‘This monopoly doesn’t strive to protect any given just or

19Jaccques Derrida, “Force of Law: The Mystical Foundation of Authority”  11 Cardozo L. Rev. 1989-1990

20Violence that has caused the origin of a political-legal system.

21Supra n. 18.

22Peter Demetez (ed.) Walter Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writings (New York: Schocken Books, 1986)pp. 277-300

legal ends but law itself.’23 Derrida further elaborates on the non-existence of distinction between the law making violence and law preserving violence. According to him understanding and interpretation of law are never neutral and non-violent. We interpret law as we understand the established legal order. Various models of interpretation advance, give sense and necessity and above all legitimize our understanding of founding violence or a ‘successful’ revolution. Therefore according to Derrida in every act of conservation (of legal system) there is refounding (of legal system) so that what is found can be conserved. Hence there is no difference between law making and law preserving violence or just and unjust use of violence.

3. Deconstructing Justice: Deconstructing the concept of justice according to law, Derrida points out that the two terms are opposites. Echoing Derrida’s views is a character of An Instance of the Fingerpost who thinks his father had been unjustly executed.

“Because we live in distempered times, when the law has become the cat’s paw of the powerful, who tangle it in rules so that they may escape punishment. That is why. And because my father’s character has been so abused that it is impossible to make people see what is obvious.”

Thomas grunted at this, for he knew nothing of the law and believed it to have something to do with justice. As I had once done myself, until I studied it.24

23Id.

24  Iain Pears, An Instance of the Fingerpost (Berkley books, New York, 1998) p. 224

According to Derrida application of law would mean enforcement of law whose origin is violence. Demands of justice may often be different from what is ordained by law. If a judge decides according to justice then he would not be enforcing the law and if he enforces the law, it would be an unjust application of law. Justice requires separate assessment and evaluation of demands of justice in each case on the basis of facts. This cannot happen by mathematical or mechanical application of law. Application of law, according to Derrida, is based on calculation while justice requires qualitative weighing of various factors in individual cases. Therefore there is no such thing as justice according to law because law is nothing but force (or violence) and demands of justice may be different from the applicable law at the time. Moreover law is same for every one or general; and requirements of justice would differ in each individual case.

4. Death of Subject and perspective of the ‘other’: Post modern jurists decry the legal liberal attempt to categorise people in fixed legal categories such as upper or lower caste, scheduled caste, scheduled tribes, majority or minority religious group and finally as ‘we the people of India’. According to post modern writers these rigid categories tend to marginalize the perspective of those who are at the margins of society and are not part of any dominant group. They tend to examine prevalent laws from the perspective of this ‘other’-that is those who do not subscribe to any dominant category. As noted earlier post modern writers highlight multiple identity of a person. Therefore putting a person as ‘subject’ of law in a particular category does not fit in with their perspective. In this way importance is given to the perspective of those who are outside or at the margins of dominant legal discourse. For example in place of concentrating on rigid legal categories and identities like man and women, upper caste and lower caste, majority and minority, post modernism would look for other identities and categories such as rural and urban, rural women and urban women, migrant labourers and local labourers, political class etc. Legal liberalism fails to address the conflicting position of a person in multiple identities. An upper caste migrant labourer might be the marginalized ‘other’ in the host State and an upper caste illiterate/ semi literate rural woman might be in the same position in an upper or middle class educated society in city.

Concluding Remarks: Post modernism in short deconstructs the myth created by liberal social, political and legal regime about the possibility of everlasting rational system of institutions which would cohere and harmonize the interests of everyone and which can claim legitimacy because of its inherent justness, morality and rationality. They point out that one system may be no better in terms of rationality than the alternative system and the existing system originated due to choice made by the dominant group which could be an emotional choice and thereafter dissenting voices were suppressed. Therefore a legal system is based on violence and continues to conserve itself through violence. There is need to continuously deconstruct the existing order from the perspective of the ‘other’ that is – dissenting voices or those outside the system. This continuous deconstruction and reconstruction can be the only possible approach to justice. Complete justice or just order is an unachievable goal.

Further Reading:

1. Stephan M. Feldman, American Legal Thought from Premodernsim to Postmodernism (New York: Oxford University press, 2000)
2. Jacques Derrida, “ Force of Law: The Mystical Foundation of Authority” 11 Cardozo Law Review 1989-1990, p. 921
3. J.M. Balkin, “What is Postmodern Constitutionalism” Michigan Law Review Vol. 90 No. 7 1992, p. 1966
4. Pierre Schlag, “A Brief Survey of Deconstruction” Cardozo Law Review Vol. 27:2 2005 p. 741
5. Balkin, “Deconstruction” http://www.yale.edu/lawweb/jbalkin/articles/deconessay.pdf
6. Gary Minda, “One Hundred Years of Modern Legal Thought: From Langdell and Holmes to Posner and Schlag” 28 Ind. L. Rev. 353 1994-1995