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Postmodern Philosophy and Legal Thought Loyola University Chicago Loyola eCommons Dissertations Theses and Dissertations 1997 Postmodern Philosophy and Legal Thought Douglas E. Litowitz Loyola University Chicago Follow this and additional works at: https://ecommons.luc.edu/luc_diss Part of the Philosophy Commons Recommended Citation Litowitz, Douglas E., "Postmodern Philosophy and Legal Thought" (1997). Dissertations. 3666. https://ecommons.luc.edu/luc_diss/3666 This Dissertation is brought to you for free and open access by the Theses and Dissertations at Loyola eCommons. It has been accepted for inclusion in Dissertations by an authorized administrator of Loyola eCommons. For more information, please contact [email protected]. This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License. Copyright © 1997 Douglas E. Litowitz LOYOLA UNIVERSITY CIITCAGO POSTMODERN PIITLOSOPHY AND LEGAL THOUGHT VOLUME I (CHAPTERS 1 TO 5) A DISSERTATION SUBMITTED TO THE FACULTY OF THE GRADUATE SCHOOL IN CANDIDACY FOR THE DEGREE OF DOCTOR OF PIITLOSOPHY DEPARTMENT OF PIITLOSOPHY BY DOUGLAS E. LITOWITZ CIITCAGO, ILLINOIS JANUARY, 1997 Copyright by Douglas E. Litowitz, 1996 All rights reserved. ii TABLE OF CONTENTS VOLUME I (Chapters One through Five) Chapter 1. INTRODUCTION: UNDERSTANDING POSTMODERNISM GENERALLY . 1 1.1 Overview of the Project . 1 1. 2 Structure of the Manuscript . 7 1. 3 Understanding Modernism and Postmodernism . 11 (i) Historical Emergence of Postmodernism . 11 (ii) Theoretical Emergence of Postmodernism ..... 15 1.4 Death of Grand Narratives .................. 18 2. METHODOLOGICAL ISSUES IN POSTMODERN LEGAL PHILOSOPHY . 34 2 .1 Internal and External Legal Theory . 35 (i) Anglo-American Legal Theory tends to be Internal .................. 49 (ii) Postmodern Legal Theory tends to be External . 60 2.2 Foundationalism and Anti-Foundationalism ........ 69 2.3 Positive and Negative Jurisprudence ............ 77 3. NIETZSCHE'S THEORY OR LAW: CRITIQUE OF NATURAL LAW THEORY .................................... 81 3 .1 The Basics of Natural Law Theory . 87 3.2 First Critique: the Illusion of Natural Laws ........ 92 3.3 Second Critique: Natural Law as Linguistic Error .... 99 111 3.4 Third Critique: the Genealogy of Law .......... 104 3.5 Does Nietzsche Offer a Positive Jurisprudence? . 111 3.6 Problems for a Nietzschean Jurisprudence ........ 121 4. FOUCAULT ON LAW: MODERNITY AS NEGATIVE UTOPIA .................................... 127 4.1 The Classical Juridical View and Nietzsche's Critique of it . 131 4.2 Foucault on Law and Discipline .............. 139 4.3 Does Foucault Offer a Positive Jurisprudence? . 157 4.4 Foucault as Negative Utopian and Enlightenment Critic ........................ 166 5. DERRIDA: POSTMODERNISM BORROWING FROM PLATO AND KANT ..................................... 169 5 .1 Derrida on Law and Justice . 172 5. 2 Platonic and Kantian Influences . 187 5. 3 Some Problems for a Derridean Positive Jurisprudence 195 5. 4 Towards an Assesment . 204 VOLUME II (Chapters Six through Eight) Chapter 6. LYOTARD: POSTMODERN GAMING AND A PLURALITY OF JUSTICES . 208 6.1 Lyotard on Postmodern Law and Justice . 209 iv 6.2 Problems with Lyotard's Account of Law and Justice . 235 6.3 Conclusion: The Lessons of Lyotard's Work ...... 253 7. RORTY'S POSTMODERN ANTI-FOUNDATIONALISM 256 7 .1 From Postmodernism to Anti-Foundationalism 256 7.2 Rorty's Anti-Foundational Pragmatism (Rorty on Ethics, Politics, Law) ................... 259 7.3 What Would a Rortian Jurisprudence Look Like? ... 282 7.4 What is Objectionable About Rorty's Pragmatism? ... 287 7.5 Why Rorty Stops Short of a Positive Jurisprudence .. 293 8. CONCLUSION: DOES POSTMODERNISM HAVE ANYTHING TO OFFER TO LEGAL PHILOSOPHY . 297 8.1 The Insights of Postmodern Legal Theory ........ 297 (i) Genealogy and the Awareness of Contingency . 298 (ii) Awareness of Incommensurability and Marginalizatation . 302 (iii) Deconstruction of Supposedly Neutral Doctrines ................. 308 (iv) The Shaping of Legal Discourse and the "Unsayable" ........... 312 8.2 Two Problems: Externality and Lingering Foundationalism ............. 316 8.3 The Use of Postmodern Theory in Thinking the Other of the Law ................. 332 SELECT BIBLIOGRAPHY . 340 VITA .............................................. 353 v "Since Copernicus man has been rolling from the center toward X." --Friedrich Nietzsche "To realize the relative validity of one's convictions, and yet to stand for them unflinchingly, is what distinguishes a civilized man from a barbarian. " --Joseph Schumpeter CHAPTER 1 INTRODUCTION: UNDERSTANDING POSTMODERNISM GENERALLY 1.1 Overview of the Project The philosophy of law is not immune from the trends and fashions which sweep through academia from time to time. The most influential trend of the last quarter century in academic circles is without doubt the rise of "postmodernism" or "post- structuralism. "1 The core group of philosophers placed under the "postmodern" rubric generally includes Jacques Derrida, Michel Foucault, Friedrich Nietzsche, Jean-Francois Lyotard, Jacques Lacan, Fredric Jameson, and Richard Rorty. 2 Over the last decade or so, the basic themes of postmodernism have worked their way into the scholarship in the philosophy of law, with the result that law professors have recently begun to chart the 1 In order to avoid confusing the reader, I will not accentuate the distinction between postmodernism and post-structuralism, but will encompass both movements within the term "postmodernism." This means that certain thinkers who are more appropriately thought of as post-structuralists (such as Barthes and Foucault) will be deemed postmodernists for the pmposes of this manuscript. This use of terminology should not lead to confusion, because nothing in my analysis hinges on the distinction between postmodernism and post-structuralism. For a discussion of the categories of "postmodernism" and "post-structuralism," see Madan Sarup, An Introductocy Guide to Post-Structuralism and Postmodernism (Athens, GA: Univ. of Georgia Press, 1989) and Douglas Kellner and Steven Best, Postmodern Theocy (New York: Guilford Press, 1991). 2 A useful list of postmodern thinkers and writers is collected by Ihab Hassen, The Postmodern Turn (Columbus, OH: The Ohio State University Press, 1987), 84-96. 2 progress of "postmodern legal movements, "3 "postmodern jurisprudence"4 and "postmodern legal feminism. "5 In addition, symposia are now held to discuss the 6 contribution to legal theory of such seeming non-lawyerly types as Jacques Derrida , 8 9 Michel Foucault7, Richard Rorty , and Jacques Lacan • There can be no question that legal scholars are joining with the rest of academia in expressing a growing interest in postmodern theory. Twenty years ago there was no such thing as "postmodern legal philosophy," whereas we can now identify a coherent and growing body of literature which falls under this heading. 10 This manuscript is an attempt to understand postmodern legal philosophy by assessing whether the central postmodern philosophers have anything to contribute to the philosophy of law. 3 Gary Minda, Postmodern Legal Movements (New York: New York University Press, 1995). 4 Costas Douzinas and Ronnie Warrington, Postmodern Jurisprudence (New York: Routledge, 1991). 5 Mary Joe Frog, Postmodern Legal Feminism (New York: Routledge, 1992). 6 Symposium on "Deconstruction and the Possibility of Justice," 11 Cardozo L. Rev. 919-1726 (1989). 7 Alan Hunt, "Foucault's Expulsion of Law: Towards a Retrieval," 17 Law and Social Inquiry 1 (1992), and subsequent articles. 8 See Lynn Baker, "Just Do It: Pragmatism and Social Change," 78 Va. L. Rev. 697 (1992), and subsequent articles. 9 See Jacques Derrida, "For the Love of Lacan," 16 Cardozo L. Rev. 699 (1995), and subsequent articles. 10 Indeed, textbooks on jurisprudence now include a section on postmodernism. For example, see Jurisprudence: Contemporary Readings. Problems. and Narratives, ed. Robert Hayman, Jr. and Nancy Levit (St. Paul: West Publishing Co., 1995), 507-575. 3 The growing interest in postmodernism among legal scholars is something of a mixed blessing, I think. On the one hand, there is always something to be gained when the parameters of existing scholarship are widened to include new approaches, especially when a new approach purports to be radical and challenging. Yet one gets the nagging feeling that there is something missing at the core of the work presently being done under the rubric of postmodern legal theory. It seems that there is a lot of unsubstantiated verbiage being tossed around with a decidedly postmodern flavor. Radical lawyers are now speaking the language of postmodernism, writing about the law in terms of "floating 11 signifiers, II "logocentrism, II "difference, II and "marginality. " Unfortunately, this verbiage (or "verbal drift," if you will) is often unsupported by hard scholarship which looks at the arguments underlying the colorful terminology. Strangely, there has been a paucity of detailed scholarship devoted to finding out exactly what the most influential postmodern thinkers had to say about the law. Even as postmodern thinkers such as Derrida, Lyotard, and Foucault are becoming increasingly influential in legal studies 12 (indeed, they are cited at an almost alarming rate in recent law review articles ), there are very few sustained efforts being made to wade through the complicated texts of these authors to find out what they thought about basic concepts such as "justice," "law," and 11 For example,
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