Postmodern Theory of Law

Andreas Philippopoulos-Mihalopoulos

In M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy,
DOI 10.1007/978-94-007-6730-0_179-1

Cross References:
Anthropology of Law
Critical Race Theory
Critical Theory and International Law
Deconstructionism
Ethics of Care
Law and Artificial Intelligence
Law and Governmentality
Law and Neuroscience
Law and Political Theology
Legisprudence
Neo-Systems Theory and Jurisprudence
Nietzsche and the Law
Ontology of Law
Phenomenology of Law

Feminist Jurisprudence

Authority of Law

Anarchy
Bioethics
Borders
Cosmopolitanism
Gender
Intergenerational Justice
Multiculturalism
Politics of Recognition
Refugee

Keywords
Postmodernism, gender, philosophy, continental philosophy, interdisciplinarity,
postmarxism, deconstruction, phenomenology, law and psychoanalysis, law and literature,
corporeality, law and space, legal geography, law and art, law and aesthetics, feminist legal
theory, law and ecology, law and economics, postcolonialism, law and race, third world
approaches to international law (TWAIL), queer legal theory, systems theory, law and
materiality, law and popular culture, neoliberalism, justice, injustice, Derrida, Foucault,
Luhmann, Latour, Braidotti, Bennett, Anthropocene
1. Introduction

Postmodern theory of law is an umbrella term. It comprises various theoretical and more
empirical schools of thought that are defined by 1. an attempt to see the law in its social
context, namely not merely as positivist norms that come through the usual annals of legal
decision-making (whether national, regional, international, supranational etc.) but also as
norms and behaviors that are produced in social interaction; 2. a tendency seriously to
engage with interdisciplinarity, and work with the theoretical heritage of continental
philosophy, such as postmarxism, deconstruction, phenomenology, psychoanalysis, literary
theory, theories of embodiment and spatiality, art theory and aesthetics, as well as more
explicitly political legal strands, such as feminist legal theory, ecology and law, law and
economics, postcolonialism, law and race, third world approaches to international law
(TWAIL), queer legal theory, law and popular culture, and so on.; and, 3. a strong critique
against current neoliberal political and legal regimes, and also strands of legal theory that
are either supportive or silently complicit with the above regimes.

Postmodern theory of law is arguably a demanding branch of legal theory because of a

paradox: on the one hand, it is highly political and embedded in the daily struggles of social
groups; on the other, it is often expressed in theoretically complex terms. These terms are
not habitually encountered in other legal theory strands, and may require a concerted effort
on behalf of the reader. The main reason for this is the desire of the theory to unveil legal
injustices especially amongst the more disadvantaged social groups. In order to do this, the
theory needs to revisit, criticize, indeed often attack, and finally rebuild the social structures
that perpetuate such injustices. Such rebuilding typically requires a new language, indeed a
new vocabulary that would have the potential to emancipate and empower the socially
disadvantaged without patronizing them. A discussion in case is the one taking place in
postmodern legal theory on Human Rights, and their potential for critical emancipation.
New vocabulary has been forged in order to work with the legal tools of Human Rights in a
critical yet hopeful way (Douzinas 2000).

2. Origins

The term postmodern emerged in legal thought in the late 1980s - early 1990s, as a direct
outcome of the emancipatory struggles of earlier decades that revolved around race,
gender, sexuality, and socio-economic struggles. At the time, Critical Legal Studies (CLS) was
already an established movement in North America, whereas what has come to be known
as the ‘Brit Crits’, namely the British strand of critical legal thought, was still assembling
itself. The main difference between the two consisted in the fact that the US movement was
much more hands-on political (and in that sense, much more of an actual movement),
whereas the British counterpart’s politics were more embedded in philosophical thought,
especially of the European/Continental tradition. This difference, however, was only a
matter of emphasis: they were both political and philosophically aware. While the CLS
movement was slowly coming to its peak, the Brit Crits moved headlong into postmodernity
– if anything, at least on matters of terminology. Its presence was solidified with the 1991
publication of Postmodern Jurisprudence: the Law of Text in the Texts of law (Douzinas et al.
1991). The book’s main point was an urge for the law to move from abstract and universal
values, to a focus on the particular, the local and the plural. The tool for this move was a
new understanding of the way the law can be read, written and spoken: not just as a dry
command, but as an open story, filled with context, history and humanity. Postmodern legal
thought was urging us to read the whole world as a text, with imposed grammatical
structures that forced us into thinking and being in a particular way. This was the moment of
Jacques Derrida’s deconstruction, where every text was peeled and each word revealed
infinite layers of signification, hitherto invisible (Derrida 1976). This showed how the law is
not only what it says in the letter of the law but perhaps most significantly its omissions,
absences, and dissimulations. It is not a coincidence that postmodern jurisprudence has
been much more successful in common law traditions, where both the narrative of court
decisions and the law’s general reliance on case law, prepare a fecund ground for a more
narrative legal genre – as opposed to the Roman law traditions where court decisions are
expressed in a way that is readily given to abstraction and generalization.

In the 2000s, the North American legal theorists of the old CLS tradition re-emerged as Law
and Humanities, a name now also used in Australasia to characterize a similar tradition. Law
and Humanities is characterized by strong postcolonial analysis, and can be considered to be
part of the broad umbrella of postmodern legal theory.

3. Text and Context

This emphatically textual emphasis in law, was complemented by the emergence of law and
literature studies (or law of literature, or law in literature, depending on the emphasis of the
works: White 1973; see subsequently Aristodemou 2000), which relied on parallel readings
between law and literature, often influenced by deconstruction but also other strands of
thinking such as Maurice Blanchot’s (1982) literary theory, and Frederic Jameson’s (1991)
distinctly postmodern, fragmented readings of literature.

Another textual strand is law and psychoanalysis, namely the psychoanalytic reading of law
(Goodrich 1995). This tended to be Freudian or Lacanian psychoanalysis, and often assumed
that the law was the analyzant, lying on the couch of the legal psychoanalyst, and bringing
to her the dreams, desires and fears that characterized his works. The law is often
understood psychoanalytically as the Father, whose socially inscribed Law (often also
theologically understood as Divine law) demands blind obedience (Goodrich and Carlson
1998). Such narratives, however, whether literary or psychoanalytical, are never just text in
the standard understanding of positive law as text. They were (and still are) often
performed, whether as actual performances, thus revisiting the theatricality of law but from
a critical perspective; or performed by the texts themselves: a legal text that was also a
work of fiction for example, or a legal theory text that psychoanalyzed itself.

According to Derridean deconstruction, the whole world is a text. This means that legal
symbols and images can also be read as part of the textual turn of legal theory. The statue
of Iustitia for example is a well-debated symbol of the law, and its signification has ranged
from issues of violence of the law and justice in the form of the sword, to readings of
emancipated Justice, to finally those of a woman typically oppressed by male-centered law
(Resnik 2002). By undertaking forays into art theory, architecture, history of art, and so on,
these analyses push the interdisciplinary nature of postmodern legal theory even further
(Ben-Dor 2011). Such theoretical imports render even more obvious how the law is not just
the text of a statute or a court decision, but a whole system of symbols whose hierarchy of
aesthetic values can perpetuate the predominance of white, middle-class, male-centered,
Northern-hemisphere life-choices and therefore, legal choices as well.

These issues have given rise to another strong current in postmodern legal thought: the
ethical. Ethics, at least at the first manifestations of the term, referred to the thought of
Emmanuel Levinas and his idea that the Other (the guest, the stranger, the refugee, the
minority) is always prior to us (Stone 2016). This required, not only a full acceptance of the
intimate connection between law and morality, but also a radical understanding of the role
of justice.

4. What matters

The term postmodern proposes a specific timeline: that we are already past modernity.
Bruno Latour, however, the French influential philosopher, has famously proclaimed in his
homonymous book (1993) that We Have Never Been Modern. To be modern for Latour is to
know when to keep things pure and separate from each other (such as, say, law from
morality), and when to allow things to merge and become hybrids. This mode of rational,
rather than emotional or even irrational, separation is the cudgel of modernity.

If modernity is all about rational distinctions, postmodernity is all about the chaos that
comes when we realize that what we thought of as rational distinctions, were in fact empty
conventions, non-causal connections, or even thinly-veiled prejudices. The judge’s moral
preferences can never really be kept away from the law (and postmodern legal thought
teaches us that there are always plural moralities, rather than one, neutral and
overarching). So, even if we cannot quite achieve this, we should at least pretend that we’ve
achieved it. The law cannot afford to show its emotional, irrational, non-neutral side.

Niklas Luhmann, the German sociologist who has been influential in strands of postmodern
legal thought, has offered a version of legal modernity which, however, is distinctly
postmodern. What appears to be a rationally determined legal system whose decisions are
taken in strict causal order, is actually a system beyond individual or even collective human
control, whose decisions are made according to the strict internal logic of systemic survival
(Luhmann 2004). The law, just as any other system, wants to carry on existing
(“autopoiesis”). This is the only thing that guides the law, according to this sobering view.

Such conceptualizations propelled the law well beyond the textual and even the contextual,
and towards yet unchartered territories that have to do with technology, biology,
geography, physics (and often quantum at that) and so on. Postmodern legal thought, in this
most recent iteration, has moved from the textual (without abandoning it but trying to
reimagine it) into the material, which is largely understood as spatial and embodied. The
engagement with the works of Michel Foucault have given rise to the biopolitical strand of
the postmodern legal thought, that shows how our bodies are disciplined by the law
through its institutions of prisons, courts, administration, and so on (Fitzpatrick and Golder
2009). Legal geography has proclaimed that law and geographical space are indivisible and
cannot be considered in isolation. Our spaces and our bodies are no longer areas of free will
and freedom of choice, but tools in the society of surveillance and control (Philippopoulos-
Mihalopoulos 2014).

It is not all apocalyptic. Thinkers like Latour, along authors like Rosi Braidotti (2013) and Jane
Bennett (2010), have encouraged legal scholars to invent new and exciting ways of
reimaging the subject of law. Thus, humans are no longer what was thought to be following
the European Enlightenment, namely the rational, indeed modern Man, but a posthuman
hybrid that is mediated by technology, affects, other animate and inanimate bodies, and the
planet as a whole. Following the work of Spinoza, Nietzsche and Gilles Deleuze, ethics are
now understood as always of a particular encounter and never universal. This opens up new
juridical spaces of research, such as AI and the law, animality and the law, atmospherics of
control and biometrics, and new interdisciplinary collaborations with anthropology,
ethnography, Science and Technology Studies, and so on.

Out of an array of legal schools of thought, only postmodern legal theory has entered the
epoch of the Anthropocene, namely the geological epoch that acknowledges that human
presence has altered the geological strata of the planet. These new bedfellows demand of
the law a repositioning of human, collective and individual, responsibility towards the
planet. This is a time of global financial, geopolitical, religious and ecological crises, and it
has largely fallen on the shoulders of postmodern legal theory to think about the legal
repercussions of such crises.

The umbrella of postmodern legal thought is, however, getting a little tattered. The term
postmodern is not used as widely anymore. Faithful to its credo of the particular, plural and
fragmented, the postmodern legal thought is more comfortable positioning itself outside
strict time linearity, and calling itself variously critical legal thinking (appropriately
represented by the blog with the same name and the UK journal Law and Critique), law and
humanities (represented by the US journal Law, Culture and the Humanities), critical
sociolegal research, new materialist legal research, or even quite simply, law and theory.

5. Conclusion

The term ‘postmodern’ has allowed for a host of other terms, variously representing
currents of thought, positions and even ideologies, to emerge and indeed to even supersede
the original term. Initially thought of as temporal and historical passage from modernity to
the stage after (‘post’) modernity, the term ‘postmodern’ in terms of legal thought has now
blossomed into critical legal thought, critical legal studies, law and humanities, critical
sociolegal studies, and other denominations, and vigorously embracing such turns of the
law, as the linguistic turn, the corporeal turn, the spatial turn, the material turn, and so on.
We are standing before a precipice: we know that modernity, if it ever existed (as Latour
questions), with its supposed symmetry, structure, grand narratives and dialectics of
rationality and utilitarianism, has collapsed. Modernity has left in its trail, not a solid
movement, a new era or a new collective way of thinking, but merely a gesture towards the
future, a possibility for a ‘post-‘ that has sadly never quite materialized. But in its stead, we
witness the proliferation of a myriad of rich, variegated, politically-aware and theoretically-
adventurous other movements that attempt to grapple with an equally variegated
contemporary reality of vast inequalities across geographies and bodies, posthuman
considerations that demand the input of other disciplines, a proliferation of fake news and a
demotion of the value of truth, and a word that is at ease with its own self-destruction
through human-induced climate change, nuclear weapons and entrenched financial crises.

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