Vol. 8 No. 6 (June 1998) pp. 260-263.

POSTMODERN PHILOSOPHY AND LAW by Douglas E. Litowitz. Lawrence, Kansas: University Press of Kansas, 1997. 230pp. Cloth $35.00. ISBN 0-7006-0857-5.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College. Email: Strauber@grin.ac.edu.
 

Postmodern Philosophy and Law is an avowedly suspicious account of postmodern philosophy and its implications for contemporary legal theory. Douglas Litowitz is suspicious of postmodern philosophy for three reasons. First, he is committed to analytic philosophy. Secondly, he is committed to the principle that philosophy is fundamentally flawed if it fails to provide legal scholars with the conceptual criteria necessary to articulate a conception of a just (i.e., progressive) state and the legal reforms that may be necessary to achieve it. Third, he shares the widely held suspicion that postmodern philosophy fails to deliver these criteria because its anti-foundationalist tenets lead, in various ways, to legal theories that verge on, or fall into, the abyss of nihilism, relativism, or recapitulations of the legal status quo. Indeed, his suspiciousness runs so deep that Litowitz is compelled to promise that he puts the postmodern philosophers under review (Nietzsche, Foucault, Derrida, Lyotard, and Rorty) in the "best light" possible (Litowitz 1997:6).

At the same time, Litowitz is also ambivalent about postmodernism. On the one hand, he praises postmodernist philosophy because its insights about such things as the social construction of reason and justice and the indeterminacy of textual and historical interpretation are "important and interesting"; these insights help scholars achieve critical distance from legal practices, specific decisions, and the points of view of judges and lawyers, and they stimulate thinking about law and politics in novel ways. Yet, at the end of the day, he harbors the singular sentiment that these insights can be found, largely, in nonpostmodernist philosophy, and therefore there is "no special reason" for legal scholars to read postmodernist theory except for what they will learn about postmodernism's influence on legal theory and other scholarly domains like literature, feminism, art, and philosophy (Litowitz 1997: 166).

Litowitz appears to prefer legal theories that build on the work of the likes of John Rawls, Ronald Dworkin, and Michael Walzer. For Litowitz, the virtues of their work are twofold. One virtue is that it is sufficiently "postmodernist" in its rejection of modernist claims about transcendent ideas about reason, justice and the like and in its maintenance of a critical distance from practices, decisions, and what judges and lawyers do. The second virtue is that it attempts to integrate the first virtue with coherent philosophical conceptions of the contingent character of existing legal and political ideas, values, institutions and practices that are sufficient to constitute a groundwork for normative claims about justice and legal reform (Litowitz 1997:41, 155, 173). Naturally, Litowitz's suspiciousness, ambivalence, and theoretical preference color his characterization of the postmodernists under review; fortunately they do not do so in such a way as to undermine the usefulness of this version of the story of postmodernism and legal theory.

As for the content, the first chapter skillfully characterizes the values of modernism, sketches an interpretation of the link between philosophical postmodernism and postmodernism in art, and then plots out salient differences between modernism and postmodernism. In the second chapter Litowitz frames pivotal distinctions between modernist and postmodernist approaches to legal theory that are used, to good effect, throughout the text. The crucial distinction he makes between them is that modernist approaches are written from a lawyer's or judge's perspective and the postmodernist from philosophical perspectives external to participants on the presumption that participants are, among other things, deluded by the law or unaware of the extent to which legal language and processes are products of power relations. Litowitz assigns each approach its respective strengths and weaknesses: basically, the strength of postmodernist legal theory is that it shuns dubious ahistorical conceptions of human nature, reason, and truth; its outstanding weakness is that its unremitting antifoundationalism cannot provide the philosophical groundwork for legal theory necessary to support claims about the just state and legal reform.

Chapters three through seven provide a remarkably lucid and uncommonly readable version of the legal implications of the five postmodern philosophies under review. Nietzschean philosophy is portrayed as an excellent source for critiques of natural law, as well as of ahistorical claims about relationships between law, rights, and power. Litowitz's Nietzsche is not a nihilist (as he is for many other scholars); but Litowitz finds Nietzsche's philosophy so ambiguous about law and politics that he refuses to go any further than to say that he "suspects" (Litowitz 1997: 57-8) that a groundwork for claims about justice and legal change might be teased out from it, and even then he questions whether those claims will necessarily be compatible with democracy and the rule of law.

Litowitz treats Michel Foucault as an extension of Litowitz's Nietzsche, in that Litowitz sees Foucault's philosophy as a reservoir of criticisms of conventional views of law, rights, and power. In particular, he values Foucault's philosophy for the view it provides of the role of law in non-coercive forms of social command and supervision, and the critical perspective it provides on the inadequacy of the law to protect the rights of individuals and to indicate humane social policies. Nonetheless, Litowitz finds Foucault's philosophy to be lacking because it rejects what any convincing groundwork for reform requires, which is a conception of the role of rights and how they do actually protect individuals.

In its turn, the deconstructionist philosophy of Jacques Derrida is treated in a more positive light than the philosophy of Nietzsche or Foucault because of its distinction between law and justice, but it is also fatally flawed by inconsistency. That is, Derrida's deconstructionism is usefully critical of modernist metaphysics about law, but his conception of justice retains elements of that metaphysics which Derrida's deconstruction is meant to clear away. The lesson that exposing this contradiction is meant to teach us is that legal theory must have a set of some consistent groundwork commitments because without them a conception of justice and law will be so abstract that its practical implications are either unpredictable or vague.

The previous three chapters build into Litowitz's reading of Jean-François Lyotard, who is cast as "perhaps the central figure of postmodernism" (Litowitz 1997: 109). Perhaps Lyotard's philosophy is cast this way because it comes close, but not close enough, to providing the requisite groundwork for legal reform. That is, Litowitz's Lyotard philosophy justifies the necessity of recognizing the legitimacy of various and competing, and often incommensurate, narratives about self-identity, society, and knowledge. Yet this philosophy fails to deliver the desired goods about law and justice because it is too skeptical about the role of consensus as a mechanism in a just state, and because Lyotard too fails to provide groundwork reasons for case-by-case judgments about which narrative is more just than another.

The penultimate chapter depicts Richard Rorty's pragmatic philosophy as a form of postmodernism. Litowitz's Rorty is very favorably reviewed as a source of coherent intellectual advice about the necessity of historical and contextual criteria for making case-by-case and piecemeal judgments about what justice requires. Nevertheless, Litowitz cannot find very much more in Rorty's pragmatism that is useful for understanding what a just state and legal reform require save an admonition, in effect, to treat different persons alike. Praiseworthy as this admonition is for Litowitz, he still finds it problematic because it lacks the philosophical warrants that would distinguish between the need to reform, rather than to conserve, existing conceptions of justice in the state and law.

Litowitz's solution for this type of problematic, and more generally for the problematics that arise from the relative strengths and weaknesses of postmodernism as discussed in the final chapter is, as I indicated earlier, "more philosophy" of the kind associated with Rawls, Dworkin, and Walzer. I find this to be disappointing advice, given Litowitz's opening premise that it is important to know about postmodernism because of its impact on law and political theory (Litowitz 1997: 2).

We know that there are legal and political theorists who are sympathetic to postmodernist criticisms of the state and law who have advanced the thesis that the foremost challenges confronting postmodernist reform are directly related to structural and individual, not philosophical, issues. Specifically, these issues concern the extent to which there are realistic prospects for postmodern reform of the state and law given the perceived failures of socialism and welfare state politics; the triumphs of transnational corporate economies; the perceived triumph of liberal-democratic ideology and capitalism; and the celebration of the politics of self-identity that encourage cleavage along the lines of race, sex, gender, and, to a lesser extent, class differences. From the perspective of these issues, it is various kinds of politics, and not philosophy, that are the reliable guide to the prospects for reform.

These issues aside, if one is more, rather than less, confident about the role of philosophy as a guide to practical legal and political problems, Litowitz's preference for the philosophy of Rawls, Dworkin, and Walzer is still disappointing. Enough criticism has been written about them, and others of their mind, by radical feminists, socialists, and critical sex and race theorists to compel scholars of law and society to give thought to how the kind of scholarship Litowitz prefers tends toward arguments about reform that are part and parcel of a culture predisposed to repress, to undermine, or to truncate attempts at ("authentic") social change, all in the name of justice, the state, and the law.

However, these disappointments of mine should not detract from the success of this book. It does provide a skillful version of the strengths and weaknesses of the legal implications of the postmodernists under review. I hazard the guess that serious undergraduates will find this text to be lively and engaging. For graduate students who are sympathetic to postmodernism, there are ample and intellectually stimulating opportunities for taking issue with Litowitz's characterizations of the postmodernists under review and his claims about the political and legal implications of their work. More importantly from Litowitz's point of view, law scholars who are unfamiliar with postmodernist philosophy and curious about its legal implications should be better informed by what they find. But as for how scholars who have a vested interest in postmodernism will react to Litowitz's treatment of it, I prefer not to hazard any guesses!
 

REFERENCES

Dryzek, John. 1996. Democracy in Capitalist Times. New York: Oxford University Press.

Handler, Joel, et. al. 1992. "Postmodernism, Protest, and the New Social Movements." 26 Law and Society Review 697.

McCann, Michael W. et. al. Comments on Presidential Address. 26 Law and Society Review 697.

Sarat, Austin. 1994. "Leading Law into the Abyss: What (If Anything) Has Sociology Done to Law." 19 Law and Social Inquiry 609.


Copyright 1998