VOL.6 NO.10 (OCTOBER, 1996) pp. 157-161.
TOWARD A NEW COMMON SENSE: LAW, SCIENCE AND POLITICS IN THE
PARADIGMATIC TRANSITION by Boaventura de Sousa Santos. New York
and London: Routledge, 1995. 614 pp. Paper $29.95.
Reviewed by Lief Carter, The Colorado College.
Dear Dr. de Sousa Santos:
I've been asked to review your book. I loudly cheer your basic
themes. The postmodern movement IS a paradigm change of great
importance. The new paradigm DOES overthrow many epistemological
assumptions in both social philosophy and empirical research.
Something like "common sense" is perhaps the closest we
can come to a common, and hence emancipating, human language. And
I agree that imagining the achievement of such a language is a
utopian enterprise. But I gotta tell ya, man, I'm having a lot of
trouble getting through this thing.
For openers, I struggle with your rhetorical style. I'm not sure
whether it's the sentence construction, or abstracted
terminology, or what. But, well, take this example, which I've
selected by opening the book at random and writing down the first
sentence I saw. (This is from your second chapter, titled
"Toward a Postmodern Understanding of Law," page 61
near the bottom.)
This concern with systematization and rationalization, which is
typical of seventeenth- and eighteenth-century jusnaturalism, has
its roots in the legal humanism of the fifteenth and sixteenth
centuries, and in its project has its roots in Cicero's ideal of
reducing law to an art or a science (JUS IN ARTEM REDIGENDO) by
means of revealing the abstract reason contained in Roman law
(the RECTA RATIO or RATIO JURIS).
You invent so much new terminology, and at least in this passage
sprinkle so liberally with Latin phrases (On page 61 I count 14
Latin phrases in addition to the three included in my quote.),
that it's slow going. And you have asked your readers to follow
you through nearly 600 pages of what looks like at most
eight-point font! And substantively, doesn't it somehow matter
whether law could, ideally, be reduced to an art or a science?
And then there's the organization. For Chapter Three (your
empirical chapter, "The Law of the Oppressed," in your
Part II, "The Time-Spaces of Law: Locality, Nationality, and
Transnationality"), I count two "I" heads, six
"A" heads, four "1" heads (one of which has
no follow-up), thirteen "a" heads, and thirteen
"i" heads. So much goes on in this chapter that to
link, say, the section on p. 130 titled "TOPOI and Judicial
Protopolicies," to the untitled Diagram 2 on p. 218, which
shows the movement from "The TOPOS of Fairness" and its
emphasis on mediation toward the more legalistic and impersonal
"Asphalt Law as a Threat," requires real effort.
(Linking the beginning of my last sentence to its end is hard
enough!) And the index could be more helpful. It has no entry for
"jusnaturalism," and I could define "the law of
the asphalt" only by extrapolating from the indexed
reference to "asphalt candidates."
By the way, I think the concept of your "Chapter
Three-In-The-Mirror," where I found the definition for
"asphalt candidates," is exciting and promising. (But
was that first subhead title, "Induction," a pun or a
typo? The original chapter three begins with
"Introduction," and I couldn't see how
"Induction" mirrored "Introduction." But
onward!) The idea of writing your own personal account of your
research effort on odd-numbered pages, opposite the actual
research description itself on the even-numbered pages, would
have worked even better if you had keyed the substance of the
left-hand page to that of the right, sort of like horizontal
footnotes. As it was, I could never tell when I was supposed to
stop reading the one and turn to the other. Still, it graphically
underscores your point that we cannot separate subject and
object. Nice PM touch!
My main point in writing you, however, is not so much to carp as
to pose some questions for you. Let me preface my questions by
summarizing what I take to be some common features of postmodern
thought:
1. Reality is socially constructed. (My non-PM friends usually
tell me to jump out a window when I make this argument, not out
of anger--I hope!--but to claim that gravity and the laws of
physics are not socially constructed. But I reply instead that I
of course I won't jump, but that's simply because my colleague
and I share the same construction. If I were a religious
fundamentalist who thought that jumping ten stories would lead me
straight to heaven and eternal bliss because I jumped for a holy
cause, I might in fact jump.) Academics, therefore, have no
special pride of place when it comes to discovering insights or
truths about the world. We don't get closer to "the
truth" by describing "more." (Your
autobiographical notes make this point very powerfully.) We
academics must honor the customs and expectations of our
audiences, just as all successful rhetors must, when we seek to
persuade. All knowledge is local, and we make our images and
claims appealing only within local and contingent frameworks.
2. As Richard Rorty reminds us, the only thing that logic proves
is that you can't prove anything logically. All logics lead
either to vicious circles or infinite regresses. You know, the
problem we get into when one asserts that there is no truth and
the other notes that the first has just contradicted himself (as
I implicitly did when I described an "objective" truth
about persuasion and rhetoric).
3. The best definition of "truth" we can come up with,
given one and two above, is that statements which cohere within
the rhetorical framework shared by (indeed defined by) the
members of a particular audience, are true. (This definition is
circular; other definitions are infinitely regressive.) Note
that, by this definition, claiming truth does not automatically
create truth. Internally contradictory statements are incoherent
and hence not true. For example, I recently debated advocates for
Colorado's Amendment II, which forbade any unit of government in
Colorado from adopting any policy prohibiting discrimination
against (or allowing recovery for discrimination against) anyone
of homosexual orientation. When the measure's advocates publicly
claimed that they only wished to sanction conduct, their claim
was untrue, given the legal text they themselves drafted, which
sanctioned homosexual orientation quite apart from conduct. In
the PM world, then, it is still easy to show that a claim is
"wrong," even when we cannot prove that it is
"right."
And now my questions:
Q. Who's your audience? Your approach is so thoroughly European
and scholastic--you really must discuss Grotius and Hobbes, as
well as many people I've never heard of, to feel you've done your
job--that I have trouble connecting your arguments to an American
audience. Yet I gather this is not a translation. Do you believe
this book, as written, will persuade a group of people (who in
turn possess political power) to act meaningfully on your
advices? Who are these people? Or do you reject the premise that
those who seek to persuade must speak in the language of their
audience?
Q. If you hoped to reach an American audience of the
intellegensia, what led you not to address the work of Fish or
Rorty? I don't find them (or Davidson or Quine) in the index.
Q. Do you find a place in academic (as opposed to political)
rhetoric for postmodern foundationalism? On p. 358, in the
section titled "Human Rights in the Paradigmatic
Tradition," you say, "A new architecture of rights,
based on a new foundation and with a new justification, is called
for.... The new architecture must go to the roots of
modernity,...to...turn the roots upside down, so to speak, and
plant there the construction site." Are you proposing an
academically viable foundational postmodernism, or are you trying
to persuade an academic audience via a mytho-poetic appeal to a
foundation you know does not exist?
Clarifying your positions on these matters might ease my passage
through this rich and dense book.
Sincerely,
Part II
Part I of this review is certainly unconventional for this
medium, THE LAW AND POLITICS BOOK REVIEW. I began, in some
confusion and frustration, to write it before I tackled the book
systematically. I hope that readers will react to it in one of
two ways. Readers who find a hypothetical letter to an author
appropriate and useful for this academic locus will not welcome
the archetypally academic rhetoric of books like TOWARD A NEW
COMMON SENSE. Readers who find my Part I inappropriate will
presumably do so because they feel that the format of a personal
letter does not honor the rhetoric of a book review locus. But
readers in this second group would still agree that rhetoric must
suit setting in order to project a work's truthfulness and
integrity. And this is precisely the problem with this book. Any
book that promotes a new postmodern common sense cannot, if it
asserts abstracted "facts" and categorical truths on
every page, move its audience any more than a prayer will move
confirmed atheists.
Now to a more conventional form of review. The author, judging by
his autobiography, has circulated in his thirty-year career among
Coimbra University in Portugal, the Free University in West
Berlin, the Max Planck Institut in Freiburg, Yale, and the
University of Wisconsin. In the 1970s he lived, in considerable
poverty, in a FAVELA in Rio de Janeiro, researching the Brazilian
legal system's hegemonic oppressions of the poor.
De Sousa Santos's two "chapters three" report the
results of that research. Many of the case studies's observations
and conclusions are very familiar, but he reaches a provocative
conclusion: Were we to imagine (in utopian fashion, which the
author explicitly embraces, in a form that he labels
"heterotopian," at book's end) an emancipated and
egalitarian legal and political system in Brazil, we WOULD find
many of the prerequisites for such a system already in place in
the daily legal life of the FAVELA, one that lives under the heel
of a dictatorial regime. Professional lawyers do not monopolize
legal services; institutions are relatively autonomous,
accessible and participatory, and much effort is (was) made to
create and enforce dispute settlements rhetorically rather than
violently (p. 248).
The "mirror" chapter three begins with a dense
reflection on the nature of, and distinctions between,
"self-portrait" and "autobiography." We are
told that literary hermeneutics distinguishes between them. So
does common sense. We learn that "self-invention...is the
memory of memory, the reconstruction of a melted away
memory" (p. 131). Kafka, St. Augustine, Shakespeare, Hume,
Rousseau, Henry Adams, Kierkegaard, and Montaigne (the last in
reference to farting), all have their say on the nature of
self-revelation before we get to the author's story. But the
story itself appeals in many ways. Those of us who have spent
time in the field doing case studies and related ethnographic
research probably know but have not expressed what the author
says so well when he contrasts the "rigid, dead words"
of our questionnaires and checklists with the richness of our
personal experiences with our subjects (p. 217).
It is hard to describe the chapters that bracket the actual
research. They dump a lifetime of academic observations and
conclusions about anything related to law, the state, and the
history of political thought (particularly post-Marxist
socialism), into one book. From the FAVELA of chapters three we
jump, for example, to a chapter four (125 pages long) dealing
with globalization, the future of nation-states, and the
possibility of a new "legal ecumenism." Besides
verbosity and jargon (and the propensity to invent new words and
phrases altogether, like "secondarized," p. 191, and
"paramountcy," p. 201.), at least two other features
prevent this book from helping others construct the common sense
world it seeks.
--First, grand generalizations pop up a lot. For example:
Because modernity has replaced the concept of FORTUNA with the
concept of risk, the context of trust has thereby expanded
tremendously; it covers the risks and dangers of human action,
from now on freed from divine injunction and endowed with a
vastly increased transformative scope. (p. 102)
More perspicacious readers may have no trouble with that
sentence, but I could ponder it (as I could most sentences in
this book) for many minutes and end up with nothing but
stimulating questions, e.g.,: A lot of folks play the lottery
these days. Are they not moderns?
--Second, the author's main rhetorical device is to assert
abstract descriptions. He even characterizes his research agenda
as a "general coverage of the class-determined operation of
the legal system in Brazilian society" (p. 195). More
typically, we learn that the "emancipatory potential"
of the "baroque feast"...resides in disproportion,
laughter, and subversion" (p. 503); and we learn that
capitalism developed in three periods: liberal, organized, and
disorganized (p. 107). This is a book of many lists.
This book, then, will not contribute to the postmodern
paradigmatic shift. Its catholic and provocative arguments could
make a great read for an advanced scholar marooned on a desert
island; they DO provoke a multitude of fascinating reflections.
(ARE people who play the lottery "pre-modern?") Viewed
from the traditions of European social thought, it is in many
ways an admirable book. The author is humblingly knowledgeable.
But postmodernism is the author's destination, when it should
have been his starting point. At the core of this book is a
sometimes angry classical European scholar. Still a bit
incredulous that his traditions are "magnificent networks of
misinterpretation, monuments of trained and specialized
ignorance" (p. 167), he tries to explain and fit postmodern
sensitivities into the very rhetorical tradition that
postmodernism rejects. The paradigmatic transition that
encourages us to seek knowledge that is useful because it is
concrete, contingent, and ironic, need not produce a sentence
that begins:
The second conclusion is that this extremely rich and complex
process of transnationalization is inherently contradictory, and
animated by dialectical tensions between deterritorialization and
reterritorialization of social relations, globalization and
localization, harmonization and differentiation.... (p. 375)
Someone who knows as well as this author that "the richness
of the experience had nothing to do with the rigid, dead
words..." (p. 217), need not have written this wordy, if
passionately alive, book.
Copyright 1996