Law after Modernity, by Sionaidh Douglas-Scott

Michael King is unconvinced by the case for postmodern justice

August 29, 2013

The coupling of law and postmodernity may raise a few eyebrows. This is so, even if “postmodern”, a word originally applied to art and architecture, has evolved into a generic term highlighting the shift from a hierarchically structured, rule-bound, predictable and optimistic world (the hallmarks of modernity) to one in which the future appears increasingly uncertain and threatening. In the eyes of the author of this book, it stands to reason that any analysis of law today must accept that we live in a postmodern society where the old values and ways of understanding no longer apply. This means, first, that theoretical observers of the legal system need to reassess law’s roles of regulating behaviour and doing justice to take account of increasing cultural diversity, which can involve clashes between different legal codes. These observers need then to question the ability of state law to do justice to everyone in its territory. Second, they need to recognise and apply new methods of analysing the world and the role of the legal system. The “postmodern method”, which Sionaidh Douglas-Scott recommends, “is suspicious of reason, hierarchies and unities…it can be whimsical, poetic, opposed to ‘hard’ legal language, disrespectful or metaphorical”.

Douglas-Scott, professor of European and human rights law at the University of Oxford, applies her version of postmodern methodology to law’s quest for justice in postmodern society, marshalling an impressive array of evidence to support her arguments. Not only does she cover several areas of the law but also a wide variety of human and physical sciences and the creative arts – from literature to economics, from astronomy to psychoanalysis, from films to conceptual art, from religion to politics. This is a remarkable feat and one can only admire the breadth of her knowledge and the sheer breathtaking energy of her scholarship. Indeed, there is enough material here to fill several books.

Yet by the end of 12 densely written chapters, I could not help but wonder about the intended audience for this brilliant display of intellectual pyrotechnics. It is clearly not aimed at judges or politicians, who have little time for legal theory. Law students will find it very tough going, and non-legal academics are unlikely to be interested in a book where all roads lead back to law. The answer seems to be that Douglas-Scott has joined and is writing for that small coterie of critical legal academics that rejects traditional legal scholarship (both classical jurisprudence with its moral philosophical bent as well as “black letter” or “doctrinal” law). For her and these “crits”, the only valid way of understanding law is to seek inspiration outside law. To this end, her text is accompanied by a strange assortment of images throughout the book – including paintings, maps, aerial photos, sculptures, conceptual art and film stills.

Eyebrows are likely to remain raised at the tension, if not incompatibility, between Douglas-Scott’s intellectual ambitions and the need she expresses, as a lawyer, to right society’s wrongs, to redress its abuses and inequalities. At the end of her journey through the arts, sciences and humanities, it is her lawyer’s instincts that firmly assert themselves, leading her back to the world of modernity and a solution that assumes that the legal system will continue in its traditional role of imposing justice to resolve social problems. This is “legal pluralism” in policy and legal decision-making – the recognition and acceptance of “the social fact of multiple legal orders”. Yet she is too canny not to realise that, when judges are asked to determine between different versions of law, there is a serious risk of arbitrariness and the imposition of cultural values.

How do we avoid this risk? Surprisingly, Douglas-Scott’s review of the extensive evidence has left her with faith in our inherent “sense of justice derived from our sense of injustice”, and herein lies law’s salvation. Even if, as she admits, law’s past record on righting injustices has not exactly met our high expectations, “law has a specific relationship with or ‘aptness’ for justice”. “It may not be just,” she adds, “but it holds out a promise of justice.” So does politics hold out the promise of freedom from oppression and economics the promise of prosperity? Forgive my scepticism, but I am rather less confident of the success of this particular critical legal enterprise and of its belief in a postmodern version of law.

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